judgement:
l Appeals Nos. 2114 to 2134 of 1966.
Appeals from the judgment and order dated March 25, 1966 of the Assam and Nagaland High Court in Civil Rule Nos. 104, 105, 147, 149, 150, 169, 170, 174, 175, 205, 206, 207, 237, 238, 246, 258, 259, 262, 263, 264 and 265 of 1965 respectively.
Purshottam Tricumdas and Naunit Lal, for the appellants (in C. As.
2114 2120 of 1960).
493 Naunit Lal, for the appellants (in C. As.
2121 2117 of 1966).
H. R. Gokhale, Hareshwar Goswami, K. RaJendra Chaudhury and K. R. Chaudhuri for respondent No. 1 (in C. As.
21142117 of 1966).
Vineet Kumar, for respondent No. 3 (in C. As.
Nos. 2114 to 2120 of 1966).
I. M. Oberoi, section K. Mehta and K. L. Mehta, for respondent No. 1 (in C. A. No. 2118 of 1966).
Bishan Narain, Bhuvanesh Kumari, O. C. Mathur, for res pondent No. 1 (in C. As.
2119 and 2120 of 1966).
The Judgment of the Court was delivered by Wanchoo, J.
These are twenty one appeals on certificates granted by the High Court of Assam and Nagaland and will be dealt with together as they raise common questions.
Facts necessary for present purposes may be briefly narrated.
On September 26, 1964, the Governor of Assam issued a notification under r. 126 AA of the Defence of India Rules, 1962 (hereinafter referred to as the Rules).
By this notification he applied r. 126 AA to a large number of employments as he was of opinion that the employments notified were essential "for securing the public safety and for maintaining supplies and services necessary to the life of community".
On the same day another notification was issued under sub r.
(4) of r. 126 AA.
By this notification, the Governor ordered payment of ad hoc cost of living allowance of Rs. 100/per mensem to all workers drawing pay upto Rs. 400/ per mensem engaged in the employments notified for purposes of sub r.
(1) of r. 126 AA.
Another notification was also issued on November 4, 1964 under sub r.
(4) by which the Governor ordered payment of ad hoc cost of living allowance of 34.46 paisas per day to all persons engaged on daily wage basis in the employments which had been notified on September 26, 1964 for the purpose of r. 126 AA(1).
The validity of these three notifications was challenged by writ petitions before the High Court by the respondents on various grounds.
It was first urged that r. 126 AA was a case of excessive delegation and was therefore ultra vires.
The second contention was that r. 126 AA was beyond the powers conferred under section 3 of the Defence of India Act (No. 51 of 1962), and was bad on that account.
Thirdly, it was urged that the first notification under r. 126 AA (1) was bad as conditions precedent to the exercise of the power conferred by that sub rule had not been fulfilled inasmuch as (a) the State Government had not formed the opinion necessary before issuing the notification, and (b) no reasonable man could have formed the opinion that notification of various 494 employments mentioned in the schedule was necessary for securing the public safety and for maintaining supplies and services necessary to the life of community.
Fourthly, it was contended that the exercise of the power under sub r.
(1) was colourable inasmuch as it was not exercised for the purpose mentioned in the sub rule but for extraneous purposes on the ground that the notification did not show how it was necessary to notify the employments indicated therein for the purposes mentioned therein, the more so as two purposes had been mentioned in the notification and it did not appear which purpose applied to which employment.
Lastly, it was urged that the notification under sub r.
(1) was mala fide.
It was on these grounds that the notification under sub r.
(1) was attacked.
The respondents also attacked the two notifications issued under sub r.
(4) on three grounds.
It was first urged that the notifications fixing ad hoc cost of living allowance were invalid as it was not stated therein that the regulation of wages proposed under the notifications had any connection with securing public safety and maintaining supplies and services necessary to the life of community.
Nor was it shown that the two objects of r. 126 AA (1) mentioned in the notification could be achieved by a general notification of the type issued under sub r.
Secondly, it was urged that wages could be regulated under the Minimum Wages Act (No. II of 1948), and in some cases steps bad been taken to do so.
Therefore, it was not open to take recourse to r. 126 AA (4) to achieve the same purpose, as the effect of the notification under sub r.
(4) was to deprive the respondents of the right to place materials before the committee empowered to fix minimum wages and it was thus a colourable exercise of the power conferred by the sub rule.
Thirdly, it was urged that these notifications were also mala fide.
The High Court held that r. 126 AA was not a case of exces sive delegation of power.
It also held that the rule was within the power conferred under section 3 of the Defence of India Act.
These two conclusions of the High Court are not being challenged by either party before us and need not be considered any further.
The High Court further held that the conditions precedent to G the exercise of the power conferred by r. 126 AA had not been complied with and therefore the notification under sub rule (1) was bad.
The High Court was of the view that the Governor did not form such opinion as was necessary before the issue of the notification under sub r.
Nor was it shown that the employments included in the impugned notification were essential for securing public safety and for maintaining supplies and services necessary to the life of community.
The High Court also held that the exercise of power under sub rule (1) was colourable as it 495 was not shown that the employments mentioned in the notification under sub r.
