DR. N. B. KHARE versus THE STATE OF DELHI

S.C.R.

SUPREME COURT REPORTS

519

Even assuming

for argument's sake

got jurisdiction under article 136, would ,depend upon view of the reasons which we have set out above, is not a9mitted even if we have the power to do so.

that we have the exercise of which in this in our opinion, should be

the circumstances of each case,

· an appeal which,

-The succeeds and costs.

result

is

that the appeal

tlie preliminary objection fails and dismissed with

PATANJALI SASTRI J.-1 entirely agree with

judgment just now delivered by Mukherjea I have oothing to add.

the J. and

1950

Bharat Bank Ltd. v. Employeu •f Bharat Bllllk

PAiar!iali Sa11ri,

Appeal dismissed.

Agent

for the appellant: Ganpat Rai for Tanubhai

C. Desai.

Agent for the respondents : R. R. Biswas. Agent for the Union of India: P. A. Mehta.

DR. N. B. KHARE

fl.

1950

May 26.

THE STATE OF DELHI , SHRI HARILAL KANIA C. J., SAIYID FAZL Au, PATANJALI SASTRI, MEHR CHAND MAHAJAN, and MuKHERJEA, JJ.] ' Constitution of India, Art 19, els. (1)

(d) and (5)-Funda mental rights-Freedom of movement-Law imposing restrictions V alidity -Reasonableness of restrictions-Scope of enquiry-East P11n1ab Public Safety Act, 1949, s. 4(1) (c), (3), (6)-Provisions empowering Provincial Government or District Magistrate to extern persons· mqking satisfaction of externing authority final, authorising e:rternment for indefinite period, and directing that authority "may communicate" grounds of e:rternment-Whether reasonable-Con struction and Validity of Act.

1950

Dr. N. B. Khart v. T ht St alt of Delhi

520

SUPREME COURT REPORTS

[1950)

in

than

for more

to ( 4) ."

to him by

from acting

Section 4, sub-s.

thereof," and sub-s.

the District Mag.lstratC.

the Advisory ·The ( c) of

(I) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be the 14th August, 1951, provided that ''The force until if satisfied Provincial Government or respect to any particular person that with a view to pre \Vith in any manner prejudicial to the public venting hirn safety or the maintenance of public order it is necessary to do so, 1nay, by order in writing, give a direction that such person shall rcn1ove himself fron1, and shall not return to, any area that 1nay that oe specified in the order." Sub-section (3) of s. 4 provided "an order under sub-s. (I) made by the District Magistrate shall not, unless the Provincial Government by special order othe,wise directs, remain in force three months fron1 the n1aking ( 6) laid down that "when an order has been macle in respect of any person under any of the clauses under s. 4, sub-s. (!) or sub-s. (2), the grounds of it may be com the authority making the order, and in any municated case when the order is to be in force tor more than three months, a representation which shall be he shall have a right of maki1'.g s. 3, Tribunal constituted under referred petitioner, against whom an order under sub·s. s. 4 (I) the Act was passed applied to the Court under the Constitution for a writ of cn·tiorari contending Art. 32 of that the order was illegal inasmuch as the provisions of t_he above· mentioned Act under wliich the order was made infringed the fundamental territory of freely India which was guaranteed by Art. 19 (I) (d) of the Constitution and were accordingly void under Art. 13 (I) of the Constitution : Held, per KANIA C. J., FAzL ALI and PATANJALI SAsTRI, JJ JJ. dissenting)-(i) that there was (MAHAJAN and MuKHERJEA, in the provision contained in sub-s. (I) (c) nothing unreasonable the Provincial Government or the District of s. 4 empowering Magistrate and making their satisfaction as the necessity of making such an order final, ( 3) of s. 4 that an order or in the provisions contained in sub-s. three months in force of a District Magistrate may remain and the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period time limit; (ii) with exceeding in the expression "may regard communicate" must, read as meaning "shall" is obligatory on the authority making and under the sub~scction it the externec; (iii) the an order to communicate the grounds above-mentioned. provisions of the restrictions right guaranteed by Art. (19) (!) (d) Act upon the fundamental were not, therefore, unreasonable the meaning of Art. 19 (5) and the provisions of the Act were not void under Art. 13 (I ), and the order of externment was not illegal.

the word "may" the context, be

to make an extcrnment order,

three months without fixing any

restrictions within

throughout the

to move

to stJb-s.

imposed

by the

right

( 6),

that

for

in

to

to

Per MuKHERJEA cercain authorities can be

J.

