judgement:
Appeals Nos. 272 to 274 of 1966.
Appeals by special leave from the judgment and order dated July 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70 and 71 of 1956.
K.N. Balasubramaniam and R. Thiagarajan, for the appel lant (in all the appeals).
R.Gapalakrishnan, for respondents Nos. 2 to 4 (in C.A. No. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No. 273 of 1966) and respondent No. 1 (in C.A. No. 274 of 1966).
The Judgment of the Court was delivered by Bachawat, J.
On February 23, 1953 the appellant instituted C.S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556/1/2/ and Rs. 8,327/12/9/ said to be due under two I promissory notes executed by Haji Ahmed Batcha.
On March 9 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of 516 Rs. 50,000 to the satisfaction of the Registrar of the High Court.
On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs. 50,000.
The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force.
The bond was attested by B. Somnath Rao.
It was also signed by K. section Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him.
All the properties charged by the bond are outside the local limits of 'the ordinary original jurisdiction of the Madras High Court.
The document was presented for registration on March 29, 1.953 and was registered by D. W. Kittoo, the Sub Registrar of Madras Chingleput District.
Before the Sub Registrar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz.
The identifying witnesses as also the Sub Registrar signed the document.
Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953.
On March 19, 1954 Ramaswami, J. passed a decree for Rs. 49,891/13/ with interest and costs and directed payment of the decretal amount on or before April 20, 1954.
While passing the decree, he observed : "It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree holder as a charge for the decree amount.".
Clauses 3 and 4 of the formal decree provided "(3) that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No. 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the a amounts mentioned in clause 1 supra; (4).that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in, clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for, sale of the aforesaid properties.
" The appellant filed an application for (a) making absolute the charge decree dated March 31, 1954 and directing sale of the properties; and (b) appointment of Commissioners for selling them.
On April 23, 1954 the Court allowed the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over 5 17 to the Commissioners.
The Commissioners sold the properties on May 29 and 30, 1954.
The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954.
All the three respondents are simple money creditors of Hajee Ahmed Batcha.
The respondents Venkata Sastri & Sons filed O.S. No ' 13 of 1953 in the Sub Court, Vellore, and obtained a decree for Rs. 5,500 on March 27, 1953.
Respondent H.R. Cowramma instituted O.S. No. 14 of 1953 in the same Court and obtained a money decree on April 14, 1953.
The two decree holders filed applications for execution of their respective decrees.
One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No. 364 of 1951/52 in the Court of the District Munsiff, Shimoga, got the decree transferred for execution through the Court of the District Munsiff, Vellore, and filed an application for execution in that Court.
On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for (i) transfer of their execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953.
The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distributing amongst simple money creditors.
The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge.
Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents.
He held that the decree in C.S. No. 56 of 1953 did not create a charge on the properties.
But following the decision in Veerappa Chettiar vs Subramania(1) he held that the security bond was sufficiently attested by the Sub Registrar and the identi fying witnesses.
The respondents filed appeals against the orders.
On March 28, 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question "Whether the decision in Veerappa Chettiar vs Subramania lyer (I.L.R. requires reconsideration.
" The Full Bench held "In our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if ' (1) the signatories are those who have seen the execution or received a personal acknowledgment (1) I.L.R. 518 from the executant of his having executed the document, (2) they sign their names in the presence of the executant and (3) while,so doing they had the animus to attest.
The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a Valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well.
" The Full Bench held that the decision in Veerappa Chettiar 's Case(1) can be held to, be correct to this limited extent only and not otherwise.
At the final hearing of the appeals, the Divisional Bench held that ( 1 ) a charge by act of parties could be created only by a document registered and attested by two witnesses; (2) the security bond was not attested by two witnesses and was therefore invalid; (3) the decree in C.S. No. 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff; and the sale in execution of the decree must be regarded as a sale in execution of a money decree; and (4) tie respondents were entitled to an order for rateable distribution.
Accordingly, the Divisional Banch allowed the appeals, directed attachment of the sale proceeds and declared that the respondents were entitled to rateable distribution along with the appellant.
The present appeals have been filed after obtaining special leave from this Court.
The following questions arise in these appeals : (1) Is the security bond attested by two witnesses; (2) if not, is it invalid? (3) does the decree in C.S. No. 56 of 1953 direct sale,of the properties for the discharge of a charge thereon, and (4) are the respondents entitled to rateable distribution of the assets held by court.? As to the first question, it is not the case of the appellant that K.S. Narayana Iyer is an attesting witness.
The contention is that the Sub Registrar D.W. Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document.
In our opinion, the High Court rightly rejected this contention.
Section 3 of the gives the definition of the word "attested" and is in these words : "Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 519 direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary.
" It is to be noticed that the word "attested", the thing to be defined,.
occurs as part of the definition itself.
To attest is to bear witness.
to a fact.
Briefly put, the essential conditions of a valid attestation under section 3 are : (1 ) two or more witnesses.
have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has.
signed the instrument in the presence of the executant.
It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature.
If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
"In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th ed. 137.
Evidence is admissible to show whether the witness had the intention to attest.
"The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th ed.
p. 129.
,In Giria Datt vs Gangotri (1)the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub Registrar, were not attesting witnesses.
as their signatures were not put "animo attestandi".
In Abinash Chandra Bidvanidhi Bhattacharya vs Dasarath Malo(2) it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe".
In Shiam Sundar Singh vs Jagannath Singh (3) the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not dis qualifled from taking as legatees.
The Indian lays down a detailed pro cedure for registration of documents.
The registering officer is; (1) A.I.R. 1955 S.C. 346,351.