(1) were essential for securing public safety and thus one of the purposes mentioned in the notification was non existent.
As such it could not be predicated as to which of the two purposes mentioned in the notification led the State Government to issue the notification and in consequence the notification under sub r. (1) was invalid.
Finally, the High Court held that the notification under sub r.
(1) was mala fide in law, though there was nothing to show that there were mala fides in fact in the issue of the notification; presumably, the High Court came to the conclusion that the notification, was mala fide in law on the basis of its, view on the other points indicated above.
As to the notifications under sub r.
(4) the High Court held that they were invalid as it was neither stated in the notifications nor was it shown how fixation of wages in the employments included in the notification under sub r.
(1) was necessary for the purposes of securing public safety and for maintaining supplies and services necessary to the life of community.
The High Court also seems to have held that these notifications were bad inasmuch as they replaced proceedings under the Minimum Wages Act which had been taken in respect of some of the employments included in the notification under sub r.
(1), though the decision of the High Court on this point is not quite clear.
Finally, the High Court held that the notifications under sub r.
(4) were also mala fide.
Here again there was no question of mala fide on facts.
The High Court seems to have held that the notifications were mala fide in law, presumably on the view it took on other points indicated above.
The result of these findings of the High Court was that the High Court struck down the notification under sub r.
(1) and the two notifications under sub r.
(4) of r. 126 AA.
The State of Assam then applied for and obtained certificates from the High Court to appeal to this Court, and that is how the matter has come up before us.
We shall first consider the notification under sub rule (1) However before we do so we should like to analyse the provisions of r. 126 AA.
Sub rule (1) thereof lays down what are essential services in the context of the emergency which is the basis of the Defence of India Act and the Rules.
Under sub rule (1) all employments under the Central Government or the State Government are essential services.
In addition to these employments any employment or class of employment which the Central Government or the State Government, being of opinion that such employment or class of employment is essential for securing the defence of India and civil defence, the public safety, the maintenance of public order, or the efficient conduct of military operation, or for maintaining 496 supplies and services necessary to the life of the community, declares by notification to be essential service, becomes an employment within sub rule (1) above.
The explanation to sub rule (1) says that "employment" includes employment of any nature, and whether paid or unpaid.
Thus there are three classes of employments which are treated as essential services for purposes of sub r.
(1), namely, (i) employments under the Central Government, (ii) employments under the State Government, and (iii) any employment which is declared by notification under sub r.
(1) to be essential for the purposes mentioned therein.
Then comes sub rule (2) which gives power to the Central Government or the State Government to direct by general or special order that any person or persons engaged in any employment to which sub rule (1) applies shall not depart out of such area or areas as may be specified in such order.
An order under this sub rule has to be published in such manner as the Government making the order considered best calculated to bring it to the notice of the persons affected by the order.
It will be seen that sub rule(2) is consequential to sub rule (1).
It does not however apply of its own force and the Central Government or the State Government has to pass an order thereunder and the effect of the order is that any person or persons engaged in any employment to which sub rule (1) applies cannot leave the area or areas specified in the order.
The object of sub rule (2) clearly is that in emergency persons employed in essential services do not run away with the result that essential services are brought to a stand still with con sequent danger to community.
Then comes sub rule (3).
It applies to a person engaged in any employment or class of employment and to an employer of any person so engaged.
So far as persons engaged are concerned, subrule (3) lays down that if any person (a) disobeys any lawful order given to him in the course of such employment, (b) without reasonable excuse abandons any such employment or absents himself from work, or (c) departs from any area specified in an order under sub rule (2) without the consent of the authority making that order, he shall be.
deemed to have contravened this rule.
As to the employer, sub rule (3) lays down that if any employer without reasonable cause (i) discontinues the employment of such person, or (ii) by closing an establishment in which such person is engaged causes the discontinuance of his employment, he shall also be deemed to have contravened this rule.
Except for the part which depends upon the order under sub rule (2), sub rule (3) comes into force by its own terms and prohibits certain things in the cases both of employer and employee in the essential services mentioned in or notified under sub r.
Thus sub r.
(3) is again consequential to sub r.
497 Then we turn to sub rule (4) with which we are particularly concerned.
It is in these terms : "The Central Government or the State Government may by order regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment to which this rule applies.
" It is again consequential to sub rule (1) and the obvious object of sub rule (4) is to see that essential services are maintained during an emergency and if it is necessary to regulate wages and other conditions of service in that behalf that can be done by an order by the Central Government or the State Government.
It also appears that as sub r.
(3) prohibits employers and employees from doing certain things, sub r.
(4) has been enacted to see that there is a contented labour force during an emergency so that essential services as specified in sub rule (1) or declared by a notification thereunder are maintained.
Then follows sub rule (5) which lays down punishment for contravention of any of the provisions contained in r. 126 AA.
This analysis of r. 126 AA shows that it is a provision for maintenance of essential services during an emergency, and it is with that object that various powers are conferred on the Central Government or the State Government including the power of regulating wages and other conditions of service of persons engaged in essential services indicated in sub r.