(MlliAJAN

J.

·invested with

concurring)-Though to make

power·

unreasonable simply because an order Dr. N. B. Khm•

and not on The State of Delh7

1950

v.

S.C.R.

SUPREME COURT REPORTS

521

to be

their own personal

(3) of s. 4 prescribes no limit

indefinite period of time without giving

the Provincial Government or the District satisfaction

initial orders on their own satisfaction in cases of this descrip- tion, and s. 4 ( 1) ( c) of the East Punjab Public Safety Act cannot be pronounced. could be passed by Magistrate on tests, yet, the position materials, which satisfy certain objective' is allowed to continue would be different if the order thus made for any the aggrieved person an opp<lrtunity to say what he has got to say against the to order; and inasmuch as sub-s. time during which an externment order would the period of remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, (3) are manifestly unreasonable. The the provisions of sub-s. provisions of sub-s. ( 6) of s. 4 are also unreasonable as make to communicate to the person affected, the grounds upon which the order is made. ( 6) of s. 4 can, therefore, be said to Neither sub-s. in the i1tterests have of the general public within the meaning of Art. 19 (5) and these provisions of the Act were consequently void and inoperative under Art. 13 ( 1) of the Constitution, and the externment order was illegal.

imposed restrictions which

it entirely optional with

the authorities

( 3) nor sub-s.

are reasonable

they ·

the

the

restrictions

fundamental

Held also, per KANIYA C. ]., ]].-Whether

F.1zL ALI, MAHAJAN imposed by right guaranteed

and legis MuKHERJEA by lative enactment upon (l) (d) are reasonable within the meaning of Art. 19 (5) Art. 19 the procedural of the Constitution would depend as much on portion of the law as the substantive part of it, and in considering whether such restrictions are reasonable the Court is not there fore bound to confine itself to an examination of the reasonable in the abstract with reference ness of the their territorial extent. The Court can also consider duration the reasonableness of Lhe procedural part of the circumstances under which, and the manner in which, the restric [PATANJALI SAsTR1 J. did not express tions have been imposed. any opinion on this point.]

restrictions

law and

and

the

to

ORIGINAL of 1950.

JURISDICTION:

PETITION

No.

:XXXVII

Application under article 32 of India for a writ of certiorari and facts are set out in the judgment.

the Constitution of prohibition. The

B. Banerji for the petitioner. M. C. Setalvad, Attorney-General for India (Gyan

Chand, with him) for the opposite party.

1950 &. N. B. KJi.,e v. Tiu S1att ef Delhi

Kania c. J.

522

SUPREME COURT REPORTS

[1950]

1950. May 26. The following

judgments were

delivered :-

KANIA C. J .-This is an application for a writ of the

Certiorari and prohibition under article 32 of Constitution of

India.

to

not

1950,

return to

immediately to

The petitioner who

of the first order on

and the Delhi District and

the President of the All is India Hindu Mahasabha since December, 1949, was served with an order of externment dated the 31st of that night. By that order he is directed March, not to remain in the by the District Magistrate, Delhi, remove himself Delhi District, from the District. The order was.to continue in force for three months. By another. order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner dis the ground that putes the validity the East Punjab Public Safety Act, under which 1949, the order was made, is an infringement of his funda of the mental right given under article Constitution of India. He the grounds of the order served on him are vague, insuffi cient and incomplete. According to him the object of the externment order · passed by the District Magistrate, Delhi, was to suppress political opposition to the policy respect of Pakistan and the of Muslim League. that because the peti the tioner and Government policy of. appeasement this order is served It is therefore mala fide and illegal. on him. In sup port of his contention. about the the East invalidity of Punjab Public Safety Act and its provisions as regards externment, counsel the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brijnan and of the High Court of dan v. The State of Bihar, Bombay in Criminal Application No. 114 of 1950, re /aisinghbhai Ishwarlal Modi.