(3) (2) I.L.R. 5 under a duty to enquire whether the document is ' executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, section 34(3).
He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [section 25(1)].
The signatures of the executant and of ,every person examined with reference to the document are endorsed on the document, (section 58).
The registering officer is required to affix the date and his signature to the endorsements (section 59).
Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.
The evidence does not show that the registering officer D.W. Kitto put his signature on the document with the intention of attesting it.
Nor is it proved that he signed the document in the presence of the executant.
In these circumstances he cannot be regarded as an attesting witness see SurendraBahadur Singh vs Thakur Behari Singh(1).
Like identifying witnesses Senkaranarayana and Kaki Abdul Aziz signatures on the document to authenticate the fact that they have identified the executant.
It is not shown that they put their signatures for 'the purpose of attesting the document.
They cannot therefore be regarded as attesting witnesses.
It is common case that B. Somnath Rao attested the document.
It follows that the document was attested by one witness only.
As to the second question, the argument on behalf of the respondents is that section 100 of the attracts section 59 and that a charge can be created only by a document signed, registered and attested, by two witnesses in accordance with section 59 where the principal money secured is Rs. 100 or upwards.
The High Court accepted this contention following its earlier decisions in Viswanadhan vs Menon(2) and Shiva Rao vs Shanmugasundara swami (3) and held that the security bond was, invalid, as it was swami attested b one witness only.
We are unable to agree with this opinion.
Section 100 is in these terms "Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property ', and all the provisions hereinbefore contained which apply to a simple mortgage shall, so" far as may be, apply to such charge.
(1) (2) I.L.R. [1939].Mad.
(3) I.L.R. [1940] mad.
521 Nothing in this section applies to the charge of a trustee on the trust property for expenses property incurred.
in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
The first paragraph consists of two parts.
The first part concerns the creation, of a charge over immoveable property.
A charge may be made by act of parties or by operation of law.
No restriction is put on the manner in which a charge can be made.
Where such a charge has been created the second part comes into play.
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall; so far as may be, apply to such charge.
The second part does not address itself to the question of creation of a charge.
It does not attract the provisions of section 59 relating to the creation of a mortgage.
With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law.
Now a charge by operation of law is not made by a signed, registered and attested instrument.
Obviously, the second part has not the effect of attracting the provisions of section 59 to such a charge.
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties.
Had this been the intention of the legislature the second part would have been differently worded.
If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 under which registration of the instrument operates as such a notice.
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge.
The plain implication of this paragraph is that a charge can be made without any writing.
If a non testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under section 17 (1) (b) of the Indian .
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.
Before section 100 was amended by Act 20 of 1929 it was well settled that the section did not prescribe any particular mode of creating a charge.
The amendment substituted the words "all 522 the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge.
" The object of the amendment was to make it clear that the rights and liabilities of the parties in ,case of a charge shall,, so far as may be, the same as the rights, and liabilities of the parties to a simple mortgage.
The amendment was not intended to prescribe any particular mode for the creation of a charge.
We find that the Nagpur High Court came to a similar conclusion in Baburao vs Narayan(1).
It follows that the security bond was not required to be attested by witnesses.
It was duly registered and was valid and operative.
As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable I properties would enure for the benefit of the appellant as a charge for the decretal amount.
This relief was granted on the ,oral prayer of the plaintiffs.
We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge, the decree should be construed as containing merely a recital of the fact that a security bond had been executed.
In our opinion, the decree on its true construction declared that the security bond created a charg e over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the 'properties for the discharge of the encumbrance.
Pursuant to the decree the properties were sold and the assets are now held by the Court.
The omission to ask for, an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.
It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction.
For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings.
If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets.
They ,,can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.
It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment debtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Seth Hiralal Patni vs Sri Kali (1)I.L.R. ,1819 822., 523 Nath(1), Behrein Petroleum Co. Ltd., vs P. J. Pappu (2) , Zamindar of Etiyapuram vs Chidambaram Chetty(1).
As to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.
Section 73(1) proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant.
Only the balance left after discharging this amount can be dis tributed amongst the respondents.
It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.
In the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored.
There will be no order as to costs.
G.C. Appeals allowed.
(1) ; ,751 2.
(2) ; ,462 3.

dataset_name: IN-Abs

summary:
The appellant filed suit No. 56 of 1953 against H for recovery of certain monies on the basis of promissory notes.
As the suit was under 0. 7 of the Madras High Court Original Side Rules H was given leave to defend it on furnishing certain security.
Accordingly H executed in favour of the Registrar, Madras High Court, a security bond charging certain properties 'for the payment of Rs. 50,000,.
The document was attested by only one witness.
At the time of registration it was signed by two identifying witnesses and the Sub Registrar.
The trial Judge decreed the appellant 's suit and the decree mentioned that the charge created by H 's security bond would enure for the benefit of the decree holder.
In execution proceedings the properties in question were sold and the proceeds deposited in court.
At this stage the three respondents who also held money decrees against H applied to the Court for ratable distribution of the assets realised in the execution of the appellant 's decree in suit No. 56 of 1953.
The trial Judge dismissed their applications.
In Letters Patent Appeals the High Court held that in the absence of attestation by the two witnesses the security bond executed by H was invalid inasmuch as a charge on property created under section 100 of the attracted the provisions of section 59.
As to the decree passed in suit No,.
56 of 1953 the High Court held that in view of the decree holder 's omission to amend the plaint by adding a prayer for enforcement of the charge the decree should be construed as containing merely a recital of the fact that a security bond had been executed.
