JAGDJSH PRASAD

THE STATE OF BIHAR AND ANOTHER

February 13, 1974

[V. R. KRISHNA IYER AND R. S. SARKAR!A, JJ.]

Mainte11a11ce of Inrernat Security Act 1971, Sec. 3(1) (a) {iii)-Order of detentiori under sec. 3( I) (a) (iii)-Grou11ds-Mai11tenance of Supplies a11d Ser .. vices essential to the community-Legality of order. ·

Words and phrases "Supplies and Services" meaning of-Constitution of India, Art. 32-Practice-Petilion for habeas corpus-Return to Rule Nisi.

A/fidavit-011 behalf of State-Who should file.

The petitioner, a licensed wholesale dealer, was detained pursuant to an order passed u/s 33 of the Act by the District J.Iagistrate, Ranchi for his antisocial activity prejudicial to the maintenance of supplies and services essential to the community. The particulars of the grounds supplied to him u/s 8 stated that he was found secretly transporting 50 bags of rice in his truck at mid-night contrary to the conditions of bis wholesaler's licence and that, when caught red banded, he gave false excuses and imaginary numbers of licence dealers, some of whom on verification had no current licence and all of whom disowned the alleged purchases. The petitioner challenged the validity of the order by a petition for habeas corpus. The affidavit in return filed by the State was sworn by an Upper Division Assistant (Special) Home Department. In that affidavit the words "and services" after "maintenance of supplies", were struck off.

The petitioner raised two contentions before this Court : (i} The Distric&

Maistrate was uncertain whether he was detaining the petitioner to prevent disruption of maintenance of supplies or services essential to the life of the community and such a mindless order was bad in law.

(ii) Supplies and Services are two distinct concepts and though services being disrupted was one of the precise reasons for the detention, no particulars which would make out that ground, apart from the distinct ground of preventing supplies, had been given; l;1erefore, the order was illegal.

Dismissing the petition held :

I. The District Magistrate when passing an order of detention u/s 3 of the Act bas to be fair and clear and not doubtful abrfit why he is detaining the man. "Either or" ill fits into s. 3, Not so, when it 1s cumulative. A man may be detained on grounds A and B but not A or B. In the present case, illicit transport of food grains in the still secrecy of night. by one whose business licence does not permit it and who gives false explanation when confronted does indulge in an activity with impact on supplies and services. Supplies and stocks if hijacked by wholesalers upsets the delicate control scheme. So also transport and delivery to each centre according to its requirements is thrown out of gear by these private operations. For example, Bihar hopping harrowingly from drought to floods, .can ill-afford to have the wheels of distribution, of which supplies and serviCes are two facets, wobble or break down. Therefore, the order of detentiol}, cannot be held to bad in economics of law. [373 D, 377 H]

Ra111eshwar Lal v. State of Billar [19.68] 2 S.C.R. 505 and Prabhu Dayal v.

District Magistrate, Kamrup, W.P. No. 1946 of 1973 dated October 11, 1973, referred to.

H. Jn interpreting expressions such as "supplies and services" basically the statutory subjects matter colours the concept. The complex needs and amenities of modern life and the multifarious obligations of a welfare state mingle supplies and services. For example, an essential commodity is at once ..a supply and a service. The touchstone of social control is that it must be a

th!ne essential f\lr the e; x:isence of the community; when crystallised it is supphes, wh.en subhated 1t 1s services. lt depends in most cases on the angle from which you view and the lens you use. There can be no dichotomy beteen "supplies and services" in the special context of a State being called upon 1n an emergency to supply that primary necessity of existence, viz.., food, which is perhaps the basic service which Government must render to the people.

In the present case, the allegation is of nocturnal, illegal rice transport intercepted by officials and no vialence is done to language to describe that activity as prejudicial to supplies a •1d services.

Rushing food supplies to a nation ; n hunger is a composite operation of supplies and services essential to the life of the community and the order is not bad because it telescopes both. An intelligent forecast made by the District Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational.

[372 C-H, 376 Fl

Ram Manohar Lohia V. State of Bihar and another [1966] 1 S.C.R. 709, Prablru Dayal v. Dist. Magistrate, Katnrup, W.P. No. 1496 of 1973 dt. 11-10-73 and Keshav Talpade v. Emperor A.LR. 1943 F.C.R. l, 8 distinguished on facts.

III. tObiler dicta)

It is difficult to appreciate why in return to a rule nisi in the habeas corpus motion, it is not thought serious enough even where liberty of a citizen is choked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor.

Not ven wlly he is not available, nor the next best, the oath of a senior officer in the Secretariat who had been associated with the handling

of the case at Government level.

Mechanical affidavits, miniaturising the files D into a few par_agraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This is not a mere punctilio of procedure but a probath•e requirement of substance.

[373 BJ

[The above observations stand on1y as obiter dlcu' in the present case since counsel n1ade no point about 'this aspect of the affidavit.

However, in a subsequent judgment in Mohd. Ala111 v. State of West Bengal, W.P. Nos. 1678 and 1855/1973 dt. 14-2-74, this Court comprised of the same Bench has specifically laid down th<:t the proper person to file the counter-affidavit in return to Rule E 11isi issued by the Supreme Court in hahcas corr11s petition is the District Magistrate who had passed the order of detention or a senior officer who prrsonally dealt with the case of 1he detenu in the Government Secretariat, or had to put up the file to the Minister for orders.

ORIGINAL JURISDICTION: Writ Petition No. 1972 of 1973.

Under Article 32 of the Constitution of India for the issue of Writ in the nature of habeas corpus.

Frank Anthony and S. K. Gambhir, for the petitioner.

K. K. Sinha and S. K. Sinha, for the respondents.

The Judgment of the Court was delivered by.

KRISHNA IYER, J. The petitioner detained by the order of the District Magistrate for anti-social proclivity prejudicial to the maintenance of supp1ies and services essential to the community challenge'i its validity in this petition for habeas corpus.

Mr. Frank Anthony has vigorously urged two vital defects as vitiating the detention order incarcerating the petitioner, based mainly on the unreported ruling of this Court in Prabhu Dayal v. District Magistrate, Kamrup('), the well-known Lohia( 2) case and a few other peripheral

(I) w. P. No. 1496 of 1973; judgment dated October II, 1973.

(2) A. I. R. 1960 S. C. 633,

A observations in other . decisions. The District Magistrate was uncertain whether he would detain the peiitioner to prevent disruption of mainten.ance of supplies or of services essential to the life of the community and such a mindless order suffered from a fatal genetic disease diagnosed by this Court in many decisions as fatal, runs the submission.

Now, the admitted facts and the authoritative law and their inter- B action. It is best to begin with the impugned order itself which reads :

"No. 1182/C dated, the 9th October, 1973. Whereas I am satisfied that with a view tq preventing Shri Jagdish Prasad, Proprietor M/s Lachmi Bhandar, North Market Road,

Upper Bazar, Ranchi, from acting in any manner prejudicial to the maintenance of supplies and services essential to the C community, it is neceary to ¥e an order that he be detained. Now, therefore, in exereise of the powers conferred by Sub-section (2) of the Section 3 of the Maintenance of Internal Security Act, 1971 (No. 26-0f 1971), I hereby direct that the said Shri Jagdish Prasad be detained.

He shall be tr.eated in detention in Ranchi.Jail and classi- D lied as Class Y and. in division IB.

(S. N. Sinha) District Magistrate, Ranohi."

The executive interdict on the trader's freedom is issued to inhibit his

acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The semantics of 'supplies' and fservices' in this context, argued Sri Anthony, serves to sho\V that certain activities bear upon supplies only, e.g., hoarding or blackmarketing, while other actings may disrupt services only, e.g., sabotage of railway tracks or scavenger's strike. Be argued that some misconduct may be ambidextral as for example, huge quantities of telegraph wires being poached or a railway wagon being looted in an organised manner. The cornerstone of his contention, in the first stage, is that blackmarketing in foodgrains belongs to the first species-essential supplies-and not to the second-essential services. In Rameshwar Lal v. State of Bihar( 1) this Court pointed out:

"No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of commodities is rendered difficult. It has a definite tendency to disrupt supplies when scarc'ity exi..:; ts or scarcity is created artificially by hoarding to attain illegitimate profits.

Indulging in blackmarketing is conduct which is prejudicial to the maintenance of supplies, It is hardly necessary to read supplies conjunctively with services, as was cqntended although cases may exist where supplies and services may both be affected. The word 'and' is not used conjunctively but disjunctively. If sweepers strike, no question of disrupting sup-

(!) 11968]2 S. C. R. 505.

plies arises bi.t services essential to the life of the coQlmunity will certainly be disrupted." The familiar imager, y in Lo hi a' s case of concentric circles in the COii text of Law and Order (the larger circle) and public order (the smaller but graver one) \\as projected here with a little re-adjustment. Sirnilies and metaphors ler.d liierary grace to legal argument but are apt to play tricks in areas of strict logic or cold law. Courts have to be cautious while transplanting picturesque projections from one situation to an other. So let us take an fodependent close-up of the profiles of essential 'supplies' and 'services' to discover common morphology and divergent features. Basicall:r, the statutory subject-matter colours the concept.