the Hindu Mahasabha are against

in It i; alleged

for the petitioner

the Government

further contends

19 ( 1) ( d)

relied on

that

It is necessary

first

the true meaning 19 (1) (d) read with clause (5) of the same that by the order of extern-

to ascertain

There is no doubt

of article article

19.W

Dr. }(. B. Khan '1.· T Ill State of Dtlhi

Ka,,U. C.].

S.C.R.

SUPREME COURT REPORTS

523

(d)

in so

far as

'Nothing

the right of the p.:titioner

to freedom of move ment of India is abridged. territory ment throughout · the limits of µermissible The only question is whether the legislation under clause (5) arc exceeded. That clause provides as follows :- in suh "19. (5) ( e) and ( f) of the said clause .shall effect clauses (d), the oper~tion of any existing it law the State from making any law or prevent imposes, reasonable restrictions on the exercise of any imposing,, of the rights conferred by the said sub-clauses either in the interests of the general public or for the protec tion of . the interests of any Scheduled Tribe." It is clear that the clause permits imposition of reasonable restriction.s on the · exercise of the right conferred by the general public. sub-clause the interests of in is not materiil. The rest of the provision of clause. (5) interpretations of and neither side relies on it. Two It is argued that are put before the Court. the clause the only question before grammatii:ally understood the Court is whether imposes legislation restrictions on reasonable the exercise of the right. To put it in other words, to the only justiciable issue be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right If those restriction.s on the exercise of arc reasor1able. the right are reasonable, the Court has not to consider whether the law imposing the restrictions is reasonable. The other interpretation is that while the Constitution laying down reasonable restrictions on premits a law the exercise of the rights mentioned in sub-clause 19 the reasonableness ·has to be of the law also. (1) (d), restric It is· submitted the tions, Court has onlv on the extent and nature of · .the the ·the exercise of right but also as to whether the conditions under which reasonable. The majority ·the· right is restricted are judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures im before have given __ c;lause (5) of article 19 the portant points, latter mea!ling.

on the exercise of the right are reasonable,

them were, materially different on certain

that in de.ciding whether the

restrictions on

the impugnep

to decide

not

-

1

1950

Dr. ,Y. B. Khare v. The State ~f Delhi

KaniaC. J.

524

SUPREME COURT REPORTS

(1950]

for

the

the

law

right

is not

to move

safeguards

throughout

In my opm10n,

regards or

the procedural part of

the provisions of against

territory and the not. The law providing

clause (5) must be given its full the Court has to con meaning. The question which impugned sider is whether th<lol restrictions put by legislation on the exercise of the right are reasonable the or not. The question whether Act provide reasonable the abuse of the power given to the executive authority to adminis interpretation the relevant ter of the clause. The Court, on either interpretation. will be entitled restric the - to consider whether tions on the India, 1.e., the duration, are both as reasonable reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well reasonableness of as pro~edural provisions. While the the restrictions has to be considered with regard to the it does not necessarily exclude exercise of the right, the question of from the consideration of the Court It reasonableness of the law. if the law prescribes five years extern is obvious ment or ten years externment, the question whether such period of extcrnment is reasomble, being the sub stantive part, is necessarily for the consideration of the court under clause (5). Similarly, if the law provides the exercise of the right may the procedure under which the same b> restricted, for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think the scope and ambit of the word by this interpretation as applied "reasonable" to restrictions on the exercise of the right, is in any way unjustifiably enlarged. It to be put seems that the narrow construction sought on the expression, to consider only the substantive law on the point, is not In my opinion this ospect of tlie construction correct. of article 19 (5) judgment in I am. not concerned the two matters mentioned above. with in they were asked validity of the provisions of the Acts to consider. To the extent they help in the interpreta tion of article 19 (5) only they are helpful.

the conclusions of the two Courts about

to restrict the Court's power

has escaped the minority

is also

tl1at

the

1950

Dr. N. B. Khare v. The State of Dtilii

Kania C.J.