On these findings the High Court held that the respondents were entitled to rateable distribution.
Against the High Court 's orders the appellant filed appeals in this Court.
On the question of attestation he contended that the sub Registrar and the two identifying witnesses must also be treated as having attested the security bond.
HELD : (i) The essential conditions of a valid attestation under section 3 of the are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to hear witness to this fact each of them has signed 'the instrument in the presence of the executant.
It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature.
If a person puts his signature on the docu 514 meat for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
[519 C D] Prima facie the registering officer puts his signature on the document in discharge of his statutory duty under section 59 of the and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. [520 B C] In the present case the evidence did not show that the registering officer and the identifying witnesses signed the document with the intention of attesting it.
Nor was it shown that the registering officer signed it in the presence of the executant.
The document could not therefore be said to have been attested by these witnesses and must be held to have been signed by one attesting witness only.
[520 D] Veerappa Chettiar vs Subramania, I.L.R. , Girja Datt vs Gangotri, A.I.R. 1955 S.C. 346, Abinash Chandra Bidyanidhi Bhattacharya vs Dasarath Malo, I.L.R. 56 Cal.
598, Shiam Sundar Singh vs Jagannath Singh, 54 M.L.J,.
43 and Surendra Bahadur Singh vs Thakur Behari Singh, , referred to.
(ii)Section 100 of the does not attract the provisions of section 59.
[521 C D] The first paragraph of section 100 consists of two parts.
The first part concerns the creation of a charge over immovable property which may be by act of parties or by operation of law.
No restriction is put on the manner in which a charge can be made.
[521 C] When such a charge has been created the second part comes into play.
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
The second part does not address itself to the question of creation of a charge.
It does not attract the provisions of section 59 relating to the creation of a mortgage.
The second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law.
Obviously the provision of section 59 are not attracted to a charge by operation of law.
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties.
[521 D E] If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 of the Act.
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases when the subsequent transferee may not have notice of the charge.
The plain implication of this paragraph is that A charge can be made without any writing.
[521 F G] If a non testamentary instrument creates a charge of the value of Rs. 100/ or upwards the document must be registered under section 17(1) (b) of the Indian .
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.
[521 G H] The object of the second part of the first paragraph of section 100 is to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage.
It was not intended to prescribe any particular mode for the creation of a charge.
[522 B] 515 It followed that the security bond in the present case was not required to be attested by witnesses.
It was duly registered and was valid and operative.
[522 C] Viswanadhan vs Menon, I.L.R. and Shiva Rao vs Shanmugasundaraswami I.L.R. , disapproved.
Baburao vs Narayan, I.L.R. , 819 822, approved.
(iii)The decree in suit No. 56 of 1963 on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the encumbrance.
Pursuant to the decree the properties were sold and the assets were held by the court.
The omission to ask for an amendment of the plaint was an irregularity, but that did not affect the construction of the decree.
[522 D E] (iv)The immovable properties had been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.
Section 73(1) proviso (c) therefore applied and the proceeds of the sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant.
Only the balance left after discharging this amount could be distributed among the respondents.
[523 B] (v)Since the respondents ' own case rested on the assumption that the properties were lawfully sold they could not be allowed to raise the objection that the High Court had no territorial jurisdiction for sale of properties outside the local limits of its ordinary original jurisdiction.
[522 G] Seth Hiralal Patni vs Sri Kali Nath, ; , 751 52, Bahrein Petrolium Co. Ltd. vs P. J. Pappu, ; , 462 63 and Zamindar of Etiyapuram vs Chidambaram Chetty, I.L.R. 43 Mad . 675 (F.B.), referred to.


judgement:
n No. 3 61 of 1968.
Petition under article 32 of the Constitution of India for writ in the nature of habeas corpus.
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner.
R. Gopalakrishnan and R. N, Sachthey, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (,a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964.
On March 26, 1968, he was served with the grounds of detention.
On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court.
The petition was rejected by this Court on October 10, 1968.
In the meanwhile the order dated March 16 1968, was revoked on September 16, 1968, and another order was served upon the petitioner on the same day.
On September 24, 1.968, he was served with the grounds of detention for the fresh order, and his case was referred to the Advisory.
Board on October 26, 1968.
On October 30, 1968, the Advisory Board recommended that the petitioner.
be detained.
The petitioner then moved this petition on November 11, 1968 a writ of habeas corpus.
Two contentions in the nature of preliminary objections were raised in support of the petition.
It was urged that (1) the petitioner was, in spite of a specific request, denied a personal hearing before the Advisory Board, and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention.
An affidavit is filed by the Secretary to the Government of Jammu & Kashmir affirming that the petitioner made no request for production before the Board for a personal hearing.
He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act.
In view of this affidavit, counsel for the petitioner did not press he two preliminary contentions.
576 Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory board till September 24, 1968 and on that account his detention was invalid, and he could not be continued in detention thereafter;(2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By article 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention But article 35 (c) in its application to the State of Jammu & Kashmir provides "no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part, but any such law shall, to the extent of such in consistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.
" The protection of cls.
(5), (7) of article 22 insofar the, provision are inconsistent therewith does not avail the petitioner.
By s.3 the Government of Jammu and Kashmir is entitled, if satisfied with respect to any person that with a view to Preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct that such person be detained.
By section 8 it is provided : "(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.
(2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
" Section 9 provides for the constitution of Advisory Board and section 10 deals with references to the Advisory Board.that section the Government is required within thirty days from the date of detention under the order to place before the Advisory Board the grounds on which the order has been made and the 577 representation, it any, made by the person affected by the order.
