judgement:
riminal Appeals Nos. 65 and 66 of 1952, 5 and 19 of 1953 and Petitions Nos. 170 of 1952, 19 and 57 of 1953.
Appeals from Orders, dated the 9th April, 1952, of the High Court of Judicature at Bombay in Criminal Applications Nos. 707 and 708 of 1951, from the Judgment and Order, dated the 15th December, 1952, of the High Court of Judicature at Bombay in Criminal Application No. 1310 of 1952; from the Judgment and Order, dated the 29th November, 1952, of the Judicial Commissioners Court Vindhya Pradesh, Rewa, in Criminal Miscellaneous No. 49 of 1952; and Petitions under article 32 of the Constitution of India.
J.B. Dadachanji and Z. F. Bootwala for the appellants in Criminal Appeals Nos. 65 and 66 of 1952 and 5 of 1953.
C.K. Daphtary Solicitor General for India(G. N. Joshi, with him) for respondents Nos.
I and 2 in 121 934 Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953.
K.B.Asthana, for the appellant in Criminal Appeal No. 19 of 1953.
C.K. Daphtary, Solicitor General for India, (Porus A. Mehta and G. N. J08hi, with him) for the respondent in Criminal Appeal No. 19 of 1953.
section P. Sinha (Sri Narain Andley, with him) for the petitioners in petition No. 170 of 1952.
Gopalji Mehrotra for respondent No. I in petition No. 170 of 1952.
C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with him) for respondent No. 3 in petition No. 170 of 1952.
section P. Sinha (section N. Mukherji, with him) for petitioner in petition No. 19 of 1953.
Gopalji Mehrotra for respondent No. I in petition No. 19 of 1953.
G. N. Joshi for respondent No. 3 in petition No. 19 of 1953.
H.J. Umrigar, amicus curiae, for the petitioner in petition No. 57 of 1953.
C. K. Daphtary, Solicitor General for India (G. N. J08hi, with him) for the respondents in petition No. 57 of 1953.
February 15.
The Judgment of Mahajan C.J., Mukherjea, Vivian Bose and Ghulam Hassan JJ.
was delivered by Ghulam Hasan J. Das J delivered a seperate judgment.
Criminal Appeals Nos. 65 and 66 of 1952.
GHULAM HASAN J.
This batch of appeals raises a common question of the constitutional validity of section 7 of the Influx from Pakistan (Control) Act (XXIII of 1949).
Section 3 of the same Act is also assailed on behalf of some of the appellants but for the purpose of deciding these appeals it will not be necessary to deal with the latter question.
Criminal Appeals Nos. 65 and 66 of 1952, which are directed against the judgment and order of the High Court of Judicature at, Bombay in two petitions under article 226 of the Constitution praying for the issue of 935 a writ of mandamus requiring the respondent not to remove them from India on the ground that the impugned section 7 is void may be treated as the leading case which will govern the other appeals.
The facts of each of these appeals are slightly different but they proceed upon the common assertion that the appellants are citizens of the Indian Republic.
This fact was assumed in the leading case but it is not, disputed that the status of the appellants as Indian citizens in all the cases has not been investigated and determined by any of the courts below against whose decision the appeals have been brought.
Having heard the learned counsel appearing in support of the appeals and the learned Solicitor General we have reached the conclusion that section 7 is void in so far as it infringes the right of a citizen of India under article 19(1) (e) of the Constitution.
The Act in question received the assent of the Governor General on April 22, 1949, and was published in the Gazette of India Extraordinary on April 23.
It is a short Act containing nine sections.
It is intituled an Act to " control the admission into, and regulate the movements in, India of persons from Pakistan ".
The preamble opens with the words "Whereas it is expedient to control the admission into, and regulate the movements in, India of persons from Pakistan.
" Section 2 (b) defines " officer of Government " as any officer of the Central Government and 2 (c) defines "permit" as a "Permit issued or renewed or the period whereof has been extended in accordance with the rules made under this Act.
" Section 3 says II No person shall enter India from any place in Pakistan, whether directly or indirectly, unless (a) he is in possession of a permit or (b) being a person not domiciled in India or Pakistan, he is in possession of a valid passport as required by the Indian Passport Act, 1920 (XXXIV of 1920), or (c) he is exempted from the requirement of bein in possession of a permit by or in accordance with the rules made under this Act.
" 936 Section 4 empowers the Central Government, by notification in the Official Gazette, to make rules: (a) prescribing the authorities by which and the conditions subject to which permits may be issued or renewed or the period thereof extended, the condition to be satisfied by the applicants for such permits and the forms and classes of such permits; (b) regulating the movements in India of any person who is in possession of a permit; (c) providing for the exemption, either absolutely or on conditions, of any person or class of persons from the requirement of being in possession of a permit or from the operation of any rule made under the section ; and (d). . . . . . . . . . . section 5 is the penal section which says " (a) Whoever enters India in contravention ' of the provisions of section 3, or having entered India contravenes the provisions of any rule made under section 4, or commits a breach of any of the conditions of his permit, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
" Section 6 confers power of arrest upon an,officer of Government.
Section 7 is as follows: " Without prejudice to the provisions contained in section 5, the Central Government may, by general or special order, direct the removal from India of any person who has committed, or against whom a reason , able SUSPICION exists that he has committed, an offence under this Act, and thereupon any officer of Government shall have all reasonable powers necessary to enforce such direction.
" Section 8 provides for protection to persons acting in good faith and section 9 repeals the Influx from, Pakistan (Control) Ordinance, XXXXIV of 1948.
The use of the word 'person ' in section 7, read with the title and preamble of the Act leaves no doubt that.
the Act applies to citizens and non citizens alike.
So 937 far as a non citizen is concerned, it is not contended before us3 that the executive Government has no authority to direct his removal from India and the only contention raised before us is whether the Central Government has any power to direct the removal of an Indian citizen on either of the grounds mentioned in section 7.
Section 7, it is contended, confers upon the Central Government unfettered power to direct the removal from India not only of a person who has committed an offence punishable under section 5 of the Act but also one against whom a reasonable suspicion exists that he has committed such an offence.
That an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce D, permit or passport as the case may be before he can be allowed to enter the country, may well be.
regarded as a proper restriction upon entry but to say that if he enters the country without a permit or on an invalid permit, or commits a breach of any of the conditions of the permit he may, on conviction for such offence, be ordered to be removed from the country is tantamount to taking away his fundamental right guaranteed under article 19(1) (e), " to reside and settle in any part of the territory of India.
" The order is sought to be supported by the learned Solicitor General on the ground that it falls within exception (5) of article 19.
The proposition that the order imposes in the interest of the general public a reasonable restriction on the exercise of the.
right conferred upon an Indian citizen to reside and settle in any part of the territory of India is hardly statable.
It is possible to conceive of an Indian citizen being guilty of serious prejudicial Acts such as espionage and disloyalty to his country in which case he may render himself liable to the gravest penalty which the Government may think fit by law to impose upon him but it would be repugnant to all notions of democracy and opposed to the fundamental rights guaranteed in Part III of the Constitution to order his expulsion from the country, for to hold otherwise would be tantamount to destroying the right of citizenship conferred by Part II of the, Constitution.
This 938 result is permissible only by recourse to article 11 of the Constitution.
Again it will be noticed that section 7 imposes the penalty of removal not only upon a conviction under section 5 but goes further and brings about the same result even where there is a reasonable suspicion entertained by the Central Government that such an offence has been committed.
The question whether an offence has been committed is left entirely to the subjective determination of the Government.
The inference of a reasonable suspicion rests upon the arbitrary and unrestrained discretion of the Government, and before a citizen is condemned, all that the Government has to do is to issue an order that a reasonable suspicion exists in their mind that an offence under section 5 has been committed.
The section does not provide for the issue of a notice to the person concerned to show cause against the order nor is he afforded any opportunity to clear his conduct of the suspicion entertained against him.