Counsel traced th: pedigree of the Act, with special r<ferencc to. essen tial supplies and services, to substantiate his thesis of compartmentalisation and marginal overlapping. May be, counsel is right .in his contention that all supr lies are not services and Bil services ate not supplies but the complex r.eeds and amenities of modern life and the multifarious obligations of a y•elfare state mingle supplies and services so much that the concentric ci1 cle geometry becomes a misleading stroke of conceptualism in this jural larea.

For example, an essential commodity is at once a supply atd a servjce: Section 36(3) of the Defence of India Rules, 1971 defi.les it to mean :

"essential commodity" means food, water .. fuel, light, power or any other tiring essential for the existence of the community which is notified in this behalf by Gqvernment;" "Light and powu" thus are commodities; so also food and water. Yet who will deny that light is a service or drinking water, for that matter?

The touchstone ·)f social control is that it must be a: thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services. It depends in most cases on the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, ke::osine and gasoline. And yet they are services. At a feeding centre for starving children you supply food, •crve gruel. In other words, fold is supplies, feeding is services. In Blackpool Corporation v. Lo1kar('> it was held that providing housing .accommodation fell within the scope of "supplies and services" in Regulation 51 (1) of the Defence (General) Regulation, 1939. We see no force in the dichotomy between the two attempted by counsel in the special context of a State being called upon in an emergency to supply that primary necessity of existence, viz., food, which is perhaps the basic service which Government must render to the people. In the present case, the allegation i:: of nocturnal, illegal, rice transport, intercepted by officials, and you do no violence to language to describe that activity as prejudicial to rnpplies a'nil services.

Anyway, rushing food supplies to a nation in hunger is a composite operation of supplies and services essential to the life of the community and the order is not bad .because it telescopes lx•th.

Shri Antho1y relied on the mental vacillation of the detaining officer as disclosed in the affidavit in return filed by the State where 'and services' is struck off after "maintenance of supplies". If this reftects the ·----- (!) (1948] t K.B, 349.

slippery satisfaction of the District Magistrate it is unfortunate. Here some Upp"r Division Assistant (Special), Home Department, has sworn an affidavit, not with personal knowledge but with paper wisdom.

It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even where liberty of a citizen is choked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is not available, not the next best, the oath of a senior officer in the Secretariat v:ho had been associated with the handling of the cas_e at Government level.

Mechanical affidavits, miniaturising the files into a few paragraphs, by some one handy in the Socretariat cannot be regarded as satisfactory.

This is not a mere punctilio of procedure but a proOative requirement of substance. However, in this case, counsel made no point about this aspect of the affidavit because the relevant material recited in the detention order is almost admitted in the petitioner's averments.

Even so, the curious striking off in the affidavit of one ground relied on by the District Magistrate in his order is obscure.

Had the authority used one or other of the grounds in the alternative, such for example as 'public order' or 'security of State' or 'maintenance of supplies', it would have failed in law.

He has to be firm and clear and not doubtful about why he is detaining the man. 'Either or' ill fits into s.3. Not so, when it is cumulative. A man may be detained on grounds A and B but not A or B. Here, the cumulative, not the alternative is the tenor of the order. Had it been otherwise due care would stand negatived and the order would fail.

Fundamental rights are fundamental and administrative indifference is impermissible to encroach beyond the strict Jines of the Jaw. Rameshwar Lal(') elicited some stern observations from Hidayatullah, J ., as he then was. The learned Judge said :

"However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is noi J?laced before a Magistrate and has only a right of being supphed the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be non-existing so that it could not have and ought riot to have played a part in the material for consideration, the court may attach some importance to this fact."

The present case hardly fails for this reason since particular< of

grons are givn V.:hich covr supplies an? services to the community, preiudtce to whteh ts the rattonale stated m the order. But it is con-

(!) (1968] 2 S.C.R. 5-05.

SUPREME COURT REPORTS l 1974 J 3 S.C.ll.

tended that the particulars furnished relate to supplies only and how services are affected is left vague. If one ground is vague, the order fails.

In Rameshwar Lal(') it was pointed out:

" .. where some grounds are found to be non-exis.ting or are ca"celled or given up, the detention cannot be justified .... if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the det•!ntion can be questioned."

In this connection, Shri Anthony forcefully urged his case that services being farupted was one of the precise reasons for the detention, but no particulars which would make out that ground,. apart from the distinct ground of preventing supplies, have been given. On the reasoning in Prabhu Dayal the order is illegal, he argued.

Mathew, J., brought out the fatal flaw in Prabhu Dayal thus :

"The fact that one of the grounds mentions that paddy and rice had been unearthed and seized from the unauthorised possession of the petitioners from the rice mill in question on the dat1: of the detention order would not necessarily lead to the inference that the petitioners have been indulging in unauthorized milling of paddy, much less that they were smuggling the resultant rice to Maghalaya for earning undue profit.

It cannot, therefore, be said that the first ground, namely, that the petitioners are responsible for unauthorised milling of paddy and smuggling of the resultant rice to Meghalaya for earninp undue profit, is a conclusion reached from the fact"of seizure of paddy and rice on 25-7-1973 or the seizure of rice on 16-5 l 972 from their unauthorized possession at Messrs.

Sriniva; Basudeo. Fancy Bazar, Gauhati."

These are not only cases where one of the grounds of detention was vague, but also cases where the detaining authority dicl not apply its mind at all to one of the grounds of detention. If the detaining authority had no particulars before it as regards the smuggling operation how was it possible for it to hwe been satisfied that the petitioners wore smuggling rice to Mcghalaya for earning undue profit? H there was any particular instance of smuggling of the kind in the mind of the detaining authority, it would have been possible for it to specify the particular instance at least in the grounds."

Re[cren•:c "as also made in the above case by the learned Judge to Keshav Ta!pad!' v. f111peror('~) wher-e. it was said :

"If a chtnining authority gave four reasons for detaining a man. 1vithout Ui.;; tinguishing between them, and any two or three cl the reasons arc held to be bad, it can never be certain to wha extent the bad reasons operated on th~ mind of the

(t) 11963' 2 S.C.R. 505.

(2) A.LR. 1943 F.C.ld,8.

JAGDISH PRASAD v. BIHAR (Krishna lyer, /.)

authority or whether the detention order would have been made at all if only one or two good reasons had been before them.''

The Jaw is thus indubitable that if one ground is vague of denuded of any detail the order, even if other good grounds exist, is bad. The sole enquiry then is whether in substance no material has been set out here from which a rational inference regarding perverting services to the community has been given at all, as happened in Prabhu Daya/('), case.

We demur.

The order detailing grounds of detention reads thus :

"In pursuance of section 8 of the Maintenance of Iriternal Security Act, 1971 (No. 26 of 1971), Shri Jagdish Prasad, Proprietor M/s Lachmi Bhandar, North Market Road, Upper Bazar, Ranchi is informed that he has been ordoreJ to be detained in my order No. 1182/C dated 9th October, 73 on the following grounds :- !. That you on 2-10-72 .at about 12 O'Clcck at night were transporting 50 bags of rice weighing on truck No. BRV 6627 which was checked by the Sub-Divisional Magistrate, Sadar, Ranchi.

2. That you produced at the time of checking cash memo book and you asserted that out of 50 bags of rice seized on the said truck, 15 bags of rice were sold to Biswanath Floor Mill, Khelari, JO bags of rice to Pramod Floor Mill, Khelari and 10 bags to Shri Kundanlal Khelari.

3. That in support of your assertion as stated in para No. 2 above, you produced Cash memo No. ll34 dated 2-10-73 showing sale of 15 bags of rice to M/s Biswanalh Flour Mill,

Khelari and you mentioned lice11ce Nun1ber of M/s Bis\vanath Flour as 34/69 (R). On verification by a Magistrate !st Class, Ranchi, at Khelari from Shri Jagi Ram, Proprietor of M/s Biswanath Flour Mill, Khelari. it has been established that tho licence number of the firm is 63/68 and not 34/69.

Sl; ri Jagi Ram has also asserted that he did not purchase any rice from you or frorn any other p1ace on 2-10-73.

4. That similarly in support of assertion as stated in para 2 above, you produced Cash memo No. 1135 dated 2-10-73 showing sale of 10 bags of rice to M/s Pramod Fl.our Mill of Khelari showing their licence numher as 31 /68 (R). On actual verification at Khalari by a Magistrate I.st Class, Ranchi, from Shri Bhagwan Singh, Proprietor of M/s Pramod Flour Mill, Khelari it has been established that the licence of M/s Pramod Flour Mill, Khelari is 9/72 and not 31/69. It has also been established that M/s Pramod Flour Mill, Khelari had no license in 1969. It has also been established that on 2-10-73 M/s Flour Mill Khelari did not make any purchase of rice from you or from any other shop.

(1) W.P. t496 of 1973; Judgmeot dated Ootobzr tt.1973.

