NAWABKHAN ABBASKHAN

THE STATE OF GUJARAT

February 19, 1974

[V. R. KRISHNA IYER AND R. S. SARKARIA, ]J.j

Do1nbay Police Act, 1951, Sections 56 and 142-Prosecution for contravention of exten11ne11t order-Pending trial High Court quashing the order u11der

Art. 226-EQect of quashing-If void ab iniio-Natural justice.

The appellant was prosecuted under s. 142 of the Bon1bay Police Act, 1951 on contravention of an cxternment order issued under s. 56 of that Act. During the pendcncy of the criminal trial, the High Court, in a petition under Art. 226 of the Constitution, quashed the order of extemment on the ground that no opportunity to show cause was &iven against allegations relating to areas wh:!;· the acts were alleged to have been committed. In criminal trial, the trial court acquitted the appellant. On appeal by the Stte the High C6urt convicted the appellant. It held that the accused bad re-entered the forbidden area during tht currency of the order. The High Court was of the view that the quashing of thL order by th: court did not render the order of externment void ad initio but it only invalidattd the order with effect from the date of the isstie of the writ quashing the order.

On the question whether the externment order having been quashed by the High Court during the pendency of the criminal trial the order had become void ob. initio and there being no quit order there was no offence.

Allowing the appeal,

HELD : that an order which infringed a fundamental freedom passed in violation of the audi alteram partem rule was a nullity.

A determination i<i no determination if it is contrary to the constitutional mandate of Art. 19.

On this footing the externment order was of no effect and its violation was no offence.

Any order made without hearing the party affected is void and ineffectual to bind parties from the beginning if the injury is to a constitutionally guaranteed right May be-that in ordinary legislation or at common Jaw a Tribunal having )Urisdictidn and failing to bear the partie.11 may commit an illegality which may render the proceedings voidable when a direct attack was made thereon by way of appeal, revision or review. but nullity is the consequence of unconstitutionality and so the order of an administrative authority charged with the duty of complv tog with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy.

The duty to hear menacles his jurisdictional exercise and any act is, in its inception, void except when performed in accnrdancc with the conditions laid down in regard to hearinr. [432 G. 436 FJ

An rder which is vi;>id ma.y b~ di, rec_tty and collateral!"." challenged in legal

proceed1n~. An order ts null and void tf the statute cloth1ng the admini<itrati\"c tribunal with nower conditions it with the obligation to hear expressly or by implication.

Beyond doubt an order which infringes a fudamental freedom passed in violation of the audi alterom parte1n rule is a nullity.

When n competen~ ourt hols such _official act or order invalid, or sets it aside, it operates fro1n nativity, that 1s, the impugned act or order was never valid.

[439 F]

In the present. case a fuJ!dmentaJ .right of the petitioner had b:en encroached uoon by the Pohce Com1ss1oner without due hearing. The Court quashed that orde~. The legal result !s that the accused .was never guilty of fl'Jutiog .1n order which never legally existed.

[439 D-E]

lTe Cou_rt did not. express its final opinion on the many wideranging prob lems tn public law of 111ega1 orders and violation theeof by citi, zn~.J

[439 E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 83 A of J 970.

From the judgment and order dated MarGh 5, 1970 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 673 of 1968.

S. K. Dholakia, for the appellant.

G. A. Shah and M. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

KRISHNA (YER, J. The appeal before us raises a thorny issue of smr.e importance which may be epigramaticatly expressed as when has the citizen the discretion to disobey an order ? When is a determination not a determination? This riddle has to be solved in the foggy legal light of conflicting decisions and academic opinions, Indian and Anglo-American. To appreciate the contention urged in the case a few facts must be narrated. ·

Section 56 of the Bombay Police Act, 1951, (the Act, for short), empowers a Police Commissioner to extern any undesirable person on grounds set out therein and the petitioner fell victim to such a direction issued on September 5, 1967. On contravention of that order he was

prosecuted under Sec. 142 of the Act but was acquitted by the trial Court. The State appealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is whether the externment order having been quashed 1'y the High Court under Art. 226 of the Constitution 011 July 16, 1968-during the pendency of the criminal trial-it had become void ab initio and there being thus no quit order in Jaw there was no offence. The learned Judge rejected this effect of the w.rit issued under Art. 226 and convicted the accused. His reasonit1g, invigorated by surgical imagery, flowed thus :

""Now the contraveption took place on September 17, 1967 whereas the externment order in question has been quashed about one year thereafter on July 16, 1968.

The question, therefore, is : can a person against whom an order of externment under section 56 of the Bombay Police Act has been issued disobey the said order and contravene the directions contained therein with impunity if subsequently the order is quashed ? If the argument of the learned counsel were to be accepted, though the externment order held the field and had not been quashed at the material time, no offence would be committed io view of the subsequent quashing of the order. In other words, though the order had not been declared invalid at the material time a contravention thereof would not constitute an offence. A distinction in my opinion has to be drawn be!ween an order which is ab initio void and an order whkh is subsequently quashed on account of some technical defect or irregularity. If the order was ab i11itio void if it was a nu)lity frqm the inception, if it was a

still born chil<f, the matter would have stood on a different

footing. In the present case the child was alive and kicki, ng

and apparenlly healthy. It bas subse'!Jlently died during the course of an exploratory operation. The order has been held to be invalid and is quashed on the ground that it cannot be sustained on account of some defect, infirmity or irregularity which has been subsequently discovered. It cannoi be said that the order was void ab initio.

The order of the High Court passed on July 16, 1968 does not render the order nullity from its very inception. It is not retroactive. It does not render the order of e.xternment •no11 est". What it does is to invalidate it with effect from the date of the issue of the writ quashing the. said order. If the argument of the learned counsel were to be sustained it would result in an anomalous situation. The externment order Ca)l be violatd

with impunity if a subsequent writ petition is allowed and the order is quashed. The contravention, however, would .consti tute an offence if the writ petition is rejected. It is not possi ble to take a view which would result in such an anomalous situation. There is no principle in upholding the respondent's claim that he has a right to violate an order passed by an authority having jurisdiction to pass it, if subsequently he can persuade the court that there was an in-built lacuna or latent defect in the said order. In other words he claims to have

the right to judge for himself whether the order is legal or not and in anticipation of the court upholding his contention, the right to violate it with impunity. Be it realised that these powers are vested into the administration to enable it to take prophylactic action to protect the society from imminent dan gers. These powers cannot be allowed to be robbed of their potency at the sweet will of the person proceeded against in anticipation of a subsequent favourable verdict of the court."

There are sonie untoward ootentialities and legal anomalies visualised by the learned Judge which "lend assurance to the juridical coneept that an order or act quashed by a court is valid until judicially set aside or declared void. We have to examine the validity of this temporary validity imputed to an otherwise bad order. When does a bad order become bad?

Violation of natural justice is the vice of the order which was defied by the accused. We will first set out the relevant provision in G the Act and the ground of decision in the writ petition, shorn of unnecessary portions. Section 56 reads :-

"Whenever it shall appear in Greater Bombay "lid other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification ill tr.~ Ofil.· cial Gaz.ette, extend, the provisions of this section', to the Dis trict Magistrate. or the Sub-Divisional Magistrate special!y empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated L9;4 Sup. Cl/74

to cause alarm, danger or harm to person or property, or

(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission ot an ortence 1n".olving force or violence or an offence punish .. able under Chapter XII, XVI or XVII .of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant te said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fil, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and ala!'ln or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction (or such area ancl any district or districts, or any part thereof, contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the said area (or the area and such contiguous dis .. tricts, or part thereof, as the case may be), from \vhich he was directed to remove himself."

The vital freedom guaranteed under Art. 19 of the Constitution becomes a fleeting fragrance if a police or magisterial officer can \\'hisk

you a\vay by' a n1orc executive-than-judicial fiat. 'This strtJnge power, whose constitutionality is not challenged before us, is hopefully fettered in its exercise by Section 59 which runs thus :-

"(])Before an order under section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shalt inform the person in writing o[ the general nture of the material allegations against him and give him a reasonable opportunity of tendering an exolanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such npplication; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application iS made for the purpose of vexation or delay. Any written statement put in by such person sha!] be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocateor attorney for the purpose of tenderin~ his explanation. and examining the witness produced by him.