This is nothing short of a travesty of the right of citizenship.
The learned Solicitor General argued that the provision must be viewed in the back ground of the events which took place at the time of the partition and the unsatisfactory relations existing between India and Pakistan.
up to the present day.
Even so the penalty imposed upon a citizen by his own Government merely upon a breach of the permit Regulations, however serious it may be and, more, upon a reasonable suspicion only by the executive authority of his having violated the conditions of the permit is utterly disproportionate th the gravity of the offence and is in our opinion indefensible.
A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public.
The Act purports to control admission into and regulate the movements in India of persons entering from Pakistan but section 7 oversteps the limits of control 939 and regulation when it provides for removal of a citizen from his own country.
To use the language of this court in Chintaman Rao vs The State of Madhya Pradesh and Ram Krishna vs The State of Madhya Pradesh(1), " The effect of the provisions of the Act, however, has no reasonable relation to the subject in view but is so drastic in scope that it goes much in excess of that object.
It may be said that the sentry on guard at any of the check posts on the frontier between the two countries can prevent not only unauthorised entry of a citizen by force but can also throw him out if the person has managed to enter surreptitiously.
Exactly what the sentrys ' duties are was not argued before us.
They would naturally vary according to the circumstances and the orders which be receives but ordinarily we apprehend that the duty of a sentry at the border would be to prevent as far as lay in his power un authorised entry into India.
If any person claims to have the right to enter, the sentry 's duty would be to hand him over to the Commander of the Guard and normally it would be the duty of that Commander to hand him over to the proper authority empowered to determine the right which he claims.
In the case of an unauthorised entry, ordinarily the duty of the sentry is to arrest a man and hand him over to the proper authority for punishment and in extreme cases he may have the right to shoot the person who does not halt on his command and explain his presence at the outpost.
In normal circumstances we doubt if the sentry would have the right to forcibly expel a man who crosses the border.
The learned Chief Justice (Chagla C. J.) took the view that section 7 is consequential to section 3 and held that if section 3 controlling admission by means of a permit is valid, section 7 must be held to be equally valid.
This argument is fallacious.
In the first place, section 7 is by no means wholly consequential to section 3.
The first part no doubt renders the person concerned liable to removal upon conviction under section 5 but further empowers.
the Central Government (1) ; 940 to pass the same order independently of these provisions even where there is no conviction and a reasonable suspicion exists that an offence has been committed.
Assuming, however, that section 7 is consequential to section 3 it gives no opportunity to the aggrieved person to show cause against his removal.
There is no forum provided to which the aggrieved party could have recourse in order to vindi cate his character or meet the grounds upon which it is based.
Neither the Act nor the rules framed thereunder.
indicate what procedure is to be followed by Government in arriving at the conclusion that a breach of section 3 or of the rules under section 4 has taken place, In Shabbir Hussain vs The State of Uttar Pradesh and Another(1) the Allahabad High Court held that a law allowing the removal from a territory of India of any citizen is in contravention of article 19 (1) (d) and(e) of the Constitution and is void in view of article 13(1).
The order which was challenged before them was one passed under section 7 and was set aside.
In Criminal Writ No. 147 of 1951 decided on December 11, 1951, a Bench of the Punjab High Court (Weston C. J. and Harnam Singh J.) while setting aside the order under section 7 against a citizen of India who had entered India without a permit and was first convicted and then ordered to be externed observed: "The powers of removal or banishment given by section 7 of the Influx from Pakistan (Control) Act, 1949, connot be invoked against citizens of India.
No doubt, she committed an offence under section 3 of that Act which applied to all persons, but that cannot justify her removal even though her entry may have been contrary to the provisions of the Act.
" We are not prepared to accede to the contention urged by the Solicitor General that a citizen of India who returns to the country without a permit or without a valid permit commits such a grave offence as to justify his expulsion from the country.
The object of the Act is, not to deport Indian nationals (1) A.I.R. 1952 All.
941 committing a breach of the permit or passport Regulations but merely to control admission into and regulate movements in India of persons from Pakistan and therefore there is no substance in the argument that section 7 was intended to achieve the objective of expelling Indian citizens, by and large, if they brought themselves within the mischief of section 3.
It was faintly contended that the order of physical, removal from India, in addition to the punishment imposed under section 5 of the Act, amounted to what may be called " double jeopardy " and is in conflict with article 20 (2) of the Constitution.
The short answer to this contention is that there is no second prosecution for the same offence and therefore no question of double jeopardy arises.
See Maqbool Hussain vs The State of Bombay etc.(1).
As a result of the foregoing discussion we declare section 7 to be void under article 13(1) in so far as it conflicts with the fundamental right of a citizen of India under article 19(1) (e) of the Constitution and set it aside.
The order will, however, operate only upon proof of the fact that the appellants are citizens of India.
The case will, therefore, go back to the High Court for a finding upon this question.
It will be open to the High Court to determine this question itself or refer it to the court of District Judge for a finding.
Parties will be given full opportunity to file affidavits or give other evidence which they may wish to produce.
Criminal Appeal No. 5 of 1953.
GHULAM HASAN J.
The appellant in this case is a resident of Godhra, District Panchmahals, in the State of Bombay.
He went to Pakistan in Marc 1948, and returned to India on May 30, 1949, after obtaining a permit for permanent return to India from the High Commissioner for India.
In January, 1950, he was prosecuted under section 5 of Act XXIII of 1949 for having obtained a permit which was not in accordance with the provisions of the Act.
The prosecution was withdrawn after 21 years.
Subsequently on December 5, 1952, he was served with a notice (1) ; 122 942 ordering him to leave India for Pakistan within 10 days else he would be bodily removed to the Indo Pakistan border.
Thereupon the appellant filed a petition under article 226 contending that section 7 was contrary to his fundamental rights under articles 14 and 19 of the Constitution and that the same provided no opportunity to the appellant to put his case before the Government officers, nor was any such opportunity afforded to him.
He asserted that he was a citizen of India.
The application was summarily dismissed on December 15, 1952, whereupon leave to appeal to this court was granted under article 132(1) of the constitutional.
As this appeal also raises the question of the constitutional validity of section 7, it will be governed by the decision which we have arrived at in appeals Nos. 65 and 66 of 1952.
Criminal Appeal No. 19 of 1953.
GHULAM HASAN J.
The appellant, Haji Faqir Ahmad, is a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India.
He was prosecuted under section 5 of Act XXIII of 1949 on the ground that he entered India from Pakistan without a permit and convicted and sentenced.
Thereafter he was by an order passed under section 7 bodily removed out of India.
His father applied under article 226 of the Constitution and section 491 of the Code of Criminal Procedure for setting aside the order.
The learned Judicial Commissioner dismissed the application summarily holding that section 7 was not ultra Vires the Constitution.
Mr. Asthana, who appeared on behalf of the appellant, raised a further question that the order was void under article 14 inasmuch as it discriminated against members of a particular community coming from Pakistan.
There is no warrant for this contention.
The Act applies to citizens as well as non citizens.
It applies to all communities irrespective of caste or creed.
It is contended that the Act must be held to be discriminatory not only by virtue of its provisions but because of the discriminatory manner in which those provisions have been applied.
This argument is 943 to be mentioned only to be rejected, for there is no material whatsoever placed before us to justify the statement.
The case in Yick W o vs Peter Hopkins (1) is wholly inapplicable to the facts of the present case.
We accordingly reject the contention.
This case will also be governed by the decision in Appeals Nos. 65 and 66 of 1952.
Petition No. 170 of 1952.
AND Petition No. 19 of 1953.
GHULAM HASAN J.
These petitions under article 32 of the Constitution raise the constitutional validity of section 7 of the Influx from Pakistan (Control) Act, XXIII of 1949.