By section 12 it is provided: "(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has rePorted that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
,, Section 13 prescribes the maximum, period of detention for which any person may be detained in pursuance of any detention order.
Section 13A which was added by Act 8 of 1967 enables the State to detain a person for a period of two years.
Section 13A provides: "(1) Notwithstanding anything contained in this Act, any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances may be detained for a period longer than three months, but not longer than six months, from the date of detention, without obtaining the opinion of any Advisory Board, namely, when such person has been detained with a view to preventing him from acting in any manner prejudicial to (i) the 'security of the State; (ii) the maintenance of public order; Provided that where any such person has been detained with a view to Preventing him from acting in any manner prejudicial to the security of the State grounds on which the detention order has been made are not communicated to him under the proviso to section 8 (1), such person may be detained for a period of two years from the date of detention without obtaining the opinion of the Advisory Board.
(2) In the case of every person detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, the provisions of this Act shall have effect subject to the following modifications, namely: (a) in sub section (3) of section 3, for the words 'twelve days ', the words 'twenty four days ' shall be substituted.
578 (b) in sub section (1) of section 8, (i) for the words 'five days ' the words 'ten day 's shall be substituted; (ii) the following proviso shall be inserted at the end, namely Provided that nothing in this sub section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him.
the grounds on which the detention order has been made. ' (c) in section 10, (i) after the words, 'In every case where a detention order has been made under this Act ' occurring in the beginning, the brackets and words '[other than a case to which the proviso to section 8(1) applies] ' shall be inserted; and (ii) for the words 'thirty days ' the words 'sixty days ' shall be substituted, (b) in section 1 1, for the words 'ten weeks ' the words five months shall be substituted." The effect of section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion of the Advisory Board, if he is to be detained for a period longer than three months but not longer than six months from the date of detention.
By sub section
(2) the periods prescribed for the various steps under the Act are doubled; for making report to the District Magistrate when he exercises the power of detention the period is extended to twenty four days : for the Government to serve the grounds of the order under section 8(1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by section 13A the period is extended to sixty days.
Again by the proviso to section 8(1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has been made, Relying upon the terms of section 10(1) as amended by section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and ' since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised.
This argu 579 ment is plainly unsustainable.
Section 13A opens with words "Notwithstanding anything contained in this Act", and provides that a person may be detained for a period not longer than six months without obtaining the opinion of the Advisory Board.
It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to.
be detained is not to exceed six months.
Section 13A is an exception to section 10 as well as to all other relevant provisions of the Act, and in case of conflicts.
13A prevails.
The, petitioner was detained for six months from March 16,.1968 to September 16, 1968 without obtaining the opinion of the Advisory Board.
We will be justified in accepting the contention of the State that it was intended, when the order was pass detaining the petitioner that he was not to be kept in detention for a period longer than six months and his case fell within the terms of section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.
It was said by counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or 'within six months.
The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order.
The only plea raised by the petitioner in support of that plea is in paragraph 1 5 of the p etition, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement, and that the fresh order of detention was passed mala fide.
No particulars are furnished which justify an inference that in resorting to the provisions of the Act the Government 's action was actuated by ill will or taken for some collateral purpose.
Reliance was also placed upon the recitals 'in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed.
On comparing the grounds it cannot be said that they are identical.
It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be 580 conceded by the, Government unless they resort to violence that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order.
It cannot also be said that merely because the previous order had been passed under which the 'Petitioner was intended to be detained for a period of six months and thereafter In consequence of further information the Government was required to issue a fresh order, the original order ,or the fresh order was illegal.
The plea that the grounds were vague and indefinite cannot also be accepted.
It is recited in the order that the Petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against public interest to disclose.
By virtue of sub section
(2) of section 8, it is open to the Government not to disclose,, facts which it considers to be ag ainst the public interest to disclose.
In the present case the order clearly states that ' the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner.
The Annexure may appear somewhat indefinite and vague.
But, that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner.
The Government have power to withhold information about those facts, and they did so.
The grounds cannot in the circumstances be said to be vague and indefinite.
One more question needs to be dealt with.
The petitioner who was present in the Court at the time 'of hearing of this petition complained that he is subjected to solitary confinement while in detention.
It must be emphasized that a, detenu is not a convict.
Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed.
Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon 'the liberty of a citizen curbing his future activities The restrictions so placed must, consistently with the effectiveness of detention, be minimal.
The petition fails and is dismissed.
V.P.S. Petition dismissed.

summary:
On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (a) (1) of the Jammu and Kashmir Preventive Detention Act, 1964.
On September 16, 1968, the order was revoked and another order was served on him.
on September 24, 1968 the petitioner was served, with the grounds for the fresh order of detention His case was referred to the Advisory Board on October 26, 1968 and the Board recommended his detention.
Under section 10 of the Act, as amended by section 13A, of the Amending Act 8 of 1967, the Government is required to refer a case to the Advisory Board within 60 days from the date of detention: In a petition for the issue of a writ of habeas corpus it was contended that : (1) Since the case of,, the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted mala fide in making the detention order; (3) The grounds in support of the order were vague and indefinite; and (4) 'Mat his being subjected to solitary confinement while in detention was illegal.
HELD : (1) There was no reason for not accepting the statement of the State that it was not intended, when the detention order of March 16, 1968 was passed that the petitioner was to be kept in detention for a period longer than 6 months.
Therefore, his case fell within the terms of s.13A(1)which provides that 'notwithstanding anything, contained in this Act a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisioiry Board.
In the present case the petitioner was detained under the first order only for a period of 6 months when that order was revoked by the second order of detention.