(2) The authority or officer proceeding under sub-section

(1) may, for the purpose of securing the attendance of any person a2ainst whom any order is orooosed to be made under section 55, 56 or 57, require such perso.n to appear before

him and to pass a security bond with or without sureties for sucn attendance durmg tne inquiry. If tne person taits to pass the secunty bona as reqwred or fils to appear before the officer or authority during the inquiry, it shau be lawful to the. officer or authonty to proceed w1tn the inquiiy and thereupon such order as was proposed to b~ passed against him may be passed."

The externment order was subject to this obligation of judicialisation. Mr Justice Bhagwati (as he then was) in quashing the order reasoned :-:-

"The show cause notice started with" a general allegation that the petitioner was desperate and dangerous man and was committing acts involving force and violence .. ; ........ .

This general allegation was then particularised and four different kinds of acts were specifically set out in clauses I to 4 with an overriding statement that these different kinds of •<:ts were committed by the petitioner during the .period from January 1967 upto the date of the show cause notice in "the aforementioned localities'', i.e. the localities knoV11n as Narol, Dani Limda Jamapur, Chandola and Benrampura local!ties

situate within the limit of Kagdapity, Gaikwad Havcli and Maninagar Police Stations. . . . . . . .. None of the allegations in the show cause , notice contained any reference to the area round about these specified localities and the petitioner was there:fore .not called upon to meet any allegation in regard to the area round about the specified localities. Even so, the Deputy Commissioner of Police relied on material which puri;>orled to show that the petitioner was guilty of different kinds of act in the area rour.d-about the specified localities and acting on such material proceeded to hold that he was satisfied that the petitioner was engaged in the commission of acts involving force and violence . ..... The cxternn1ent order is so far as ir was based on the satisfaction of the Deputy

Commissioner of Police that the petitioner was engaged i" the commission of , acts involving force and violence and acts punishable under Chapter XVI and XVII of the Indian Penal

Code in the roundabout are~ within the limits of Kagdapity, Gaikwad. Haveli and Maninagar Police Stations was, there- fore, cloarly beyond the scope of the show cause notice. No opportunity to show cause against any allegation relating to the roundabout area within the limits of Kagdaoity, Gaikwad Haveli and Maninagar Police Stations was afforded to the petitioner and the' exter.nment order must therefore be held to be invalid.

There is also a second ground on which we must hold the externment order to be invalid. It. is well settled that it is a mandatory requirement of section 56 that the externing authority must from a subjective ooinion that witnesses are not willing to come forward to give evidence in public. against

the person sought to be ex.terned by reason of apprehension It. on their part as regards the safety of their person or property; This requirement is clearly not satisfied in the present case ... it is clear tltttt the opinon formed by the Deputy Commissioner of Police is only as regards the witnesses who are victims of the said incide.nts and not as regards the other witnesses.

This opinion would clearly not be the requisite opinion con

templated by the mandatory requiremnt of section 56.

We therefore allow the petition and make the rule absolute by issuing a writ quashing and setting aside the externmeitt order passed by the Deputy Commissioner of Police against the petitioner."

This judgment is now final an.d binds State and subject alike.

But does the demolition of the externment order take effect retroactively?

If it does, the accused is not guilty; if not, he is.

The constitutional perspective must be clear in unlocking the mystique of 'void'' and 'viodable' vis-a-vis orders under the Act. The Act is a constraint on a fundamental right and so the scheme of Art. 19 must be vividly before our minds if extaordinary controls over human rights statutorily vested in administrative tribunals are to be held in constitutional leash. Freedom of movement, of association, of profession and property, are founding commitments and severe res .. traints thereon must be strictly construed, not in the name of natural justice-an elusive phrase-nor in literal loyalty to Section 59 but in plenary allegiance to the paramount law. The restriction on the fundamental right must be reasonable and the harsher the restriction the heavier the onus to prove reasonableness. The High Court in Special Criminal Application 18. of 1969 held the basic condition clamped on the authoritv to hear and be satisfied according to the 'due process' prescriptions of Section 59 had been violated and the order was liable to be quashed. In short, the finding was that the deprivation of the petitioner's fundamental right having been effected in a mode whic.h is not reasonable, as statutorily expressed in Section 59 of the Act, is

i!leal and unconstitutional. Once the jurisprudential underpinnings of Section 56 and 59 of the Act arc seen, the invalidatory effect is p1ain. An unconstitutional order is void, consequential administrative inconveniences being out of place where an administrator abandons constitutional discipline and limits of power. What about the peril to the citizen if an official, in administrative absolutism, ignores the constitutional restrictions on his authority and conden1ns a person to flee his home ? A determination is no determination if it is contrary to the constitutional mandate of Article 19. On this footing the externment order is of no effect and it!i violation is no d'ffence.

. Unfortunately, counsel overlooked the basic link-up between con. stitutionality and deviation from the audi altJeram partem rule in this jurisdiction and chose to focus on the familiar subject of natural just1ce as an independent requirement and the illegality following upon its noncompliance. In Indian constitutional law, natural justice does not exist as an absohite jural value but js humanistically read by

courts into those great rights ensh!i\led in Part III as the quintessence of reasonableness. We are not unmindful that from Senecas Medea, the Magna Carta and Lord Coke, to .the constitutional norms of modern nations and the Universal Declaration "of Human Rights it is a deeply rooted principle that 'the body of no free man shall be taken, nor imprisoned, nor dissised, nor outlawed, nor banished nor destroyed in any way' without opportunity for defen!'e and one of the first principles of this sense of justice is that you must not permit one side to use means of influencing a decision which means are not known to the other side.

Now, we may as well examine the invalidatory consequence of violation of natural justice on a judicialised administrative act like the externment order under Sec. 56. The wider questions of error versus excess of jurisdiction, <leclaration of invalidity as distinguished from voidable orders being avoided, order void ab inilio and valid till voided retroactively by competent tribunal and the directory-mandatory and ministedal-Judicial dichotomies and allied problems, present, on current precedents, a picture of juristic jungle and need not be ordered into a garden for the limited purp'oses of this case.

A learned author has cynically said : 'The case law, however, affords the usual spectacle of anarchy up9n which order can hardly be superimposed'.(')

Here, a tribunal, having jurisdiction over area, person and subjectmatter, has exercised it disreiarding the obligation to give a real hearing before condemning. Does it spell death to the order and make it still-born so that it can be ignored, defied or attacked collaterally ? Or dqes it mean nullifiability, not nullity, so that before disobeying it a court must declare it invalid? Or, •the third alternative, docs it remain good and binding•hough voidable at the instance of a party aggrieved by a direct fhallenge ? And if a court voids the order docs it work retroactively?

All these lines of approach have received judicial blessings from the House of Lords in the .landmark case of Ridge v. Baldwin.(")

The legal choice depends not so much on neat logic but the facts of life-a pragmatic proposition. Where the law invests an authority with power to affect the behaviour of others what consequence should be visited on abuse or wrong exercise of power is no abstract theory but experience of life and must be solved by practical considerations woven into legal principle. Verbal rubrics like illegal, void, mandatory," jurisdictional, are convenient cloaks but leave the ordinary 111an, like the petitioner here, puzzled about his remedy. Rubinstein poses the issue clearly :-

"How does the validity or nullity of the decision affect. the rights and liabilities of the persons concerned? Can the persons affected by an illegal act ignore and disregard it with impunity? What are the remedies available to the aggrieved parties? When will the courts recognize a right to compcnsa-

~ (I) Jurisdiction And lllegality-RubinStein.

(2) [19631 2 All E.R 66.

tion for damage occasioned by an illegal act? All these questions revert to 1he one basic issue; has the act concerned ever had an existence o: is it merely a nullity ?

Voidable acts are those that can be invalidated in certain proceedings; these proceedings are. especially formulated for the purpose of directly challenging such acts ...... On the other hand, when an act is' not merely voidable but void, it is a nullity and can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon.

In other words, it is subject tq 'collateral attack'.'' Kelson's view, when a court holds an act a nullity, is that it is not a declaration of nullity; it is a (fue annulment, an annulment with retroactive force'.