S.C.R.

SUPREME COURT REPORTS

525

The next question is whether

the petitioner to make the Provincial Government or

the impugned Act reasonable restrictions on the exercise of the contains 19 (1) (d) or (e). Itwas rigbt given under article that under sec· argiied on behalf of the order of extern .. the power tion 4- ment was given the to District Magistrate, whose satisfaction was final. That to review by the Court. On decision was not open that ground it was contended that there was an un· reasonable restriction on the exercise of the citizen's right. this argument is unsound. This is not legislative delegation. The desirability of pass ing an individual order of externment against a citizen In the Act such a provi · has to be left to an officer. sion cannot be made. - The satisfaction of the officer restriction on impose an unreasonable Jhus does not the exercise of the citizen's right. So far as f4e Bom bay Highl Court is concerned Chagla C. J. appears to have decided this point against the contention of the petitioner.·

In my opinion,

It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless special order otherwise the Proviricial Government by direct, remain in force for more than three months. It that the period of three months itself was was argued unreasonable as the externee · had no remedy during that time. [ - It was contended that when the Provincial Governmefit directed the renewal ·of the order no limit for the dura of time was prescribed by. the legislature tion of the order. The order therefore can· be in opera tion for ari indefinite period. This was argued to be an unreasonable restriction on the exercise of a citizen's right. that in respect of preventive detention, which is a more severe rest~iction on the right of the citizen, the Consti tution itself under article 22 (4) to (7) permits preven remedy. tive detention for three months without any The period of three months therefore prim a f acie does the proviso to section not appear unreasonable. Under 4 (5) the Provincial Government to is not permitted direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly

In this connection it may be pointed out

1950

Dr. N. B. Khare

Y. The Stak of Dllhi

Kania C.].

526

SUPREME COURT REPORTS

[1950]

is not permitted

that district. This

the District Magistrate to order the exclusion or removal of a person ordinarily resident in his district from is a great safe guard provided under the East Punjab Public Safety Act. The further extension of the exter1.1ment order beyond three months may be for an indefinite period, the fact that the whole Act is to but in that connection remain in force only up to the 14th August, 1951, can not be overlooked. Moreover, . this whole argument is based on the assumption the Provincial Govern that ment when making the order will not pe,form its duty and may abuse the provisions of the sect10n. In my opinion, to start with such an assump tion and decide that basis. Abuse of the power given by a law. sometimes occurs ; but the validity of the law cannot be contested because of such an apprehension. therefore, this contention of .the petitioner cannot be accepted.

the legality of an Act on

In my opinion,

is improper

it

to

is

the order

the advisory

It "was next argued

there is no provision to

of making a representation which shall

tribunal ( 4). While the word

that for furnishing grounds of externment Section 4 (6) provides

in the Act the that when an extern citizen. ment order has been made its grounds may be com municated to the externee by the authority making to be the order and in any case when enforced for more than three months he shall have a right be constituted under referred section 3 ordinarily "may" conveys the idea of a discretion and not compulsion, it seems that reading it with the when an externment order has to be enforced for more than three months an absolute right to the externee to make a representation. He cannot make a representation unless he has been furnished grounds for In no other part of the Act a right to obtain the order. the grounds for the order in such a case to him. Therefore, to be read as given the first part of section 4 (6). That can be done under only by reading the word for that purpose as "may" "may" having the meaning of to be has to be so read for that purpose, to against the well-recognised canons of construction

If the word it appears

last part of the clause

that right has

is given

is given

"shall".

s~c.R.

SUPREME COURT REPORTS

the order is to be in force for in putting

I do not think

"may"

read the same when months. "shall" on "may" in ing . the argument must fail.

language used

as having a different meaning less three than the meaning of the clause, I am unduly strainc this

in the clause.