(1) or declared to be such thereunder.
It is with this background of emergency that we have to construe the provisions contained in sub r.
(1) and also sub r.
(4) with which we are particularly concerned in the present appeals.
Turning first to stb Rule (1), we have already indicated that this sub rule by its own force declares all employments under the Central Government or the State Government to be essential services for its purposes.
Besides these two classes of employment,,, the Central Government or the State Government has been given the power to declare other employments also to be essential for the purpose of sub rule (1) and to be covered thereby.
This the Central Government or the State Government can do by notification, if it is of opinion that such employment or class of employments is essential for securing any of the purposes mentioned in the sub rule.
It was Linder this power that the Governor of Assam issued the notification dated September 26, 1964 under sub rule (1).
The notification refers to a large number of employments and states that the Governor of Assam was of opinion that the employments specified there in were essential for securing public safety and for maintaining supplies and services necessary to the Supp.
CI/67 2 498 life of the community.
The notification has been issued under the authentication of the Joint Secretary to the Government of Assam, Labour Department.
As it stands the notification is clearly in compliance with the provisions contained in sub r.
(1) of r. '126 AA.
It is true that the notification has included a large number of employments in it; but we do not see why one notification may not be issued with respect to any number of employments, though there can be no objection to the Government issuing one notification with respect to one employment only.
The mere fact that a notification includes within it a large number of employ ments is no ground for holding, as the High Court seems to have held, that the Governor did not apply his mind to the conditions precedent to the issue of the notification.
Nor do we think that the fact that the notification in question gave two purposes for its ,issue.
Damely, for securing public safety and for maintaining supplies and services necessary to the life of the community shows that the Governor did not apply his mind to the conditions precedent to the issue of the notification.
Further when the Governor says in the notification that the employments included therein were essential for securing the public safety and for maintaining supplies and services necessary to the life of the community, he obviously holds the opinion that these employments were essential for both purposes.
It was not therefore necessary for the Governor to specify which of the employments were essential for the purpose of maintaining supplies and services necessary to the life of the community and which were essential for the purpose of securing public safety.
The notification, as it reads, indicates that in the opinion of the Governor these employments were essential for both purposes.
We do not think therefore that the High Court was right in holding that as the notification does not show which employment was essential for which purpose, the Governor had not applied his mind and the notification was therefore colourable and mala fide in law.
We may also refer to a ground which was urged in the High Court, namely, that the notification was issued for the purposes of "defence" also as stated in the counter affidavit of the appellant, though the notification itself did not mention "defence" at all.
The High Court thus thought that defence had been introduced in the counter affidavit as one of the grounds for making the declaration while there was no mention of it in the notification itself, and that also showed that there was no application of mind by the Governor to the conditions precedent to the issue of the notification under sub r.
It appears that in some of the writ petitions "defence" was introduced by the petitioners as a round for the issue of the notification of sub r.
(1); so in the reply of tile State the same ground was mechanically repeated in the counteraffidavit without carefully looking into 'the notification which had been issued under sub r.
It is because of this mechanical 499 introduction of defence by the State in the counter affidavit that the High Court has held that it showed that the authority ha( equated public safety with defence and that the Government misconceived its powers and had no clear conception of the scope.
and ambit thereof.
There is no doubt that the word "defence" came in the counter affidavit mechanically in reply to the introduction of the word "defence" in many of the writ petitions.
What the court has to see is whether the conditions precedent were complied with at the time of the issue of the notification.
It is unfortunate that in the counter affidavit the word "defence" was introduced mechanically in reply to what was said in the writ petitions.
But that in our opinion should not have led the High Court to the. conclusion at which it has arrived, namely, that the Government misconceived its powers and had no clear conception of 'the scope.
and ambit thereof.
In the circumstances we are inclined to attach no importance to the introduction of the word "defence" in the counter affidavit filed on behalf of the State as it seems that that word came in mechanically in reply to the introduction of the word "defence" in some of the writ petitions.
It is clear that a notification under sub r.
(1) is conditioned on the subjective satisfaction of the Central Government or the State Government as to the various purposes mentioned in sub r.
The High Court was also conscious of the fact that this subjective opinion was generally speaking not justiciable and it was not open to a court to see if the opinion of the authority was justified by objective tests.
The High Court was also conscious of the fact that it was not open to the court to examine the adequacy of the material on which the opinion rested.
Further the High Court also held that the reasonableness of the opinion could not be examined by the court.
This statement of the law by the High Court is well settled and was accepted by the High Court.
The High Court further held that the validity of an order might be challenged on the ground of mala fide and this again is well settled.
The High Court further stated that a court could examine whether the, opinion was formed at all before the issue of the.
notification.
To this again, there can be no exception.
Finally, the High Court held that it was open to the court to see whether the opinion was relevant and germane to the circumstance% which fell to be considered under the rule and whether they were such as could possibly and rationally support the conclusion drawn by the authority.
Having thus stated the law correctly, the High Court con sidered whether it could be said in this case that the conditions precedent had been satisfied before the issue of the notification under sub r.