[579 C] (2)The grounds for the two orders are not identical; When the first Order was passed the petitioner was not intended to be detained for a period exceeding 6 months.
Thereafter, in consequence of further information that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order, the Government had to issue a fresh order.
Therefore.
it could not be said that the Government acted mala fide inmaking either the original or the fresh order.
[579 G H; 580 A B] (3) The order clearly stated facts relevant to the grounds of detention, except those which Government considered to be against public interest to disclose.
Under section 8 (2) it is open to the Government to withhold such facts.
Because of the withholding of such facts the grounds in the order of detention could not be said to.
be vague or indefinite.
[580 C E] 575 (4) Notwithstanding the broad principles of the rule of law, equality and liberty of, the individual enshrined in the Constitution, it tolerates on account 1 the peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the Power to detain is not a power to publish, and the restrictions placed must, consistently with the effectiveness of detention, be minimal.
Since a detenu is not a convict he cannot be subjected to solitary confinement.


judgement:
Appeal No. 1206 of 1966.
Appeal from the judgment and order dated, January 14, 1963 of the Punjab High Court in Letters Patent Appeal No. 36 D of 1962.
G. R. Rajagopaul, A. section Nanbiar and section P. Nayar, for the appellants.
R. K. Garg and section C. Agarwal, for the respondent.
550 The respondent was holding a permanent post in the Northern Railway.
He was a Trade Union worker.
On November 7, 1956 a charge sheet was served on him levelling two charges against him.
Under the first charge, he was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956.
Under the second charge he was accused of having contravened the direction given by the General Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19, 1956 by addressing meetings with in the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956.
On these charges he was called upon to show cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code Vol. 1 or punished with any lesser penalties specified in Rule 1702.
After receiving his explanation an enquiry committee consisting of three officers was appointed to enquire into the charges.
The said committee came to the conclusion that the first charge was not proved beyond all reasonable doubt but he was guilty of the second,charge.
The Disciplinary Authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses mentioned in his order.
Even after examining those witnesses the enquiry committee adhered to its earlier conclusions.
After examining the reports of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.
As a result thereof he ordered the issue of 'a notice to the respondent to show cause why he should not be removed from service.
The respondent submitted his exPlanation to the show cause notice.
The General Manager did not accept his explanation and by his order of August 20, 1957 be ,directed that the respondent be removed from service.
The respondent challenged that decision before the High Court of Punjab by means of a writ petition under article 226 of the Constitution.
The single judge of the High Court who heard the petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Manager 's direction as per his letter of June 19, 1956 is void as being violative of article 19(1) of the Constitution.
On appeal the appellate court upheld the conclusion of the learned single judge on the first charge but it was unable to accept his finding that the order of the General Manager of June 19, 1956 was violative of article 19(1) of the Constitution.
AR the same it affirmed the decision of the learned single judge with these observations "It is by now a generally recognised principle that where an order such as an order of detention or removal 551 from service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ground found to be bad.
" The findings of the learned single judge as well as the judges of the appellate court were challenged before us by the appellant.
It was urged on its behalf that the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported by any evidence.
or as perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own.
It was further urged on its behalf that the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been established, does not represent the correct legal position as expounded by this Court.
The learned Counsel for the respondent not only supported the conclusions of the appellate court, he also strongly commended for our acceptance the finding of the learned single judge that General Manager 's direction contained in his letter of June 19, 1956 was violative of article 19(1) (a) to (c).
The questions that arise for decision in this appeal are (1) whether the High Court was within its jurisdiction in the exercise of its powers under article 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge, (2) whether the direction issued by the General Manager on June 19, 1956 is violative of article 19(1) a to (c) and (3) whether the appellate court was right in its view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down.
Now coming to the first charge, we may first set out the un disputed facts.
On May 31, 1956, the Union of which the respondent was the Vice President declared a token strike.
The strike in question was declared by the respondent and he took a leading part in it.
During the time of the strike the compressor was not worked.
The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before this Court that the compressor driver must have started the compressor in the East Compressor House at 8 00 hrs.
and there must have been certain circumstances which made the driver to shut it off at 8 15 hrs.
The only question for decision is whether the respondent was responsible for shutting it off.
Two wit nesses namely Subrati, the compressor Driver and Rameshwar, his Assistant emphatically stated before the enquiry committee 552 that it was the respondent who led a group of strikers and compelled them to close down the compressor.
The enquiry committee felt that their evidence cannot be accepted at its face value as they were not able to name any other person in the group.
But the General Manager did not agree with the enquiry on that point.
He fully accepted: their evidence.
It was open to the General Manager to do so.
He was not bound by the conclusions reached by the enquiry committee, see Union of India vs H. C. Goel(1).
This is not a case where it can be said that the finding of the Disciplinary Authority is not supported by any evidence nor can it be said that no reasonable person could have reached such a finding.
Hence the conclusion reached by the Disciplinary Authority should prevail and the High Court in the exercise of its Certiorari jurisdiction could not have interfered with its conclusion, see Syed Yakoob vs K. section Radhakrishnan and Ors.(2).
It was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated.
The evidence of the witnesses examined during the enquiry is not before us.
Hence it is not possible to accept the contention that De Mellow 's evidence was hearsay.
In this view it is not necessary to go into the question whether hearsay evidence can be relied ow at all in an enquiry under article 311 and if so within what limits.
Some of the inferences drawn by the General Manager were objected to by the learned Counsel for the respondent.
They appear to be inferences of fact, evidently drawn from the material before him and as such cannot be properly objected to.