·So read

1950

Dr. Jt. B. Kht11t-

K•aC.J.

it receives a representation. A reference

there is no provision that It was next argued in the advisory board has to do the Act showing what the when advisory board necessarily implies a consideration of the case by s1,1ch board. The absence of an express statement to that effect in the impugned act does not invalidate the Act.

to

It was finally contended on behalf of the petitioner that the grounds for the externment 011der supplied to him incomplete. The insufficient and vague, grounds are stated as follows :-

are

"Your activities generally

and particularly . since the recent trouble in East and West Bengal have been tending to excite hatred between of a communal nature in the present composition communities and whereas of the recent communal .the population of Delhi and disturbances of Delhi feelings are roused be.tween the majority your presence to prove prejudicial and activities to the maintenance of law and order, it is considered necessary to order you to leave Delhi. These grounds cannot be

and minority communities in Delhi are likely

described as vague, stated that insufficient or incomplete. is the President of the ·activities of the petitioner, who recent disturbances the the Hindu Mahasabha, since between the East and West Bengal have particularly been of a communal riature which excites hatred between It is to the recent disturb ~rther stated that having regard ance· in Delhi, both these communities, is likely to be dangerous of law and order. Apart from. being vague, that can support

the population of which is composed of the excitement of such hatred . to the peace and· maintenance I think these grounds are specific and if honestly believed the order. The argument that lhe order

two communities

the communities.

It is expressly

in

1950

Dr. N. B. n.,., v. Th• SlaJt of DI/hi

XatriaC.J.

528

SUPREME COURT REPORTS

[1950]

to

to stifle oppostition

has little bearing because

the Government was served policy of appeasement the District Magistrate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. the activities of the peti The order is . made because to the maintenance tioner are likely specified have of law and order and a direct bearing on the District Magistrate. that this contention of the petitioner must be rejected.

the grounds that conclusion of

to prove prejudicial

therefore

think

I

The result is that the petition fails and is dismissed.

Fazl Ali].

FAzL Au J.-I agree.

Patmfiali SGltri].

Mul<Mrjea].

judgment

SASTRI J.-I agree

PATANJALI tion must fail. As Lord in the reasonableness of pugned (5) of the Constitution necessary the judicial review permitted under that article, I hold myself free to deal with becomes necessary to do so.

this applica that I share the views expressed by my just delivered by him on the the restrictions imposed by the im legislation whichever construction of article 19 it un to express any opinion on the true scope of and that point when it

I consider

is adopted,

MAHAJAN J.-1 concur

in the judgment which my brother Mukherjea is delivering and for the reasons given hy him I allow the petition and quash the order of externment.

an

application

MuKHERJEA J.-This

under is praying for quashing of article 32 of the Constitution, an externment order made by the District Magistrate the petitioner Dr. N. B. Khare, on of Delhi, against 31st March, 195p,. by which to remove· himself immediately . from the Delhi District long as to that District so the order and not to return remained in force. The order three months at is for present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhva Bharat which was served on the petitioner on his way to Nagpur and which

the latter was directed

-

S.C.R.

SUPREME COURT REPORTS

529

to leave

the limits , of the Nagpur directed him to reside within the Muriicipality and not permission of the District Magistrate of that place. This order of the Government of Madhya Bharat, we told, has since been withdrawn and we are not are concerned with that order or the Act under which it was passed in the present proceeding.

that area without

1950

Dr. N. B. Khtm v. Thi Slate of D_•lhi

Mukher:iea j

on behalf of

The substantial contention raised

that the particular provision of Public Safety Act, 194j, · under which to make

the petitioner is the East Punjab the District Magistrate of Delhi purported the externment order, became void and ceased to be opera tive after the new Constitution came force, by reason of these provisions being the 19 ( 1) ( d) fundamental rights guaranteed under article of the Constitution read with clause the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.

into inconsistent with

(5) of

In order

to appreciate the merits of this contention, to the material provi it may be convenient sions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned,counsel for the petitioner.

to advert

The East Punjab Public Safety Act came

into force on 29th March, 1949, and its object; as stated in the preamble, to is ensure public safety and maintenance of public order. Section 4 ( 1) of the Act provides :

to provide for special measures

or

"The Provincial Government if satisfied with

the District respect to any particular Magistrate, that . with a view to preventing him from acting person in any manner prejudicial the to the public safety or it is necessary so to do, maintenance of public· order give anyone or more of the by order in writing, may, following directions, namely that such person ......... . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and shall not in the

( c) shall remove himself from, to,

that may be specified

any area

return order."