(1) and came to the conclusion that they were not satisfied, mainly because two purposes were mentioned as the 500 basis of the notification and a large number of employments, were included in one notification, as already pointed out by us above.
We are of opinion that both these grounds for holding that the conditions precedent to the issue of the notification under sub r.
(1) have not been fulfilled cannot be sustained.
As the notification reads, it shows that the employments mentioned therein were essential for both purposes and this must be held to be the opinion of the Governor.
That opinion cannot in our view be challenged in court unless it is shown to be mala fide or it is shown that no reasonable man can come to that conclusion in the context of the employments specified in the notification.
We cannot agree with the High Court that simply because a large number of employments were mentioned in one notification that can by itself show that the Governor had not applied his mind.
Nor can we agree with the High Court that because two purposes were mentioned as the basis of the notification and as there was nothing to show which employment referred to which purpose, there is no formation of opinion.
As we read the notification it must be held that the Governor 's opinion was formed with respect to the employments specified in the notification on the basis of both the purpose, mentioned in the notification.
The only thing that the High Court could see was whether considering the nature of the employments it was impossible for any reasonable man to come to the opinion.
that those employments were essential for securing public safety, and for maintaining supplies and services necessary to the life of the community, and this has to be judged in the context of are emergency.
It seems to us that where certain employments are essential for the maintenance of supplies and services necessary to the life of the community the Governor may very well come to the conclusion that those employments are also necessary for securing public safety, for if supplies and services necessary to the life of community are not maintained, there may be danger to public safety.
In these circumstance ,; we cannot agree with the High Court that the two purposes mentioned in the notification have no nexus with the employments specified therein, except in on case.
We cannot also agree with the High Court that no reason, able man could come to the conclusion that the employment mentioned in the notification were essential for the two purpose which were the basis of the notification except again in the case of one employment.
We have looked through all the employments which are included in the notification and it is enough say that except in one case it cannot be said that no reasonably man could come to the conclusion that those employments we, essential for securing public safety and for maintaining supplier and services necessary to the life of the community.
The only exception we find is veneer mills.
Veneering, vs understand, is a process by which thin flat plates or slips of file 501 wood or other suitable material are applied to other inferior wood in cabinet work or similar other furniture.
In the Concise Oxford Dictionary, the word "veneer" means cover (wood, furniture etc.) with thin coating of finer wood, and that is the meaning which must be given to veneer mills as entered at No. 5 of the notification for that entry is "employment in plywood and veneer mills".
Veneering, we understand, is done for the purpose of beautifying furniture etc.
We fail to see how veneer mills which carry on this process of laying finer wood on inferior wood for purposes of beautifying furniture etc.
can be said by any reasonable man to be essential for the maintenance of supplies and services necessary to the life of the community and for securing public safety.
It is open to us to strike down the notification tinder sub r.
(1) with respect to veneer mills alone, for the present notification including a large number of employments can be read to amount to so many single notifications, relating to each employment, rolled into one.
Therefore, as we see the notification under sub r. (1) we see no reason to hold that the Governor had not applied his mind to the conditions precedent before he issued the notification in question.
We are also satisfied except in the case of veneer mills that it cannot be said that no reasonable man could have come to the conclusion that the employments included in the notification were not essential for securing public safety and for maintaining supplies and services necessary to the life of the community.
In this view of the matter we cannot see how the notification under sub r.
(1) can be said to be for any extraneous purpose unconnected with the purposes mentioned in the sub rule; nor is there any reason to hold that the employments mentioned in the notification (except one) were not essential for securing public safety in addition to maintenance of supplies and services necessary to the life of the community.
Nor do we see any reason to hold that the notification under sub rule (1) was mala fide.
We have already mentioned that there are no mala fides in fact and we do not think there can be any question of any mala ride in law in view of what we have said above.
We therefore uphold the notification under sub rule (1) dated September 26, 1964 except in the case of veneer mills.
We strike down the notification only with respect to the veneer mills mentioned it item 5 of the employments included therein.
We now come to the two notifications under sub r.
In cidentally we, may mention that though the second notification is dated November 4, 1964, the letter written by the Department of Labour, Government of Assam, to the Charduar Cotton Mills says that the cost of living allowance for persons engaged on daily wages provided in the notification of November 4, 1964 should be paid from September 26, 1964.
Now there is nothing in the notification of November 4, 1964 to show that it was retrospective, 502 and we cannot understand how the Department of Labour advised the Mill in question to pay cost of living allowance to persons engaged on daily wages from September 26, 1964, which was the date of the notification under sub r.
Nor do we think that there is anything in sub r.
(4) which authorises the Government to make an order thereunder with retrospective effect.
But apart from this, we have to consider whether the two notifications under sub r.
(4) are valid or not.
The High Court .struck them down on the ground that there was nothing in the two notifications to show that it was necessary to pay cost of living allowance which comes within the ambit of the words "regulation of wages ' for purposes of securing public safety and maintaining supplies and services necessary to the fife of the community and that those purposes would be achieved by the notification.
