SHRI RAM KRISHNA DALMIA versus SHRI JUSTICE S. R. TENDOLKAR & OTHERS

March 28.

S.O.R.

SUPREME COURT REPORTS

279

SHRI RAM KRISHNA DALMIA v. SHRI JUSTICE S. R. TENDOLKAR & OTHERS (and connected appeal) (S. R. DAS c. J., VENKATARAM:A AIYAR, B. P. SINHA, S. K. DAS, and A. K. SARKAR JJ.)

Commission·of Inquiry-Legislation empowering Government to appoint Commission-Co'ltstitutionality-If violates guarantee of equality before the law-Notification setting up Commission and con ferring powers thereupon-Legality of-If ultra vires the Act Whether Commission usurps judicial functions-Commissions of Enquiry Act, r952 (LX of r952), s. 3-Constitution of India, Arts. r4_and 246: Seventh Schedule, Entry 94, List I and Entry 45, List Ill.

In exercise of the powers conferred upon it by s. 3 of the Com~issions of Enquiry Act, 1952, the Central Government by a notification dated December II, 1956, appointed a Commission of Inquiry to inquire into and report in respect of certain companies mentioned in the Schedule attached to the notification and in res pect of the nature and extent of the control and interest which certain persons named in the notification exercise,d over these companies. By subsequent notifications the Central Government made all the provisions of sub-ss. (2), (3), (4) and (5) of s. 5 of the Act applicable to the Commission and fi¥ed a period of 2 years from February II, 1957, as the period within which the Commis sion was to exercise its function and to make its report. The four persons named filed three applications under Art. 226 of the . Constitution before the Bombay High Court questioning the vali dity of the Act and of the notification and praying for writs for quashing the same. The High Court dismissed the applications and ordered that the said notification was legal and valid except as to the last part of cl. IO thereof which empowered the Commis _sion to recommend the action which should be taken as and. by way of securing redress or punishment or to act as a preventive in future cases. The petitioners as well as the Union of India filed appeals:

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Held, that the Act was valid and intra vires and that the notification was also valid excepting the words" "as and by way of securing redress or punishment " in cl. IO thereof which werlt beyond the Act.

The Act was enacted by Parliament under entry 94 of List I and entry 45 of List III of the Seventh Schedule of the Constituti~n whiCh relate to inquiries for the purposes of any of the matters in List I and in Lists II and III respectively. The inquiry which may be set up bJl a law made under these entrie.s. is pqt limited1

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in its scope and ambit, to fntnre legislative purposes only. Such a law m~y also be for administrative purposes and the scope of Shri Ram KYishna the 1nqu1ry under such a law will cover all matters which may properly be regarded as ancillary to such inquiries.

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Dalmia v. Shri Justice s. R. Tendolkar 6- Others

The Act does not delegate to the Government any arbitrary or uncontrolled power and does not Qffend Art. 14 of the Constitu- !ion. The discretion given to the Government to set up a Com- mission of Inquiry is guided by the policy laid down in the Act that the executive action is to be taken only when there exists <f definite matter of public importance into which an inquiry is necessary.

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Kathi Raning Rawat v. State of Saurashtra, [1952] S. C. R.

435; applied.

The Commission is merely to investigate, record its findings and make its recommendations which are not enforceable proprio vigor.. The inquiry or report cannot be looked upon as judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently Parliament or the Govern ment cannot be said to have usurped the functions of the ~udi­ ciary.

The notification was well within the powers conferred on the Govern1uent by s. 3 of the Act and did not go beyond the provi sions of the Act. The conduct of an individual person or com pany or a group of individual persons or companies may, in certain circumstances, become a definite matter of public importance with .. in the meaning of s. 3( I) and call for an inquiry. Besides,. s. 3 authorises the Government to appoint a Commission .of Inquiry not• only for· the purpose of making an inquiry into a definite matter of public importance but also for the purpose of perform ing such functions as may be specified in the notification.

It has not been established that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. In matters of this kind the Government has of necessity to act upon the information available to it. It is the.best judge of the reliability of the source of the information and if it acts in good faith and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance the Court will be slow to adjudge the action to be bad and illegal. The bare possibilil.Y that the powers may be misused or abused cannot per se make the power bad. The power having been entrusted to the Central Government and not to any petty official, abuse of power cannot be easily assumed .

• In determining whether there is any intelligible differentia on the basis of which the petitioners and their companies have peen grouped together it is permissible to look not only at the facts appearing in the notification but also the facts brought to the notice of the Court upon affidavits. The facts ino the present case

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afford s1,rffici.ent ~upport to tl).e pre~umptio11 of constitutionality of the n.otification and the petitioners have failed to discharge the onus which was on them to prove that other people or companies Shri Ram Krishna similarly situated have been left out and that the petitioners and their companies have been singled out for discriminatory and hostile treatment.

r958 -

Da/mia v. Shti Justice S. R. Tendo/kar &- O.tliers

The recommendations of the CDmmission of Inquiry are of ~reat importance t.o the Gov!'!rnment in ,order to enable it to make up its mipd ,;i.s to what legislative or administr!ltive rµeasures should be adopted to eradicate the evil fo,upd or to implement the beneficial objects it hais in view. There c~n l_:>i' no .. obj,ectiori to the Commission reco.mmending the imposition of s9me form of punisl).ment which will, in its opinion, be sufficiently deterrent to delinquen.ts in future. But the Commission cannot be asked to ma~e ,recomipendati9ns for taking ,any ~.c.tion "as <J.nd by way of securing redress or punishmept" in r.espe~t of wropgs alr,eady done oi c.ommitted as this is the function of a Court Of law.

)':ven t:hough the oripinal notification appointing the Comm,is sion '1id not fix the time within which the Commission was to comp)eie its report the Government could validly do so by a sub- sequent notification.

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CIVIL APPELLATE JumspICTION: Civil Appeals

Nos. 455 to 457 and 656 to 658 of 1957.

Appefl,ls fro:m the judgm,ept ,and order <;lated April ~9, 1957, of the Bombay ;Hig,h Court in M.isc. Applica- ti01;is ,Nos. 48 to 50 of 1957.

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G. S. Pathak, S. K. Kapu,.r, P. N. Bhagwati and Ganpat Rai, for the appellant in C. A. No .. 455 of 1'957 & respondent in C. A. No . .656 of 1957.

Sachin Chaudhry, R. J. Joshi, J. B. Dq,dac.,hanji, Rarµ,eshwar Nath and S. N. Andley, for the appell~nts in -C. As. Nos. 456 & 457 of 1957 and respondents in C. As. Nos. 657 & 658 of 1957.

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0. /{. Daphtary, Sol,icito,r-Ge,nerq,l for l'Yfdia, G. N. J,oshi, K. H. Bhabha an.d R. H. Dhebar, for respondent No. 4 in C. As. Nos. 455 to 457 of 1.957 and appellant in C. As. Nos. 656 to ·658 of 1957.

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1958. March 28.

.The Judgment _of the Court was

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.de:livered by

D-1s. C. J.-These six several appeals a,re d:irected against a common judgment and order pronounced on

Das c. J.