1950

Dr: JV. B: lrhare v. T ~ Stal• of Delhi

530

SUPREME COURT REPORTS

r19sr.11

Sub-section (3) of "An order under sub-section

the section lays down that

shall not,

District Magistrate Government by special order otherwise directs, in force for more than three months from thereof."

unless

(1) made by the the Provincial remain the making

to it are inconsistent with

The contention of the petitioner is that the

restric tive provisions mentioned above, under which a person could be removed from a particular area or prohibited funda from returning mental right guaranteed by article 19 ( 1) ( d) of the Constitution under which all citizerts shall have the territory of right freely throughout the India." This and is it could be curtailed by .legislation extent of article 19 which runs as laid down follows:

indeed is not absolute

"to move

to which

in clause

right

(5)

the

the

law

"Nothing in sub-clauses (d), (e) and (£) of the said in or prevent the State frotn making the restictions on said rights conferred by the in the interests of the general public interests of any Schedule•!

clause shall affect the operation of any existing so far as it imposes, any exercise of any of the sub-clauses ·either or for the protection of Tribe."

reasonable

imposing

law

the

Thus

the right . in

the primary question which requires con sideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 ( 1) ( d) of the Constitution under which a is pro.tected by clause (5) of the article, law would be valid if it imposes reasonable restncttons the on the exercise of It is not disputed that the question of general public. reasonableness is a justiciable matter which has to be the determined by restrictions the If, one the petitioner would certainly have no remedy. to be unreasonable, article other hand, they are held 13 (1) of the Constitution the Court to pronounce the law to be invalid to the extent rights inconsistent with that guaranteed under J>art III of the Constitution.

If the Courts hold imposed by the law to be reasonable,

imposes a duty upon

the interests of

fundamental

the Court.

the

it

is

195ct

Dr. J'{. JJ. KIJMr v. T& Siau of Delhi

M~herjea].

S.C.R.

SUPREME COURT REPORTS

531

not

that

impose

throughout

in my opinion,

barriers of this kind,

cannot be inconsistent with the

faintly, by It has been urged, though somewhat learned Attorney-General the of right the; the Indian territory free movement as in article 19 (1) (d) of the Constitution enunciated contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does it fundamental is said, right secured by this clause. Such a restricted inter not at all warranted by pretation is, the language of the sub-clause. What article 19 (1) (d) is the free right of all of the Constitution guarantees citizens to go wherever they like in the Indian territocy restriction whatsoever. They without any kind of can move not merely from one State to another but from one place the same State ind what the entire Indian territory is one unit so far as the citizens the Eaet arc concerned. Clause (c) of section 4 (1) of the Provin 1949, authorises Punjab Public Safety Act, cial Government or the District Magistrate to direct from any area and pro any person to remo\'e himself the same. On the face of it hibit him from entering the such provision fundamental right guaranteed by article 19 (1) (d) of the Constitution. The controversy, narrows down to this, whether legislation is the permissible saved by limits prescribed by clause (5) of article 19 ..

represents an · interference with

reason of its being within

lays stress upon

to another within

the Constitution

impugned

therefore,

is that

the

in applying

With regard

imposed upon

It is argued that

to clause (5), the

learned Attorney General points out at the outset that the word "reason able" occurring in the clause qualifies "restrictions" and not "law". clause,. all that we haye to see is whether 'the restrictions that the exercise of the right by law are are reasonable or not and we have not to enquire into the itself. The reason;ibleness or otherwise of the reasonableness of the restrictions can be judged, ac the cording from the nature of the restrictions themselves and not from manner in which or they are

learned Attorney-General

the authorities by which

law

the

the

to

2-5 S.C. Indiil (N.D.)(~

1950

Dr. N. B. Khare

v. Tiu State of Delhi

Muti...jea J.