The High Court also seems to have struck down the notifications on the ground that action should have been taken under the Minimum Wages Act and thus the power exercised under sub r.
(4) of r. 126 AA was a colourable exercise of power.
For these two reason, the High Court also held that the notifications were mala fide in law, though there was nothing to suggest that they were in fact mala fide.
We cannot agree with the High Court that it was necessary to recite in the notifications under sub r.
(4) that action was being taken thereunder for the purpose of securing public safety and for maintaining supplies and services necessary to the life of ' the community.
Nor do we think that sub r.
(4) requires that notifications should show that the two purposes would in fact be achieved by the provision made thereunder.
Further it is clear that the power under sub r.
(4) is not for fixation of minimum wages.
It is power to regulate wages and this power is analogous to the power of industrial tribunals and therefore the fact that there is provision in the Minimum Wages Act for fixation of minimum wages is no round for holding that the power exercised by sub r.
(4) must be colourable.
The two reasons given by the High Court for striking down the two notifications and hold ing them maala fide do not appear to us to be correct.
But this in our opinion is not the end of the matter.
The real question is whether the power under sub r.
(4) is a power which can be exercised merely on the subjective opinion of Government or whether sub r.
(4) requires anything more.
The notifications seem to proceed on the view that powers exercised thereunder are entirely within the subjective satisfaction of Government and it is that view which we must examine now.
It is true that this aspect of the matter was not put forward in clear terms before the High Court, but it so clearly arises that we have permitted learned counsel for the respondents, when they raised this aspect of the matter, to do so.
503 We have already indicated that the power conferred by sub r.
(4) is consequential to the issue of a notification under sub r.
(1), in case of employments other than those under the Central Government or the State Government.
Once the notification under sub r.
(1) is issued, the Central Government or the State Government has the power to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employment included in the notification, of course, the wages and other conditions of service of Central Government and State Government employees are also liable to be regulated under sub r.
But it is unnecessary to refer to that aspect of the matter and what we say hereafter may be taken to apply only to those employments which are brought under r. 126AA by issue of a notification under sub r. (1) thereof.
The main argument on behalf of the respondents in this behalf is that there is nothing in sub r.
(4) to show that the regulation envisaged therein by an order depends entirely on the subjective satisfaction of the Central Government and the State Government.
It is urged that sub r. (4) gives power to Government which is analogous to the power of industrial tribunals and enables Government to interfere with contractual relations between employers and employees and even in many cases with relations between employers and employees established by industrial awards.
It is therefore urged that when there is nothing express in sub r.
(4) to show that the power thereunder can be exercised merely on the subjective satisfaction of Government it should be held that power thereunder can only be exercised after consolation with employers and employees concerned.
On the other hand it is urged on behalf of the appellant that these powers are meant to be exercised in a real emergency and therefore though the powers conferred by sub rule (4) are analogous to the powers of industrial tribunals they are still meant to be exercised on the subjective satisfaction of Government.
It is submitted that in a real emergency it would not be possible for Government to go through the elaborate procedure of industrial tribunals, for a real emergency may require immediate action.
Learned counsel for the appellant also referred to certain other provisions of the Rules where according to him there was no express provision with respect to subjective satisfaction and still the powers conferred thereunder were intended to be exercised on subjective satisfaction of Government.
Particular reference in this connection is made to Kumaon Motor Owners ' Union Limited vs The State of Uttar Pradesh(1) and it was pointed out that in that case the power conferred on the State Government under r. 131 (2) (gg) and (i) was held to be exercisable on the subjective satisfaction of Government.
That case dealt with control of road transport ; 504 during emergency, which in our opinion stands on a different footing altogether from regulation of wages and other conditions of service of employees.
The particular provisions considered in that case, provided for prohibition and restriction of carriage of persons or goods by any vehicle or class of vehicles, either generally or between any particular places or on any particular route and making of other provisions in relation to road transport.
The order in that case was passed in the interest of defence of India, and civil defence prohibiting certain class of vehicles from plying in certain areas near the Chinese border with India.
Considering the nature of the power conferred and the purpose for which it was conferred and its effect, this Court in the context of that provision held that the rule envisaged subjective satisfaction of Government.
The present case however which deals with regulation of wages and ,other conditions of service and has a far reaching effect on industrial relations based on contracts or even on industrial awards stands on a different footing altogether and cannot be governed by the ratio of that case.
We do not think it necessary in the present appeals to consider the various other rules to which reference has been made.
Nor would it be desirable to do so for those rules do not arise for interpretation in the present appeals.
We propose therefore to confine ourselves to sub r.
(4) with which alone we are concerned in these ,cases.
Now the question whether the power under a particular pro vision has to be exercised purely on the subjective satisfaction of Government or other authority or has to be exercised subject to some objective tests depends upon a number of factors.
The language of the provision, the nature of the power conferred and the purpose for which it has been conferred, the circumstances and the manner of the exercise of power, what things are affected by such exercise and how, and other relevant factors, in the context of the particular provision, may have to be considered in deter mining whether the power envisaged can be exercised merely on the subjective satisfaction of Government or other authority, or there are to be some objective tests before the power can be exercised.