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282

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Sh . R

·,958

& Others

Das c. J.

v. Shri Justice

April 29, 1957, by a Division Bench of the Bombay . h High Court in three several Miscellaneous Applicaitions " ;;;m;."' na under Art. 226 of the Constitution, namely, No. 48 of 1957 filed by Shri l'l,am Krishna Dalmia (the appellant in Civil Appeal No. 455 of 1957), No. 49 of 1957 by S. R. Tendolkar Shri Shriyans Prasad Jain and Shri Sital Prasad Jain (the appellants in Civil Appeal No. 456 of 1957) and No. 50 of 1957 by Shri Jai Dayal Dalmia and Shri Shanti Prasad Jain (the appellants in Civil Appeal No. 457 of 1957). By those Misc1illaneous Applications the petitioners therein prayed for an appropriate direction or order under .Art. 226 for quashing and setting aside notification No. S. R. 0. 2993 dated December 11, 1956, issued by the Union of India in exercise of powers conferred on it by s. 3 of the Com missions of Enquiry Act (LX of 1952) and for other reliefs. Rules were issued and the Union of lndia appeared and showed cause. By the aforesaid judg ment and order the High Court discharged the rules and dismissed the applications and ordered that the said notification was legal and valid except as to the last r part of cl. (10) thereof from the words "and the action" to the words " in future cases " and directed the Com mission· not to proceed with the inquiry to the extent that it related to the aforesaid last part of cl. (10) of the said notification. The Union of India has filed three several appeals, namely, Nos. 656, 657 and 658 of 1957, in the said three Miscellaneous Applications complaining against that part of the said judgment and order of the Bombay High Court which adjudged thii last part of cl. (10) to be invalid.

The Commissions of Inquiry Act, 1952 (hereinafter referred to as the Act), received the assent of the President on August 14, 1952, and was thereafter brought into .force by a notification issued by the Central Government under s. 1 (3) of the Act. As its long title states, the Act is one " to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers ". Sub-sec tion (1) of s. 3, omitting the proviso not materiltl for our present purpose, provides :

"The appropriate Government may, if it is of

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ris na

rt

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i958

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& Others

Das C. ].

h L

Shri Justic•

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eg1s ative

h . R-K . h am Dalmia • v.

op11110n that it is necessary so to do, and shall, if a resoliJtion in this behalf is passed by the House of the 5 b ssem- People or, as t e case may e, t e bly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public s. R. Tendolkar importance and performing such functions and within m.ich time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functoions accordingly." Under sub-s. (2) of that section the Commission may consist of one or more members and where the Com mission consists of more than one member one of them may be appointed as the Chairman there of. Section 4 vests in the Commission the powers of a civil court while trying a suit under the Code of Civir Procedure in respect of .the several matters specified therein, namely, summoning and enforcing attendance of any person and examining him on oath, requiring discovery and production of any document, receiving evidence op. affidavits, requisitioning any public record or copy thereof from any court or officer, issuing commissions for examination of witnesses or documents and any other matter which ma;y be prescrib ed. Section 5 empowers the appropriate Government, by a notification in the Official Gazette, to confer on the Commission additional powers as provided in all or any of the sub-ss. (2), (3), (4) and (5) of that section. Section 6 provides that no" statement made by a person in the course of giving evidence before the commission shall subject him to, or be used against him in, any civil or criminal proceeding except a· pro secution for giving false evidence by such statement provided· that the reply to a question which he is required by the Com- the subject is mission to answer or matter of the inquiry. The appropriate Government • may under s. 7 issue a•notification declaring that the Commission shall cease to exist from such date as may be s[ll:lcified therein. Bys. 8 the Commission is empower ed, subject to any rules that may be made, to regulate · its own procedure including the time and place of its

statement is made

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Dalmia • v.

sittings and may act notwithstanding the temporary Shri Ram Krishna absence of any member or the existence of any vacancy among its members. Section 9 provides for indemnity to the appropriate Government, the. members of the Shri Justice Commission or other persons acting under their s. R. T'ndolkar directions in respect of anything which is done or intended to be done in good faith in pursuance of the Act. The rest of the sections are not material for th<! purpose of these appeals.

Das C. ].

& Others

In exercise of the powers co1tferred on it by s. 3 of the Act the Central Government published in the Gazette of India dated December 11, 1956, a notifi cation in the following terms :

MINISTRY OF :FINANCE (Department of Economic Affairs)

. ORDER

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New Delhi, the 11th December, 1956

S. R. 0. 2993-Whereas it has been made to

appear

to the Central Government that :

(1) a large number of companies and some firms were promoted and/or controlled by Sarvashri Rama krjshna Dalmia, J aidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, Shital Prasad Jain or some one or more of them and by others being either relatives or employees of the said person or persons, closely con- nected with the said persons ;

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(2)

large amounts were subscribed by the in vesting

public in the shares of some of these companies ;

(3)

there have been gross irregularities (which may in -several respects and materials amount to illegalities) in the management of such companies including manipulation of the accounts and unjustified transfers and use of funds and assets ;

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(4)

the mo.PJ.eys subscribed by the investing public were in a considerable measure used not in the interests of the companies concerned b.ut contrary to their interest and for the ultimate personal benefit of those in control and/or management; and

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(5)

the investing public have as a result suffered

considerable losses .

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And Whereas the Central Government i;'l of the

953

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opinion that there should ~ea full. in9uiry into these Sim Ram Krishna matters which are of defimte public importance both by reason of the gr~ve c~nsequen?es which appear t~ have ensued to the mvestmg pubhc and also to deter- mine such measures as may be deemed necessary in s. R. Tendolkar &M~ order to prevent a recurrence • Now, therefore, in exercise of the powers conferred by section 3 of the Commissions of Inquiry Act (No. 60 of 1952), the Central Government hereby appoints a Commission of Inquiry consisting of the following persons, namely:

v. Slwi Ju;tice

Das c. J.

ereo ;

JJalmi?t

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Shri Justice S. R. Tendolkar, Judge of the High

Court at Bombay, Chairman.

Shri N. R. Modi of Messrs A. F. Ferguson&. Co.,

Chartered Accountants, Member.

Sliri S. C. Chaudhuri, Commissioner of Income-tax,

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Member.

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1. The Commission shall inquire into and report on

and in respect of:

(1) The administratioil of the affairs of the com

panies specified in the schedule hereto;

(2) The administration of the affairs of such other companies and firms as the Commission may during the course of its enquiry find to be companies or firms connected with the companies referred to in the schedule and whose. affairs ought to be investigated and inquired into in connection with or arising out of the inquiry into the affairs of the companies specified in the schedule hereto ;

(3) The nature and extent of the control, direct and indirect, exercised over such companies and firms or any of them by the aforesaid Sarvashri Ram Krishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, their relatives, '3mployees and persons connected with them ;

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(4) The total amount of the subscription obtained from the investing public and the amount subscribed by the aforesaid persons and the extent to which the funds and assets thus obtained or acquired were misused, misapplied or misappropriated;

(5) The ex.tent and nature of the investments by

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and/or l~ans to and/or the use of the funds or assets K . h by and transfer of funds between the companies

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am ~almia v.

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aforesaid ;

s. R. Tendolkar 01

(6) The· consequences or results of such invest>- 511,; Ju,ti" ments, loans transfers and/or use of funds and assets; (7) The reasons or motives of such investments, loans transfers and use and whether there was any justification for the same and whether the same were made bona fide in the interests of the companies con- cerned ;

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(8) The extent of the losses suffered by the invest ing public, how far the losses wel'e avoidable and what steps were taken by those in control and/or management to avoid the losses;

(9) The nature and extent, of the personal gains made by any person or persons or any group or groups of persons whether herein named or not by reason (ff or through his or their connection with or control over any such company or companies;

(10) Any irregularities, frauds or breaches of trust or action in disregard of honest commercial practices or contravention of any law (except contraventions in respect of which crimina) proceedings are pending in a Court of Law) in respect of the companies and firms whose affairs are investigated by the Commission which may come to the knowledge of the Commission and the action which in the opinion of the Commis sion should be taken (as and by way of securing redress or punishment or) to act as a preventive in future cases. ·

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(ll) The measures which in the opinion of the Commission are necessary in order to ensure in the future the due and proper administration of the funds and assets of companies and firms in the interests of · the in vesting p,µblic. SCHEDULE ' l. Dalmia Jain Airways Ltd. 2. Dalmia Jain Aviation Ltd:, (now known as Asia

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Udyog Ltd.)