It Was open to him to draw those inferences.
For the reasons mentioned above, we hold that the$ High Court exceeded its powers in interfering with the finding of the General Manager on the first charge.
Before we take up for consideration point No. 2 formulated above, it would be convenient to deal with point No. 3.
It was not disputed before us that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge.
But we were told that we cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable.
This contention cannot be accepted in view of the decision of this Court in State of Orissa vs Bidyabhan Mohapatra(3) wherein it was held that if the order in an enquiry under article 311 can be supported on any finding as substantial mis (2)[1964] 5 S.C.R. 64.
(1) ; (3) [1962] Supp. 1 S.C.R. 648.
553 demeanour for which the punishment imposed can lawfully be unposed it is not for the Court to consider whether that ground alone would have ' weighed with the authority in imposing the punishment in question.
Now we come to the second charge.
In order to examine the contentions of Mr. Garg, the learned Counsel for the respondent relatingto that charge, it is necessary to set out the circular issued by theGeneral Manager on June 19, 1956.
That was a circular issuedto all the heads of the departments.
It reads : "It has been brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores depots and within office compounds.
It may be pointed out that this practice is extremely objectionable and has to be stopped forthwith.
AR staff may be warned that if any one of them is found organising or attending a meeting inside railway premises or at places of work, he will render himself liable to severe disciplinary action as such action on his part will amount to misconduct arising out of violation of administrative instructions.
Meetings of workers can be held on open grounds away ' from places of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary.
You are to note these instructions very carefully and to ensure their strict compliance in future.
Please acknowledge receipt.
" The direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the railway premises including open grounds forming part of those premises.
That direction does not deprive.
the workers any of the freedoms guaranteed to them under article
19(1).
It merely prohibits them from exercising any of them within the railway premises.
What is prohibited is the holding of meetings for any purpose within thethe railway premises.
The question is whether such a direction is violative of article 19(1) ? In the instant casewe are concerned with the meetings held outside the main time office and it was not denied that that place formed part of the railway premises.
It was strenuously urged on behalf of the respondent that the rights guaranteed under article 19(1) (a), (b) and (c) are inviolable and they cannot be interfered with excepting in accordance with sub articles
2, 3 and 4 of the said article According to Mr. Garg the railway workers have a right to assemble in any place they choose and give expression to their views so long as they do not disturb the work going on in the premises and that right is guaranteed to them under our Constitution.
554 It was not disputed that the Northern Railway is the owner of the premises in question.
The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on the.
Hence unless it is shown that either under law or because of some usage the railway servants have a right to hold their meetings in railway premises, we see no basis for objecting to the direction given by the General Manager.
There is no fundamental right for anyone to hold meetings in government premises.
If it is otherwise there is bound to be chaos in our offices.
The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the, most convenient place to do so.
It is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution.
The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please.
The exercise of those freedoms will come to an end as soon as the 'right of some one else to hold his property intervenes.
Such a limitation is inherent in the exercise of those 'rights.
The validity of that limitation is not to be judged by the tests prescribed by Sub articles
(2) and (3) of article 19.
In other words the contents of the freedoms guaranteed under cls.
(a), (b) and (c), the only freedoms with which we are concerned in this appeal,.do not include the right to exercise them in the properties belonging to others.
If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under cls.
(d) and (e) of article 19(1) could move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.
In support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh vs Alabama(1) and Tucker vs State of Texas(2) Tucker 's case was decided on the basis of the rule laid down in Marsh 's case.
Hence it is not necessary to consider it separately.
In Marsh 's case the Supreme Court laid down that the constitutional ,guarantees of freedoms of press and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company owned town, contrary to the wishes of the town 's management, of a state statute making it a crime to enter or remain on the premises of another after having been (1) 90, Law ed.
p. 265.
(2) 90, Law ecd.
p. 274.
555 warned not to, do so.
In order to appreciate this decision it is necessary to bear in mind the facts of the case.
The appellant thereinwas a Jehovahs Witness who came into the sidewalk of a privatetown situate near the post office and undertook to distribute religious literature.
In the store the corporation had posted a notice which read as follows: "This Is Private Property and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." The appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her.
She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. )When she was asked to leave the sidewalk and Chicka saw she declined.
The deputy sheriff arrested her and she was charged in the state court for violating the law.
The town in question is described in the judgment thus: "The town, a suburb of Mobile, Alabama,.
known as Chicka saw, is owned by the Gulf Ship building Corporation.
Except for that it has all the characteristics of any other American town.
The property consists of residential buildings, streets, a system of " sewers, a sewage disposal plant and a "business block on which business places are situated.
A deputy of the Mobile County Sheriff, paid by the company, serves as the town 's policeman.
Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area.
The town and the surrounding neighborhood, which cannot be distinguished from the gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center.
To do so, they now, as they have for many years, make use of a company owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office.
Intersecting company owned roads at each end of the business block lead into a four lane public highway which runs parallel to the business block at a distance of thirty feet.
There is nothing to stop highway traffic from coming into the business block and upon arrival a traveller may make free use of the facilities available there.
In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish 556 them from any other town and shopping centre except the fact that the title to the property belongs to a private corporation.
" From the above description it is clear that the roads and sidewalks in that town had been dedicated for public use.
It is in that context Justice Black observed: "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights,, become circumscribed by the statutory and constitutional rights of those who use it." The learned Judge further observed : "We do not think it makes, any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a , town operate a 'business block ' in, the town and a street and sidewalk on that business block.
As we have heretofore stated, the town of Chickasaw does not function differently from any other town.