Even so, the dilemma of the petitioner is, if an authority in excess or error of jurisdiction directs an illegal act, should the citizen suffer it until upturned in a legal proceeding directly or collaterally ? Can he resist the injury even if the seal of authority simulates validity ? The eloquent words of Wedderburn quoted by Rubinstein in the context of nullity is pertinent:-

"What is a sentence? It is not an instrument with a bit of wax and the seal of a court put to it; it is not an instrument with the signature of a person calling himself a register; it is not such a quantity of ink bestowed upon such a quantity of stamped paper : a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled." Illegal acts of authorities, if can be defied on self-determined voidness, startling consequences \Viii follo\v, as the High Court apprehends. A detcnu will beat back, a builder will put his wall on the forbidden line, a court officer will meet with physical resistance, all because the order is, on the view of the affected party, a nullity and is later proved so before a court. Not every action by a Government agency carries with it the force of law and naturally what should he do if he concludes that the action is invalid? Should he disobey, face penal proceedings and get his violation legitimated by Court? Is there no alternative to breaking the laW or order to expose the 1awlessness of the law or order? A recent book ('Discretion to Disobey' by Kadish and Kadish(!) establishes this line of thought from Benjamin Couttis, a former Supreme Court justice, who argued to the Senate on behalf of President Andrew Johnson(sic) during the latter's impeachment trial a century ago :

"I am aware that' it is asserted to be the civil and rnoral duty of all men to obey those laws which have been passed through all the forms of legisbtion until they shall have been decreed by .iudicial authority not to be binding; but this is too broad a statement of the civil and n1oral duty incun1bent

(t) A Study of Lawful Departures from Legal Rules p. 105 1973-Stanfoni University Press, California, U.S.A.

either upon private citizen or public officers. If this is the measure of duty there never could be a judicial decision that a law is unconstitutional, inasmuch as it is only by disregarding a law that any question can be raised judicially under it.

I submit to senators that not only is there no such rule of civil or moral duty, but that it may be and has been a high and patrotic duty of a citizen to raise a question whether a law is within the Constitution of tJie country."

On this view it is almost as though the Constitution contained the words to be found in the constitution of one contemporary German stat• : "It is the right and duty of every man to resist unconstitutionally exercised public power." More appooite to the present case are these remarks of the same authors:-

"If policeman, in the exercise of his office, orders a Black person to leave a park in a Southern town, is the citizen obliged to obey the policeman's order and wait until later to invoke some remedy to challenge 'its validity ? Can the citizen be constitutionally convicted of some crime based on his refusal to obey the policeman's order, even if a court should later determine" that the order was unconstitutional?

Not long ago the Supreme Court considered just this case.

It had little difficulty reaching a decision. The order was found to be an unconstitutional violation of the defendant's rights first because it was designed to enforce racial discrimination in the park, and second because it was based on the possibility of unlawful troublemaking by others rather than on any wrongdoing by the defendant. So much was sufficient to require a reversal-of the defendant's conviction :

"Obviously,. . . one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The policeman's order was treated like a statute : obedience to an unconstitutional order of an official is not required, even though the order has not yet been ruled invalid by a court. The citizen is at liberty to make his owrr judgment of the order's validity and to act accordingly. If he tufns out to be wrong, of course, he is answerable. But if he turns out to be right, he is not answerable in any way and not for disobeying the order, since the order was in, valid, and not for undertaking himself to decide in advance that the order was invalid, since he was at liberty to make that decision.

Where the situation escalates into active resistance and perhaps the use of force, typically involved in cases of resistance to unlawful arrest or to the execution of some process, such as serving a search warrant, the interest in the physical welfare of the policeman and the citizen (as well as others) may often produce a contrary answer. Indeed, an increasing numper of jurisdictions afford no right to resist an arrest made under colour of authority, even if the arrest is later determined to be invalid.

The dtizcn is obliged in this circumstance to yield and submit his case to the courts. As the Model Penal Code concludes, '.'It should be possible to provide adequate remedies against illegal arrest, without permitting the arrested person to resort to force-a course of action highly likely to result in greater injury even to himself than the detention."

The law in this area is full of alarming conundrums hardly resolved by academic writing or judicial" dicta.

We may narrow down the scope of the discussion by confining it to breaches of the audi alteram par/em rule. Does this defect go to jurisdiction? Perhaps-not all violations of natural justice knock down the order with nullity. In Dimes v. Grand Junction Canal(') bias or pecuniary interest in the judge was held to render the proceedings voidable, not void. It must be conceded that even this proposition is not out of the penumbra of doubt and dispute (vide A.I.R. 1958 S.C. p. 86). Formalitic moulds will not solve these issues of life and juristic policy enacted with clarity into the statute book is the necessity of this lawless region of the rule of Jaw.

The common man and thei Courts are confronJed with issues we have touched upon; and, against the background of processual guarantees under the Constitution, the law of jurisdiction and illegality has to be legislatively settled, not as logical extensions of juridical doctrine but empirical formulations based on experience. Grave implications of law and order lurk behind this mlll'.ky branch of public law.

Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal.

May be that in ordinary legislation or at common law a Tribunal, having jurisdiction and failing to hear the parties, may commit an illegality which may render the proceedingi; voidable when a direct attack is made thereon by way of appeal, revision or review, but nullilly is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab illilio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing. May be, this is a radical approach, but the alternative is a travesty of constitutional guarantees, which leads to the conclusion of post-legitimated disobedience of initially unconstitutional orders. On the other hand law and order will be in jeopardy if the doctrine of discretion to disobey invalid orders were to prevail. As Learned Hand observed :-

"The idea that you may resist peaceful arrest. . . . because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine (the question is) not a blow for liberty but, on the contrary, a blow for attempted anarchy." ·

(I) [18521 3 H.L.C. 759.

NAWABKHAN v. GUJARAT (Krishna Tyer, J.) 437

The opposite view is expressed by the California Supreme Court in a case where one Yick came into the country unlawfully but was hell!

by the deputy sheriff without authority. He escaped and his abettor in the escape was convicted but in appeal the Court held :-

"An escaJ?e is classed as a crime against public justice, .and the law, m declaring it to_ be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that when one has been, by its authority or command, confined in a prison, that it is his duty to submit to such confinement until delivered by due course of law. But when the imprisonment is unlawful, and is itself a crime. the reason which makes fiight from prison an offense does not exist. In such a case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape."

American case-law is confiicting and doubtful expressions like "void on its face" "transparently invalid" have been used. We must remember the words of Justice Frankfurter "If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny". We dwell on these PQssible views to underscore the difficulties o~ solution.

English Judges also have not been uniform. Granting the order against a party to be void, does it have to be so declared by a court at bis instance of can the citizen interpret for himself and act on the basis of invalidity. The problem was considered by the Judicial Com mittee in Fernando's(') case where a minister dissolved a municipal council without opportunity to be heard. Lord Upjobn stated the position thus :- ·

"Apart altogether from authority their Lordships would be of opinion that this was a case where the Minister's order was voidable and not a nullity. Though the council should have been given the opportunity of being beard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person shQuld have the right to interfere. To take a simple example to which their Lordships will have to advert in some detail presently, if in Ridge v. Baldwin the appellant Ridge, who bad been wrongly dismissed because he was not gi-:en the opportunity of presenting his defence, bad perferred to abandon the point and accept the view that he bad been properly. dismissed, .their Lordships can see no reason why any other' person, such, for example, as a ratepayer of Brightonj should have any right to contend that Mr. Ridge was still the Chief Constable of Brighton. As a matter of ordinary common sense, with all respect to other opinions that have been expressed, if a person in the position of Mr. Ridge had not felt sufficiently aggrieved to take an)'

action hy reasoo of the failure to afford him his strict right

(I) L.R. [1967] 2 A.C. 337, 35'2 (Darayappah v. Fernando)

to put forward a defence, the order of the watch committee A should stand and no one else should have any right to complain.. . . . . . . . Their Lordships deprecate the use of the word void in distinc.tion to the word voidable in the field of Jaw with which their Lordships are concerned because, as Lord EveI'Shed pointed out in Ridge v. Baldwin quoting from Sir Frederick Pollock, the words void and voidable are imprecise and apt to mislead." B

I, n Ridge v. Baldwin (supra) Lord Reid and Lord Hodson opted for 'nullity', Lord Evershed and Lord Devlin supported the 'voidable' theory and Lord Morris of Broth-Y-Gest struck a practical note in between. The learned Lord said :-

"It was submitted that the decision of the watch com- C mittee was voidable but not void. But this involves the inquiry as to the sense in which the word "voidable", a.word deriving from the law of contract, is in. this connexion usd. !f the appellant had bowed to the decision of the watch committee and had ncit asserted that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the D decision, so claiming that it was invalid, and when in fact the watch committee adhered to their decision, so claiming that it was valid, only the court could decide who was right. If in that situation it was said that the decision was voidable. thati was awaited. But if and when the court decides that the appellant was right, the court is deciding that the decision of the watch committee was invalid and of no affect E and null and void. The word "voidable" is, therefore, apposite in the sense that it became necessary for the appellant to take his stand : he was obliged to take action for unless he did the view of the watch committee, who were in authority, would prevail. .In that sense the decision of the watch committee could be said to be voidable." In Svackman v. Plumstead Board of Works(') (181), Lord Seiber- F ne said:- ''There would be no decision within the meaning of the statute if there was anything of that sort done contrary to the essence of justice."