3. Lahore Electric Supply Company Ltd., (how

known as South Asia Industries Ltd.) 4. Sir Shapurji Broacha Mills Ltd . •

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Shri Ram Krishna Dalmia v. S hri ] uslice S. R. Tendolkar & Others

Das C. ].

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5. Madhowji Dharamsi Manufacturing Company

Ltd,

6. Allen Berry and Co. Ltd. 7. Bharat Union Agencies Ltd. 8. Dalmia Cement and Paper Marketing Company

Ltd., (now known as Delhi Glass Works Ltd.)

9. Vastra Vyavasaya Ltd.

• Ordered that the Order be published in the Gazette of India for public information. (No. F. 107 (18- INS/56) ).

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H. M. Patel Secretary.

It should be noted that the above notification did not specify the time within which the Commission was to complete the inquiry and make its report.

OQ January 9, 1957, the Central Government issued another notification providing that all the provisions of sub-ss. (2), (3), (4), and (5) of s. 5 should apply to the Commission. As the notification of December 11, 1956, did not specify the time within which the Commission was to make its report, the Central Government on February 11, 1957, issued a third notification specifying two years from that date as the time within which the Commission of Inqui'ry should exercise the functions conferred on it and make its report. On February 12, 1957, three several Miscellaneous Applications were filed under art. 226 of the Constitution questioning the validity of the Act and the notification dated December 11, 1956, on diverse grounds and praying for a writ or order for quashing the same.

, It will be convenient to advert to a few minor objec tions urged before us on behalf of the petitioners in support of their appeals before we come to deal with their ·principal and major contentioQs. The first · objection is that the notification has gone beyond the Act. It is pointed out that the Act, by s. 3, empowers the appropriate Government in certain eventualities to a.epoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter ot public importance and for IiO other purpose. The contention is that the conduct of an individual person

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Das C. ].

, )._ris ina W 1 1

am Dalmia v. Shi Justfr•

or company cannot possibly be a matter of public importance and far less a definite matter of that kind . e are una e to accept this argument as correct. 'Videspread floods, famine and pestilence may quite easily be a definite matter of public importance s. R. Tendolkar urgently calling for an inquiry so as to enable the Government to take appropriate steps to prevent their recurrence in future. The conduct of villagers il'l cutting the bunds for taking water to their fields during the dry season may c~se floods during the rainy season and we can see no reason why such unsocial conduct of villagers of certain villages thus ca using floods should not be regarded as a definite matter of public importance. The failure of a big bank resulting in the loss of the life savings of a multitude of men of moderate means is certainly a definite matter of public importance but the conduct of the pefsons in charge and management of such a bank which brought about its collapse is equally a definite matter of public importance. Widespread dacoities in parti cular parts of the country is, no doubt, a definite matter of public importance but we see no reason why the conduct, activities and modus operandi of particu lar dacoits and thugs notorious for their cruel depreda tions should not be regarded as definite matters of public importance urgently requiring a sifting inquiry. It is needless to multiply instances. In each case the question is : is there a definite matter of public impor tance which calls for an inquiry? We see no warrant for the proposition that a defiuite matter of public importance must necessarily mean ouly some matter in volving the public benefit or advantage in the abstract, e.g., public health, sanitation or the like or some public evil or prejudice, e. g., floods, famine or pestilence or the like. Quite conceivably the conduct of an indi vidual person• or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well-being as to make such con duct a definite matter of public importance urgently calling for a full inquiry. Besides, s. 3 itself authorises the appropriate Governmen,t to appoW a Commission

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of Inquiry not only for the purpose of making an inquiry into a definite matter of public importance but h . " 1;;7 1!-rishna also for the purpose of performing such functions as 5 may be specified in the notification. Therefore, the av~"' notification is well within the powers conferred on the Skri Ju;tice appropriate Government by s. 3 of the Act and it can- s. R. Tendolkar not be questioned on the ground of its going beyond the provisions of the Act.

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r958

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Learned counsel for the petitioners immediately replies that in the e'7-ent of its being held that the notification is within the terms of the Act, the Act itself is ultra vires the Constitution. The validity of the Act is called in question in two ways. In the first place it is said that it was beyond the legislative com- petency of Parliament to enact a law conferring such a wide sweep of powers. It is pointed out that Parlia- ment enacted . the Act in exercise of the legislative powers conferred on. it by Art> 246 of the Constitution read with entry 94 in List I and entry 45 in List III of the Seventh Schedule to the Constitution. The matters enumerated in entry 94 in List I, omitting the words not necessary for our purpose, are " inquiries ......... for the purpose of any of the matters in this ·List '', and those enumerated in entry 45 in List III, again omitt- ing the unnecessary words, are " inquiries ............ for. the purposes of any of the matters specified in Lis_t II qr List III. " Confining himself to the entries in so far as they relate to " inquiries ", learned counsel for the petitioners urges that Parliament may make a law with r.espect to inquiries but cannot under these entries make a law. conferring any power to perform any function other than the power to hold an inquiry. He qoncedes that, according to the well recognised rule of construction of the provisions of a Constitution, the legislative heads should be construed very liberally. and that it mµst be assufued th::i,t tht3 Constitution iµtended to give ~o the appropriate legislature not only the power to legislate- with respect to the_ particular, legislative topic but also with respect to all matters Indeed the v~ry use of the 'Y<?rds ancillary thereto. "":'ith·r,espect to"· in Art.,246 supports this principle . ' ~7

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Das c. J.

I958 . R--. . am Rmhna Dal..lia v.

of liberal interpretation. He, however, points out that the law, which the appropriate legislature is em · h h e wit to ma e un er t ese entries must powere respect to inquiries for the purposes of any of the Shri Justice matters in the relevant lists and it is urged that the s. R. Tendolkar words "for the purpose of" make it abundantly clear that the law with respect to inquiries to be made under these two entries must be for the purpose of future legislation with respect to any of the legislative heads in the .relevant lists. In other words, the argument is that under these two entries the appropriate legis lature may make a law authorising the constitution of a Board or Commission of Inquiry to inquire into and ascertain facts so as to enable such legislature to undertake legislation with respect to any of the legis lative topics in the relevant lists to secure s~me pl]blic benefit or advantage or to prevent some evil or harm befalling the public and thereby to protect the public from the same. But if an inquiry becomes necessary for, say, administrative purposes, a law with respect to such an inquiry cannot be made under these two entries. And far less can a law be made with respect to an inquiry into any wrongs alleged to have been committed by an individual person or company or a group of them for the purpose of punishing the sus pected delinquent. This argument has found favour with the High Court, but we are, with great respect, unable to accept this view. To adopt this view will mean adding words to the two entries so as to read "inquiries ......... for the purpose of future legislation with respect to any of the matters in ......... " the List or Lists mentioned therein. The matter, however, does not rest here. A careful perusal of the language used in entry 45 in List III does, in our view, clinch the

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/imatter. Entry 45 in List II~, which is the Concurrent

List, speaks, mter alia, of " inquiries ............ for the purpose of any of the matters in List II or List III. Under Art. 246 read with this •entry, Parliament as well as the Legislature of a State may make a law with respect to " inquiries for the purpose of any of the matters in List IL" Parliament, under Art. 246, has no power to make a law with respect to any of the

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x958

Q;. Othdfs

Das c. J.