The "business block" serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through.
The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the constitutional guarantees and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.
" In our opinion the rule laid down in Marsh 's case does not apply to the facts of this case. 'Me premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public.
They were intended for certain specified public purposes.
They could not be used for any other purpose except with the permission of the concerned authority.
Neither the language of article 19(1) nor the purpose behind it lend support to the contentions of Mr. Garg.
On the other hand their acceptance might lead to the confusion in public offices.
Hence we are unable to accept them.
In the result the appeal is allowed and the writ petition missed but in the circumstances of the case we direct the parties to bear their own costs throughout.
P.K.P.S. Appeal allowed.

summary:
The respondent was a permanent employee of the Northern Railway and was served with a charge sheet in November, 1956, which levelled two charges against him.
He was accused of having been instrumental in compelling the shut down of an air compressor and, in contravention of a direction given by the General Manager, Northern Railway, on June 19, 1956, of having addressed a number of meetings within the Railway premises.
An enquiry committee after investigating the charges came to the ' conclusion that the respondent was not proved beyond all reasonable doubt but that the 'respondent was guilty of the second charge.
The General Manager, who was the disciplinary authority, after examining the report of the committee, accepted its findings on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.
After the issue of a show cause notice to the respondent and the 'rejection of his explanation, the General Manager directed, by an order of August 20, 1957, that the respondent be removed from service.
The respondent challenged the order of his removal by a writ petition.
The petition was allowed and an appeal to a Division Bench was dismissed.
The questions for decision in the appeal to this Court were (i) whether the High Court was within its jurisdiction in the exercise of its powers under article 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge; (ii) whether the appellate court was right in its view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down; and (iii) whether the direction issued by the General Manager on June 19, 1956 was violative of article 19(1) (a) to (c) and (3).
It was contended on behalf of the appellant that the rights guaranteed under article 19(1) (a), (b) & (c) are inviolable and they cannot be interfered with except in accordance with sub articles 2, 3 & 4 of article 19; that the Railway workers had a right to assembly in any place they chose and could express their views so long they did not disturb the work going on in the premises.
HELD : Allowing the appeal and dismissing the writ petition : (i) The High Court exceeded its powers in interfering with the findings of the General Manager on the first charge.
It was open to the General Manager to accept the evidence which the, Enquiry Committee had rejected on the first charge and he was not bound by the conclusions reached by the corn 549 mittee.
On the facts in the present case it could not be said that the finding ofthe disciplinary authority was not supported by any evidence nor could it be said that no reasonable person could have reached such a finding.
Hence the conclusion reached by the disciplinary authority must prevail and the High Court in the exercise of its certiorari jurisdiction could not have interfered with its conclusion.
[552 A C] Union of India vs H. C. Goel, ; ; Syed Yakoob vs K. section Radhakrishnan & Ors.
, ; ; relied on.
(ii)There was no force in the contention that the punishment imposed could not be sustained if it was held that one of the two charges on the basis of which it was imposed, was unsustainable.
If the order in an enquiry under article 311 can be supported on any finding as substantial misdemeanor for which the punishment imposed can lawfully be impose it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question [552 G] State of Orissa vs Bidyabhan Mohapatra, [1962] Suppl.
1 S.C.R. 648; followed.
(iii)The General Manager 's direction prohibiting the holding of meetings within the Railway premises was not violative of article 19(1).
The Northern Railway was the owner of the premises in question and was entitled to enjoy its property in the same manner as any private individual subject to only such restriction as the law or the usage, may place on them.
There is no 'fundamental right for any one to hold meetings in Government premises.
Freedom of speech, freedom, to assemble peacefully and the freedom to form Associations or Unions does not mean that these rights can be exercised by the citizens in whatever place they please.
The exercise of those freedoms will come to an end as soon as the right of some one else to hold his property intervenes.
Such a limitation is inherent in the exercise of those rights.
The validity of that limitation is not to be judged by the tests prescribed by Sub articles
(2) and (3) of article 19.
[554 D] Marsh vs Alabama, 90 Law Edn.
P. 265, Tucker vs State of Texas.
90 Law Edn.
p. 274); distinguished.


judgement:
Appeals Nos. 890 to 892 of 1968.
Appeals by special leave from the judgment and order dated November 24, 1967 of the Allahabad High Court in Special Appeals Nos.
476 to 478 of 1965.
section T. Desai, H. K. Puri and B. N. Kirpal, for the appellant (in all the appeals).
Sukumar Mitra, section C. Manchanda, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
From time to time the Company purchased and installed machi nery of the value of Rs. 75 lakhs for its factory.
In proceedings for assessment of income tax, the Company was allowed, in computing its income from business for the assessment years 1950 51, 1951 52 and 1952 53 "initial depreciation" aggregating to Rs. 15,91,51 1/ in respect of new machinery installed in the relevant previous years.
The Company was also allowed "normal depreciation I ' at the appropriate rates.
In the assessment year 1956 57 the aggregate of all depreciation allowances including "initial depreciation" exceeded the original cost of the machinery, but the Income tax Officer on the written down value of the machinery computed at Rs. 16,48,053/ allowed Rs. 2,59,236/ as normal depreciation.
In so computing the normal depreciation the Income tax Officer apparently lost sight of clause (c) of the proviso to section 10(2) (vi) of the Income tax Act, 1922.
Depreciation allowance was also allowed in the assessment years 1957 58 and 1958 59 as a percentage on the appropriate written down value in those years.
The Income tax Officer on November 20, 1964, issued notices of re assessment for the three years under section 148 of the Indian Income tax Act, 1961, which had replaced the Act of 1922.