In 1959 A. C. 83 Lord Somervell of Harrow highlighted the dik!l'ma of 'void' and 'voidable' in these effective words :- G

'ls a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken ? .... , .. The_ distinction between void and voidable is by no means a clear one . ..... "

The test of ex-facie illegality or bad on its face or in Lord Radcliffe's words 'it bears no brand of invalidity on its forehead', is lso unworkable in the work-a-day world of law. Error of jurisdiction and error -----

([) (1885) 10 A.C. 229.

within jurisdiction, have been suggested as a means to cqt the Gordian Knot. Many great writers have dealt with the subject but few have offered a fair answer to the questioni is a determination a determination at all when made without a statutory hearing and when is it void and to what extent?

Decisions are legion where the conditions for the exercise of power !1ave been contravened and the order treated as void.

Ancl when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes 'infallible in error', a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible. The legal chaos on thi• branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions.

Legislation, rather than judicial law-making will meet the needs more adequately. The. only safe course, unt.il simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning, any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force.

In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it-not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never gulity of flouting an order which never legally existed.

We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void '.!lay be directly and collaterally challenged in legal proceedings,

An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity.

When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid. The French jurists call it L'indevistence or outlawed order (p.127), Brown and Garner, French Administrative Law) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal.

P. B. R.

Appeal allowed.

NAWABKHAN ABBASKHAN

THE STATE OF GUJARAT

February 19, 1974

V. R. KRISHNA IYER

R. S. SARKARIA

Police Act, 1951

Sections 56 and 142

Art. 226

s. 142

Police Act, 1951

s. 56

Art. 226

Art. 19

S. K. Dholakia

G. A. Shah

M. N. Shroff

KRISHNA (YER

Section 56

Bombay Police Act, 1951

September 5, 1967

Sec. 142

Art. 226

Art. 226

September 17, 1967

July 16, 1968

section 56

Police Act

Section 56

Bombay

section 7

Indian Penal Code

Art. 19

Section 59

section 55, 56

section 55, 56

Bhagwati

Narol

Dani Limda Jamapur

Chandola

Benrampura

Code

section 56

section 56

Art. 19

Section 59

Section 59

Section 59

Section 56 and 59

Article 19

Coke

Sec. 56

Rubinstein

Kelson

Wedderburn

Kadish

Benjamin Couttis

Supreme Court

Andrew Johnson(sic

Penal Code

Krishna Tyer

California Supreme Court

Yick

Frankfurter

Fernando

Upjobn

Brightonj

Ridge

Brighton

EveI'Shed

Frederick Pollock

Reid

Hodson

Evershed

Devlin

Morris

Somervell of Harrow

Radcliffe

Denning


BOARD OF DIRECTORS OF ANDHRA PRADESH CO~ A

OPERATIVE CENTRAL LAND MORTGAGE BANK LTD. ETC.

CHITTOR PRlMARY CO-OPERATIVE LAND MORTGAGE

BANK LTD. ETC.

Febwary 21, 1974.

[P. JAGANMOHAN REDDY, S. N. DWIVEDI AND P. K. GosWAMI, JJ.]

Audlrra Pradellr Cuoperarivl!'. Societies Act, 1964, Sections 84, 85, 93, 94, 97, I 00-109, 115, I 16A and 130-A rrdltra Pradesh Cooperatil'e Societies Rules, Rule 70(1)(13) and 04)-Act conferring srrpervisory powers 011 Central Land Mortgage Bank over Cooperative Land Mortgage Banks in the State-Rule em po;>-ering B011rd of Central Bank to constitute a centralised serTice for tire mort' gage banks and to levy contribruion from tlrem for the purpose.-R11/e :10

wlrethtr ultra vires of section 115 of the Act. ·

The Andhra Pradesh Cooperative :Societies Act, 1974 created a Qentral Land Mortgage Bank to supervise the functioning of the Cooperative ·.t.and I\lortgage Banks in the State. The scheme of the Act is that the provisions of Chapter XJII thereof relating to advancement of loans and mode of Tecovery of the amounts are made applicable to the Cooperative Land Mortgage Banks in the State. Sec. 85 permits a mortgage bank to advance lol!I)S for the purpose specified therein and to hold lands. the possession of whjch is transferred to it. By virtue of the provisions of section 100·109 any loan granted by a mortgage bank including any interest chargeable thereon and costs, if

:my, incurred in connection therewith shall, when they become due. be recoverable by the mortgage bank. All powers in respect of the recovery of loans are conferred on the mortgage banks. The Collector is empowered to make recoveries during a certain period; he. is also given the power of distraint and sale.

When the power of sale is to be exercised, thl! oowers of the mortgage bank where mortgaged property is destroyed or security becomes insufficient, the power of the Board of Trustees to distrain and sell property are also provided for. The title of the purchaser is not to be. questioned em the ground of irregularity nor can a mortgage be questioned on the insolvency of the mortgagor.

Appointment of a Receiver and his powers are provided for Section~ 93 and 94 empower a mortgage bank or the Central Mortgage Bank notwithstanding anything contained in :my law for the time being in force to purchase any mortgaged property sold under Chapter XIII of the Act and the property

o purchased shall be disposed of by such banks by sale within such period as may be fixed.

Sec. 95 provides that pa:yment of all monies rlu~ to mortgage hanks are payable to it and such payments shall be valid as if the mortgage had not been so trans.ferre<.l. The mortgage bank shall, in the absence of uny

pecific direction to the contrary, issued . by the Board of Trustee nnd com municated to the mortgage bank, "'be entitled to sue on the mortgage or take arty other proceeding for the recovery of the moneys due under the mortgage.

Sec. 115 provides that subject to the provisions of the Act the Board shall have such power of supervision over the mortgage banks including the power of appointment, transfer and disciplinary action in respect of the emplorecs of mortgage banks as may be prescribed. By section 130, the Government is empowered to make rules for carrying out all or anv of the. purpost"s of th:: Act.

Sec. 116-A empowers the Regstrar of Cooperative Societies to create

<1 common cadre of employee~ in any class of cooperative society if he consi ders it necessary in the interest of the cooperative movement to do so.

Sub-Rule (I) of Rule 70 empowers the Bonrd of Directors of the Central Lnnd Mortgage Bank to constitute a centralised. service for the mortagc banks in the St:tte and with effect from .such constitution the Board shall have power to make appointments to the posts brought under the centralised service and the

A.P. COUP. MORTGAGE BANK V. CHITTOR BANK 441

mortgage banks shall have no power to make appointments to such posts.

Sub-l<ule (13) empowersthe Board to levy contributions from the mortgage

banks towards the _cost of service rendere~ by the Central Mortgage Bank.

Sub-ntl~ . ( 14) prov1des that .on~~ . a entra!Jsed cadre is constituted all rishts

ad pnileg; es accrued and habthhes mcurred by the employee in relation to hts servtce m the mortgage bank shall stand vested with the Board.

In three writ petitions filed before the High Court by employees of different Cooperative Land Mortgage Banks and by one of the banks, it was contended, imer tlliu, that r. 70 was ultra t•ires of sec. 130( 1) read with sec. 115 of the Act. The High Court upheld the contention and allowed the

wri~ petitions. On appeals by special leave to this Court, the only question for consideration was whether the High Court was right in declaring Rule 70 of the Rules to be ultra vires of Sec. 115 of the Act.

Dismissing the appeals,

HELD : (I) There is nothing in the Act which empowers the Central Mortgage Bank notwit1lstanding the fact that it provides funds to the mortgage banks, to make collection of such advances by the mortgage banks. The rule making power conferred on the Government for carrying out all or any of the pur11oses of the Act must be confined to such of the purposes as are enumerated or indicated in the preamble or in any of the provisions of the Act.