532

SUPREME COURT REPORTS

(1950]

imposed. The question whether the operation of the law produces hardship is also a in individual cases matter which is quite irrelevant to our enquiry.

in

but

restrictions

to look up to

the adjective that are

I do agree that in clause (5)

is predicated of the restrictions

'reason imposed able' that does not by law and not of the law itself ; that in deciding the reasonableness or otherwise mean of the restrictions, we have to confine ourselves to an examination of t'he the abstract with to their duration or territorial extent, reference merely and that it is beyond our province the circumstances under which or the manner in whicl\ the n;strictions have been imposed. It is not possible test which would enable us to formulate an effective to pronounce any particular restriction to be reasonable or unreasonable per se. All circum into consideration and one stances must be taken cannot dissociate the actual contents of the restnct1ons the mode of from the manner of their imposition or reason 1ft1tting law may ableness of arise as much law as I agree from its procedural portion. Thus, the word with 19 goes with "reasonable" "restrictions" accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might right of free movement.

from the substantive part of the although that

learned Attorney-General (5) of article

into practice. The question of

in clause and not with

the exercise of the

"law", I cannot

the restrictions

imposed by. a

the attendant

impose upon

them

the

is

Coming now to the provisions of the

impugned Act, Mr. Banerjee's main contention that section 4 (1) (c) of the East Punjab Public Safety Act, which provides for passing of orders removing a person from on the satisfaction of the Provincial a particular area, cannot be a Government or the District Magistrate, reasonable piece of inasmuch as the only the restrictions pre-requisite for the is personal satisfaction of individuals or authori ties, the propriety or reasonableness of which cannot be tested by the application of any external rule or stand liberty It is said that any law which places the ard.

legislation imposition of ·certain

1950

Dr. N. B. Khan v. The Stau of Delhi

l'rfukknjeaJ.

S.C.R.

SUPREME COURT REPORTS

533

of a subject at the mercy of an executive officer, how ever high placed he might be and whose action 'Cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.

the

the

some objective

It is not disputed that under clause (5) of article the reasonableness · of a challenged legislation has 19, the Court decides to be determined by a Court and such matters by applying standard which is said to be the standard of an average prudent Judged by such standard which is sometimes man. described as an external yard-stick, vesting of to take prompt action authority in particular officers under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily to take into account the whole unreasonable. One has scheme of the legislation and the circumstances under restrictive orders could be made. The which object of the East Punjab Public Safety Act is to pro . and vide for special measures to ensure public safety maintenance of public order. Under section 4 (c) (1) of the Act, the District the Provincial Government or Magistrate may make an order directing the removal if they are of a certain person from a particular area, satisfied that such order is necessary to prevent such person to public safety . or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. · If emergent steps have got to be taken to prevent apprehended acts which are likely interests or safety of the public, somebody must be given the power of taking the initial reasonable if the authority, whp is given objection could be taken the power; is also entrusted with the responsibility of in any particular iµaintaining order and public-. peace district or province. The preventive provisions of the Criminal Procedure Code· are based on similar principle. In my opinion, the provision of section 4 ( 1) (c) of the East Punjab Public Safety Act cannot be pronounced the order could be passed by the Provincial Government

responsibility ; and no

in any way prejudicial

. to be um:easonable,

simply because

to jeopardise

from acting

therefore,

the

· steps ori his own

1950

Dr. N. B. Khar• v. Tiu Stall of Delhi

534

SUPREME COURT REPORTS

[1950]

or the District Magistrate on their own personal satis faction and not on materials which satisfy certain objective tests.