The intention of the legislature is primarily to be gathered from the language used and where the language used is plain and unambiguous, effect must be given to it and there is nothing more to be said.
But where the language is not clear, all these factors must be weighed to arrive at the final conclusion whether the power conferred depends entirely on the subjective satisfaction of Government or the authority concerned or there have to be some objective tests before the power can be exercised.
It is on the basis of these principles that we have to decide whether sub r.
(4) gives power to Government to regulate wages and other conditions of service purely on its subjective satisfaction.
505 We have already set out sub r.
(4) and a perusal of its language will show that there is nothing in the words themselves which plainly and unambiguously indicates that the power exercised thereunder depends purely on the subjective satisfaction of Government.
It is true that sub r. (4) so far as it applies to employments other than those of Government is consequential on a notification under sub r. (1).
But that does not mean in the absence of express in sub r.
(4) that the power exercised thereunder depends purely on the subjective satisfaction of Government.
We have already indicated that the power under sub r.
(4) is analogous to the power of industrial tribunals to decide disputes between employers and employees.
The result of the exercise of the power under sub r.
(4) is to vary the contractual relations between employers and employees concerned in employments with respect to which a notification under sub r.
(1) has been.
issued.
The effect of the exercise of such power is to unsettle relations between employers and employees which may be existing for a long time and which may be the outcome either of contractual relations or even of industrial awards.
Sub rule (4) not only deals with wages but also with other conditions of service and thus in a real emergency may practically supersede all industrial adjudication.
The power conferred is thus of a far reaching nature in the field of industrial relations and may have the effect of disturbing all such relations for the duration of a real emergency.
The question therefore arises whether in the absence of express words in sub r.
(4) to indicate that the power is to be exercised purely on the subjective satisfaction of Government we should hold that an order under sub r.
(4) call be passed purely on such subjective satisfaction.
When the effect of orders passed under sub r.
(4) can be so far reaching and so wide in its impact we would be loath to hold that such wide and far reaching powers were conferred on Government to be exercised.
purely on its subjective satisfaction without even consulting the interests concerned specially when the language is not plain and unambiguous and there is no indication in the sub rule itself that.
the power can be exercised purely on the subjective satisfaction of Government.
We are not unmindful of the fact that the power under sub r.
(4) has to be exercised in a real emergency.
But the ambit of the power therein is analogous to the power of industrial courts.
The power under sub r.
(4) may be exercised instead of referring industrial disputes relating to wages and other condition.
, of service to industrial tribunals.
We are also not unmindful of the fact that in a real emergency, decisions may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable.
Even so in the absence of express words in sub r.
(4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be 506 prepared to hold that that is what sub r.
(4) indicates.
We have already said that the effect of sub r.
(4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub r.
(4) it should even in a real emergency consult the interests concerned before taking action thereunder.
It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself.
But we may indicate that some kind of public notice to the particular interest,; should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned.
This does not mean that notice should be given to individual employers or employees.
Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi judicial tribunal.
It is not necessary that oral evidence should lie taken and witnesses should be called, examined and cross exanamed and documents produced or called for and arguments heard 'is if the matter was being tried by a quasi judicial tribunal.
But .some kind of collection of data with the help of the interests concemed and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub r.
(4), for we have no doubt that this sub rule does not intend that Government should have power of the far reaching nature conferred there tinder purely on its subjective satisfaction.
Further if such consultation is necessary under sub r.
(4) and it seems to us that it is necessary before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same.
After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub r.
(4) indicating that it has considered the data and consulted the interests concerned.
We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub r.
Once it is clear, as we have no doubt that it is so, that the order under sub rule (4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeks.
It has been urged on behalf of the appellant that though the appellant 's contention has been that the power under sub r.
(4) can be exercised purely on the subjective satisfaction of Government, 507 in effect the Government had consulted the interests concerned before issuing the two notifications under sub r.
(4) and therefore the two notifications should be upheld.
In this connection, an affidavit was filed on behalf of the appellant in this Court and the contention that there was consultation is based on that affidavit.
The facts stated in that affidavit are these.
Soon after the Chinese invasion in 1962, the Labour Minister Assam called an emergent meeting at Gauhati of the representatives of employers and workmen.
49 persons including about 17 representatives of employers attended the meeting.
Unanimous resolutions were passed exhorting the employers and workmen to keep industrial peace and it was resolved to set up a Sub Committee for the purpose of working out details of a machinery to be set up for adjustment of D.A. to neutralise any rise in the cost of living.
A Sub Committee consisting of three officials, three representatives of employers and three of workmen was set up.
This Sub Committee submitted its report in July 1964 and evolved a formula to neutralise any rise in working class cost of living of workers getting a salary of Rs. 400/ or less.
Complaints were received from Industrial Workers Unions of Tinsukia and Kamrup Districts in 1963 and 1964 about rise in prices of essential commodities and requests were made to Government to grant substantial emergency allowance.