5. That similarly in support of your assertion as stated A. in para No. 2 above, you produced cash memo No. 1137 dated 2-10-73 showing sale of 10 bags of rice to Shri Kundan Lal of Kh, lari showing his licence number as 26/67(R). On

actual verification at Khelari by a Magistrate !st Class, Ranchi, from Shri Kundan Lal of Khelari it has been established that Shri Kundan Lal of Khelari has got no foodgrain dealer's lic:ence, nor he deals in foodgrains. It has also been B establishee that the said Kundan Lal of Khelari did not purchase any rice from you on 2-10-73.

In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of supplies and services essential to the community for prevention of such activities I consider his deten• C tion necesnary . ... "

He who runs and reads will be satisfied, if the statements are true, -it is not for ·:he Court to investigate the veracity of these averments -that prolix particulars are communicated about the ruidnight movement of 50 bags of rice-a clandestine misadventure contrary to the conditions of this wholesaler's licence-and, when challenged, reeled D off imaginary numbers of licences of dealers some of who1n, on verifica~ tion, had no current licence and all of whom had disowned the alleged purchases. May be, the petitioner has a good defence but the imprisonment is preventive and not punitive, the conclusion is based on the executive's subjective satisfaction, not the court's objective assessment.

Even the admitted facts are tell-tale. The petitioner is a licensed wholesale dealer. H' can carry on his business only at a place mentioned E in his licence and not do transport and sale qutside those premises. He can ; ell only to a.wholesale or retail merchant holding a pern1it. He shall h sue 'to every customer a correct receipt giving the name, address and licence number of the customer' and other details and keep a duplicate of toe same. On the recitals in the annexure to the order, the petitioner has. in violation of all these safeguards, attempted to run the gauntlet of the law.

An intelligent forecast made by the District F Magistrate that the detenu would break the control system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germrne 10 supplies, not services.

Therefore, as earlier explained, the wfoJle order breaks down.

We do not 1!ismiss this argument as merely technical or procedural for the eloquent reason given by Mathew; J., if we may say, with deep G deference in Prcbhu Dayal's .case :

"The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called '<> technical H error. We ; ay and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for

invading the personal liberty of a citizen, except in accorddance with the procedure established by the Constitution and the laws.

The history of personal liberty is largely the history of insistence on observance of procedure.

Observance of procedure has been the bastion against wanton assaults on personlil liberty over the years.

Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the communhy cannot be over-emphasised. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals in personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values.

For, any judgment as regards that would be but a value• judgment on which opinions might differ.

But whatever be its impact on the maintenance or supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the Laws for depriving a citizen of his personal liberty, we think it our duty to see that procedur.e is rigorously observed, however strange this might sound to some ears."

Part IV of the Constitution projects a value judgment which some jurists have interpreted to mean that in the hierarchy of human rights the right to life ranks highest and if the liberty of the few starve e life of the many the jural order may break down, an aspect on which we do not now need to speak.

The position of law is plain but docs not apply he.re .. we hae been at pains to explain that illicit transport of foodgrams m the ."~ secrecy of night by one whose business license d.oes not. per!Dlt t

and who gives false excuses when confronted, does mdulge m a~ aa:f vity with impact on supplies and services. Supplies and stoc ' hi'acked by wholesalers, upsets .the delicate control. schem.o:· So ~

trnsport and delivery to each centre accoding to its ruireen~ IS thrown out of gear by these private opet1ons. And B1har, oppmg. barrowingly from drought to tloods, can ill-afford to have the wheels

of distribution, of which supplies and services are two facets, wobble or break down.

Anyway, we cannot hold the order bad, in economics or Jaw.

Counsel referred to the quantity being but 50 bags of rice-too small to thwart supp'ies to the community. While that is of little avail legally, it suggests cynically that larger black-marketers are easy in their bosom while deserving to be behind bars. That is not our province as judges, and ourviews as citizens are out of place.

In conclusion, we would like to express concern at prolonged detentions without trial without periodical review of each individual case in changing circumstances.

The petition fails and is dismissed. s. B. w.

Petition dismissed.

JAGDJSH PRASAD

THE STATE OF BIHAR AND ANOTHER

February 13, 1974

V. R. KRISHNA IYER

Inrernat Security Act 1971

Sec. 3(1)

sec. 3( I)

Constitution of India

Art. 32

s 33

s 8

s 3

s. 3

Bihar

October 11, 1973

[1966] 1 S.C.R. 709

Supreme Court

Article 32

Constitution of India

Frank Anthony

S. K. Gambhir

K. K. Sinha

S. K. Sinha

KRISHNA IYER

Frank Anthony

Jagdish Prasad

Ranchi

Section 3

S. N. Sinha

Anthony

Section 36(3)

Defence of India Rules, 1971

Rameshwar Lal

Hidayatullah

(1968] 2 S.C.R. 5

SUPREME COURT REPORTS l 1974 J 3 S.C.ll

Rameshwar Lal

Prabhu Dayal

Mathew

Maghalaya

Meghalaya

16-5 l 972

Gauhati

Mcghalaya

Prabhu Daya/

section 8

9th October, 73

Biswanath

Pramod Floor Mill, Khelari

Kundanlal Khelari

Biswanalh Flour Mill

Jagi Ram

Biswanath Flour Mill, Khelari

Pramod Fl.our Mill of Khelari

Khalari

Bhagwan Singh

Pramod Flour Mill, Khelari

Flour Mill Khelari

Kundan Lal

Khelari

Prcbhu Dayal


MOHD. ALAM v.

STATE OF WEST BENGAL February 14, 1974 [V. R. KRISHNA IYER AND R. s. SARKARIA, JJ.]

Prevention detention-' Services and Supplies' in s. 3 ( 1) (a) (Ui) of the Maintenance of Internal Security Act, 1971, Scope of-Detention until the expiry of the Defence of India Act. if ralid-Counter-af]idavit on behalf of State-Who should file-Duty to com1nu11icate material particulars to the detenu.

The petitioner was detained by an order passed under s. 3 (2) of the Maintenance of Internal Security Act, 1971, with a view to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The detention order was confirmed by the Government and the Government directed that the detention should continue till the expiration of 12 months from the date of detention or until the expiry of Defence of India Act. 1971, whichever is later. Twp instances of thefts of copper wire were given in the grounds of detention communicated to the detenu.

He alleged that he haclbeen wrongfully arrested and detained for 22 days in the Police Station and that thereafter the detention order was foisted on him with false and concocted charges. The counter-affidavit was filed, not by the District Magistrate who passed the order of detention; but by a Deputy Secretary in the Secretariat who bad not personally dealt with the case of the detenu, and it stated that from records it appeared that the petitioner was a "veteran copper wire criminal". In a petition for the issue of a writ of habeas corpus it was contended that: (1) theft of te[e.communication wires or cables, may disrupt 'services' essential to the community but had no connection with the maintenance of 'supplies', and since no particulars whatever in relation to supplies were communicated to the petitioner the ground with regard to 'supplies' is irrelevant and vague and hence the detention order was violative of Art. 22(5) of the Constitution; (2) the period of detention under the impugned order was indefinite and uncertain and infringed Art. 22(7)(b); (3) the counter-affidavit filed was not by the officer who was satisfied about the necessity of detention and was insufficient to rebut the allegations of the petitioner that his detention was on false grounds . with ulterior motives; and ( 4) the grounds of detention conveyed to the petitioner were false, vague and deficient in material particulars in that the 'reliable infor .. mation' sho.wing that he was a "veteran copper wire criminal" was not commu .. nicated to him.

HELD: (1) The expres!ion 'supplies and services' ins. 3(1)(a)(iii) of the Act is to be construed pragmatically in the context of each case with due stress on the phrase 'essential to the life of the community'. In a few cases these expressions may carry a meaning distinct from each other. But in mast cases the same activity may equally affect supplies and services and the connotations of 'supplies' and 'services' may coincide or telescope into each other. Such will -be the case where there is large scale theft of copper wire by cutting and removing the same from the power mains or telecommunication installations or underground cables.

[382 E-GJ ...

Jagdish Prasad v. State of Bi'har Writ Petition No. 1972 of 1973, followed Strouds' Judicial Dictionary 3rd Edn.· p. 2939 and Bfackpool Corporation v.

Locker [1948] 1, K.B. 349; referred to.

(2) The Period of detention fixed under the irripugned orders does not infringe the mandate of Art. 22(7)(b) of the Constitution.

[383 G]

Fagu Shah etc. etc. v. State of West Bengal Writ Petitions Nos. 41, 106, f 13, 214, 44\'and 621 of 1973 decided on 20!2-1973, followed.

(3) The proper person to file the.counter-affidavit is the District Magistrate who had passed the order of detention under s. 3 of the Act, and, if for some good reason he is not available the affidavit of a senior officer who personally dealt with the case of the detenu in the Secretariat or had put it to the minister

SUPREME COURT REPORTS [ 19(4 J 3 s.C.lt,

for orders should have been filed.

These obligations stem from the well-settled A principle that once a Rule Nisi is issued on a habeas corpus motion by the Court the onus is on the State to show that the liberty of the detenu has been lakeo away in accordance with the procedure established by law and that the safeguards provided in Art. 22 and in the Act have not been transgressed or bypassed.