Unaer Sec. 115, the Central Mortgage Bank does not have the power either to directly collect the loans and advances given by tbe member banks,

d.c., mortgage banks, or to create a centralised cadre of service from among the employees of the mortgage banks which are members of the Central Mort gage _bank.

That section merely confers powlo!r of upervision on the Board of the Central Mortgage Bank over the mortgage banks which power includes

the power of appointment, transfer and disciplinary action in respect of the employees of the mortgage banks. It may be that some questions may be n<ised in respect of the actions of the mortgage banks in the matter of appointment, transfer and disciplinary actions of its employees. Whenever such questions <Ire raised, the Board of Directors of the Central MC¥tgage Bank in exercise of its power of supervision can go into the question of such appointments, transfers and disciplinary action made or taken by the mortgage banks.

The power conferred by Sec. 115, therefore; can in no circumstances be construed as empowering the Board of Directors of the Central Mortgage Bank to recruit employees for the mortgage banks or to make appointments to a common cadre created by it from out of the employees of the member mortgage Banks. If the employees one appointed by the Central Mortga-ge Bank .. their salaries and other emoluments shottld be paid by it. But evidently, this

i~ not so as sub-rules ( 13) and (14) or r. 70 authorise the Central Mortgage Bank to call for contribution for the cost of the service rendered by it to be borne by the mortgage banks and provides that once a centralised service is constituted all rights and privileges accrued and liabilities incurred by the employee in relation to his service in the mortgage bank shall stand vested with

the Botrd. The key words in section 115 are "employees of the mortgage hanks''. The power of supervision including the power of appointm!nt, transfer and punitive action may be taken by the Central Mortgage Bank against

llersons who are the employees of the 'mortgage bank. But rule 70 seeks to bring into being a centralised service, the employees where of shall b~ the employees of the Central Mortgage Bank and not of the mortgage banks.

Such a centralised service is not contemplated by Sec; JlS.

[445 E-446 E)

( ll) The supervisory power in respect of the employees of the mort sage banks does not include the power of transfer of employee from one mortgage bank to another creating thereby a contract of service with a different emplover.

The word ''transfer" in Sec. US. therefore, must be read as a transfer from one branch of the same mortgage bank to another of its branch. {446 F-Gl

(Ill) While the Central Mortgage Bank may be concerned with curing its loans to the mortgage banks, the provisions of the Act do not coafer upon the Central Mortgage Bank the power to collect any loans advanced by

SUPREME COURT REPORTS

[ 1974] 3 S, C, R.

the member banks, i.e. the mortgnge banks. The security 'given to the mortg;; gc banks in respect of the loans advanced by them no doubt is deemed w have been transferred to the Central Mortgage Bank, but that is only l?Y way of securing the monies advanced by the Central Mortgage Dank to the mortgage banks.

Nevertheless, the duty to collect loans is upon the mortgage banks and notwithstanding the deemed transfer to the Cntrnl Mort gage Bank of any property. mortgaged to the mortgage banks, the amount due to the mortgage banks ts payable to the mortgage banks only and not to the Central Mortgage B'ank.

Unle's there i~ any specific provision in the Act which directly creates a contractual liability btween the Central Mortgage Bank and rhe borrowers from the mortgage banks, the liability ot the borrowers for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them.

The borrowers have no liability to the Central Mortgage Bank.

[447 B-E)

{IV) The legislature apparently realised the absence of any power in thC Act, nd therefore provided for creation of a common ca.dre of employees when it enacted sec. !16A emoowering .the Registrar to create a common cadre of employees for any chiss of society, if he considers it necessary in the interest of the cooperative movement to do so. The power is of a general Jlatnre and is applicable to the mortgage banks as well as other societies registered under the Act.

Section 116-A also empowers the Registrar to require the affiliated sociehes to make contribution of such sum every year towards expeilditure as may bc incurred for the purpose of creation of any common c&.Jre and make such payment enforceable. The High Court is right in holding that when a centralised service or . any cadre of employees of the mortg::ge banks cannot be created y the Board in exercise of its power umkr s. 115 of the Act, r. 70 cannot vest such power in the Board. In this vic.,·. r. 70 is ultra vires the rule-maki.ng power of the State under sub.sec. (1) of sc. DO read with Sec. 115 of the A:t. [447E-F; 448B-D]

CIVIL APPELLATE JURISDICTION : Civil Appeals No. 2229-2231 of 1972.

.....

Appeals hy special leave from the Judgment and ordl'!r datd the E 24th March, 1972 of the Andhra Pradesh High Court at Hyderabad in Wtit Petitions Nos. 6005 of 1970, 1547 of 1971 and 5784 of 1970.

M. Krishna Rao. B. Balamulwnda Reddy anll B. Partha:; aralhi, for the appe11ant (in all the appeals).

M. K. Ramanwrthy a11d J. Ranwmurthi, for n; spondcnt no. 1 (:;1 C. A. No. 2230).

S. Dasaratharama Reddy and T.A. Ramc!tamlran, for respondent No.1 (in C.A. 2231).

The Judgment of the Court was delivered by

JAGANMOHAN REDDY, J.

In the three writ petitions filed by the G respective respondents challenging the vires of r. 70 of the Andhra Pradesh Co-operative Societies Act. 1964-hereinafter called 'the Act'-the Andhra Pradesh High Court held that rule to be 1tltra vires the Board of Directors of the Andhra Pradesh Co-operative Central Land Mortgage Bank Ltd.,-hereinafter referred to as 'the Central Land Mortgage Bank.

These appeals arc by special leave against that judgment.

The respondent in Civil Appeal No. 2229/72 is an Assistant Accountant in the Chittor Primary Co-operative Land Mortgage Bank

A.P. COOP. MORTGAGE BANK 'v. CHITTOR BANK (Jaganmohan Reddy, ].).

Ltd. In Civil Appeal No. 2230/72 the respondents are employees of the different Co-operative Land Mortgage Banks. The respondent in Civil Appeal No. 2231/72 is the Nellore Co-operative Land Mortgage Bank Ltd.

In the first of the appeals the petitioner/respondent complained that when he was due for promotion for the post of an Accountant, under r. 70 his right to promotion based on seniority had been taken away.

According to him, but for r. 70, he would have had a right to promotion under Bye-law 10 on the basis of his seniority among the Assistant Accountants of that Bank.

The petitioners/respondents in the second of the appeals had urged that a co-operative society was a body corporate and the ultimate authority over that Society was vested in its general body oodcr s. 30 of the Act, and the Managing Committee thereof had the right to manage all its affairs including the power to appoint, transfer and dismiss its employees.

That power of the Society is sought to be interfered with not only by vesting the Board with power r." w-.~··>·•c>., de'lce under s. 115 of the Act -out also by r .. 70 made pursuant to that section. Not only s. 115 and r. 70 but also 's. 116A of the Act according to them, were wholly

ultra vires the State Legislature. The respondent in the third of the appeals apprehends that r. 70 takes away its right of appointment, dismissal and control over certain of its employees which render them liable to be transferred by the Central Land Mortgage Bank to other ; nortgage banks elsewhere in the State which is an interference with the right of management of the Primary Land Mortgage Banks. The High Court, while negativing the contention that ss. 115 and 116A of the Act were u.'tra 1ires the State Legislatur~, has, however, held, as already adverted to, that r. 70 was ultra vires of s. 130(1) read with s. 115 of the Act.

Before us, the arguments were confined to the question whether 1he High Court was right in declaring r. 70 of the Rules to be ultra l'ires of s. 115 of the Act.

The impugr:ed r. 70 'is purported to be made under sub-s. (1) of s. 130 rca <I w1th s. 115 of the Act.

These two sections and the impugned rule arc as follows :

s. 115-"Subjcct to the provisions of this Act, the Doard shc.ll hve sch power of :; uprvision over the mortgage banks mlud!ng power of appomtment, transfer and disciplinary actton m rcpcct of the employees of mortgage banks as may be yrescnbed, and may, wih the previous approval of the R?gtstrar, make such regulatiOn as may be necessary for carrymg O\lt all or any of the purposes of this Chapter.''

s,. 130-:-"0) The Government may, by notification pubh?hed m the Andhra Pradesh Gazette, make rules for carrymg out all or any of the purposes of this Act, for the whole or any part of the State and for any class .of societies."

r. 70-(1) The Board of Directors of Central Land Mortgage Bank hereinafter referred to as 'Board' shall constitute a .centralised service for the mortgage banks in the State and Wtth effect from such constitution the Board shall have power to make appointments to the posts brought unde.r

.... i

- i··

SUPREME COURT- REPORTS [1974]3 s.c.a,

centralised service and the mortgage banks shall have no .. power to make appointments to such posts.