Mr. section P. Sinha, who appears for the petitioners, withdraws these petitions and undertakes to file two petitions under article 226 of the Constitution within a fortnight from this day before the High Court.
When these have been filed, they will automatically be governed by the decision given in Ap peals Nos. 65 and 66 of 1652.
No other order is called for.
The petitions are allowed to be withdrawn.
Petition No. 57 of 1953.
GHULAM HASAN J. This a petition under article 32 of the Constitution by Inamullah Khan alias Qamar Jamali for the issue of a writ in the nature of habeas corpus directing that the petitioner, who is illegally arrested and detained be brought before the court and set at liberty and for the issue of a writ of certiorari calling for the said order for arrest and detention and the relevant papers and for setting them aside as being void and in operative.
It is further prayed that the State of Bhopal and the Superintendent of Central Jail,, Bhopal, where he was being detained be restrained from putting into effect the said order.
The petition was made on March 11, 1953.
It is stated that the petitioner is a citizen of India having been born in Bhopal in 1922.
He was employed in Bhopal for 5 years immediately preceding (1) ; 944 the commencement of the Constitution of India.
He also edited a weekly paper "Tarjuman" from Bhopal.
His name appears as.
a voter in the voters" list of the Bhopal Legislative Assembly (1951 52), as well as in the electoral roll of the Municipal Board, Bhopal.
The was arrested on November 24, 1952 by the Sub Inspector of Police at lbrahimpura, Bhopal, under section 7 of the Influx from Pakistan (Control) Act XXIII of Pakistan.
At the time of the arrest the petitioner was being tried under section 448, Indian Penal Code, in the court of 1st Class Magistrate, Bhopal, and was on bail.
The petitioner alleges that he never went to Pakistan, nor entered India without a permit and was never tried and convicted under the Influx from Pakistan (Control) Act of 1949.
He challenges the order under section 7 as being void under article 19(d) and (e) and articles 21 and 22.
The fact that the petitioner is a resident of Bhopal and was employed in the State is not denied on behalf of the State.
The affidavit on behalf of the State mentions that the petitioner had gone to Pakistan in may, 1952, and returned in August, 1952, without a permit.
He was arrested on November 24, 1952, without any prior notice but was told at the time of the arrest that he was to be removed out of India.
The petitioner filed an application through his uncle before the Judicial Commissioner, Bhopal, under article 226 on November 25, 1952, challenging.
the order.
The Judicial Commissioner granted an interim stay order on the same day.
The petition was dismissed on February 23, 1953, and the interim order was vacated on March 10, 1953.
It is admitted that an oral request was made to the Judicial Commissioner for leave to appeal to this court and it was prayed that pending the grant of leave the order of stay should continue.
Leave was refused on the same day and the stay order was vacated.
There is an affidavit by the Chief Secretary of the State admitting that the petitioner on, the same day banded an application to the Superintendent of Jail 945 addressed to this court.
The Superintendent of Jail sent it to the Chief Secretary on March 13, 1953.
It was put up before him on the 14th when he forwarded it to the Law Department for opinion on March 16.
The petition was returned to him on the 19th with the remark that it should be forwarded to the Supreme Court.
It was sent to this ' court on ;March 22.
On the same day a telephonic communication was sent, by the Registrar of this court through the States Ministry directing that the petitioner should be detained if he was still in India, but it appears that the petitioner had been handed over to the Rajas than Police at Kotah on March 12, 1953, and a reply was received by the Inspector General of Police, Jaipur, that the petitioner had crossed the border on March 18, 1953.
The Superintendent of Jail has also filed an affidavit supporting the Chief Secretarpand has admitted that it was wrong on his part not to have sent the, petition submitted by the prisoner immediately to this court and that he in good faith believed that as the order for stay had been vacated by the Judicial Commissioner, he should first send it to the Registrar of that court.
It is obvious that the Superintendent was grossly in error and his action in not submitting the petition resulted in the unlawful removal of the petitioner out of the country.
He, has made amends by tendering an unqualified apology and nothing further need be said about it.
In Ebrahim Wazir Mavat vs The State of Bombay and Others and Noor Mohammad Ali Mohammad vs The State of Bombay and Others (Criminal Appeals Nos. 65 and 66 of 1952) in which we have just delivered judgment we have held that section 7 of the Act is void as against a citizen of India being.
, an encroachment on his fundamental right under article 19 (1) (e) of the Constitution.
Following that decision we hold that the order of removal of the petitioner is liable to be set aside.
Mr. Umrigar, who appeared for the petitioner, pointed out that the Judicial Commissioner has already held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding 946 the case to him for an inquiry into the question.
The Solicitor General on behalf of the Union of India has read to us the order of the Judicial Commissioner and admits that this is so.
It is, therefore, not necessary to adopt the course that we have taken in the aforesaid a peals involving the validity of section 7.
We accordingly hold that the order passed against the petitioner is void and set it aside.
Mr. Umrigar requests that the order should be communicated to the petitioner through the High Commissioner for India in Karachi to whom the petitioner sent a representation praying that he should be allowed to return to India.
This request is granted.
Criminal Appeals Nos. 65 and 66 of 1952, No, 5 of 1953 and No. 19 of 1953 and Petitions No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953.
DAs J.
I regret I am unable to agree with the judgment just delivered.
Four Criminal Appeals namely, Criminal Appeals Nos. 65 and 66 of 1952, No. 5 of 1953 and No. 19 of 1953 and three Criminal Miscellaneous Petitions, namely Petition No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953, were posted for hearing and were heard by us one after another.
In each one of those appeals and petitions the appellants or the petitioners, as the case may be, challenged the constitutional validity of the Influx from Pakistan (Control) Act,1949 (Act XXIII of 1949).
Learned advocate appearing in support of petitions No. 170 of 1952 and No. 19 of 1953 asked for leave to withdraw them with liberty to file fresh ' petitions in the High Court.
Such leave having been given nothing further need be said about those two petitions.
The facts of each of the remaining appeals and the remaining petition have been set out in the judgment just delivered,, and need not be repeated.
Suffice it to say that the appellants in Appeals Nos. 65 and 66 of 1952 first came to India from Pakistan on temporary permits issued by the High Commissioner for India in Pakistan but stayed on after the expiry of the 947 period and were convicted under section 5 of the Act.
Later on they returned ' to Pakistan on a temporary permit issued by the High Commissioner for Pakistan in India and eventually came back to India on a permanent permit issued by the High Commissioner for India in Pakistan.
That permanent permit was cancelled on the. allegation that it had been obtained on the strength of a "no objection" certificate which had been obtained by them by the suppression of material facts, namely, that they had previously come.
to India on a temporary permit.
The appellant in Appeal No. 5 of 1953 came to India from Pakistan on a permanent permit which was subsequently can celled on the allegation that it had been obtained by fraud.
The appellant in Appeal No. 19 of 1953 came to India from Pakistan without any permit and was prosecuted and convicted under section 5 of the Act and later on arrested and sent back to Pakistan.
The petitioner in Petition No. 57 came to India without any permit at all.
On this petitioner as well as on the appellants orders had been made under section 7 of the impugned Act to the effect that unless they left India within the time specified in the respective orders they would be bodily removed from India.
These orders were made on the ground that they had entered India in violation of section 3 of the Act and/ or the rules and order made thereunder.
Each of these persons claimed that they were citizens of India and complained that the orders made against them violated their fundamental rights under Chapter III of the Constitution of India.
It will be recalled that on the 15th August, 1947, there was a partition of India and two Dominions were formed under the Indian, Independence Act, 1947.
A grave emergency arose on the partition of India resulting in mass migration of population from one Dominion to the other accompanied by riots, arson, murder, rape and loot.
Intense bitterness and hatred were generated in the minds of the people of one Dominion against those of the other Dominion.
Even in one Dominion there was suspicion in the 948 minds of the members of one community against those of the other.