But for the fact that the allegations of mala {ides in the affidavit of the petitioner are imprecise and deficient in particulars the omission to furnish the affid"Uvit of the District Magistrate might have been fatal to the. impugned order.

haik Hanif v. State of West Bengal Writ Petition No. 1679 of 1973 B followed.

[384 G-385 C; 386 A-BJ

(4) All the information received by the District Magistrate and the Government about repeated criminal activitiesof the detenu had contributed towards the subjective satisfaction of the detaining authority.

But for the detenu being, in the opinion of the detainina authonty a 'veteran or habitual copper wire criminal' the District Magistrate 1night not have taken the impugned action.

But, admittedly the whole of this m1atcrial or reliable information about the anti- C social and prejudicial activitie": of the detenu on which the detention order was based, was not communicated to him.

The noncommunication of that material was violative of Art. 22(5) of the Constitution and the Act, inasmuch as it did not intimate to the detenu the full i::rounds or material to enable him to make an effective representation.

Omission to communicate this material to the detenu must have seriously prejudiced hirnfn exercisine his constitutional right of making an effective representation and therefore the detention was illegal.

[386 C-F; 3870]

ORIGINAL JURISDICTION : Writ Petitions Nos. 1678 and 1855 of 1973.

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

0. P. Malviya, for the petitioners (amicus curiae)

G.: S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

SARKARIA, J. As similar questions of fact and law arise in these two petitions under Article 32 of the Construction, they will be disposed of by this common judgment.

Petitioner in Writ Petition No. 1678 of 1973 is in detention since January 15, 1972 in pursuance of an order dated January 14, 1972, passed under s. 3 (2) of the Maintenance of Internal Security Act, 1971 (for short, the Act) by the District Magistrate, Burdwan. The detention order as confirmed by the Government on April 12, 1972 under s. 12 (I) of the Act, directs that the detention "will continue till the expiration of 12 months from the date of his detention or until the expiry of Defence of India Act, 1971 whichever is later."

In response to the Rule Nisi issued by this Court, Shri Sukumar Sen Deputy Secretary, Home (Special) Department, Governmen! of West Bengal filed a counter-affidavit in para 4 of wliich it is.J1Verred:

"It appears from the records that after receiving reliable information relating to the illegal anti-social and prejudicial actMties of the above-named detenu-petitioner relating ID the maintenance of Supplies and Services essential to the

community, the said District Magistrate of Burdwan Jl6SSCd

order of detention against him under the provisions of the said Act." In para 7 of the counter, it is said that "it appears from the records, tbat the detenu-petitioner is a veteran copper wire crimin~I." Two instances of thefts of copper wire or cable used for tele-communication B services, which took pl.lee on December 19, 1971 and December 22, 1971, are also mentioned. .

The grounds of detention that had been communicated to the detenu, read as under :

"(I) That on 19-12--1971 at about 00-30 hrs.

You alongwith your associates including (1) Md. Kasim son of Md. Manda! of Kashi Mohalla, P. S. Asansol, Dist. Burdwan

(2) Hyder Ali son of Bachchu Md. of Talpukuria, P. S.

Asansol, Dist.

Burdwan, took away 40 kgs. underground copper wire cable used for the purpose of tele-communication service from St. Patric School compound, P. S. Asansol, Dist. Burdwan.

As a result of this theft important telecommunication service between Panagarh Army Base Camp and Patna \\'lS totally disrupted for long 6 hours causing much inconvenience to the people.

(2) That between 28.30 hrs. on 22-12-71 and 00.30 hrs. on 23-12-71 you alongwith your associates including

(I ) Md. Kasim son of Md. Manda! of Kasimohalla P. S. Asansol, Dist. Burdwan (2) Hyder Ali, son of Bachcha Md. of Talpukuria, P. S. Asansol, Dist. Burdwan took away 80 kgs.

underground copper wire cable used for the purpose of telecommunication service fron1 St. Patric School compound, P. S. Asansol, Dist. Burd wan. By your act important telecommunication service Panagarh between Army Base Camp and Fratna was totally disrupted for long 8 hours to the sufferings of the people." Mr. Malviya, who assisted the Court as amicus curiae has canvas sed these contentions :

(i) The impugned order says that the petitioner has been detained "with a view to preventing him from acting in a manner prejudicial to the maintenance of Supplies and Services essential to the community".

Theft of tele-communication wire or cables, may disrupt •services' essential to the comn1unity, but it has no connection with the maintenance of 'supplies'.

Ins. 3(1) (a) (iii) the conjunction "and" is to be read as "or", and "supplies" and "services" disjunc tively, being two different and distinct matters. The ground with regard to "supplies" is thus irrelevant and vague and since no particulars whatever u'l thh: ground were communicated to the detenu, the detention order was violative of cl. (5) of Article 22 of the Constitution;

12-L954Sup a/74

382.

(ii)

(iii)

(iv)

The period of detention fixed under the impugned order is indefinite and uncertain inasmuch as it has been made co-extensive with another indefinite and .uncertain period viz., the life of the Defence of India Act., 1971. In this way, the impugned order indirectly infringes the mandate of Article 22 (7) (b) of the Constitution;

The District Magistrate who had passed the detention order, has not furnished his affidavit, nor has any satisfactory explall\ltion been given as to why he has not done so. The stereotyped affidavit of the Deputy Seceretary who did not personally deal with the case of the detenu, at any level, is not sufficient to rebut the allegations of the petitioner that his detention has been effected on "totally false" grounds, with "ulterior motives;"

The grounds of detention conveyed to the petitioner were false, vague and deficient in material particulars.

All the material or the "reliable information" relating to the "anti-social and prejudicial activities of the petitioner", referred fo in the Deputy Secretary's affidavit, showing how the petitioner was a "veteran copper wire criminal", on the basis of which the District Magistrate/the Government was satisfied about the necessity of the impugned detention, was not communicated to the detenu who, in con:iequence, was deprived of his right to make an effective representation.

We will deal with the contentions ad seriatum. Contention (I) does not appear to be tenable. The expression "Supplies" and "Services" in s. 3 (1) (a) (iii) of the Act are to be construed pragmati•

cally in the context of each ca~'• with due stress on the phrase

"essenfral to the life of the community". In a few cases, these expressions may carry a meaning distinct and different from each other.

For example, a sweepers' strike may seriously disrupt the "services" essential to the community, but no question of disrupting "supplies" arises, in such a case.

In most cases, where, the same activity inay equally affect "supplies" and "services", the connotations of "'sup ... plies" and "services" may coincide or telescope into each other~.

Such will be the case where there is large scale theft of copper wire by cutting and removing the same from the power mains or telecommunica#on installations or underground cables.

According to Strouds' Judicial Dictionary 3rd Edn. p. 2939, "to supply" means to "pass anything from one who has it to those who want it".

Construed in this sense, "tele-communication" is both a "supply" and a "service". So a:re. the copper wires or mains hrough which the supply is made and service conducted.

The same is true about electricity, water, light, fuel or other commodity essential for the life of the community and the medium or the mains es.<ential for their

MOHD. ALAM v. WEST llENGAL (Sarkaria, /.) 383

maintenance.

In the context of the acute shortage of essential commodities, many other things such as 'food', 'copper', 'coal' etc. may partake the chatacter of "supplies" as Well as "services''.

Thus in Blackpool Corporation v. Locker(''), it was held that the provisions of housing accommodation was within the ambit of "supplies and services" in Regulation 51(1) of the Defence (Gene11al) Regulation 1939.

In Jagdish Prasad v. State of Bihar('), this. Court had the occasion to consider the meaning of "Supplies" and "Services" in this statutory provision in the context of hoarding and black-marketing in foodgrains.

It is, therefore, not. necessary to dilate on this subject any further. It will be sufficient to extract here what the Bench, constituted by both of us, said on the point :

" .... all supplies are not services and all services are not supplies but the complex needs and amenities of modern life and the multifarious obligations of a weHare state mingle s11pplies and services so much that the concentric circle geometry becomes a misleading stroke of gullibility in :his jural area. For example, an essential commodity is at once a •upply and a service.

Section 36(3) of the Defence of India Rules, 1971 defines it to mean:

'essential commodity' means food, water, fuel, light, power or ny other thing essential for the existence of the community which is notified in this behalf by Government.

'Light and power' thus are commodities; so also f<!Od and water.

Yet who will deny .that light is a service or drinking water, for that matter 1 The touchstone of sial control is that it mnst be a thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services .... Food is supplles, so is shipping and wagons, kerosene. and gasoline.

And yet they are services."

All that we may now do is to add copper wire and cables used for tele-commuuications or power transmission to the above list of commodities, essential to the life of the community, which are at once "supplies" and "seniices" within the contemplation of s. 3 (1) (a) (iii) of the Act. The first contention of Mr. Malviya thus stands negatived.

We are unable to accept contention (ii) because this matter stands concluded by this Court's judgment in Fagu Shah etc. etc. v. State of West Bengal('). The argument therein was that the expression "maximum period" in Article 22(7) (b) connotes a definite period reckoned in terms of years, .iitonths or days and that no period can be said to be maximum period unless it is possible to predicate its beginning and end in terms of years, months or days and that since the determination of the period of detention, namely, expiry of Defence of India Act, 1971, is dependent upon revocation of Proclamation of Emergency, the.period

(I) (1948! 1, K. B. 349.