X X X X

 (13) The Board shall have power to call upon the mortgage banks to contribute to the cos~ <;>f service rendered . by the Central Mortgage Bank by provtdmg the services of members of the centralised service to work in the mortgage banks and the mortagage banks shall pay the cost at th.e rates prescribed from time to time b~ th_e Boad.. If any. mortgage Bank fails to pay such contnutu; m w1thm the ttme fixed, the Registrar may, on the apphcat10n of Central Mortgage Bank and after such enquiry as he may consider necessary make an order requiring the mortgage bank to pay the amount and every such order shall be enforceable againstt~

mortgage bank under section o3 (2) of the Act as if it was an award. ( 14) On constitution of centralised service all rights and privilcg.::s acrued n_nd li<!biliies incurred by the employees in relatiOn to h1s servtce 111 the mortgage bank shall stand vested with the Board.

X X X X

It may be mentioned that s. 115 of the Act is in Ch. XIU dealing with Land Mortgage Banks. Clauses (a), (b) and (c) of s. 84 in Ch. Xlll define ~'lloard''. "Central Mortgage Bank" and "Mortgage Bank" rcspctivcly.

According to these Jcfmitions the "Board" me:ms the Board of Directors of Central Mortgage Bank; "Central .Mortga:g~ E Bank" means the Andhra Pradesh Co-operative Central Land Mort gage Bank; and "Mortgage Bank" means a co-operative land mortagc bank registered or deemed to be registered under the Act and adm1tted as a member of the Central Mortgage Bank. That section also ddins

"trus~~" but it is not necessary for our purposes to rcf.:r to tlus dcfimuon. It may also be mentioned that the ruks under s. 2(!) of the Act mean the rules made under the Act. f

Under s. 85 of the Act tht; provisions of Ch. Xlll apply to the mortgage banks ad\:ancing loans for the purposes thcrei!l enumerat:u

artl under s. 97 subJect to the provisions of the Act and tn accordan': W1Lh the rules. made thereunder, it shall be comp::tcnt for a mortgl~ bank to advance loans for the purposes referred to in s. 85 and t~ ol . lands, the possession of which is transferred to it under the proVJStons G of Ch. XIII. The mode of n:covcry of the amounts advanced by~.:

mortgage banks i.o; set out in ss. 100 to 109 of the Act, und.:r ''h11:t any loan granted by a mortgage bank including any interest chargcab thereon and cots, if any, incurred in' connection therewith, shall whcll !hey become due, be rccoverablt: by the mortgage bank, All powe~ In respect of the recovery of loans arc conferred on the mortga~ banks, sch as. on an application muue by any of r11e mortgage .. tJans II the RegJ!; tr~ Js empowered to grant a certificate for recoverY of a loan due to ll. The other provisions confer power on the Collector t~ make recoveries during a certain pc_riod; and a power of distraint an<

A.P. co-oP. MQllTGAGE BANK V. CHlTTOR. BANK us (JQ[ftlnmt>han Reddy, J.) sale. When power of sale is to be exercised; powers of the mortgage bank where mortgaged property is destroyed or security becomes insufficient; power of Board or Trust~ to distrain and _sell all prope.rty are also provided for.

These provistons further prlde tha~ the tttle of purchaser is not to be questioned on ground or megulanty; mortgage is not to be q, uestioned on insolvency of mortgagor. They also deal with the appomtment of a receiver and his powers etc.

Apart from these sections, it may be noticed that ss. 93 and 94 empower, notwithstanding anything contained in any law for the time being in force, a mortgage bank or the Central Mortgage Bank t!} purchase any mortgaged property sold ulJ,.der Ch. XIII of the Act and the property _so purchased shall be disposed of by such bank by sale wiU!in such

period as may be fixed by the Trustee. By sub-s. (2) of s. 93 this power wa'l to override the maximum limit of agricultural holding fixed \tndv C the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961.

Section 94 provides that the mortgages executed in favour of, and all other assets transferred to, a mortgage bank by the members thereof shall, with effect from the date of such execution or transfer, be deemed to have been transferred by such mortgage bank to the Central Mort gage "Bank and shall vest in the Trustee. Section 95 provides t11l.\

payments of all moneys due to the mortgage bank are payable tO:: ~\ ·:~. :.· and such payments shall be valid as if the mortgage had not been, !tQ _ transferred. It is also provided that the mortgage bank shall, it! t:l\e absence of any specific direction to the contrary issued by the Boiid

or Trust'!e and communicated to the mortgage bank, be entitled tb rue on the mortgage or take any other proceeding for the recovery of the moneys due under the mortgage.

We have set out some of the relevant provisions to show that there is npthing in 'the .1\.ct which . empowers the Central Mortgage Bank, 119twithstanding the fact it provides funds to the mortgage b$nks, to make collection of the loans advanced by the mortgage banks: The ruJe..making power conferred on the Government for carrying out aU or any of the purposes of the Act 'must be confined to such' of the purposes as are enumerated or indicattd in the preamble or in any of the provisions of the Act. The oaly provision to which a refei:ce has been ronde specifically as empowering the Board of Directors of the Central Mortgage Bank tQ constitute a centralised service for the

mortgage banks is s. 115 of the Act. A , careful reading of s. ll~. however, does not justify the contention that the Central Mortga.a~ Bank either bas the power directly to collect the loans and ady~ given by the member banks, namely, tbe mortgage banks, or to crea.t.= a centralised re of service from among the employees of the mortgage banks which are members of the Central Mortgage Bank. Tbat section merely confers power of supervision on the Board of the: Central Mortgage Bank over the mortgage b.nks which power includes

th~ power of appointment, transfer and disciplinary action in res~ of the employees of the 11Wtaage be, nks. It may be that some questiOns may be J'l.ised in respect of the actic)Qs of the mohgage banks in the

mater appointment, ~"and ip\itw'y 3Ctions of its em~.

Whenevcsr such quettions are ~~d, the Board of Directot's of 'the Central, tdortgage Bank iJl exercbe of its power of supervision can go

16-L954 S.'PCf/14

SUPREME COUR1' REP<*TS [ 1974] 3 s.C, R,

into. the question of such appointments, transfrs and disciplinary acqos made or taken by the mortgage bv, nks, 'J'!U5 power, therefore,. can m no circumstances be construed as empowenng the Board of Dll'eCtors

of the Central Mortgage Bank to recruit employees for the mortgage banks or to make appotments to a common cadre created by it from out of the employees of the member mortgage banks. If the employees aie.appointed by the Central Mortgage Bank, their salaries and orher

emolutnents should be paid by it. But evidently this is not so, as subrr. (13) & (14) of r. 70 authorise the Central Mortgage Bank to call for contribution for the cost of the serviCe rendered by the Central Mortgage Bank to be b"; rne by the mortgage banks and provides that once a centralised cadre is constituted aU rights and privileges accrued and liablities incurred by the employee in relation to his service in the

mortgage bank shall stand vested with the Board. It is this power that the appellants are seeking to draw from s. 115, because only it . such a power can be found in that provision, or in any other provision

the Act, l!an be impugned r. 70 be made under sub-s. (1) of s. 130 :Of the Act. In this connection it should be observed that the key words ins. 115 .are 'employees of the mortgage banks'. The power Q( survision including the power: of appointment, transfer and punitive action may be taken by the Central Mortgage Bank against _ persons who are. the employees of the mortgage banks. But r. 70 seeks

- to bring into being a centralised service, tbe employees whereof shaH be the employees of the Central Mortgage Bank and not of the mortgage vtmks.

Such a centralised service js not contemplated by s.l15.

1t is contended by the learned Advocate for the appellants that the word 'transfer' in section 115 would indicate that -it can only be in pe(:t . .Of ·:the transfer of employees from one mortgage bank to anothet.: We canrtot read this power in the manner suggested, and if so this would authoriSe the constitution of a centralised cadre. As we

mive explained afrea:dy the power of the Central Mortgage Bank: is

ooly of. suion -, h power tosupervise is to include the powet Of ·~point'lne~_t, transfer aild disciplinary action. lt is only where what Is not inclutJed in particular term as generally understood or whert tra i~ some doubt in respect Of any particuJar matter being included,

thi~ the Legislature specifies it. by including that .matter.