Dalmia v . •

matters enumerated in J.,ist II. · Therefore, when Parliament makes a law under Art. 246 read with Shri Ram Krishn" entry 45 in List III with respect to an inquiry for the purposes of any of the matters in List II, such law can never be one for inquiry for the purpose of future Shri Justice legislation by Parlia.ment with respect to any of s. R. Tendolkar those matters in List II. Clearly Parliament can make a. law for inquiry for the purpose of any of the matters in List II and none.the less so though Parlia- ment cannot legislatti with respect to such matters and though none of the State Legislatures wants to Legislate on such matters. In our opinion, therefore, the law to be made by the appropriate legislature with · respect to the two legislative entries referred to above may cover inquiries into any aspect of the matters enumerated in any. of the lists mentioned therein and is n~t confined to those matters as mere heads of legis- lative topic. Quite conceivably the law with respect to inquiries for the purpose of any of the matters in the lists may also be for administrative purposes and the scope of the inquiry under such a law will cover all matters which may properly be regarded as ancil- lary to such inquiries. The words " for the purposes of" indicate that the scope of the inquiry is not necessarily limited to the particular or specific matt'ers enumerated in any of the entries in the list concerned but may extend to inquiries into collateral matters which may be necessary for the purpose, legislative or otherwise, of those particular matters. We are unable, therefore, to hold -that the inquiry which may be set up by a law made under these two entries is, in its scope or ambit, limited to future legislative purpases only.

Learned counsel then takes us through the different heads of inquiry enumerated in the notification and urges that the inquiry is neither for .any legislative nor for any administrative purpose, but is a clear usurpation of the functions of the judiciary. The argument is that l?arliam9nt in authorising the appQintment of a Commission and the Government in appointing this Commission have arrogated t_o them selves judicial.powers which do not, in tlie very nature

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Sh . R

K .

r95B

Das C. ].

v. Shri Justice s. R. Tendolkar & Othm

of thing~, beiong to their respective domains w;hic'h 1 must be purely legislative and executive respect1vely. " n",;;'m;;'"""It is contended that Parliament cannot convert itself into a court except for the rare cases of dealing with breaches of its own privileges for which it may punish the delinquent by committal for contempt or of proceed- ings by way of impeachment. It cannot, it is urged, undertake to inquire or investigate into alleged indivi· dual wrongs or private disputes nor can it bring the supposed culprit to book or gather materials for the, purpose of initiating proceedings, civil or criminal, against him, because such inquiry or investigation is ·clearly not in aid of legislation. It is argued that if a criminal prosecution is to be launched, the preliminary investigation must be held under the Code of Criminal Procedure and it should not be open to any legislature to start investigation on its own and thereby- to deprive the citizen of the normal protection afford ed to him by the provi8ions of the Code of Crimi nal Procedure. This line of reasoning also found favour with the High Court which, after con sidering the provisions of the Act and the eleven heads of inquiry enumerated in the notification, came to the conclusion that the last portion of cl. 0 (10) beginning with the words "and the action" and ending with the words " in future cases " were ultra vires the Act and that the Government was not competent to require the Commission to hold any · inquiry or make any report with regard to the matters covered by that portion of cl. (10), for such inquiry or report amounts to a 1,1surpation of the judicial powers of ~he Union or the State as the case may be .

•

While we find ourselves in partial agreement with the actual conclusion of the High Court on this point, we are, with great respect, unable to accept the line of reasoning ad VMJ.ced by learned counsel for the peti. tioners, which has been accepted by the High Court In tpe first place neither Parliament nor the Government has itself undertaken any inquiry at all. Parliament has made a law with respect .to inquiry and has left it to the appropriate Government to set up a Commission of Inquiry under

· for more reasons than one.

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•.

i , " I

.........

S.C.R.

SUPREME COURT REPORTS

293

I958 -

Das c. J.

Da~·~ shri Justice s. R. Tendolkar <1;- Others

eertain circumstances referred to in s. 3 of the Act. The Central Government, in its . turn, has, in exercise . . of the. powers conferred on it by the Act, set up this Shri Ram f!rishna Commission. It is, therefore, not correct to say that Parliament or the Government itself has undertaken to hold any inquiry. In the second place the con- clusion is bad that the last portion of cl. (10) because it signifies that Parliament or the Government had usurped the functions of the judiciary appears to us, with respect, to be inconsistent with the conclusion arrived at in a later part of the judgment that as the Commission can only make recommendations which are .not enforceable proprio vigore there can be no question of usurpation of judicial functions. As has been stated by the High Court itself in the latter part of its judgment, the only power that the Commission has .is to inquire and make a report and embody there- in its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinc- tion must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commis- sion we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of .the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expre840ly provided by and under the American Constitution appears to us, with respect, wholl:y inappropriate and unnecessary and we do not feel called upon, on the present occa- sion., to express any opinion on the question whether even in the absence of a specific provision for separa- tion of power~ in our Constitution, such as there is

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294

SUPREME COURT REPORTS

[1959]

h 5 "

1958

'

·

·

C

'" na

h 1

am Dt1lmi• • '"· Sh» Juslice

under the American Constitution, some such di·dsion . R-K . h of powers-legislative, executive and judicial-is, I l' · · n t e view nevert e ess imp ic1t m our onstitut10n. we have taken it is also not necessary for us to consider whether, had the Act conferred on the ·appro- s. R. Tendolkar priate Government power to set up a Commission of Inquiry with judicial powers, such law could not, subject, of course, to the other provisions of the Con. stitution, as a law made under some entry in List I or List III authol'ising the setting up of courts read with these two entries, for a legislation may well be founded on several entries.

e supporte

Das C. ].

&- oihm

d

b

h

·

involves investigation

Learned Counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957, goes as far as to say that while the Commission may find facts on which the Government may take action, legislative or executive, although he does- not concede the latter kind of action to be contemplated, . the Commission cannot be asked to suggest any measure, legislative or executive, to be taken by the appropriate Government. We are unable to accept the proposition so widely enunciated. -An inquiry necessarily into facts and necessitates the collection of material facts from the ev{dence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, •in our judgment, equally ancillary that the per inquiry should ex son or body conducting press its own view on the facts found by it for the consideration of the appropriate Government in order to enable it tlil take such measure as it may think fit to do. The whole purpose of setting up of a Com mission of Inquiry consisting • of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the ad vice of the expert body as to the measures the situation dis closed calls for cannot be placed before t~e Government

the

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S.C.R~

SUPREME COURT REPORTS

295

x95B

.S. Others

Dos c. J.

th.at doing so

for consideration notwithstanding · cannot be to the prejudice of anybody because it has Shri Rom Krishna no force of its own. In our view the recommendations Dolmi~ of a Commission of Inquiry are of great imp9rtance to •· the Government iR order to enable it to make up its Shri Jusliee mind as to what legislative _or administrative measures 5 · R. TJndo:har should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, tpere can be no objection even to the Commission of Inquiry recommending the imposi- tion of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recom mendatory and not effective proprio vigore and the stat~ment made by any person before the Commission of Inquiry is, under s. 6 of the Act, wholly inadmis- sible in evidence in any future proceedings, civil or criminal,. there can be no point in the Commission of Inquiry making taking any action " as and by way of securing redress or punish- ment" which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be impose.cl by a court of law properly constituted exercising its own discretion on the facts and -eircumstances, of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be. Having regard to all these considerations it appears to us that· only that portion of the last part of cl. (10) which calls upon the Commission of Inquiry to niake recommenda- tions about the action to be taken " as and by way of securing redress or punishment ", cannot be said to be at all necessary for or ancillary to the purposes of the In our view the words in the latter part Commission. of the section, namely, "as and by way of securing redress or punishment", clearly go outside the scope of the Act and such provision is not covered by the two legislative entries and should, therefore, be deleted. So deleted the latter portion of cl. (10) would read- " ii.nd the action which in the opinion of the Commission

recommendations for

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296

SUPREME COURT REPORTS

(1959]

z958

should be taken .................................... to act as·a

Sh · R-K . h preventive in future cases ".

ris na

ri

.