(2) Writ Petition No. i972 of 1973. {3) Writ Petitions Nos. 41, 106, 113, 214; 441 and 621 of 1973. decided on

20-12-1973.

fixed under s. 13 of the Act is not the maximum period as visualised by A Art. 22(7)(b). Mathew J., who spoke for the majority, negatived this contention in these terms :

" ...• ; . as the object of preventive detention is to prevent persons from acting in a manner pre-judicial to the mainte-· nance of internal security, public order or supplies or services essential to the community or other objects specified in entry 9 of List I the power to detain must be adequate in point of duration to achieve the object.

And, how can the power be adequate in point of duration, if it is insufficient to cope with an emergency created by war or public disorder or shortage of supplies essential to the community, the duration of which might be incapable of being predicated in terms of. years, months or days even by those gifted with great prophetic vision ? If 'the maximum period' can be fixed only in terms of years, months or days certainly it would have been open to Parliament to fix a long period in s. 13 and justify it as 'the maximum period'. It would be straining the gnat and swallowing the camel if anybody is shocked by the fucation of the maximum period of detention with reference to the duration of an emergency but could stomach with complacency the fixation of maximum period, may, at fifteen or twenty years ...

We do Rot think that the Parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of emergency has, in any way, abdicated its power or function. to fix the maximum period or delegated it to the President. There ca~ be uo doubt that it is Parliament that has fixed the maximum period ia s. 13 of the Act. The only question is whether, because the durationof the period is dependent upon the volition of the President, it ceases to be 'the maximum period'.

We . cannot presume that the President will umeasonably continue the Proclamation of Emergency even after the emergency has ceased to exist."

This takes us to contention' (iii);-··

.-~··· - This objectio~-hs been repeatedly raised in habeas corpus petitions that have come up before this Bench in the last two months.

In Shaik Hanif v. State of West Bengal(') this Court had pointed out that in return to a Rule Nisi issued by this Court in a habeas corpus petition, the p:oper person to file. the counter-affidavit is the District Magistrale who had passed the order of detention under s. 3 of the Act, and, if for some good reason the Magistrate is not available, the next best thing would \le to furnish the affidavit of a Senior Officer who personally dealt with the case of the detenu in the Government Secrclanat, or had pur it to the Minister for orders.

Our ciemocratic CoffStitution inhibits blanket and arbitrary depriva- H tion of a person's liberty by authority. It guarantees. that no one shall

(I) Writ Petition No. 1679 of 1973.

' r

~-'

...

~!). ALAM .v. Wf..Sr JlJ; llG,\L ($ark11ria, /,) 38 5

1"e dc.11ri.ved (lf his personal liberty ~:; cept !, n !lcco; danc.e wilh procedure

establbd , by Ja.w: It iurd\lof, pc:rin1ts te State, ijl l!ie h\rger inierests of. socty, to ,51~ restrict tht J\l.tldamentl ti&l1t tht a reasona!>le, but

delte hal; mce is maintiiil)d on a le)lal fulpri1111 between individual liberty nnd social security. The .sligl1!est deviation from or displllccmcnt or infraction or violation of tile legal ptocedure symbolised in that fulcrum, upsets the balance, intr()d11ces rror and aberration and vitiates its working.

This symbolic balailce th°'rriore has to bl! worked with utmost care and aitention. Viewed in that perspective, the requirement as to the filing of the counter-affidavit by the proper person cannot be treated as an empty formality.

This obligation stems from the well-settled principle that once a Rule Nisi is issued on habeas corpus motion, by the Court, the onus is on the State to show that the liberty of the detenu has been taken away in accordance with prci::edure established by law, and that the safeguards provided in Article 22 and in the Act, have not been transgressed or bypassed. . .

Jn JagdiJh Prasad v. State of Bihur (supra), also where the coun-. !er-affidavit !1ad been sworn by an Assistant of the Home Department, not wit;1 per£onal knowledge, but paper wisdom, the court, both of us, constituting the Bencl1, expressed itself in the same strain, with added emphasis, thus :

"It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even "here liberty of a citizen is choked off, to et the District Magistrate to explain his subjective satisfaction and the grounds therefor.

Not even why he is not available, nor the

net best, the oath of a Senior Officer in the Secretariat who had been associated with the handling of the case at Government level. Mechanical affid.avits ...... by some one handy in the Secretariat cannot be regarded . . . . . This is not a mere punctilio of procedure but a probative requirement of substance." In the instant oase, the Deputy Secretary who has sworn the affidavit does not aver that he had personally dealt with the case of the detenu. He has sworn the affidavit merely on the basis of paper information gathered from the official records. A stereotyped explanalion, the same which was offered in similar petitions decided by this Bench, earlier has been given for not furnishing the affidavit of the District Magistr.ate. It is stated that the Magistrate is "preoccupied in the G matter of maintenance of law and order and procurement of rice". Such an explanation is hardly satisfactory.

It was all the more important in this case to get the affidavit of the District Magistrate, becaus~ in this case the detenu has alleged that he had been wrongfully arrested and detained for 22 days in the police station and thereafter the detention order under the Act was foisted on him on the basis of charges which were 'totally false' and had been concocted by the police and the detaining authority from ulterior motives to cover up his initial wrongful detention. These allegations of mala fidcs may be wrong. But the best informed person to rebut the same on oath was the District Magistrate against whom they were

levelled.

But for the fact that these llegations of ma/a fides are imprecise and deficient in particulars, the omission to fµrnish the . affi~ davit of the District Magistrate itself might well have been fatal to the. impugned order. Nevertheless, it is .a circumstance to be taken into account in appreciating the next contention.

The Deputy Secretary in his affidavit has disclosed that there was "reliable information" and. other mraterial,-in addition. to what was comnlunicated to the detnu-lfore the detaining authorities, in regard to lhe "anfi.social and J)rejudicial . activities" of the petitioner showing how he was a "veteran coPper wire criminal".

No bodv is born a criminal, much less a habitual or "veteran" criminoL It takes time for one to become 50.

The adjective "veoteran" which is synonymous with "habitual" implies a long course of recurring or persistent criminal behaviour or repeated commission of crime. Surely, all the informatioo receivAf by the District Magistrate/ the Government, about the repeateli criminal activities of the detenu had contributed towards the subjective safi.sfaction of the detaining authority. It will not be extravagant to say that but for the detenu being in the opinion of the detaining authority a "veteran" or habitual copper wire criminal, the District Magistrate might not have taken the impugned action.

Admittedly, the whole of this material or "reliable information" about the "antisocial'' and uprejudicial activities" of the detenu that led to his detention. was not communioated to him. This illformation which was withheld was not claimed to be privileged under clause (6) of Article 22. The non-communication of that material was violative of Article 22(5l of the Constitution and the Act inasmuch as it did not intimate to the delcnu the full grounds or material to enable him to make an effective representation. The detention is thus illegal.· We, therefore, allow this petition, set aside the detention order and direct that the petitioner be set at liberty forthwith.

In Writ Petition No. 1855 of 1973, Mr. O. P. Sharma, who assisted the Court as amicus curiae, has canvassed the same points which were urged by Mr. Malviya in Mohd. Alam's case (supra).

The same Deputy Secretary has filed the counter-affidavit in this case also.

The same explanation of the omission of the District Magistrate who passed the detention orde~. to file the counter has been given.

Jp the affidavit of the Deputy Secmtary, it is said thut the petitionet is a "person of desperate and dangerous character" and "veteran copper wire stealer". Only two instances spread over a period of about 2J months of the theft of one -valuable underground post and telegraph tele-communication cables were communicated to the detenu.

But other material on the basis of which the Dis.trict Magistrate/the Government rw.ched the conclusion that the petitioner was a "desperate and dangerous character'' and "veteran copper wire stealer" was not communicated to the detenu.

The non-communication ofi this material is not sought to be justified on the ground of its being . privileged under Article 22(6).

Indeed, learned Counsel for the

State has been fair enough to place a copy of the material on record.

It reads :

"Jiten Ninia ...... originally hails from Dumka..

He works temporarily .... as loading cooly in the colliery. He bas got no education ...... got no landed property. He is

addicted to wine and indulges in gambling in the area.

The place where he is staying being infested b;: criminals and due to his close a.ssociation with them. he devclopctl criininal propensity.

His mode of living is beyond his means and as such he started committing petty thofts against property. He came in contact with copper wire criminals o, f the locality and started committing theft in respect of P.T. tele-comrnunication cables and D.V.C. cables in the area .... He is dangerous and desperate in character ...... "

What has been quoted. above shows that the detaining authority must have been greatly influenced in ordering the detention by this undisclosed material. not the whole of which was germane to the grounds on which preventive detention can be. ordered under the Act.

Jn any case, omission to communicate this material to the detenu must have seriously prejudiced him in exercising his right of making an effective rep_resentation.