In those circumstances the uncontrolled and indiscriminate entry of persons, Hindu or Muslim, from Pakistan into India was naturally regarded as fraught with the possibility of espionage and sabotage the prevention of which was essential for the security of the Dominion of India.
Further an uncontrolled entry of large numbers of people was calculated to place and in fact placed a tremendous strain on the economy of India and on the law and order situation in the country.
It was in order to prevent such result that it was necessary to exercise some control over such influx of persons from Pakistan into India.
Accordingly, the Influx from West Pakistan (Control) Ordinance (XVII of 1949) was promulgated on the 19th July 1948, by the Governor General in exercise of the powers conferred on him by section 42 of the Government of India Act, 1935.
The preamble to that Ordinance recited that an emergency had arisen which made it necessary to control the admission into and regulate the movements in India of persons from Pakistan.
Thereafter the Influx from Pakistan (Control) Ordinance (XXXIV of 1948) was issued on the 10th November, 1948, replacing the earlier Ordinance.
This Ordinance applied to persons entering into India from both West Pakistan and East Pakistan.
It substantially reproduced all the sections of the previous Ordinance .
Finally, on the 22nd April, 1949, the Influx from Pakistan (Control) Act (XXIII of 1949) replaced the second Ordinance.
Sections 3 and 7 of this Act substantially reproduced the provisions of sections 3 and 7 of the Ordinance.
The Permit System Rules of 1948 were replaced on the 20th May, 1949, by the Permit System Rules of 1949.
This Act, however, was repealed on the 15th October, 1952, by Act LXVI of 1952.
Section 3 of this repealing Act, however, expressly preserved the application of section 6 of the .
Although the Influx from Pakistan (Control) Act, 1949 has been repealed and the number of persons who, like the appellants and the petitioners before us. are affected by that Act is small, nevertheless the matter has to 949 be scrutinised closely, for our decision may conceivably affect the passport regulations which have replaced the permit system.
The contention advanced in these appeals and the petition is that sections 3 and 7 of the Act have, since the commencement of the Constitution, become void in that they violate the fundamental rights guaranteed by articles 14 and 19(1) (d) and (e) of the Constitution.
The provisions of these two sections, which have been sufficiently set out in the judgment just delivered, will at once show that they applied to all persons coming from Pakistan,, whether they were citizens or noncitizens and irrespective of the community to which they belonged or the religion which they professed.
It will also appear that, as regards citizens, they did not touch all citizens but affected only such of them as came from Pakistan, whether they were Hindus, Muslims or Christians.
It is, therefore, quite clear that the Act applied to a small well defined class of persons who were grouped together on an obviously reasonable basis of classification as explained in the previous decisions of this court.
In this view of the matter no question of unconstitutional discrimination can arise at all and, indeed, the plea based on the equal protection clause of the Constitution has not been seriously pressed.
The main contest has centred round the question whether these two sections offend against the provisions of article 19(1)(d) and (e) of the Constitution.
The learned Solicitor General appearing for the respondents contends that those sections are protected by article 19(5) as being reasonable restrictions on the exercise of the rights guaranteed by sub clauses (d) and (e) of clause (1) of that article.
In State of Madras vs V. G. Row (1) Patanjali Sastri C.J. observed: " It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as, applicable to all cases.
(1) at p. 607.
123 950 The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the,judicial verdict.
In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment I in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives, of the people have, ' in authorising the imposition of the restrictions, considered them to be reasonable." The impugned sections have, therefore, to be examined in the light of the above observations.
I find nothing unconstitutional about section 3 of the impugned Act It does not debar the entry of any person absolutely.
It only requires that a person entering India from any place in Pakistan must be in possession of a permit or a valid passport or be exempted from such requirements.
Passport regulations obtain in every civilized country including even those the constitutions whereof confer similar fundamental rights on their citizens, e.g., Switzerland (articles 43 45), Wiener Germany (article III), Czechoslovakia (article 108), Jugoslavia (article 10), Danzig (article 75) and Albania (section 202).
Such regula tions serve to check up the persons who enter the territories of the State and are necessary for the safety of the State.
Seeing that such regulations obtain everywhere and have a definite utility for the protection of the general public by securing the safety of the State, I have no manner of doubt in my mind that such restrictions as are.
contemplated by section 3 must be regarded as reasonable restrictions permissible under 951 clause (5) of article 19 of the Constitution.
Indeed, the objection of section 3 has not been seriously pressed before us.
The main objection urged by learned counsel appearing in support of these appeals and petitions was directed to the question of the validity of section 7.
In the ' first place, it is clear that no objection can be taken to section 7 in so far as it affected persons who were 'not citizens of India, for article 19 guarantees certain fundamental rights to the citizens of India only.
In the next place, this section did not affect all citizens but touched only a well defined small class of citizens, namely, those who went to Pakistan and intended to return to India.
The question is whether qua these citizens section 7 can also be regarded as a reasonable restriction within the meaning of clause (5) of article 19.
The High Court of Bombay has held, and in my opinion quite correctly, that the provisions of section 7 cannot but be regarded as consequential to the provisions of section 3.
Suppose at the check post a person from Pakistan, whether a, citizen or not, tried to cross the border without a permit.
Surely, the officer at the check post would have been well within the law to prevent a violation of section 3 of the Act and with that end in view to prevent that person, who had no permit, from crossing the border and entering India.
I have no doubt that the officer might also have prevented a person from Pakistan from crossing the border if he suspected that the permit produced by the person was forged or otherwise irregular and left him to take up the matter with the higher authorities from Pakistan.
Suppose the man who sought to enter India without a permit or with a permit which was suspected to spurious forcibly crossed the border and took a step or two on our side of the line, the Indian officer would certainty have been entitled to throw him back to the other side of the line.
Surely, such a person could not be permitted to take advantage of his own wrong and could not be heard to say that, in such circumstances, he had, by his wrong doing, acquired a better right than the person 952 who had not the temerity to violate the provisions of section 3.
If this is so then, logically, I can see no difference if the man ran into the Indian territory for some distance and the Indian officer ran after him, overtook him and took him back to the check post and pushed him out of our side of the line.
It is, futile,, in such a situation, to expect or to say that the officer should have held a judicial enquiry and come to a judicial decision after hearing an argument as to the validity of the permit or as to the status of the permit holder or the fundamental rights of a, citizen Of India to move freely in India and to settle anywhere he liked in India.
The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of section 3 of the Act.
To throw out such a person was not.
to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who, not having a permit, was stopped at the check post and not allowed to enter India at all.
The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check post barrier.
In both cases such a person might, while staying in Pakistan, have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in Indian courts ' for appropriate reliefs.
To my mind the position of the person who,entered India on a temporary permit but who, in violation of the rules or order made under the Act stayed on after the period of the permit expired, was, as from that date, logically the same as that of the person who entered India without a permit.
To arrest such a person, after the expiry of the period of the temporary permit, with a view to sending him back back to where he came from and to actually send him back there did not involve or 953 constitute a judicial act at all but Was a rough and ready executive act for enforcing and giving effect to the provisions of section 3 of the Act.
To arrest and send such a person back to Pakistan was not to inflict a punishment but was only to restore the status quo and to put him back to the position he would have been in but for his illegal act.
In my opinion the act, authorized by section 7 was in essence.a purely executive act for implementing the provisions of section 3.
Without such a provision it would have been impossible for the State to control the admission into India of persons from Pakistan and to prevent the concomitant dangers referred to above.