.

am l!almia v. Shri Justi" s. R. Tendolk•r & Others

Das C. ].

•

Delet10n of the words ment10ned above from cl. (10) raises the question of severability. We find ourselves in substantial agreement with the reasons given by the High Court on this point and we hold that the efficacy of the notification is in no way affected by the deletion -of the offending words mentioned above and there is no reason to think that the Government would not have issued the notification ·without those words. Those words do not appear to us to be inextricably wound up with the texture of the entire notification.

The principal ground urged in support of the con tention as to the invalidity of the Act and/or the notification is founded on Art. 14 of the Constitution. ) a pon In Budhan Chaudhry v. The State of Bihar (1 stitution Bench of seven Judges of this Court at pages 1048-49 explained the true meaning and scope of Art. 14 as follows:

"The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, Chiranjit Lal Chaudhuri v. ), The State of Bombay v. F. N. The Union of India (2 Ba'tsara ('), The State of West Bengal v. Anwar Ali Sar kar('), Kathi Raning Rawat. v. The State of Sau rashtra ('), Lachmandas Kewalram Ahuja v. The State of Bombay ("), Qasim Raz vi v. The State of Hyderabad (') and Habeeb Mohamad v. The State of Hyderabad ('). It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible cla.ssification two conditions must be ful filled, namely, (i) that the classification ·must be founded on an intelligible differentia which distin· guishes persons or things that ltre grouped together

(1) [1955] 1 S.C.R. IOH. (3) [1951] S.C.R. 682. (5) [1952] S.C.R. 435· (7J [1953J s.c.R. 581 •

•

(2) [1950] S.C.R. 869. • (4) [1952] s.c. R. 284. (6) [1952] S.C.R. 710. (S) [19,;3] s.c.R. 661.

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S.C.R.

SUPREME COURT REPORTS

297

.

r95S .

Dfllmill

from others left out of the group and, (ii) that that differentia must have a rational relation to the object Shri Rani Krishna sought to be achieved by the statute in question. The classification may be founded on different bases, v. namely, geographical, or according to objects or Shri Justice \Vhat is necessary is that 5 · R. Tendolkar occupations or the like. there must be a nexus between the basis of classifica- 'eion and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure." The principle enunciated above has been consistently adopted and applied in subsequent cases. The deci sions of this Court further establish-

Das c. J.

& Others

•

. (a) that a law may be constitutional even though it relates to a single individual if, on account of some spectal circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles ;

•

.

(c) that it must be presumed that the legislature 1 understands and correctly a ppr. eciates the need of itsJ own people, that its laws are directed to problems made manifest by experience ·and that its discrimina tions are based on. adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may" assume every state of facts which can be conceived existing at the time of legislation ; and

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face· of the

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298

SUPREME COURT REPORTS

[1959]

.

z958

, .

"v'."'" SMi Justice

law or the surrounding circumstances brought to the notice of the court on which the classification may Shn 1;;'7 Anshna reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed s. R. Tendotkar and unknown reasons for subjecting certain indi- viduals or corporations to hostile or discriminating legislation. • The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attack ed as discriminatory and violative of the equal pro tection of the laws.

Das C. ].

& Othm

A close perusal of the decisions of this Court in which the above principles have been enunciated and applied by this Court will also show that a stiotute which may come up for consideration on a question of its validity under Art. 14 of the Constitution, may be placed in one or other of the following five classes:-

(i) A. statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the sorrounding circumstances known to or brought to the notice of the court. In determin ing the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upo:ii some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply onl¥ to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classificatjon satisfies the tests, the court will uphold the validity of the law, as it did in Ohiranjitlal Ohowdhri v. The Union of India (1), The State of Bombay v. F. N. Balsam('), Kedar Nath

(1) [1950) S.C.R 869.

(2) [r95;J S.C.R. 682,

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I958

-

Shri Ram Krishna Dalmin v.

Shri Justice s. R. Tendolilar &- Others Das c. J.

•

S.C.R.

SUPREME COURT REPORTS

299

u

ou

Bajoria v. The State of West Bengal (1), V. M. Syed J.1fohammad & Company v. The State of Andhra (2 ) an

d B dha Oh dh n

Th S . e

,f B 'h

ta:te OJ

ry v.

(3) .

i. a:r

(ii) A statute may direct its prov1s10ns agarnst one individual person or thing or to several individual persons or things but no reasonable basis of classifica- tion may appear on the face of it or be deducible from 1'he surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instanc~ of naked discrimination, as it did in Ameerunnissa Begum v. Mahboob Begum(') and Ramprasad Narain Sahi v. The State of Bihar (5).

.

(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whoru its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down the guidance of t.J:ie any principle or policy for exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down . any principle or policy for guiding the exercise of discretion by the Government.in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to . the Government so as 'to enable it to discriminate between persons or. things similarly sitµate and that, therefore, the discrimina- tion is inherent 1n the statute itself. In such a .case the court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal 47. Anwar Ali Sarkar (6 ), Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh(7)

. (~) [1954] S.C.R. 30.

(3) [1955] 1 S.C.R 1045. (5) [1953] S.C.I;{. 1129.

(2) [1954] S.C.R. rr17. (4) [1953] S.C.R. 404. (6) [1952] S.C.H.. 28+

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(7) [1954) S.C.R. 803.

•

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300

SUPREME COURT REPORTS

[1959]

~ ' '

z95B

and Dhirendra Krishna 111andal v. The Superintendent

Sh . R

ri

atn

ris1111a

K . , a:nd Remembrancer o~ Legal A ~'airs (1

).

lJalmia v. Shri Justfrc s. R. 1'endollw & Others Das c. J.

•

,

'J

·

h

JJ (1v) A statute mav not make a classification of the persons or things f~r the purpose of applying its provisions and may leave it to the discretion of the t1overnment to select and classify the persons or things h to w om its prov1s10ns are to app y ut may at t e same time lay down a policy or principle for th!l guidance of the exercise of discretion by the Govern ment in the matter.of such selection or classification, the court will uphold the law as constitutional, as it did in Katki Baning Rawat v. The· State of Sau rashtra (2

1 b

· ·

).

(v) A statute may not make a classification of the pei·sons or things to whom their provisions are intend ed to apply and leave it to the discretion of the Government to select or classify the persons or tilings for applying those provisions according to the policy or the principle laid down by the · statute itself for guidance of the exercise of discretion by the Govern ment in the matter of such selection or classificatioi1. If the Government in making the selection or classifi cation does not proceed on or follow such policy or principle, it has been held by \;his Court, e. g., in Kathi Baning Rawat v. The State of Saurashtra (')that in such a case the executive action but not the statute should be condemned as unconstitutional. In the light of the foregoing discussions the question at once arises: In what category does the Act or the notification impugned in these appeals fall ?