Consequently after consultation with the Director of Statistics on the rise in the cost of living, the Government on a consideration of all this material and the report of the Sub Committee decided to issue the notifications in questions ordering payment of ad hoc cost of living allowance of Rs. 10/ per mensem to all workers drawing upto Rs. 400/ per mensem whether monthly rated or daily rated.
This affidavit has been challenged on behalf of the respondents; but accepting it as correct, it still in our opinion fall& short of the consultation necessary under sub r.
As we have said already, the consultation must be with the interests concerned including employers and employees and should be employment by employment, for needs of every employment may not be the same.
All that we may accept after considering the affidavit filed on behalf of the appellant is that the notifications in question were not issued entirely arbitrarily but we do not think that the consultation to which reference was made in the affidavit of the appellant was enough for the purpose of sub r.
We are therefore of opinion that the two notifications should be struck down and we do so, but for reasons different from those which commended themselves to the High Court.
We therefore partly allow the appeals and uphold the notification under sub r.
(1) except to veneer mills.
The order of the High Court striking down the notifications under sub rule (4) is upheld, though for different reasons.
In the circumstances we order parties to bear their own costs in all the appeals.

summary:
On 26th September, 1964, the Governor of Assam notified under r. 126AA(1) a large number of employments as he was of opinion that they were essential for securing the public safety and for maintaining Supplies and services necessary to the life of the community, and under In (4) ordered payment of rupees ten per mensem as ad hoc cost of living allowance to certain workers in the notified employments.
On 4th November, 1964, he issued another notification under sub r. (4) by which he ordered payment of 38.46 paise as ad hoc cost of living allowance per day to persons engaged on daily wages in the notified employments.
The two notifications under sub.
r. (4) were issued to see that there was a contented labour force during emergency.
Though the second notification was dated November 4, 1964, the Labour Department of the State Government advised one of the respondents to pay the amount retrospectively from September 26, 1964.
The respondents challenged the validity of the three notifications by writ petitions in the High Court.
The High Court held that : (i) The notification under r. 126AA(1) was mala fide in law and should be struck down, because, the conditions precedent to the exercise of the power conferred by the rule, namely, that the Governor should form the necessary opinion had not been satisfied since; (a) both the purposes, namely public safety and maintenance of supplies and services, were mentioned as the basis of the notification without indicating which of the two purposes led the State Government to issue the notification; (b) a large number of employments were included in one notification; and (c) the counter affidavit of the State Government stated that the notification was issued for purposes of "defence" also though.
the notification itself did not mention "defence", thus showing that the Governor had not applied his mind.
(ii) The two notifications under r. 126AA(4) were also mala fide in law and should be struck down because; (a) it was not stated in the notifications nor was it shown how the fixation of wages in the employments was necessary for the purpose of securing public safety and for maintaining supplies and services necessary to the life of the community and (b) the notifications replaced proceedings under the Minimum Wages Act which were taken in respect of some of the notified employments.
491 In appeal to this Court, HELD: (i) The notification under r. 126AA(1) should be upheld with respect to all employments except veneer mills.
[501 G] A notification under r. 126AA(1) could be issued on the subjective satisfaction of the Central or State Government as to the various purposes mentioned in the sub :rule, which include securing public safety and maintenance of supplies and services necessary to the life of the community.
That opinion could not be challenged in Court unless it was shown to be mala fide, or that no reasonable person could come to that conclusion with respect to the employments specified in the notification.
[499 D, F] (a) The fact that the notification gave both purposes for its issue did not show that the Governor did not apply his mind to the conditions.
When the Governor said that the employments were included in the notification for two purposes, he obviously held the opinion that the employments were essential far both purposes, and, it was not necessary for him to specify which of the employments were essential for one purpose and which were essential for the other purpose.
Where certain employments are essential for the maintenance of supplies and services necessary to the life of the community, the Governor may very well come to the conclusion that those employments are also necessary for securing public safety, for, if supplies and services necessary to the life of the community are not maintained, there may be danger to public safety.
[498 C E; 500 E F] (b) There is nothing in r. 126AA(1) which prevents a notification from being issued with respect to any number of employments, and the mere fact that a notification included within it a large number of employments is no ground for holding that the Governor did not apply his mind to the conditions.
[498 B C] (c) As regards the word "defence", it crept into the counter affidavit mechanically in reply to the petitioners ' contention using that word in some of the writ petitions.
But that should not have led the High Court to the conclusion that the Government had no clear conception of its powers, for, the High Court had only to see whether the conditions were complied with at the time of the issue of the notification.
[499 B C] As regards veneer mills which carried on the process of having finer wood on inferior wood for purposes of beautifying furniture, it cannot be said by any 'reasonable person to be essential for the maintenance of supplies and services necessary to the life of the community and for securing public safety.
This Court could therefore strike down the notification with respect to veneer mills treating the notification as so many single notifications each relating to.
an employment, rolled into one.
[501 A C] (ii) The reasons given by the High Court for striking down the two notifications under sub r.
(4) were erroneous, because : (a) It was not necessary to recite in the notification under sub r.
(4) that action was being taken for the purpose of securing public safety and for main taining supplies and services necessary to the life of the community.