We, therefore, allow Jiten Ninia's petition llso, set aside his detention and direct that he be set at liberty forthwith.

V. P. S.

Petition allowed.

MOHD. ALAM

STATE OF WEST BENGAL

February 14, 1974

V. R. KRISHNA IYER

R. s. SARKARIA, JJ.

s. 3

s. 3

Defence of India Act

Art. 22(5)

Art. 22(7)(b)

Strouds

Art. 22(7)(b)

s. 3

Art. 22

Art. 22(5)

Art. 32

P. Malviya

S. Chatterjee

SARKARIA

Article 32

January 14, 1972

s. 3

April 12, 1972

s. 12

Defence of India Act, 1971

Sukumar Sen

December 19, 1971

December 22, 1971

Md. Kasim

Hyder Ali

P. S. Asansol

Patna

Fratna

Malviya

Article 22

Article 22

s. 3

Section 36(3)

Defence of India Rules, 1971

s. 3

Fagu Shah

Article 22(7)

Defence of India Act, 1971

s. 13

Art. 22(7)(b)

Mathew

Parliament

s. 13

s. 13

s. 3

Article 22

Article 22

O. P. Sharma

Mohd. Alam

Article 22(6)

Jiten Ninia

Dumka

Jiten Ninia


BAVA C. CHOKKAPPA MUDALJAR & ORS.

1'.

BAVA C. CHOKKAPPA MUDALIAR & ORS.

F'ebruary 14, 1974

[D. G. PALEKAR, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.J

Tire Madras Hindu Religious Endownzents Act, 1926 (II of 1926)- . S. 84(1)-Scope of.

Section 84(1)(b) of the Madras Hindu Religious Endowments Act," 1926 as amended by Act 1 O of 1946 provides that if a dispute arises as to whether a trustee is a hereditary trustee as defined in the Act or not such dispute shall be decided by the Religious Endowment Board constituted under the Act and no court in the exercise of its original jurisdiction shall take cognizance of such dispute.

On the question whether a dispute a's to who out of a numb!r of members of a family was entitled to succeed to an office, admitted[Y hereditary, fell within sub-cl. (b) of' 84(1),

HELD : that it was ot a dispute which could be entertained by the Board.

The \'iew expressed in Sastri An111ial v. Pral'afa1•arna Naicker, J.L.R. [1957] Madras 631 and A. Kris/11iaswa1ni Raia v. Krishna Raia, I.LR. [1967] 3 l\1adras,

495, approved. [395 Al D

Gopafaswami Mudaliar v, Thyagar.:1ja Mudaliar, [1951] 1

M.L.J. 248 overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1792 & 1793 of 1967.

Appeals by special leave from the Judgment and order dated the 23rd March 1961 of the Madras High Court in Appeal No. 88 o[ 1958.

M. Natesan, T. V. Krishnam11tthi Iyer, K. L. Rathee, Ganesan and S. Balakrishnan, for the appellant (in C.A. 1792) and for respondent no. 6 (in C.A. 1793). S. T. Desai, V. M. Tarkunde, K. Jayaram and R. Chandrasekhar, for the appellant (in C.A. 1793).

A. R. Somnath Iyer and S. Lakshminarasu, for respondent No. 1 (in both the appeals).

A. V. Rangam and A. Subhashini, for respondent No. 4 (in both the appeals).

K. Jayaram, for respondents nos. 5 & 6 (in C.A. 1992).

The Judgment of the Court was delivered by PALEKAR, J. These two appeals by special leave arise out of a de.- cision of the Religious Endowment Board (hereinafter called the Board) constituted under Section 10 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act No. II of 1926) hereinafter called the Act. The Board gave the decision in a dispute in O.A. No. 279, of 1946 and the principal contention with which we are concerned in' these appeals'is whether the Board had jurisdiction to decide that dispute. Other points were dealt with in the course of litigation, but since the appellants are entitled to succeed on the ground that the

v. s. MUDALIAll v . •. c. CHOKKAPPA (PaI.kar, J.}

B~I

Board had no jurisdiction to entertaiQ the djspqte, it will not b~ necessary for us to deal with the other points. We shall, therefore, confine ourselves to the facts which bear upon the point.

The temple of Sri Tyagarajaswami at Tiruvarur in Tanjore'Distri7t is a well-known; ancient temple of the South. There are l 3 kattala1s attached to the temple-one of such kattalais being the Ultburai kattalai. This kattalai looks after the worship and festivals in the temple .

The management of this Ulthurai kattalai was vested in two Mudalir families. One was the Bava family and the other was the Vadapath1mangalam family. The two families held te office of the trusteeship by hereditary succession. Prior to 1943, the hereditary trustee representing the Bava family was one Vaitbilinga Mudaliar and the other trustee .representing the Vadapathimangalam family was Thiagaraja Mudaliar. The latter is one of the principal parties to this litigation but the litigation was really with reference to the succession to the qffice in the Bava family after Vaithilinga's death.

Vaithilinga died in 1943 leaving behind him surviving (1) bis widow Pappu Ammal (2) a daughter, Shivakami Ammal, by another wife ( 3) a son of this daughter named Brahadeeswaran ( 4) & ( 5) two divided brothers Gopalaswami Mudaliar and Panchapakesa Mudaliar.

The office of the trustee of the temple was an office, of prestige.

After Vaithilinga's death Gopalaswami Mudaliar tried to instal himself as the trustee in the place of his deceased brother. But Thiagaraja Mudaliar the other trustee, did not permit him to work with him as a co-trustee. So Gopalaswami complained to the Board by an ap- '1'lication dated April 22, 1944 purporting to be under section 18 of the Act. Tbiagaraja contested the application pointing out that Gopalaswami could not succeed, as the hereditary trustee and that only the widow of Vaithilinga, viz. Pappu Ammal, should be regarded as the trustee after Vaithilinga's death. Thereafter on February 5, 1945 Gopalaswami applied u/s 42 of the Act for his appointment as an interim trustee pending the dispute about succession. being resolved in a Civil Court. He said be was the senior most male member in the Bava family and was in every way a fit and proper person to be appointed an interim trustee till bis succession to the trusteeship is declared by the Court. This application u/s 42 also was contested by Thiag~aja Mudaliar and Pappu Antmal, and on November 13, 1945 the Board dismissed. bis application u/s 42 pointing out that since the right to succession to Va1thilinga Mudaliar was in dispute the proper course for Gopalaswarni was to establish his right in a Civil Court.

The Board al•-> held that there was already a trustee functioning assisted by th~

executive officer of the Devasthan and hence, it was not necessary to appoint Gopalaswami as a fit person u/s 42.

Thereafter Gopalaswami commenced two proceedings.

On April 3, 1946 he filed 0.S. No. 117 /1946 in the Court of the District Munsif, Tiruvarur for a declaration that after the death of Vaithilinga bis brother, be was entitled to the office of the hereditary trustee to the exclusion of Vaitbilinga's widow Pappu Ammal. To this suit he joined Pappu Ammal, bis younger brother Panchapakesa and Thiagaraja Mudaliar, the other trustee as co-defendants.

The other proceeding

was before the Board purporting to be one u/s 84 of the Act. This application before the Board was filed on April 11, 1946. His contention before the Board may ho set out in his own words : "The last hereditary trustee was Bava C. Vaithilinga Mudaliar the elder brother of the petitioner and he died on April 6, 1943. On his death the petitioner (Gopalaswami) has succeeded to the office and is the next hereditary trustee.

According to the custom prevailing in the petitioner's family and in the Ulthurai kattalai all along the hereditary trusteeship is only with male members and with the senior male member thereunder." To this application F'appu Ammal and his younger brother Panchapakesa were made respondents. The prayer in the application was that the Honourable Board should enquire into the matter and declare that the petitioner Gopalaswami Was the hereditary trustee of Ulthurai kat!alai in succession to late Bava Vaithilinga Mudaliar.

Out of these two proceedings the suit in the District Munsif's Court was not proceeded with. It was permitted to be withdrawn on April 17, 1947 on the ground that all necessary parties had not been impleaded. Liberty to file a fresh suit was reserved.

The proceeding u/s 84 before the Board was contested by the other trustee Thiagaraja and the widow Pappu Ammal. It was specifically l> contended before the Board that the Board had no jurisdiction u/s 84 to entertain the dispute raised by Gopalaswami. The dispute was with regard to the succession to the vacant office of trusteeship in the Bava family, and such a dispute was not one falling within section 84(1) (b) of the Act which had been recently amended by Act 10 of 1946. The contention was that this was a pure dispute about succession to the office between members of the Bava family and the only remedy ppen E to Gopalaswami was to file a suit and obtain the necessary declaration.

That contention was rejected by the Board which proceeded to decide, on such evidence as was produced before it, that Gopalaswami being the eldest male member in the family was entitled to succeed to the hereditary trusteeship to the exclusion of Pappu Ammal. This decision was u/ s 84 ( 1) . Section 84 ( 2) gave a remedy to a person affected by the decision to apply within six months to the Court of the District Judge P to modify or set aside the decision. Accordingly Thiagaraja Mudaliar filed O.P. 2711948 in the court of the District Judge, East Tanjore u/s 84(2) of the Act, contending, inter alia, that the order of the Board was without jurisdiction since u/s 84(1) (b) the Board had jurisdiction only to determine the nature of the office-whether it was hereditary or not-but had no jurisdiction to decide the individual claims to hereditary trusteeship. Pappu Ammal was made one of the co-respondents.