,lt will be apparent from its long title that the purpose of the Act is to provide for the appointment of Commissions of Inquiry and for vesting such Com missions with certain powers. Section 3 empowers· the appropriate Government, in certain circumstances therein mentioned', to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance :!.nd performing such functions within such time as may be specified in the notification. It seems clear-. and it has not 'been controverted-that on a proper construction of this

(1) [1955] I S.C.R 22~.

(2) [1952]"S.C R. 435.

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s:cJ~,.

SUPREME COURT REPORTS

301

\

r958 - Sltri Rani Krishna Dalmi" v.

·

·

f

d

•t

lf

t b

& Othm

"d f h

Das c. f.

t e mqmry i se an canno

section, the fonctions the performance of which is contemplated must be such as are ancillary to and in d e. rea as .a u.nc- ai 0 tion independent of or unconnected with such mqmry. That being the position, as we conceive it to be, the Shri Justice question arises as to the scope and ambit of the power s. R. Tendolkar which is conferred by it on the appropriate Govern- fnent. The answer is furnished by the statute itself, for s. 3 indicates that the appropriate Government can appoint a Comfnission of Inquiry only for the purpose of making an inquiry into any definite matter Of public importance and into no other matter. Iii other words the subject matter of the inquiry can only be a definite matter of public importance. The appro- priate Government, it follows, is not authorised by this section to appoint a Commission for the purpose of holding an inquiry into any other matter. Learned Solicitor-Genel'al, in the premises, submits that the section itself on the face of it, makes a classification so the first category that this statute falls within meritioned above and contends that this classification of· things is based on an intelligible differentia which has a reasonable relation to the object sought to be achieved by it, for a definite matter of public impo1't- ance may well call for an inquiry by a Commission. In the alternative the learned Solicitor-General urges that in any case the section itself quite clearly indi- cates that the policy of Parliament is to provide for the appointment of Commissions of Inquiry to· inquire into any definite matter of public importance and that as there is no knowing when, where or how any such matter may crop up Parliament considers' it . necessary or expedient to leave it to the appropriate Government to take action as and when the appro- priate moment will arrive. tempo · of the prevailing conditions in modern society" events occur which were never foreseen and it is impossible for Parliament or any legmlature to anticipate all events or to provide for all eventualities and, ther~fore, it musir leave the duty of taking the necessary action to the appropriate Government. This delegation of authority, however, is not unguided or uncontrolled,

In the

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302

SUPREME COURT REPORTS

[1959)

z958 - Shri Ram [{rislma IJ 1,.. "v. •a Shri Jitsti" s. R. T'ndolkar & Otl.e,,

Das C. ].

1.

h

.d d b

y t e po icy a1

for the discretion given to the appropriate Govern- ment to set up a Commission of Inquiry must be 1 1 .d d own, name y, that the gm e executive action of setting up a Commission of Inquiry rnust conform to the condition of the section, that is to say, that there must exist a definite matter of public importance into which an inquiry is, in the opinion of the appropriate Government, necessary or is require<i by a resolution in that behalf passed by the House of the People or the Legislative Aesembly of the State. If the preambles or the provisions of the statutes classed under. the first category mentioned above could be read as making a reasonable classification satisfying the requirements of Art. 14 and if the preamble to the statute considered in the case ·of Kathi Raning Rawat (1 ) could be construed as laying down sufficiently clearly a policy or principle for• the guidance of the executive, what objection can there be to construing s. 3 of the Act now under our considera tion as also making a reasonable classification or at any rate as declaring with sufficient clarity the policy of Parliament and laying down a principle for the guidance of the exercise of the powers conforrcd on the. appropriate Government so as to bring this statute at least in the fourth category, if not also in the first category ? On the authorities, as they stand, it cannot be said that an arbitrary and uncontrolled power has been delegated to the appropriate Government and that, therefore, the law itself is bad.

•

laid down some principle for

·Learned counsel for the petitioners next contends that if the Act is good in the sense thatl t has declared the its 'policy and guidance of the Government in the exercise of the power conferred on it, the appropriate Government has failed to exercise its discretion properly on the basis of a rea~onable classification. Article 14 pro tects all persons from discrimination by the legislative as well as by the executive organ.of the State. "8tate" is defined in Art. 12 as including the Government and "law" is defined in Art. 13 as including any noti:Pica tion or order. It has to be conceded, therefore, that

(•) [1952] S.C.R. 435· •

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S.C.R.

SUPREME COURT REPORTS

303

r95s

& Others

Das c. J.

Thereupon

it is open to the petitioners also to question the consti- tutionality of the notification. The attack against Shri Ram Krishna the notification is that the Government has not pro- Dalmii perly implemented the policy or followed the principle v. laid down in the Act and has consequently transgress- Shri Justice ed the bounds of the authority delegated to it. It is s. R. Tendolkar pointed out that in March, 1946, one Shri Tricumdas 1hvarkadas, a solicitor of Bombay, had been appoint- ed an officer on Special Duty to indicate the lines on which the Indian Ctimpanies Act was to be revised. He made a report which was, however, incomplete in the Government certain particulars. appointed Shri Thiruvenkatachari, the Advocate- General of Madras, to make further inquiry. The last mentioned gentleman submitted his report and on the basis of that report, it is said, a memorandum contain- ing tentative proposals was prepared and circulated to elicit the opinions of various organisations. On October 28, 1950, a Committee called the Indian Com- pany Law Committee-popularly known as the Bhaba Committee-was appointed. That Committee went round and collected materials and made its compre- hensive report on the basis of which the new Indi;1n -As Companies Act has recently been remodelled. nothing new has since then happened why, it is asked, should any further inquiry be made ? The conclusion is pressed upon us that there can, in the circumstances, be no definite matter of public importance which can possibly call for an inquiry. We find no force in this In the first place the Bhaba Committee at argument. p. 29 of its Report recommended that further inquiries may, in future, have to be made regarding some matters relating to Companies and, therefore, the necessity for fresh inquiry cannot be ruled out. In the next place the appropriate Government is em- powered to appoint a Commission of Inquiry if, in its opinion, it is necessary so to do. '.l.'he preambles to the notification recite that certain matters enumerated under five heads had been made to appear to the Centfal Government, in consequence of which the Central Government had come to the conclusion that· there should be- a full inquiry into those matters which,

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304

SUPREME COURT REPORTS

[1959]

8

'95

falmia Y· Shri Justice S. R. Tendolka1' & Oth:::rs

in its opinion, were definite matters of public importc shri Ram J(rislma ance both by reason of the grave consequences which appeared to have ensued to the investing public and for determining such measures as might be deemed necessary in order to prevent a recurrence thereof. Parliament in its wisdom has left the matter of the setting up of a Commission of Inquiry to the discre tion of the appropriate Government and if the apprcr priate Government has formed the opinion that a definite matter of public importance has arisen and calls for an inquiry the court will not lightly brush a~ the opinion.

Das C. j.

. ~~~.arned counsel for

the petitioners argues that

granting that the question as to the necessity for con stituting a Commission of Inquiry has been left to the subjective determination of the appropriate Govern- - ment the actual setting up of a Commission is cdndi tioned by the existence of some definite matter of public importance. If there be no such definite matter of public importance in existence then no question of necessity for · appointing a Commission can arise. Reference is then made to the first preamble to the notification and it is pointed out that all the matters a!feged to have been made to appear to the Central Government relate to some supposed act or conduct of the petitioners. The contention is repeated that the act and conduct of individual persons can never be regarded as definite matters of public importance. We a re unable to accept this argument as sound, for as ~ve have already stated, the act or conduct of indi viduals may assume such dangerous proportions as may well affoct the public well-being and thus become a definite matter of public importance. \Ve do not, therefore, agree that the notification should be struck down for the absence of a definite matter of public importance eaning for an inquiry.