The act authorised by the section being an executive act, discretion had perforce to bib left to the executive Government which, by reason of the information available to it" was in a much better position than the courts to know and judge the antecedents of such a person and his ultimate purpose. ' Suppose an Indian, citizen, no matter whether he was a Hindu or a Muslim, had entered India from Pakistan without a permit and suppose he was, upon confidential reports which: could not be safely disclosed, suspected to be engaged in espionage in the interests of Pakistan, would it have been safe enough in those hectic days to have only prosecuted him under section 5 and inflicted on him a fine of rupees one thousand or a term of imprisonment not exceeding a year and then to have left him free, after the term of imprisonment was over, to surreptitiously carry on his nefarious activities of espionage and sabotage against our State while embarking upon a protracted judicial enquiry to ascertain the truth or* otherwise of his claim to Indian citizenship ? It cannot ,be overlooked that there are.
long common borders between Pakistan and India both on the west and on the east.
The Kashmir situation had also aggravated the emergency brought about by the partition of India.
Having regard to all, the circumstances, the tension, bitterness and hatred between the two countries that were generated at,the time of the partition and all which must enter into the judicial verdict, the provisions of section 7 appear to me to have been eminently reasonable restrictions imposed in the interests of the 954 general public upon the exercise by Indian ' citizen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution.
The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an Indian citizen who, not having a permit, had not been permitted to enter into India at all.
They were by no means without remedy.
They could from the other side of the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were.
illegally withheld from them they could move the appropriate High Court under article 226 or even this court under article 32 while they were outside India and might, on proof of their citizenship, have got appropriate writs or orders directing the State or its officers to issue suitable permits and to desist from otherwise preventing them from entering India or interfering with their movement while in India.
It is said that if such a person would have been entitled to a permit on proof of his status as an Indian citizen then why should he have Been thrown out at all unless and until he failed to establish his claim to Indian citizenship ? There occur to my mind several answers to this question.
In the first place, it would have been putting a premium on wrong doing.
In the second place, the person would have been left free to carry on his secret activities, if any, while judicial proceedings would have been going on for ascertaining his status.
In the third place, if the person could not be thrown out before his status had been judicially determined there would have been no incentive on his part to take proceedings in court to establish his status and it would have thrown upon the State the duty of initiating proceedings and of discharging the onus of proving the negative fact, of his not being a citizen of India.
In view of all the circumstances prevailing at the time the law was enacted and remained in force and in view of the considerations herein before alluded to I have no ' doubt in ray mind except What 955 arises out of my respect for the opinions of my Lord and other learned brothers that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19.
In my judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed.
Appeals allowed, cases remanded.
Agents for the appellants and petitioners: section section Shukla, R. A. Govind, Sardar Bahadur and P. K. Chatterji.
Agents for the respondents: G. H. Rajadhyaksha and C. P.Lal.

summary:
Held, (Per MEHR CHAND MAHAJAN 0.
J., MUKEMRJFA, ViviAN BosE and GHULAM HASAN JJ. ; section R. DAs J. dissenting) that section 7 of the Influx from Pakistan (Control) Act, 1949 is void under article 13(1) in so far as it conflicts with the fundamental eight of a citizen of India under art.19(1) (a) of the Constitution and the order of physical removal of the citizen from in Is therefore liable to beset aside.
Per DAB J.
In view of the circumstances the provisions of section 7 of the Act were reasonable restrictions within the meaning of el. 5 of article 19 of the constitution imposed in the interests of the general public upon the exercise by Indian citizen coming from Pakistan without a permit of, the rights conferred by article 19(1)(d) and (e) of the Constitution.


judgement:
Civil Appeal No. 807 of 1964.
Appeal by special leave from the judgment and order dated December 10, 1962 of the Gujarat High Court in Sales tax Reference No. 8 of 1961.
R. Ganapathy Iyer and B. R. G. K. Achar, for the appellant.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Gujarat High Court in a Sales Tax Reference made to it by the Gujarat Sales Tax Tribunal.
Two questions were referred by the said Tribunal to the High Court "1.
Whether in the facts and circumstances of the case, the purchase of the raw cotton by the applicant Mill 670 could be said to have been intended for use in the production of cotton seeds for sale within the meaning of clause (ii) of rule 6 of the Bombay Sales Tax (Exemption, Set off and Composition) Rules, 1954; 2.
Whether the applicant Mill is entitled under rule 12(1) to a refund of the purchase tax paid by it.
" The facts set out in the statement of the case by the Tribunal are briefly as follows : The respondent is a manufacturer of cotton textile, particularly of coarse and medium variety cloth.
During the assessment period from April 1, 1955 to March 31, 1956, it purchased unginned cotton worth Rs. 5,93,266/ from unregistered dealers and paid purchase tax of Rs. 5,932/ under section 10(a) of the Bombay Sales Tax Act, 1953.
The cotton was ginned and pressed by the respondent, the ginned cotton was used in the manufacture of cotton textiles while the cotton seeds were sold by it.
During the course of assessment proceedings the respondent applied for refund of purchase tax paid on the unginned cotton under the Bombay Sales Tax (Exemption, Set off and Composition) Rules, 1954, (hereinafter referred to as the Rules).
The Sales Tax Officer refused to allow any refund on the ground that the conditions of r. 12 ( 1 ) read with r. 6 (ii) of the Rules had not been fulfilled.
The Assistant Collector of Sales Tax on appeal confirmed the order of the Sales Tax Officer on the ground that "rule 6(ii) is not applicable when subsidiary or incidental product alone is sold and the main product is used in the manufacture of other goods.
Looking the working of the aforesaid Rule, all the products of the unprocessed goods should be sold.
" The respondent filed a revision before the Deputy Commissioner of Sales Tax, who also upheld the order of the Sales Tax Officer.
The respondent then filed a revision before the Gujarat Sales Tax Tribunal.
The Tribunal rejected the revision on the ground that "the purpose underlying the applicant 's purchases was primarily the production of ginned cotton for manufacture.
The cotton seeds which form the bye product of the ginning process would no doubt have to be sold because the Mill has no use for them.
But that does not mean that the purpose for which unginned cotton was purchased was the sale of cotton seeds.
It is not reasonable to suppose that a textile mill purchases unginned cotton for the purpose of selling the cotton seeds.
" At the instance of the respondent, as already stated, the Tribunal referred the case to the High Court.
The High Court answered question 671 No. 2 in the affirmative, but did not answer question No. 1 on the ground that the answer to the question was not relevant for the purpose of determining the matter in controversy.
Mr. Ganapathy Iyer, the learned counsel for the appellant, contends before us that the Sales Tax authorities were right in refusing to allow a refund,to the respondent and that the High Court erred in answering the second question in favour of the respondent.
In order to appreciate the contentions of the parties,it is necessary to set out ff.
6 and 12 and the Schedule to the Rules.
Classes of sales on which general sales tax shall not be payable.
The general sales tax leviable under section 9 shall not be payable in respect of the following classes of sales (i) . . . (ii) Sales of any goods falling under any entry specified in column 1 of the Schedule hereto to a dealer who holds a licence under section 12 who furnishes to the selling dealer a certificate in Form (4) declaring that the goods sold to him are intended to be used by him in producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale SCHEDULE Goods from which the goods specified Goods produced in Goods produced column 2 are produced 1 2 .
1.Cotton in pod; unginned or unpressed cotton Unginned cotton; ginned or pressed cotton; cotton seeds.
x x x x .lm15 12.
Refund and remission of purchase tax in certain cases. (1) Where a dealer who has purchased any goods specified in clauses (i) or (ii) of rule 6 shows to the satisfaction of the Collector that they have been used by him for the purpose specified in the said clause, the Collector shall on application for refund made by the 672 dealer in the manner specified in rule 25 of the Bombay Sales Tax (Procedure) Rules, 1954, refund to such dealer the amount of purchase tax paid by him in respect of such purchase; or where the amount of purchase tax payable under clause (a) of section 10 in respect of such purchase has not yet been p aid, the Collector shall by order remit the amount so payable." Mr. Ganapathy Iyer contends that when r. 12 speaks of the purpose specified in cl.
(ii) of r. 6, it means the purpose of "producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale.