G The point raised was treated by the learned Judge as a preliminary question. He formulated that question in the following way :

"A preliminary question that arises for determination is whether the Hindu Religious Endowment Board has jurisdiction u/s 84(1) (b) to declare that the first respondent (Gopalaswami) is the hereditary trustee of the Ulthurai kettalai after the death of Bava C. Vaithilinga Muda- H liar." It appears that Thiagaraja was not willing to concede that the office of trusteeship was vested in the Bava family hereditarily, but for the purpose of the present dispute, he conl'eded that the Bava family

v. s. MUDALIAR v. B. c. CHOKKAPPA (Pa/ekar, J.) 391

had the right to hereditary trusteeship and the last hokier of the office was Vaithilinga Mudaliar who died in 1943. So there was no dispute either before the Board or in the District Court as to the nature of office being hereditary, but the only question was as to who out of the members of the Bava family was entitled to succeed to this office after the death of V aithilinga. After dealing with the point at some length the learned District Judge by his judgment and order dated September 4,

1948 gave his finding as follows :

 "For the above reasons I agree with the contentions of the petitioner (Thiagaraja Mudaliar) and hold that the Religious Endowments Board had no right to decide a dispute regarding succession to a hereditary trusteeship. I, therefore, set aside O.A. No. 279/1946 (of the .Board} dated September 24, 1947 and allow the petition with costs."

As we shall show in due course this decision was correct. After this decision, Gopalaswami should have gone to the regular Civil Court by way of a civil suit for a declaration of his right to succeed to the office. He did not do so. He went in appeal to the High Court and, in our opinion, fought a futile litigation which has culminated in the present appeals. We will only briefly refer to that litigation.

From the order passed! by the District Judge, two appeals were tiled in the High Court-one filed by Gopalaswami was A.A.O. No. 118/1949. The other was filed by the Board, rather curiously, and was A.A.O. 223/1949. The High Court had to consider only the preliminary question decided by the District Judge as to. whether the Board had the necessary jurisdiction. The Bench consisting of Govinda Menon and Basheer Ahmed Sayeed, JJ was of the view that u/s 84 (I) (b) of the Act, the Board was entitled to decide the dispute; and since the District Judge had not dealt with the case on merits the High Court remanded the matter to the District Judge with the following directions :

"The District Judge will, in the enquiry that would ensue, decicfll between the competing claims of the heirs of Vaithilinga Mudaliar as to who should be the hereditary trustee. The parties are at liberty to adduce such evidence as they desired."

After the'.above remand Vaithilinga's daughter Shivakami Ammal and her son Brahadeeswaran, who had not been added so far as parties to the litigation, were made parties in the District Court. Thereafter Pappu Ammal field a statement in the District Court relinquishing her rights to the olliee. So the District Judge had to decide whether Gopalaswami had a preferenti, al claim to the office as against Vaithilinga's daughter and daughter's son. When the matter came up for hearip.g before. the-learned Djstrict Judge, the learned Judge, rather unaun, tably came to the conclusion that the. daughter and the daughter's son had been irnpleaded by oversight. Their names were, therefore, from the proceedings. This orc!er was passed on 9-2-1952. Thiagan.ja and the daughter and her son filed two appeals A; O. No. 239/1952 and A.O. 579/52 in the High Court against the

SUPREMJ! COURT REPOHS

[ 1974 I 3 S.C.R.

High Court against the orcler of the District Judge. By a common judgment dt. 23-11-1955 the High Court against remanded the .case to the District Judge pointing out that the )earned Judge was wrong in not having beard the contentions df the daughter and daughter's son and that the claim of Gopalaswami must be adjudicated in the presence of tbe daughter and daughter's son who were most vitally interested in tbe dispute.

Alter the above remand the learned District Judge by his order dt. 24-12-1956 held that Gc>palaswami Mudaliar was no.t entitled to the trusteeship and since Pappa Ammal had relinquished her claim the persons properly entitled to the office were the daughter Shivakami Ammal and her son Brahade., swaran. Thus the order of the Board in

0.A. No. 279/46 declaring Gopalaswami as the hereditary trustee in -succession to Vaithilinga Mudaliar was set aside by the District Judge.

It was against this judgment of the District Judge that Gopalaswami filed appeal no. 88/1958 in the High Court. Pending that appeal he died and bis son Kalyansundram and G. Chakkappa were brought on record as bis legal representatives. The deceased brother Panchapakcsa, who was a respondent in that appeal, also got himself transposed as a co-appellant claiming the right to trusteeship in himself after the death of Gopalaswami. Panchapakesa also died. Thereupon his son P. Chakkappa was brought on record as the legal representative. Son Kalyans><ndram died and his widow Kamal Ammal was brought on record. On a detailed consideration of the questions involved the High Court (Rajagopa[an and Rajagopalan Jyyengar, JJ) reversed the finding of the District Judge and confirmed the finding of the Board that Gopalaswami was entitled to succeed as the hereditary trustee. The ourt observedi "In this appeal we are concerned only with the question whether the order of the Hindu Religious Endowment Board declaring the right of Bava Gopalaswami with regard to the Ulthurai kattalai was well-founded or not. We are of the opinion that the said order of ihe Endowment Board in O.A. No. 279/1946 dt.

September 24, 194 7 is correct and that no grounds have been made. out for •etting it aside." The judginent of the High <;:ourt is dt. March 23, 1961. The appeals with which we are now dealing are appeals from that judgment. The first namely C.A. 1792/67 is filed by Thiagaraja Mudaliar and the second i.e. C.A. 1793/67 is filed by the daughter's son Brahadeswaran and Shivakami Ammal.

As stated at an earlier stage of the judgment we are of the view that

the Board was not entitled u./s 84 to entertain the dispute and, there- G fore, the District Judge was right in his view taken by him on 4-9-1948 that the Board had no jurisdiction to decide the individual claims to hereditary trusteeship. That finding was reversed by the High Court on 28-11-1950 and since the appeal had not been finally decided, there was no question of an appeal to this court. As the question was one of jurisdiction which _went to the root of the matter, perhaps, special leuve to appeal might have be.en granted if one were filed. But it does H not appear the.t this course was taken. Therefore, we have now to consider the question of jurisdiction and we regret very much that all this litigation for so many years has been merely a waste.

)--

v. s. MUDALIAR. v. B. c. CHOKKAPPA (Palekar, !.) 39 3.

A Section 84 of the Act, a'!'endcd by Act 10 of 1946 reads as,

follows:

"84 (I) If any dipute _arises as to-- (a} whether an institution is a math or temple as defined in this Act,

( b) whether a trustee is a hereditary trustee as defined in this Act or not, or

( c) whether any property or mo:; iey endowed is a specific endowment as defined in this Act or not such dispute shall be decided by the Board and no Court in the exercise of its original jurisdiction shall take , cognizance of any such dispute.

(2) Any i>erson affected by a decision under sub-section (!) may, within six months, apply to the Court to modify or set aside such decision;

( 3) From every order of a District Judge, on an application under sub-section (2) an appeal shall lie to the High Court within three months from the date of the order; ( 4) Subject to the result of an application under sub-

- section (2) or of an appeal under sub-section (3), the decision of the Board shall be final.

Sub-Section ( 1) refers to 3 kinds of disputes which only the Board' has jurisdiction to decide. The Board is the Board constituted by the- State Government u/s 10 of the Act. The jurisdiction of the Civil Court to entertain the three disputes is excluded. Section (2) gives . . a person affected by the decision of the Board to apply to the court

to mod, ify or set aside such a decision. The court referred to is the court of the District Judge within whose local limits. the temple is. situoted. (sec section 9(3) of the Act.) Sub-section (3) provides for an appeal to the High Court from every order of the District Judge on an application under sub-section (2). Sub-section (4) provides_ that the decision of the Board is fina1'subject to the result of the applica!ion under sub-sections (2) and (3).