The point which is next urged in support of these appeals and which has given ns oonsiderable anxiety is that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile' and discriminatory treatment and subjected to a harassing and oppressive inquiry. The provisions of Art. l*,

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SUPREME COURT REPORTS

305

ris,ma

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II

t'

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G Others

d h'

Das C. ].

·d m 51

I958 it is contended, protect every person against dis- crimination by the State,! namely, against the law as . R-K . , am we . as t e executive act10n an t is protec wn exten s Datm;a to State action at all its stages. The petitioners' griev- v. ance is that the G·overnment had started discrin1ina- Shri Justice. tion even at the· earliest stage when it conceived the s. R. Tendnlkar idea of issuing the notification. Reference is made to the Memorandum filed by the Bombay Shareholders' the Bhaba Committee showing Association before that the same or simll.ar allegations had been made not only against the petitioners and their companies but against other businessmen a,n.d their companies and that although the petitioners and their companies and those other persons and their companies were thus similarly situate, in that allegations had been made against both, the Government arbitrarily applied the Act"to the petitioners and their companies and issued the notification concernin~them but left out the others from its operation. It il, true that the notification primarily or even solely affects the petitioners and their companies but it cannot ·be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may b~ likely to. be affected by its decision. In matters of this kind the appro- priate Government has of necessity to act upon the information available to it.' It is the best judge of the reliability of its source Of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion tli.at the act and conduct of the petitioners and the affairs of their companies cor1stitute·a definite matter of public im- portance calling for an inquiry with a view to devise mea,,ures for preventing the recurrence of such evil, this Court, not being in possessi01i of all the facts will1

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306

SUPREME COURT REPORTS

[1959]

Sh

ri

1

.

h

b

& Othm

Das C. ].

"d d"

t th t a

1 9ss . R-K .

we apprehend, be slow to adjudge the executive action to be bad and illegal. \Ve are not unmindful of the am "'mar IScret1011ary power as een a very WI e 'ac · llalmia ,.. conferred on the Government and, indeed, the contem- plation that such wide powers in the hands of/ the '.51,,i Justice S. R. Tendolkar executive may in some cases be misused or abused a11cl turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, th!! bare 'possibility that the powers may be misused or abused cannot per se induce tlfe court to deny the existence of the powers. It cannot be overlooked that Parliament has confided this discretion, not to any petty official but to the appropriate Government itself to take action in conformity with the policy and prin eiple laid clown in the Act. As this Court has said in Matajog Dobey v. H. C. Bhari ('), "a discretionary power is not necessarily a discriminatory power •and that abuse of power is not/to be easily assumed where the discretion is vested in the Government and not in a minor official." w·e feel sure, however, that if this law is administered by the Government "with an evil eye and an unequal hand" or for an oblique or unworthy purpose the arms of this Court will be long enough to rea.ch it and to strike down such abuse with a heavy hand. What, then, we inquire, are the salient facts here? The Central Government appointed investi gators to scrutinise the affairs of three of the peti tioners' concerns. Those investigators had made their reports to the Central Government. · The Central Government had also, the Bha ba Committee Report and all the Memoranda filed before that Committee. It may also have had othei: information available to it and on those materials it formed its opinion that the act and conduct of the petitioners and the affairs of their companies constituted a definite matter I of public importai1ce which required a full inquiry. Up to this stage there is no question of legal proof of the allegations against the petitioners as in a court of law. The only question is : do t,hose allegations if honestly believed, constitute a definite matter of public import ance? We are unable to say that they do not.

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(1) (1955] z S.C.R. 925, 932.

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S.C.R.

SUPREME COURT REPORTS

307

Reference is again made to the several matters

r95s

1

v. •

Das

& Others c . ].

enumerated in the five clauses set out in the first Sh . R -K . . preamble to the notification and it is urged that those " Da~;miaris ma · matters do not at all disclose any intelligible differ- entia on the basis of which the petitioners and their Shri Justice companies can be grouped together as a class. On s. R. Tendolkar the part of the Union of India reference is made to the affidavits affirmed by Shri H. M. Patel, the Principal Secretary to the Finance Ministry of the Government of India purporting to silt out in detail as the baclrgronnd thereof, the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. Learned counsel for the petitioners take the objection that reference cannot be made to any extraneous matter and that the basis of classification nrn~ appear on the face of the notification itself and reliance is placed on certain observations in the dis senting judgments in Chiranjitlal Chowdhury's case (1) and in item (2) of the summary given by Fazl Ali J. in his judgment in F. N. Balsara's case("). In Chiranjit lal Chowdhury' s case (1) the majority of the Court read the preamble to the Ordinance which was replaced by the Act which was under consideration there as pp.rt of the Act and considered the recitals, reinforced as they were by the presumption of validity of the Act, as prima facie sufficient to constitute an intelligible basis for regarding the company concerned as a class by itself and held that the petitioner there had not discharged the onus that was on him. The dissenting Judges, after pointing out that the petition and the affidavit did not give any indication as· to the differentia on the basis of which the company had been singled out, went on to say that the statute also did not on the face of it indicate any basis of classifica- tion. This was included in cl. (2) of the summary set out in the judgment in F. N. Balsara's case("). Those observations cannot, • therefore, be read as meaning that the classification must always appear on the face of the law itself and that reference cannot be made to

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(1) [r550] S.C.R. 869.

(2) [r951J S.C.R. 682.

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308

SUPREME COURT REPORTS

[1959]

1

, ··'"' am "' na Dalmia · ·

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d

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Das C.

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any extraneous materials.

. R-I< . h Chowdhury's case (1 h

In fact in Chiranjitlal ) parliamentary proceedings, in so far d . · e surroun mg Circumstances an as t ey eprn e In Kathi furnished the background, were referred to. Shri Justico Raning Rawat' s case (') the hearing was adjourned in s. R. Tendolkar order to enable the respondent to put in an affidavit setting forth the material circumstances. In Kedarnath Ba;oria's case (') the situation brought about by the- war conditions was taken notice of. The same may be said of the cases of A. Thangci Kunju Musaliar v. V. Venkitachalam Patti (') and Pan:nalal Binjraj v. Union of India('): In our judgment, therefore, there can be no objection to the matters brought to the notice of the court by the affidavit of Shri H. M. Patel being taken into consideration along with the matters the notification in order to ascertain specified in whether there was any valid basis for treating the peti tioners and their companies as a class by themselves. Learned counsel for the petitioners next urges that even if the matters referred to in Shri H. M. Patel's affidavits and those appearing on the face of the notification are taken into consideration one can not deduce therefrom any differentia which may the petitioners and their be . taken to distinguish companies from· other persons and their companies. The qualities and characteristics imputed to the peti tioners and their companies are not at all peculiar or exclusive to them but are to be found equally in other persons and companies and yet they and their com panies have been singled out for hostile and discrimi natory treatment leaving out other persons and companies which are similarly situate. There is no force in this argument. Parliament has confided the task of the selective application of the law to the appropriate Government and it is, therefore for the appropriate Gt>vernment to exercise its discretion in the matter. It is to be expected-and, until the contrary is proved, it is to be presumed-that the Government, which is responsible to Parliament, will act honestly, properly and in conformity wit.ho the

(1) [1950] S.C.R. 869. (3) [1954] S.C.R. 30.