The super vy power in res~ of he employees M the mortgage banks does

nut include the p()wer to .transfer an employ~ fr9m one mortgage bank to. anotHer -creating--thereby a cORtract of serviCe with a . different

empoyer. . _The wo.::cJ 'transfer', therefore, must be read as. a transfer from one branch of. the same mortga, e bank to -aQother of 1ts branch.

The learned. Advocate for the appellants stated thai the mortgage banb baw. no anches. w, e wold DOt,· however; :venture. to say so. As

ted out bythe learned.· Advocate. fdi the first respondent in Civil Appe<!l No. 2231 df 1972 -'that Bye.Law 20 of the Model"ByeLaws of

Co.<lpetative Land Mortgage Bank _Ltd. provides fonnaintaiiiing a reeuro of ser-vice -by the Bank in respeet d each emp1oyee lit whleh aU

Changes affecting ra:nk, emoluments, trusfen other aUied atters sbl]l be not~ in the fe!istet under tlte attestation of . tile Secretary.

This provision shows .that the Bye-Laws envisage a transfer of an

.·.:

' .

,..

. A.P. CD-OP. MORTGAGE BANK V."CHlTTOR BANK . 447. (/,?ganmohan Reddy, 1.) A <!mployee from one ~;.:ancil o another of a mortgage bank. This bye- Jaw is consistent with s. 115 of the Act which confers a supervisory power in respect -of transfer of an employee from one branch to another of the mongage bank and-not from one mortgage bank to another.

The learned Advocate for the appellants contends that it is the Central Mortgage Bank which advances the funds to its members,..; namely, ' the mortgage banks and the responsibility is on the Central Mortgage Bank to see that the amounts advanced by the member banks are collected and the loans advanced by it are properly secured.

While no doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not coroier upon the Central Mortgage Bank the power to collect any Ioaris advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of tbe loans advanced by them no doubt is deemed to have been transferred to tlw Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loans is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the D .amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability or the borrowers for payment of loans advimccd to them is only to the mortgage banks which actually advanced the

loans to them. The borrowers have no liability to the Central Mortgage Bank. ·

The l£:gisiature apparently realised the absence of any power in the Act, and therefore provided for creation of a common cadre of employees when it enacted s. 116A empowering the Registrar to create a common cadre of employees for any class of society, if he considers it necessary in the interest of the co-operative movement to. do so.

This section reads as under :

s. 116A-"(1) Notwithstanding anything in this Act where the Registrar, in the interest of the co-operative move- ··· .-: ment; considers that the creation of a common cadre of em- . ployees for any class of societies is necessary, he may, constitute an appointment committee or authorise one or more federal societies to which such class of societis is affiliated, to exercise the power of appointment, transfer and disciplinary action in respect of such categories of employees of that class of societies as may be specified by him and. make ·. such regulations as may be necessary for carrying out the said purpose. wpere such appointment committee is constituted or federal society is authorisd by the Registrar, the affiliated societies shall not have powers to deal with . such categories of employees except to theextent the regulation may permit. ·

[ 1974] 3 S.C.R.

(2) The Registrar shall have power to require the affiliated societies to make contribution o~ suoh sum every year towards expenditure, as the appoi'ntment committee or federal society is likely to incur or has incurred for the purpose. If any society fails to pay the said ~\lm tQ such authority as may be specified by tbe Registrar and within the time fixed by him, the Registrar may on. the application of the authority, and after such enquiry as he may , consider necessary, make an order requiring the society 'io pay the amount, and every such order shall be enforceable against the society as if it were a decision under section 62."

The power of the Registrar, it will be noticed is, to create a common cadre of employees for any class of societies.

The power, thercfo.rc, is of a general nature and is applicable to the mortgage banks as well as to the other societies registered as societies under the Act.

Sect-ion 116A also empowers the Registrar to require the affiliated societies to make contribution of such sum every year towards expenditure as may be incurred for the purposes of creation of any COIDII10ll cadre and make .such payment enforceable. In our view the High Clmrt is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under s. 115 of the Act, r. 70 cannot vest such power in the Board.

In this view, r. 70 is ultra vires the rule-making power of the State under sub-s. (1) of s. 130 read with s. 115 of the Act.

The appeals arc accordingly dismissed with costs. One set.

s.~.w.

Appeal dismissed

BOARD OF DIRECTORS OF ANDHRA PRADESH CO- OPERATIVE CENTRAL LAND MORTGAGE BANK LTD. ETC

CHITTOR PRIMARY CO-OPERATIVE LAND MORTGAGE BANK LTD. ETC

P. JAGANMOHAN REDDY

S. N. DWIVEDI

P. K. GosWAMI, JJ.

Societies Act, 1964

Sections 84, 85, 93, 94, 97

section 115

Societies Act, 1974

Sec. 85

section 100

Chapter XIII of the Act

Sec. 95

Sec. 115

section 130

Sec. 116

Regstrar of Cooperative Societies

Central Lnnd Mortgage Bank

sec. 130( 1)

sec. 115

Sec. 115

Central Mortgage Bank

Sec. 115

Central MC¥tgage Bank

Sec. 115

Central Mortga-ge Bank

section 115

Central Mortgage B'ank

Section 116

s. 115

Sec. 115

CIVIL APPELLATE JURISDICTION

M. Krishna Rao

B. Balamulwnda Reddy

M. K. Ramanwrthy

S. Dasaratharama Reddy

T.A. Ramc!tamlran

JAGANMOHAN REDDY

Andhra Pradesh High Court

Jaganmohan Reddy

s. 30

s. 115

s. 115

s. 116A

ss. 115 and 116A

s. 130(1)

s. 115

s. 115

s. 130

s. 115

s. 115

r. 70-(1) The Board of Directors of Central Land Mortgage Bank hereinafter referred to as 'Board' shall constitute a .centralised service for the mortgage banks in the State and Wtth effect from such constitution the Board shall have power to make appointments to the posts brought unde.r

.... i
i··

SUPREME COURT- REPORTS [1974]3 s.c.a,

centralised service and the mortgage banks shall have no .. power to make appointments to such posts.

s. 115

s. 84

s. 2(!)

s. 85

s. 97

s. 85

ss. 100 to 109

han Reddy

ss. 93 and 94

s. 93

Section 94

Section 95

s. 115

Central Mortga.a~ Bank

s. 115

s. 130

section 115

s. 115

s. 116A

s. 116A

section 62

s. 115

s. 130

s. 115


KRISHNA LAL DUTTA

l'.

THE STATE OF WEST BEN'GAL

Ftbruary 21. 1974.

[M. H. BEG AN!) R. s. SARK.ARIA, JJ.J

P1eventive dete11tio, r-Matters tOktn into qccount for ordering dett•nJion- Duty to commu11ictJtt to detenu to enable him to' explain.

. The Drder detaining the petitioner under the Maintenance o!

Internal

urity Act, 1971, mentioned the sole ground that on the nil!ht of October 1 r. 1972~ the .petitioner .and his associates committed theftof some tea chests from aruniiing goods trdin and that they 6cd, when challenged, leaving behind three cheSts of tea at the P.O. In his pet:don for the isSue of a writ of habeas corpus the petitioner contended that it was i_mpossible to commit theft from ._ running train as described. In the counter affidavit, it was stated that what was meant by running train was a train which had come to a stop due to some traffic restriction. It was also stated that the petitioner was a noto~

riqus wagon breaker operating near the Railway Station, but this allegation was never communicated to the petitioner.

E'letr the record relating to the detention nowhere referred to the petitioner as a 'notorious wagon breaker'.

Jn the record the incident of 11th October was mentioned, a description of th,!;,. modus operandi of a gang of thieves operating on passenger trains as g1Yen. and it was . also mentioned that the activities of that gang commenced after the incident of 11th October. There was however no indication as to how any information whatsoever came to the District Magistrate, who passed the order of detention, from any source whatsoever that the petitioiier was a member. of that gang. · Allowina the petition, HELD : The Court is not concerned with the_ adequacy or sufficiency of \l. nd of detention. Jn the present case, there is clear nexus between the sole grc)und for detention given and the maintenance of the eSsenti81 supplies and services. but the ground is vague in so far as it is not apparent what is meant by the words "the P.O." The grounds given could not enable the petitioner to cffectivefy exercise bis constitutional right of 1naking a representation against bis detention.