__ In the present case as already pointed out Gopalaswami went before the Board with a claim that he was the hereditary trustee of the temple after the death of his elder brother Vaithilinga to the exclusion of every other member of the Bava family. He had a younger brother Panchapakesa. But Gopalaswami claimed that being the eldest male member of the family he alone was entitled. Vaithilinga had left behind him a widow, a daughter and daughter's son. But they too had to be excluded because the snccession descended by custom or usage to the eldest male member of the family. In other words, Gopalaswami's claim was a claim to succeed to the office of hereditary trusteeship to- _thc exclusion of every other member of the Bava family. No body disputed that the office held by Vaithilinga Mudaliar was that of a hereditary trustee. It appears that Thiagaraja Mudaliar hadl disputed this at an early stage but for the purpose of the present dispute he had: , .

willingly conceded that the office held by V aithilinga Mudaliar was that of a hereditary trustee. So there was , unanimity amongst all the parties that the office was on'~ of a hereditary trustee and the only dispute was who, out of the Bava family, was entitled to succeed to that office after Vaithilinga's death. In the normal course any-body making such a claim for the exclusion of others would have had to file a suit in the Civil court for a declaration that he was entitled to succeed to the office. In fact, Gopalaswami had done this by filing a suit in the court of the District Munsif. But later he withdrew the suit with liberty to file a fresh suit. No fresh suit was filed by him, apparently, because the Board before whom he went with this complaint agreed to decide the dispute inspite of the opposition of the widow Pappu Ammal and the other trustee Thiagaraja Mudaliar. The question, therefore, is whether the dispute thus raised before the Board was one which can be truly described as a dispute falling under sub-clauses (a) (b) &

(c) of section 84(1) of the Act. Sub-clauses (a) & (c) had no application. The contention on behalf of Gopalaswami and his heirs was that it was a dispute falling under sub-clause (b). That was contested and we have to see whether that contest was justified.

Both the words "trustee" and "hereditary truste•" are defined under the Act. Trustee is defined in section 9 ( 13) as follows :

"Trustee means a person by whatever designation known in whom the administration of religious endowment is vested and includes any person who is liable as if he were a trustee." When the Act came to be amended by Act 10 of 1946 the original

definition of "hereditary trustee" given in section 9(6) was recast as follows:

"Hereditary trustee" means the trustee of a math, temple or specific endowment succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder so long as such scheme of succession is in force."

These two definitions were advisedly introduced in the Act, because F the Act wanted to make a clear distinction between a hereditary trustee and a non-hereditary trustee so far as the Hindu Religious endowinents were concerned. Non-hereditary trustees were subject to greater control by the Board under the Act, whereas the hereditary trustees enjoyed larger privileges and, the control over them was also much less.

It \\'as, therefore, expected that when the Act came into force a trustee was likely to claim that he was a hereditary trustee and if such G a dispute was raised that dispute was to be exclusively decided by the Board. In other words, if a trustee, as defined in the Act, wanted to claim that he is a hereditary trustee also as defined in the Act, it was necessary for him to approach the Board for a decision of the question land obtain a declaration that the office be held was not just of an

ordinary trustee but a hereditary trustee. Such a dispute can never arise when it is conceded on all hands that the office is of a hereditary H trustee. In the present case the whole question was as to who, out of a number of members of 1the Buva family, was entitled to succeed to the office of the hereditary trustee. Gopalaswami was not claiming a

v. s. MUDALIAR v. B. c. CHOKKAPPA (Palekar, I.) 395 ' higher status than what he was holding.

Either he was a hereditary trustee or nothing. In our opinion, the dispute raised by Gopalaswami before the Board was one which did not fall under sub-clause (b) of section 84(1) and, therefore, it was not a dispute which could be entertained by the Board.

A similar question had arisen in the Madras High Court in Sastri Ammal v. Prayalavarna Naicker('). That was under the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 which replaced Act II of 1927 with which we are dealing. Section 57 (b) of that Act contained provisions which are similar to section 84 of the Act. Section 57 (b) read as follows :

"Subject to the rights of suit or appeal hereinafter provided the Deputy Commissioner shall have power to enquire into and decide the following disputes and, matters :

(b) Whether a trustee holds or held office as a hereditary trustee."

It was held that a dispute between the claimants to succeed to an office which, it is admitted on all hands, is hereditary is not within the scope of section 57(b). The learned Judge observed at page 636 as follows:

"It is not enough to show that the last holder held the office as hereditary trustee. There can be no dispute about that; and there can be no need to determine that, because the dispute is only who is entitled to succeed to the hereditary office.

Obviously a claim to succeed to the office under such circumstances would fall outside the scope of section 57(b)." It is rather interesting to see that the High Courfs decision in the present case which was reported in Gopa/aswami Mudaliar

v. Thayagara; a Mudaliar(') was cited before the court. But the learned Judge declined to follow it on the ground that it was unhelpful in deciding the question at issue. Certain elements of distinction between the provisions of section 84 of the Actand Section 57(b) of the 1951 Act were suggested. But, with respect, we must say there is really no difference. The dispute about succession to an admittedly hereditary office is as much outside the scope of section 84(1) of the Act as of section 57(b) of the 1951 Act. Then again in A. Krishnaswami Raia v.

Krishna Raja(") the same point again cropped up u/s 57(b) of Act 19 of 1951 and the court held that the jurisdiction of the Deputy Commissioner u/s 57(b) of the Act was' confined to a decision whether a trustee held office as a hereditary trustee. The Deputy Commissioner was not competent to go into the other question as to which one of the competing claimants was the hereditary trustee or whether the competing claimants were joint hereditary trustees. That had to be worked out in a separate suit. In our opinion, the view expressed in both these cases is correct and though they are not directly on the provisions of section 84(1) (b) of the Act we have no doubt whatsoever that the same principle applies here.

(I) J. L. R. 1957 Madras 631.

(2) 1951 (I) M. L. J. 248.

(3) J. L. R. 1967(3) Madras, 495.

SUPREME COURT REPORTS ( 1974 I 3 S.C.lt.

While it may well be that the Board before exercising its jurisdiction to determine the character of the trusteeship--beteditary of othermay have to decide tentatively whether the petitioner is a stranger without any locus standi or the heir to the last trustee, in this case even that provisional finding on a collateral fact is uncalled for since the issue it had to decide-hereditary trusteeship-was admitted by both sides. We make it clear that after having got the entire proceedings dismissed as without jurisdiction on the ground that no dispute regarding the herediary nature of the trusteeship at all arose it is not open to the contestant Thiagaraja Mudaliar to resile from that stand in other proceedings.

It is also obvious that our judgment is based on the Act as it was and cannot preclude action, if available, under any new or other enactment.

It follows, therefore, that the Board had no jurisdiction to decide the dispute of succession.

The jurisdiction was with the ordinary Civil Courts of the land. Consequently, the decision of the High Court in A.S. No. 88/1958 dt. March 23, !961 has to be set aside, and the order passed by the District Judge of East Tanjore in O.P. No. 27 /1948 dt.

September 4, 1948 restored. Having regard to the course this litigation has taken, the proper order as to costs, in our opinion, would be to direct that the parties shall bear their own costs throughout.

P.B.R.

Appeal fll/01ved.

BAVA C. CHOKKAPPA MUDALIAR & ORS

D. G. PALEKAR

V. R. KRISHNA IYER

R. S. SARKARIA, JJ

S. 84(1)

Section 84(1)(b)

Religious Endowments Act

M. Natesan

T. V. Krishnam11tthi Iyer

K. L. Rathee

Ganesan

S. Balakrishnan

S. T. Desai

V. M. Tarkunde

K. Jayaram

R. Chandrasekhar

A. R. Somnath Iyer

S. Lakshminarasu

A. V. Rangam

A. Subhashini

K. Jayaram

PALEKAR

Section 10

PaI.kar

Tyagarajaswami

Tiruvarur

Vaitbilinga Mudaliar

Vadapathimangalam family

Thiagaraja Mudaliar

Bava family

Vaithilinga

Vaithilinga

Pappu Ammal

Shivakami Ammal

Brahadeeswaran

Gopalaswami Mudaliar

Panchapakesa Mudaliar

Gopalaswami

April 22, 1944

section 18

Tbiagaraja

February 5, 1945

s 42

Bava

s 42

Thiag~aja Mudaliar

Pappu Antmal

November 13, 1945

s 42

Va1thilinga Mudaliar

Gopalaswarni

s 42

April 3, 1946

Vaitbilinga

Panchapakesa

s 84

April 11, 1946

Bava C. Vaithilinga Mudaliar

April 6, 1943

Gopalaswami

F'appu Ammal

Bava Vaithilinga Mudaliar

April 17, 1947

s 84

Thiagaraja

s 84

section 84(1)

s 84

Section 84

s 84(2)

s 84(1)

Hindu Religious Endowment Board

s 84(1)

Gopalaswami

Bava C. Vaithilinga Muda-

Vaithilinga Mudaliar

V aithilinga

September 4,

1948

Thiagaraja Mudaliar

September 24, 1947

Govinda Menon

Basheer Ahmed Sayeed

s 84

Thiagan.ja

palaswami Mudaliar

Pappa Ammal

Brahade

Kalyansundram

G. Chakkappa

Panchapakcsa

P. Chakkappa

Kalyans><ndram

Kamal Ammal

Rajagopa[an

Rajagopalan Jyyengar

Bava Gopalaswami

September 24, 194 7

March 23, 1961

Brahadeswaran

s 84

Section 84

s 10

section 9(3)

V aithilinga Mudaliar

court of the District Munsif

section 84(1)

section 9

section 9(6)

section 84(1)

Madras High Court

Charitable Endowments Act

Section 57

section 84

Section 57

section 57(b)

section 57(b)

section 84

Section 57(b)

section 84(1)

section 57(b)

s 57(b)

s 57(b)

section 84(1)

SUPREME COURT REPORTS ( 1974 I 3 S.C.lt

March 23, !

District Judge of East Tanjore

September 4, 1948