" In other words, he says that the purpose must be producing unginned cotton, ginned or pressed cotton or cotton seeds for sale, and if any of these goods are produced but not sold then r. 12 does not apply.
Mr. Shroff, on the other hand, contends that the words "purpose specified in the said clause" only mean the purpose of producing any goods falling under the corresponding entry in column 2 of the Schedule, and he wants us to omit from consideration the words "for sale".
We agree with Mr. Ganapathy Iyer that the purpose must be the purpose of producing goods unginned cotton, ginned or pressed cotton, cotton seeds for sale, and the words "for sale" must be given effect to.
But even if this contention of Mr. Ganapathy Iyer is accepted the respondent would still, in our opinion, be entitled to refund under r. 12(1).
Rule 6 speaks of the intention at the time of the purchase, but r. 12 does not incorporate that intention by referring to the purpose specified in cl.
6(ii).
The intention at the time of the purchase is irrelevant for the purpose of r. 12.
In r. 6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale.
But when the respondent paid the purchase tax on unginned cotton under section 10(a) of the Act, he paid it because he purchased the same from persons who were not registered dealers, and there was no question of furnishing any certificate at that stage.
As the High Court observed "what is necessary is that goods should have been actually used for the purpose specified viz., the production of any of the goods aforementioned for sale.
" These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2, namely, cotton 673 seeds.
Consequently, the respondent is entitled to a refund under r. 12 and the High Court was right in answering the second question in the, affirmative.
We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No. 1.
In the result the appeal fails and is dismissed with costs here and in the High Court.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent, a manufacturer of cotton Textiles, purchased unginned cotton and paid purchase tax thereon.
The cotton was ginned and pressed by the respondent, the ginned cotton was used in the manufacture of cotton textile while the cotton seeds were sold by it.
The respondent claimed refund of purchase tax paid on the unginned cotton under the Bombay Sales Tax (Exemption, Set off and Composition) Rules, 1954 which was disallowed by the Sales Tax authorities on the ground that r. 6(ii) was not applicable when subsidiary or incidental product alone was ,,old and the main product was used in the manufacture of the goods and looking at the working of the aforesaid Rule, all the products of the unprocessed goods should be sold.
In reference, the High Court allowed the refund of the purchase tax under r. 12(i).
HELD : The respondent was entitled to refund under r. 12(i).
What is necessary under rule 12(i) is that the goods should have been actually used for the purpose specified viz., the production of any of the goods aforementioned for sale.
These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2 for sale, namely, cotton seeds.
[672 H]


judgement:
Appeal No. 1222 of 1966.
Appeal from the judgment and order dated March 14 1966 Appeal of the Punjab High Court (Circuit Bench), at Delhi in Civil Writ No. 832 D of 1965.
section V. Gupte, Solicitor General, N. section Bindra, R. H. Dhebar and B. R. G. K. Achar, for the appellant.
M. C. Setalvad, B. C. Dutt, Santosh Chatterjee, B. Partha sarathy, 0.
C. Mathur, and Ravinder Narain, for respondent No. 1.
B. C. Dutt, Santosh Chatterjee, Anand Prakash, 0.
C. Mathur and Ravinder Narain, for respondent No. 2.
The Judgment of the Court was delivered by Subba Rao, C. J.
This appeal by certificate raises the question of the constitutional validity of the Metal Corporation of India ,(Acquisition of Undertaking) Act (No. XLIV of 1965), hereinafter called the Act.
The relevant facts lie in a small compass.
The 1st respondent, The Metal Corporation of India Limited, hereinafter called the ,Corporation, was a limited company constituted under the Indian Companies Act, having for its objects, inter alia, the development of zinc and lead mines at Zawar in the State of Rajasthan and the construction of a zinc smelter and other connected works for producing electrolytic zinc and by products.
The Government was ,satisfied that it was necessary to acquire the said Corporation in public interest and on October 22, 1965, the President of India 257 promulgated an Ordinance (No. 6 of 1965) providing for the acquisition of the Corporation by the Central Government.
Pursuant to the said Ordinance, on or about October 23, 1965, the Central Government took over the possession, control and administration of the said Corporation.
The Corporation, the 1st respondent and its Managing Director, the 2nd respondent filed a Writ Petition under article 226 of the Constitution in the High Court of Judicature for the State of Punjab, Circuit Bench at New Delhi, being Petition No. 631 D of 1965, challenging the validity of the said Ordinance.
In the meantime, the Parliament passed the Act on the same terms as contained in Ordinance No. 6 of 1965: it received the assent of the President of India on December 12, 1965.
The respondent filed another writ petition in the said High Court, being Writ Petition No. 832 D of 1965, for a declaration that the Act was ultra vires the Constitution.
The said High Court held that the Ordinance and the Act contravened the relevant provisions of article 31 of the Constitution and, therefore, were constitutionally void.
The present appeal is preferred against the said judgment of the High Court.
It will be convenient at this stage to read the relevant provisions of the Act.
The preamble and the relevant provisions of the Act read: "Preamble.
An Act to provide for the acquisition of the undertaking of the Metal Corporation of India Limited for the purpose of enabling the Central Government in the public interest to exploit, to the fullest extent possible, zinc and lead deposits in and around the Zawar area in the State of Rajasthan and to utilise those minerals in such manner as to subserve the common good Section 3.
On the commencement of this Act, the undertaking of the company shall, by virtue of this Act, be transferred to, and vest in, the Central Government.
Section 10.
(1) The Central Government shall pay compensation to the company for the acquisition of the undertaking of the company and such compensation shall be determined in accordance with the principles specified in the Schedule and in the manner hereinafter set out, that is to say, (2) Notwithstanding that separate valuations are calculated under the principles specified in the Schedule in respect of the several matters referred to therein, the 258 amount of compensation to be given shall be deemed to be a single compensation to be given for the undertaking as a whole.
(3) THE SCHEDULE Principles for determining compensation for acquisition of the undertaking.
Paragraph I. The compensation to be paid by the Central Government to the company in respect of the acquisition of the undertaking thereof shall be an amount equal to the sum total of the value of the properties and assets of the company on the date of commencement of this Act calculated in accordance with the provisions of paragraph II less the sum total of the liabilities and obligations of the company as on the said date calculated in accordance with the provisions of paragraph 111.
Paragraph II. (a) The market value of any land or buildings; (b) the actual cost incurred by the company in acquiring any plant, machinery or other equipment which has not been worked or used and is in good condition and the written down value (determined in accordance with the provisions of the Income tax Act, 1961 (XLIII of 1961), of any other plant, machinery or equipment; (c) the market value of any shares, securities or other investments held by the company; (d) the total amount of the premium paid by the company in respect of all leasehold properties reduced in the case of each such premium by an amount which bears to such premium the same proportion as the expired term of the lease in respect of which such premium shall have been paid bears to the total term of the lease; (e) the amount of debts due to the company, whether secured or unsecured, to the extent to which they are reasonably considered to be recoverable.
(f) the amount of cash held by the company, whether in deposit with a bank or otherwise; (g) the value of all tangible assets and properties other than those failing within any of the preceding clauses.
Paragraph III.
The total amount of liabilities and obligations incurred by the company in connection with 259 the formation, management and administration of the undertaking and subsisting immediately before the commencement of this Act.
" The gist of the said provisions may be given thus.
The Act was made to acquire in public interest the undertaking of the Corporation, On the commencement of the Act, the undertaking was transferred and vested in the Central Government.
Under section 10 of the Act, the Government shall pay compensation to the undertaking as a whole: but, in the absence of an agreement between the Government and the Corporation, the compensation payable to the Corporation has to be ascertained under the principles specified in the Schedule in respect of the several matters referred to therein.
Paragraph 1 of the Schedule lays down the manner in which the compensation to be paid to the Corporation for the acquisition of the undertaking is to be ascertained.