the order. the provisions of sub-section

But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in the position cases of this description, is would certainly be different if the order thus made indefinite period of time allowed to continue for any without giving the aggrieved person an opportunity to I have say what he has got to say against (3) of already set out section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from is absolute this sub-section that there limit as to the period of time during which ly no an externment order would remain in force if the 9rder is made by the Provincial Government. The Provincial in Government has been given unlimited authority this respect and they can keep the order in force as long as they chose to do so. As regards orders made the period by a District Magistrate, indeed has been fixed at three months; but Cllen here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix an¥ maximum period beyond which the order can fact that the Act itself would not continue ; expire in August, in my op1ruon, not a rele is, this connection at all. in vant matter for consideration I have no hesi(lltion in holding the provision of section 4 is manifestly unreasonable sub-section (3) of and cannot be supportc:d on . any just ground. One could understand that . the exigencies of circumstances might justify. the vesting of plenary powers on certain authorities which could pass -0rders on their own per temporarily and for a short period of sonal satisfaction if these orders are to continue indefinitely, time; but it is only fair that an opportunity should be given to is made to say the person against whom such order what he has to say the allegations made against him. There may riot be an investigation by a the aggrieved regular Court but it is necessary person should be given a fair hearing and that by an

in answer

1951,

that

that

and

the

to

s.c.R.

SUPREME COURT REPORTS

535

impartial tribunal. The provision of the · impugned Act which has bearing on this point is contained" in sub-sectioh (6) of section 4 and it runs as follows :

or sub-section (2)

"When an order has been made in respect of any person under any of the clauses under section 4, sub-section (1), the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section ( 4) ,"

1950

Dr. N. B. Khare .v. The State of Delhi

Mukherjea ].

of

in force

is to remain

first part of

for more than

It will be noted that the

the right of representation

·makes it entirely optional with the grounds,

the sub section the authorities to communicate upon which the order to the person affected by it. The grounds is made, need not be communicated at all if the authorities so desire. As regards the latter part of the sub-section seems to imply that when the order three months, the right of representation should be given to the aggrieved person and the representation shall be re ferred for ·consideration to the advisory tribunal consti the Act. sub-section ( 4), tuted under section 3, The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be operative for more is no obligation on the part of the authorities ~o communi cate the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of. section 4 of the Act · can be said to have imposed restrictions which are in the interests of the general public. My reasoriable is that under article 13 ( 1) of the conclusion, therefore, Indian. Constitution, these provisions of the Act became void and inoperative after into the Constitution came

than three . months,

to _ the person

if he is not

there

1950

Dr.N.B. Khare v. The Stale of Delhi

Mukhnjea].

536

SUPREME COURT REPORTS

[19501

force, Magistrate in the present case cannot stand.

and consequently the order made by the District

I would, quash the against the petitioner.

therefore,

allow

externment order

the application

and that has been passed

Petition dismissed.

Agent for the petitioner: Gan pat Rai. Agent for the opposite party: P. A. Mehta.

1950

CHIEF CONTROLLING REVENUE AUTHORITY

AND SUPERINTENDENT OF STAMPS

ti. MAHARASHTRA SUGAR MILLS LTD.

[SHR1 HARILAL KANg C. J., SAIYID FAzL Au, PATANJALI SASTRI, MEHR CHAND MAHAJAN and MUKHERJEA J J.)

Indian Stamp Act (II of 1899), ss. 57, 59 (2)-Reference lo High Court-Nature of power .to refer-Duty to refer on reque.11 of party affected-Order directing Chief Controlling Authority to refer-Whether revenues"-furisdiction of Original Side of High Court-Government of India Act, 1935, s. 266(1).

concerning

"matter

The power conferred on

the Chief Revenue Authority by Sec. 57 of the Indian Stamp Act, to make a reference to the High Court is not intended for the benefit of the Revenue Authority alone, but ensures, also for the benefit of the party affected by the assessment. to make a is th~reforc coupled with a duty reference when he is called upon to do so by the party affected, and if he declines to do so, it is within the power of the Court to that ducy and make a reference to the direct him Court.

to discharge

It

Alcock Ashdown & Co., Ltd. v. Chief Revenue Authority (SO I.A. 227) and /ulius v. Bishop of Orford (5 A.C. 214) applied.