(2) [1952] S.C.R 435. (4) [1955] 2 s.c,R. 1196.

(5) [1957) S.C.R. 23J.

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SUPREME COURT REPORTS

309

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Das

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Dalmia.

& Others

c 1 . .

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v. Shri Justice

policy and principle laid down by Parliament. It mav well be that the Central Government thought that even if one or, more of the particular qua rtres and characteristics attributed to the petitioners and their companies may be found in another person or company, the combination of· those qualities and s. R. Tendolkar characteristics which it thought were present in the '"'titioners and their companies was of a unique nature .r-- and was not present in any other person or company. In its appreciation o:J the material facts ptepa~atory to the exercise of the discretion left to it by Parlia- ment the Central Government may have thought that the evil was more pronounced in the petitioners and their concerns than any other person or concern and that the need for an inquiry was more urgent and clear in the case of the petitioners and their companies than in tlrn case of any other person or company. What is the gist and substance of the allegations against the petitioners and their companies? They are that a small group of persons had from before 1946 acquired control over a number of companies including a bank- ing company and an insurance company; that some of these companies were private companies and the others were public companies in which the public had invested considerable moneys by buying shares; that the financial years of some of these companies were different from those of the others ; that the funds of in purchasing the limited companies were utilised shares in other companies having large reserve funds with a view to get control over them and to utilise those funds for acquiring shares in other companies or otherwise utilise those funds for the personal benefit · of these individuals; that the shares were acquired on blank transfer deeds and were not registered in the names of the companies with whose funds they were purchased so as to permit the same• shares to be shown in the balance sheets of the different companies having different fina.ncial years; that after 1951 several of these companies were taken into voluntary liquig,ation or their assets were transferred to another company under some pretended scheme of arrange ment or re-org~nisation; that after getting control of

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r95B

& Others Lias c. J.

lJulmia · v. Shn Justice

a company they appointed some of themselves a.s Shri 11:;·Kdshna n;ianaging director or selling agent on high remunera- t10n and after a while cancelled such appointment on paying fabulous amounts as and by way of compensa- tion; that funds of one company were transferred to s "'· r,ndolkar another company to cover up the real financial posi tion. It is needless to add other allegations to explain the matter. The question before us is not w hethe,r the allegations made on the face of the notification and in the affidavits filed on behalf of the Union of India are true but whether the qualities and character istics, if honestly believed to be found in the petition ers, are so peculiar or unique as to constitute a good and valid basis on which the petitioners and their companies can be regarded as a class by themselves. It is not fm; We are not of opinion that they do not. us to say on this a pplica ti on and we do not ino fact say or even suggest that the allegations about the petitioners and their concerns are at all well founded. It is sufficient for our present purpose to say that the facts disclosed on the face of the notification itself and the facts which ha1•e been brought to our notice by the affidavits afford sufficient s•1pport to the presumption · of. constitutionality of the notification. There being thus a presumption of validity in favour of the Act and the notification, it is for the petitioners to allege and prove beyond doubt that. other persons or com panies similarly situate have been left out and the petitioners and their companies have been singled out for discriminatory and hostile treatment. The petition- ers have, in our opinion, failed to discharge that on'lls. Indeed nowhere in the petitions is there even an rwerment that there are other persons or companies similarly situate as the petitioners and their companies. It has to be remembered that the allegations set forth in the memora°!J.dum submitted by the Bombay Share holders' Association to the Bhaba Committee have not been proved by legal evidence. And further that report itself contains matters which may be taken as calculated to lend support to the view that wh~thf'r regard is had to the combination of a variety of evils or to their degree, the petitioners may quite conceivably

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S.C.R.

SUPREME COURT REPORTS

311

am Dalmia • v. Shri Justice

be grouped as a class by themselves. In our judgment the plea of the infraction of t . d . l C cause o our onst1tut10n cannot e sus a1ne ·

the equal protection "I . R -

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r958

< . , 1 ris'1?ia

& Others

Das c. J.

The next contention Is that the notification is bad, because the action of the Government in issuing it was mala fide and amounted to an abuse of power. s. R. Tendalkar Learned counsel appearing for the petitioner, who is the appellant in Civil Appeal No. 455 of 1957, m::ikes it clear that no personal motive or illwill against the petitioners is imputed to any one, but he points out that the Bhaba Committee had been set up and the Companies Act has been remodelled and, therefore, the present Commission was not set up for any legiti- mate purpose. The main idea, according to learned counsel, was to obtain information which the.Govern- ment could not get by following the ordinary pi·ocedure undei' the Code of Criminal Procedure and this ulterior motive clearly makes the governmental action mala fide. This point has been further emphasise~ by learned counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957. He has drawn our attention to the affidavits filed bv his clients and contends that it was well-known to the Government that none of them was concerned in pr.o- moting or managing any of the companies and their position being thus well-known the Govern- ment, their "inclusion in the notification was both outside . the power conferred by the Government and also constituted a mala fide exercise of the power conferred on it. No substantial ground in support of this point has been brought before us and we are not satisfied that the circumstances referred to in the notification and the affidavits filed on behalf of the Union of India, may not, if true, be the basis of a further inq_uiry into the matter. It will be for the Commission to inquire into ~he allegations and come to its own findings and make its report containing its recommendations. It is not de~ir~ble that we should say anything more on this pomt. All that we need say is that the charge of mala fides has not been brought home to the Govern' ment.

to

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312

SUPREME COURT REPORTS

[1959]

I958

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SI

iri

ani Dalmia v. Slwi Ju,tice s. 11. Tendoll<ar 0

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Da" C. ].

,

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,

A point was taken that the original notification was ( . , defective in that it did not fix the time within which ris11nq h C 1 t e ommrns10n was to complete its report and that a subsequent notification fixing ·a time could not cure that defect. We do not think there is any substance in this too. The third notification quoted 11bove amended the original notification by fixing a time. There w11s nothing to prevent the Government fron1 issuing a fresh notification appointing a Commission and fixing a time. If that cc1Uld be done, there was no reason why the same result could not be achieved In any . by the combined effect of two notifications. case the amending notification t11ken together with the original notification may be read as a fresh notifica tion within the meaning of s. 3 of the Act, operative at least from the date of the later notification.

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It is feebly argned that the notification is bad' as it amounts to a delegation of essential legislative func tion., Assuming that there is delegation of legislative function, the Act having laid down its policy, such delegation of power, if any, is not vitiated at all, for the legislation by the delegatee will have to conform to the policy so laid down by the Act. Lastly a p«int is raised that the notification is bad because it violates Art. 2:3 of the Constitution. It is frnnkly stated by the learned counsel that this point is rather premature at this stage and that he desires to resen-e his client's right to raise it in future.

No other point has been urged before us and for reasons stated above the appeals Nos. 455, 456 and 457 of 1957 11re dismissed with costs. Appeals Nos . 656, 657 and 658 of 1957 succeed only in part, namely, to the extent that only the words "by way of redress or punishment " occurring in the btter portion of cl. (10) will be deleted so that the latter portion of cl. (10) will read as: "and the action which in the opinion of the Commission should be taken .................. to act 11s a preyentive in future cases" a<> indicated above. vVe make no order as to the costs of these three appeals.

C. A. Nos. 455, 456 and 457 of 1957 dismissed. O. A. Nos. 656, 657 and 658 of 195? partly allowed.

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