The said compensation shall be an amount equal to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of paragraph It less the liabilities on the said date calculated in accordance with the provisions of paragraph III of the Schedule.
Broadly, the said paragraph lays down the principles for ascertaining the value of lands, buildings, machinery and equipment, amounts due to the undertaking and other tangible assets and properties.
The different clauses of the paragraph adopt different principles for valuation.
But what is important for the present purpose is the principle embodied in cl.
(b) of para II.
It is in two parts: the first provides for the valuation of plant, machinery or other equipment which has not been worked or used and is in good condition, and the second provides for the valuation of any other plant, machinery or equipment.
The former has to be valued at the actual cost incurred by the Corporation in acquiring the same and the latter at the writtendown value determined in accordance with the provisions of the Indian Income tax Act, 1961.
The High Court held, on a construction of the said provisions, that the principle contained in cl.
(b) of paragraph 11 of the Schedule to the Act in respect of machinery etc. "cannot be called relevant to the determination of 'just equivalent ', as it takes no notice of the notorious fact that prices have been steadily rising during the past several years, particularly of imported machinery and plant".
It also held, "that depreciation rule does not even pretend to determine the actual depreciation in a particular case and it is obvious that such depreciation has no real relationship with the actual value of any machinery at any particular point of time".
On that reasoning, it came to the conclusion, having regard to the decision of this Court in Vajravelu vs Special Deputy Collector(1) that the said provision in respect of machinery did.
(1) ; 260 not lay down a principle for fixing compensation i. e., a just equivalent to the machinery acquired.
The reasoning of the High Court was attacked by the learned Additional Solicitor General on the ground that it did not appreciate the true scope of the said decision of this Court and that, in any view, it went wrong in applying the principle of the said decision to the provisions of the Act.
He contended that the Act laid down the broad principle that compensation shall be paid for the entire undertaking as a unit, but provided different modes for the ascertainment of the value of different parts thereof in such a way that the deficiency in the valuation of one part was offset by the liberal valuation of the other part.
In that view, he contended, the Act embodied a principle relevant to the ascertainment of compensation for the undertaking acquired and, therefore, the product worked out under the said principle pertained only to the realm ,of adequacy which was beyond the ken of judicial review.
He added that compensation in article 31 of the Constitution meant that cornpensation which was regarded as just in the context of public acquisitions and that test was satisfied in the present case.
Mr. M. C. Setalvad, learned counsel for the respondents, contended that though under the Act compensation was to be given to the undertaking as one unit, the Act laid down principles for arriving at the valuation of the parts to arrive at the valuation of the whole and that, therefore, every such principle should stand the test laid down by this Court.
So judged, the argument proceeded, both the principles laid down in cl.
(b) of para 11 of the Schedule had no nexus to the ascertainment of compensation for the machinery acquired, for in the case of unused machinery, its cost price was the guide and in the case of used machinery its written down value was the criterion and that both the methods were arbitrary.
We find it difficult to appreciate the arguments of the learned Solicitor General.
It is true that under section 10 of the Act the Central ,Government shall pay compensation for the acquisition of the undertaking to the Corporation and the said compensation arrived at in the manner prescribed in the Schedule to the Act shall be ,deemed to be a single compensation to be given to the undertaking as a whole.
But it will be noticed that though a single compensation for the undertaking is given, the said compensation shall be deter mined in accordance with the principles specified in the Schedule.
Under the Schedule, the compensation for the entire undertaking shall be the amount equal to the sum total of the value of the properties and assets of the Corporation calculated in accordance with the provisions of para II of the Schedule.
Under the said para 11, different principles are laid down for ascertaining the value of different parts of the undertaking.
If all the said principles laid ,down in para 11 of the Schedule do not provide for the just equivalent 261 of all the parts of the undertaking mentioned therein, the sum total also cannot obviously be a just equivalent of the undertaking.
So too, if some of them do not provide for a just equivalent and others do so, the sum total cannot equally be a just equivalent to the undertaking.
In the case of the undertaking in question, the machinery is the most valuable part of the undertaking.
Apropos the unused machinery in good condition, how can the price for which the said machinery was purchased years ago possibly represent its price at the time of its acquisition? A simple illustration will disclose the irrelevance of the principle.
Suppose in 1950 a machinery was purchased for Rs. 100 and, for some reasons, the same has not been used in the working of the undertaking but has been maintained in good condition.
That machinery has not become obsolescent and still can be used effectively.
If purchased in open market it will cost the owner Rs. 1,000.
A compensation of Rs. 100 for that machinery cannot be said to be a just equivalent of it.
It is common knowledge that there has been an upward spiral in prices of the machinery in recent years.
The cost price of a machinery purchased about ten years ago is a consideration not relevant for fixing compensation for its acquisition in 1965.
The principle must be such as to enable the ascertainment of its price at or about the time of its acquisition.
Nor the doctrine of written down value accepted in the Income tax law can afford any guide for ascertaining the compensation for the used machinery acquired under the Act.
Under the general scheme of the Income tax Act, the income is to be charged regardless of the diminution in the value of the capital.
But the rigor of this hard principle is mitigated by the Act granting allowances in respect of depreciation in the value of certain assets such as machinery, buildings, plant, furniture etc.
These allowances are worked out on a notional basis for giving relief to the income tax assessee.
This artificial rule of depreciation evolved for income tax purposes has no relation to the value of the said assets.
To illustrate: a machinery was purchased in the year 1950 for Rs. 1,000.
The aggregate of all the depreciation allowances made year after year for ten years may exhaust the sum of Rs. 1,000 with the result, after the tenth year, the assessee will not be entitled to any depreciation.
From this it cannot be said that after the tenth year the machinery has no value.
Indeed, a machinery purchased for Rs, 1,000 in 1950, because of subsequent rise in.
prices may be sold in 1965 for Rs. 10,000.
But the application of the principle laid down in cl.
(b) of para 11 of the Schedule to the Act in regard to used machinery gives the owner no compensation at all.
Yet, the Government takes the machinery worth Rs. 10,000 gratis.
This illustration exposes the extreme arbitrariness of the principle.
It is, therefore, manifest that the two principles of valuation embodied in cl.
(b) of para II of the Schedule to the Act are not relevant to the fixing of compensation for the machinery at.
the time of its acquisition under the Act.
The argument, of the 262 learned Additional Solicitor General that the working out of all the principles in respect of different parts of the undertaking would result in a product which would fairly represent, in the context of public acquisitions, the "just equivalent" to the undertaking acquired is purely based on a surmise for, it is not shown that the working out of any one or more of the principles would give a higher compensation to some parts of the undertaking so that the excess paid under one head would offset the deficiency under another head.
Nor can the doctrine of inherent worth of a machinery has any relevance in the matter of giving compensation for its acquisition at a particular point of time, for the simple reason that the worth of an article depends upon the market conditions obtaining at the time of its acquisition.
It is impossible to predicate, irrespective of such conditions, that a particular machinery has a fixed value.
for all times.
Four decisions of this Court laid down the principles applicable to the present case.
Indeed, but for the said decisions, we would have posted this case before a Constitution Bench of five Judges.
But, as this appeal involves only the application of the construction put upon article 31 of the Constitution by this Court in the said decisions, we did not resort to that course.
The first of them is The State of West Bengal vs Mrs. Bela Banerjee (1).
There, the validity of the West Bengal Land Development and Planning Act, 1948 was under scrutiny.
Section 8 thereof provided that compensation to be awarded for compulsory acquisition to owners of land was not to exceed the market value as on December 31, 1946.
This Court held that the said Act was ultra vires the Constitution and void under article 32(2) thereof.
In that context, Patanjali Sastri, C.J., observed: "Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the latter part of the proviso to section 8 limits the amount of compensation so as not to exceed the market value of the land on December 31, 1946, no matter when the land is acquired.
Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31, 1946, as the ceiling on compensation, without reference.
to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of article 31(2).
" The above decision was followed by this Court in State of Madras vs D. Namasivaya Mudaliar(2).
There the respondents were owners of certain lands which were to be compulsorily acquired under (1) ; , 564.
(2) ; , 945 2 63 Madras Lignite (Acquisition of Land) Act, 1953.
The Act came into force on August 20, 1953, before article 31 of the Constitution was amended by the Constitution (Fourth Amendment) Act, 1955.
By the said Act compensation for the acquisition of lignite bearing bands under the Land Acquisition Act was to be assessed on the market value of the land prevailing on August 28, 1947, and not on he date on which the notification was issued under section 4(1) of the and Acquisition Act.
It also provided that in awarding compensation, the value of non agricultural improvements commenced since April 28, 1.947 would not be taken into consideration.
This Court held that the said Act was bad, because it contravened article 31(2) of the Constitution, as it stood before the Constitution (Fourth Amendment) Act, 1955.
This Court, speaking through Shah, J., observed: "Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under section 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under section 4(1) was issued, cannot be regarded as valid." Then the learned Judge proceeded to state: "To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under section 4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner of the land under article 31(2) as it stood when the Act was enacted.
" These two decisions turned upon the construction of article 31(2) of the Constitution before the Constitution (Fourth Amendment) Act, 1955.
These cases laid down two propositions: (1) "Compensation" under article 31(2) of the Constitution means a "just equivalent" of what the owner has been deprived of ; and (2) the value of land at an anterior date is presumed to be no compensation within the meaning of the said Article.
After the Constitution (Fourth Amendment) Act, 1955, this Court had to construe in two decisions he amended provision of article 31(2) vis a vis the expression "compensation" found therein.
The first decision is that in Vajravelu 264 vs Special Deputy Collector(1).
There, this Court observed at p. 625 626: "A scrutiny of the amended Article discloses that it accepted the meaning of the expressions "compensation" and "principles" as defined by this Court in Mrs. Bela Banerjee 's case(2)." .lm0
And it held that, if the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, it can be said that the Legislature committed a fraud on power and, therefore, the law is bad.
One of the illustrations given at p. 627 is relevant to the present enquiry and that is as follows : if a law lays down principles which are not relevant ' to the property acquired or to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by article 31(2) of the Constitution.
If a law says. . that though it (house) is acquired in 1960 its value in 1930 should be given. . the principles do not pertain to the domain of adequacy but are principles unconnected to the value of the property acquired.
" Applying these principles, this Court in Jeejeebhoy vs Assistant Collector(3), held that the fixation of an anterior date for the ascertainment of the value of the property acquired without reference to any relevant considerations which necessitated the fixing of an earlier date for the purpose of ascertaining the real value is arbitrary.
On that ground this Court held that the Land Acquisition (Bombay Amendment) Act, 1948, did not provide for payment of just equivalent of what the owner was deprived of, as it provided for the ascertainment of compensation on the basis of the value of lands acquired as on January 1, 1948 and not as on the date on which the section 4 notification under the 1894 Act was issued.
The relevant aspect of the legal position evolved by the said decisions may be stated thus: Under article 31(2) of the Constitution, no property shall be compulsorily acquired except under a law which provides for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.
The second limb of the provision says that no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate.
If the two concepts, namely, "compensation" and the jurisdiction of the court are kept apart, the meaning of the provisions is clear.
The law to (1)[1965] 1 S.C.R. 614.
(2) ; (3) 6. 265 justify itself has to provide for the payment of a "just equivalent" to the land acquired or lay down principles which will lead to that result.
If the principles laid down are relevant to the fixation of compensation and are not arbitrary, the adequacy of the resultant product cannot be questioned in a court of law.
The validity of the principles, judged by the above tests, falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction.
Judged by the said tests, it is manifest that the two principles laid down in cl.
(b) of Para 11 of the Schedule to the Act, namely, (i) compensation equated to the cost price in the case of unused machinery in good condition, and (ii) written down value as understood in the Income tax law as the value of used machinery, are irrelevant to the fixation of the value of the said machinery as on the date of acquisition.
It follows that the impugned Act has not provided for "compensation" within the meaning of article 31(2) of the Constitution and, therefore, it is void.
The mere fact that in regard to some parts of the undertakings the principles provide for compensation does not affect the real question, for, machinery is the major part of the undertaking and,, as the entire undertaking is acquired as a unit, the constitutional invalidity of cl.
(b) of Para 11 of the Schedule to the Act affects the totality of the compensation payable to the entire undertaking.
In the context of compensation for the entire undertaking, the clauses of Para 11 of the Schedule to the Act are not severable.
In the result, the Act, not having provided for compensation, is unconstitutional and the conclusion arrived at by the High Court is, correct.
appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
The Metal Corporation of India (Acquisition of Undertaking) Act, 1965, was enacted for acquiring in the public interest, the undertaking of the Metal Corporation of India.
The Act provided that the Corp oration was to vest in the Central Government on the commencement of the Act; and that in the absence of an agreement between the Government and the Corporation, the compensation payable to the Corporation was to be an amount equal to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of Paragraph 11 of the Schedule to the Act, less the liabilities on the said date, calculated in accordance with the provisions of Paragraph III of the Schedule.
One of the clauses laying down principles of compensation, viz., clause (b) of para 11 is in two parts.
The first part provides for the valuation of plant, machinery or other equipment which has not been worked or used and is in good condition, and the second part provides for the valuation of any other plant, machinery or equipment.
The former have to be valued at the actual curt incurred by the Corporation in acquiring them 'and the latter, at the writtendown value determined in accordance with the provisions of the Income of the constitutional validity of the Act.
HELD : The Act contravened article 31(2) of the Constitution and was therefore void.
[265 C] Under article 31(2), no property shaft be compulsorily acquired except under a law which provides for compensation and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given.
If the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, the law is bad.
The law, to justify itself, has to provide for the payment of a "just equivalent" to the property acquired, or lay down principles which are not arbitrary but which are relevant to the fixation of compensation.
It is only when the principles stand this test, that the adequacy of the resultant compensation falls outside judicial scrutiny under the second limb of article 31(2).
In the instant case, the two principles laid down in cl.
(b) of Para 11 of the Schedule are irrelevant to the fixation of the value of the machinery as on the date of acquisition.
In the case of unused machinery, if it was Purchased in 1950 for Rs. 100 and, for some reason, had not been used in the working of the Undertaking but had been maintained in good condition, it may cost Rs. 1000 in 1965.
A compensation of Rs. 100 for that machinery could not be said to be a "just equivalent" of it.
Similarly, in the case of used machinery, if it was purchased in 1950 for Rs. 1000, 256 the aggregate of all the depreciation allowances made year after year may exhaust the sum of Rs. 1000 in ten years, with the result that, under the Income tax Act, the assessee will not be entitled to any depreciation after the tenth year.
It could not, however, be said that after the tenth year, the machinery had no value and that the owner was not to be given any compensation.
Indeed, such a machinery, because of subsequent rise in prices, may be sold in 1965 for Rs. 10,000.
Further the constitutional invalidity of cl.
(b) of Para II of the Schedule affect& the totality of the compensation payable; for, machinery is the major part of the undertaking, the entire Undertaking is acquired as a unit, and, in the context of compensation for the entire Undertaking, the clauses of Para H of the Schedule to the Act are not severable.
Therefore, the mere fact that in regard to some parts of the Undertaking, the principles laid down in Para H provide for compensation does no affect the question, especially when it has not been shown that the working out of any one or more of the principles would give a higher compensation to some parts of the Undertaking so that the excess paid under one head would offset the deficiency under another head.
[261 F H; 262 B; 264 B C, F H; 265 A El Vajravelu vs Special Deputy Collector, ; and Jeejeebhoy vs Assistant Collector, ; , followed.