The Company filed under protest fresh returns and objected to the issue of the notices of reassessment.
The Company also moved petitions in the High Court of Allahabad for writs quashing the three notices,.
contending inter alia, that the notices issued more than four years after the expiry of the years of assessment were barred.
At the hearing of the petitions counsel for the Company conceded that under proviso (c) to section 10 (2) (vi) of the Indian Income tax Act, 1922, in the form in which it stood in the assessment year 1956 57 and thereafter, excessive depreciation was in fact allowed to the Company.
It was also common ground that by virtue of cl.
(c) to Explana 594 tion 1 of section 147 of the Income tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income tax Act, 1922, the income chargeable to tax had escaped assessment.
But it was urged that the income had not escaped assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly, all material facts necessary for assessment of that year", for (1) the Indian Income tax Art, 1922, and the forms of returns prescribed under the rules did not require the, assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Income tax Officer knew that initial depreciation had been allowed to the Company in the years 1950 51, 1951 52 and 1952 53.
R. section Pathak, J., who heard the petitions held that the Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return.
But the learned Judge held that it was.
incumbent upon the Company to inform the Income tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled.
The learned Judge accordingly rejected the petitions.
The order passed by Pathak, J., was confirmed in appeal under the Letters Patent.
By cl.
(vi) of sub section
(2) of section 10 of the Income tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains.
of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in cls.
(a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 3 1st day of March, 1945.
It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl.
Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation.
But on that account proviso (c) to section 10 (2) (vi) was not modified.
The written down value of the machinery of the, Company in the year 1956 57 was Rs. 16,48,053, but 'for the application of cl.
(c) of the proviso to section 10(2) (vi) the initial depreciation allowed in the years 1950 51, 1951 52 and 1952 53 had to be taken into account.
The Income tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 1956 57 in excess of the amount permissible under proviso (c) to section 10(2) (vi).
The 595 Income tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.
Before R. section Pathak, I., it was contended that the definition of written down value" in section 10(5) (b) applies wherever the expression is used in section 10(2) and on that account the Company in seting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to ' disclose fully and truly all material facts necessary for the purpose of assessment.
This argument was not accepted by the learned Judge.
But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account section 147 ( 1 )(a) was attracted and the, notice was properly issued.
In appeal, the High Court observed that the "only question for consideration" was whether the Income tax Officer was justified in issuing a notice under section 148 of the Income tax Act, 1961.
After stating that there was apparently "a mistake and error on the side of the Company as well as the Income tax Officer", the, Court observed that the Income tax Officer could reasonably comer to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income tax Officer as a result of which some income had es caped assessment.
The High Court then observed : "It is difficult to hold that the Income tax Officer while issuing the notices under Act could not reasonably hold the assessee was responsible for assessment.", and held that the notices were not Section 34(1) (a) of the Income tax Act, 1922, provided: " (1) if (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, 596 income, profits or, gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or he may proceed to assess or re assess such income, profits or gains or re compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 34 confers jurisdiction upon the Income tax Officer to 'issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end.
of the relevant year, if two conditions exist (1) that the Income tax Officer has reason to believe that income, profits or gains chargeable to income tax had been under assessed; and (2) that he has also reason to believe that such "under. assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year.
These ,conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re assessment : Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and Anr.
(1) In deciding the appeal, the High Court held that the Income tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary.
for assessment.
The judgment of the High Court is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment of the Company for the three years in question, any income, profits or gains chargeable to income tax have escaped assessment or the ,Company has been given excessive depreciation allowance in computing its income.
Costs of these appeals will be costs in the High Court.
One hearing fee.
Appeal allowed and case remanded.

summary:
The appellant Company, which was incorporated in 1946, purchased and installed, machinery from time to time valued at Rs. 75 lacs.
In respect of its assessment to, income tax for certain years, it was allowed 'initial depreciation ' on new machinery 'installed in the relevant previous years and was also allowed 'normal depreciation ' at appropriate rates.
In the assessment year 1956 57 the aggregate of all depreciation allowances including 'initial depreciation ' exceeded the original cost of machinery but in respect of that year as well as for the assessment years 1957 58 and 1958 59, the Income Tax Officer failed to deduct 'initial depreciation and the company was allowed 'normal depreciation ' in, excess of the amount permissible under proviso (c) to section 10(2)(vi) of the Income Tax Act, 1922.
On November 20, 1964, the Income Tax Officer issued notices of reassessment for the three years under section 148 of the Income Tax Act,.
The Company filed returns under protest and thereafter challenged the notices of re assessment by a writ petition under article 226 of the Constitution.
It was common ground that excessive depreciation was in fact allowed to the Company and that certain income escaped assessment, but it was contended on behalf of the appellant that the income did not escape assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment of that year".
A Single Judge of the High Court held that while the Company committed no error in failing to take into account the 'initial depreciation ' while entering the written down value in its return, it was not open to the Company to set out only those facts which exaggerated its claim.
He therefore rejected the petition.
In dismissing a Letters Patent appeal, the High Court took the view that there was apparently "a mistake and error on the side of the Company as well as the Income Tax Officer" and that the Income Tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income Tax Officer as a result of Which some income had escaped assessment.
On, an appeal, HELD : The judgment of the High Court must be set aside and the case remanded.
Although the High Court held that the Income Tax Officer had decided that certain income had escaped assessment, it did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment, within the meaning of section 34 of the 1922 Act.
Calcutta Discount Co. Ltd. vs Income Tax officer, Companies District 1, Calcutta and Anr., ; referred to.