Further. matters which were nevtr oommunicated to the petitioner have been taken into account while ordering the detention. Presuming that whatever was in the record operated against the petitioner be should have been given fuller information of the aUegations against him. No explanation has been given as to why that was not done.

[452 D-0]

[Those exercising drastic pawers of preventive detention should at least take care to ascertain whether a detention is being ordered in a manner and on materials which di:11clo.111e that it is really necessary to order a detention with a view .to preventiniz the person to be detained from acting in a manner pre judicial to the objects for which preventive detention may be lawfully ordered.l [452 C-Dl

Prabhu Dayal Deord.h v. District Magistrate, Kamrup &: Ors., A.T.R. 1974 S.C. 183, followed.

ORl\HSAL JUR1so1cTION : Writ Petition No. 845 of I9n.

Under Art 32 of the Constitution for the issue of a writ .in the nature of habeas corpus.

S. N, lain, for the paitioner.

P. K. Chakravarty and G. s. Chatterjee, for the respondent.

45(}

SUPREME COURT REPORTS

[ 1974 1 3 S.C.R.

1'hc Judgment of the <:ourt was. delivered l>y

BEG, J. The petitioner, a citizen: of India; has filed this habear corpus petition c; hallenging the order of . his. detention, dated

2rll-19n, passi'd. under Section 5 cfause <ai of Maintenance of Internal Sccurit} Act, 1971 (hereinafter referred to as 'the Act').

It appears that the petitioner was actually arrested on 20-11,1972 and that the. detention order was passed subsequently on 24-11-1972, and; on that very" d'ate, the .petitioner was served with thedocument

containini; the sole ground of detentlQD given as foflows :-

"I. That on 11-1(};72 at' about 01.55 hrs., you alona with your associates. being armeld with bombs and other weapons, victimised wagon No. NR ) 739:3 Ex Bro to KPD attached to. runnin~ j!Oods train in EC 249 DN near the Booster Sub-station df Dum Dum Jn. RIS when the train slowed down for traffic restriction and. committed theft in respect of tea chests.

Train guard RPF party challenged you and your associates when you hurled bombs towards the RPF party.

RPF RK Sitaram Rai fired one r.ound in self defence when you arjj your associates fled away leaving behind three chests of tea at the P.O.

Your action caused disruption of train service for a considerable : timei and affected supplies and services.

You have thus acted in a manner prejudicial to the inaintenance of supplies and serVices essential to the comn1unitv'". - After givin~ what is marked as ground number 1 only, implying thereby that. tliere was no other ground of detention, the document

proceeds:

"You are hereby infornied that you may make a representation to the State Gavernment against the detention qrder and that such representation shall be addressed to the. Assistant Secxeta:r'y/ Home (Special) Department, Government of West Bengal and forwarded through the Superintendent of the. Jail in Which you have been detained as early as Jl()Ssible.

Unkler Section 10 of the Maintert.ance elf Internal security Act, 1971 (Act 26 of 1971) your case shall be placed before Advisory Board within thirty days from the date of your detention under the order.

You are also informed that under Section 11 of the

 Mainlcnancc of Internal Security Act, 1971 . (Act. 26 of 1971 ) , the Advisory Board shall if you . desire to .be so heard, hear you in person, and, :if you desire to be so _heard by the Advisorty Board,.you shall intimate such desire in your representation to the State Government".

H , An annexure to the affidavit filed by a Special Secretary in the Home Department of the Government of West Bengal, who was

K. L. DUTTA v. WEST BENGAL (Beg. /.) 451

tlle District Magisl!'llte concerned when the impgned

detntion <Jrder was made against the. petitioner;

IS, !U copy of the petitioner's representation addressed to the Gc;)Ve.mmeot,

Jn the representation as well as in the petition before us, the peli• tioner asserts that the allegations against him. are absolutely untrue.-

In his application to this Court he states that it is "palpably .false and impracticable" to allege that the petitioner, with some associates,

committed theft of "°me tea chests from a running wagon and that ho !led when challeng~. leaving behind three chests of tea "at the P.O.". Be that as it may,_it is difficult to understand what is meant by "the P.O." In his representation to the Government, the petitioner had submitted that there was no evidence that he was identified by anybody as a participator in the incident.

In the affidavit in Qpposition to the petition, the official concerned, who had passed the "detention order, stated :

"The running__goods train as stated therein actually means a: goods train which had come to a stop due to traffic restriction and ilo_t actually a running ono as sought to be suggested by th_c petitioner".

The aflldavit also contained the statement :

"It appears from the records that the petitioner is a notorious wagon breaker operating near, Dum Dun1 Junccion Railway Station''.

Learned Counsel appearing for the State of West Bengal was asked to explain how the J:l"titioner could possibly make an effective representation against his detent:i'Qn when the District Mag'.istratc had a stationary train in mind which he actually described as "a rw1ning goods train" in the gr:ounds icf detention, \Vhcn it was not indicated what was meant by "the P.O.", and when the allegation that the petitioner was a "fiotorious wagon breaker operating near Dnm Dum Junction Railway Station" was never communicated to him although it, apparently, formed one of the grounds on which the detention was ordered. In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and he placed that record before us.

We were unable to find any menti.Qn in this record that the petitioner was "a notorios wgon breaker".

On the other hand. we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of" the mentbers of the gang sat near the passMgers with a newspaper spread out in front of him which would. be read out loudly to distract their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident of 11-10-1972.

It is also mentioned there that a number of incriminating articles were recove1ed from members of this gang of thieves including the petitioner and that prosecutions were pending against them.

. 452 _ SUPREME _Cf>Ul\T REPORT_s __

0 -l 1974 J 3 S.C.R.

_ It is . true that the incident which occurred at: about Z a.m. on 11-10-1972, forming ihe ground df detention,· is also mentioned in the record, but, there is no indication as to _how __ any information . whatsoever came to the Djstnct Magistrate from any_ source_ wl!atSoever _that the petitioner was a member of the gang which was concerned with such an incident, Presumably, this was the whole record as learned Counsel for the State informed us. This makes the petitioner's assertion, that he was not only i)rrested on 20-10-1972 for reasons not disclosed . ll to him, but, when sufficient evidence could not be found against him by the local _officials, a detention order was made on a ground, covered by the Act,· whiclt could be conveniently trotted out at the time, seem plausible. l]eprivation of a citizen's personal liberty is a serious matter.

Those exercising drastic powers of preventive detention, which arc entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention. is . being ordered in a manner and on materials 'Which disclose that it-is really

"necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse

these powers, by acting unreasonably, capriciously, arbitrarily, or

in a malafide manner, public confidence in them is shaken. We arc 0 unable to say whether the District Magistrate acted unreasonably in making the detention order. --- But, presuming that, whalc•ver was in the record operated, as learned Counsel for the State asserted, against _the petitioner, he should have been given fuller information of allegations against hini: Tt is not explained why this was not done.

We arc not concerned here with the adequecy or. sufficiency of E a ground of detention.

T)lere is_ clearly -a nexus between the sole ground for detention given a_nd the maintenance of essential supplies and services.

Bnt, as indicatod above, we have found that matters which were never commuriicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Further more the sole ground of detention is vague in ,. so far as it is .not apparent what is meant by the words "the P.O.". ' Recently, it was held by this Court in Probhu Dayal Deorah Vs . . , District Magistrate, Kamrup_ & Ors.,( 1) that vagueness of a single .· .ground . could vitiate a detention order.

The grounds given cou:U not, !n ?ur oinion enabl~. the petitioner to effectively exercise his constitutional. nght oJ -making a, representation against his detention.

The result is that we allow this petition and declare the deten- G tion of petitioner to be illegal.- We oer that the petitioner .be released forthwith. -

V.P.S.

Petition allowed.,

(I) A.l.R. 19(4 S.C. 183.

KRISHNA LAL DUTTA

THE STATE OF WEST BEN'GAL

M. H. BEG

urity Act, 1971

Art 32

S. N

P. K. Chakravarty

G. s. Chatterjee

BEG

Section 5

RK Sitaram Rai

West Bengal

Section 10

Internal security Act, 1971

Section 11

State of West Bengal

State of West Bengal