Nor does the sub rule require that the notification should show that the two purposes would in fact be achieved by the provision made thereunder.
[502 D E] (b) The power under the sub rule is not for fixation of minimum wages, but to regulate wages and is analogous to the power of industrial tribunals.
Therefore, the fact that there is provision in the Minimum Wages Act for fixation of minimum wages was no ground for holding that the power exercised under sub r.
(4) was colourable.
The two notifications should however be struck down, because, before the Government exercises the power under sub rule (4), it should consult the interests concerned, as the order is not to be passed merely on the subjective satisfaction of the Government, even when there was an emer gency.
[506 A B] Whether the power under a particular provision has to be exercised purely on the subjective satisfaction of Government or other authority or has to be exercised subject to some objective tests depends upon a number of factors.
The language of the Provisions the nature of the power conferred and the purpose for which it has been conferred, the circumstances and the manner of the exercise of power, what things are affected by such exercise and how, and other relevant factors in the context of the particular provision may have to be considered in this behalf.
The intention of the legislature is primarily to be gathered from the language used and where the language used is plain and unambiguous, effect must be given to it and there is nothing more to be said.
But when the language is not clear all these factors must be weighed to arrive at the final con clusion.
[504 E H] The power under sub r.
(4) is of a far reaching nature and not only deals with wages but also with other conditions of service, and, in an emergency may practically supersede all industrial adjudication.
It is unlikely that such wide powers were conferred on the Government to be exercised purely on its subjective satisfaction without even consulting the interests concerned, specially, when the language of the sub rule is not plain and unambiguous indicating that the power could be so exercised.
The power, no doubt, was intended to be exercised in an emergency and decisions may have to be taken quickly and delay should be avoided; even so, the Government should evolve some procedure by which there would be some kind of collection of data with the help of the interests concerned and some kind of hearing or conference.
The consultation should be employment by employment, for, it may be that the needs of every employment may not be the same.
In the present case, there was some indication that the notifications were not issued arbitrarily but on the basis of a report submitted by a sub committee consisting of Government officials and representatives of the employers and employees; but it was not a consultation employment by employment, and therefore, the consultation fell short of the legal requirements.
[505 D H; 506 D H; 507 F] Kumaon Motor Owners ' Union Ltd. vs The State of U.P. ; , distinguished.
Further, as regards the second notification under r. 126AA(4) the Government could not and did not make it with retrospective effect; and the Labour Department was in error in writing to one of the respondent mills to make the payments retrospectively.
[502A B]


judgement:
Appeal No. 92 of 1966.
, Appeal from the order dated May 30, 1963 of the Punjab High Court in Letters Patent Appeal No. 148 of 1963.
R. V. section Mani and M. L. Agarwal, for the appellants.
Dipak Dutt Chaudhuri and R. N. Sachthey, for the respon dents.
section K. Mehta, and K. L. Mehta, for the interveners.
The Judgment of the Court was delivered by Shelat, J.
The appellants are members of a Hindu undivided family of which the first appellant is the Karta.
Prior to August 21, 1956, the family owned 64.35 standard acres of land in village Kurali, District Patiala.
The land stood in the revenue records in the name of the first appellant.
On December 23, 1957, the first appellant transferred 26 standard acres to one Babu Singh by a registered deed.
According to them, they had Planted an orchard in 10 acres of land.
Their contention was that the said 26 standard acres and the said 10 standard acres could not be taken into account while ascertaining surplus land under the Pepsu Tenancy and Agricultural Lands Act, XIII of 1955.
Both these claims were rejected by the authorities.
By his order dated January 20, 1961 ', respondent 'No. 3 declared 34.35 standard acres out of the said 64.35 standard acres as 'Surplus land.
The appeal filed by the appellants against the said order was rejected.
They then filed a revision application before respondent No. 1.
While that was pending they filed a writ petition in the High Court.
During the pendency of that writ petition.
the Punjab Legislature passed the Amendment Act, XVI of 1962 inserting section 32 KK in the principal Act.
The learned Single Judge,.
who heard the writ petition, held (1) that the finding that the appellants had not planted the said orchard within the statutory period was one of fact and could not be challenged in the writ petition and (2) that the said transfer of 26 standard acres was hit by section 32 FF and therefore was rightly ignored while ascertaining the surplus land.
The main contention urged before the High Court, however, was that each of the three appellants who constituted the said family was entitled to ,retain 30 standard acres, that as the total holding was only 64.35 605 standard acres, there was no surplus land liable to be acquired under the Act and, therefore, the order declaring 34.35 Standard acres, as surplus land was illegal.
The High Court following its earlier decision in Bhagat vs State of Punjab(1) "missed the writ petition.
A Letters Patent Appeal against that judgment was dismissed in limine.
The present appeal by certificate is directed against the dismissal of the said writ petition.
Mr. Mani 's contentions were: (1) that under Hindu Law every coparcener in a Hindu undivided family acquires right in the property of such coparcenery on birth and is entitled to a right of joint possession and enjoyment of its entire property, that section 32KK deprives such a coparcener of his rights of property in that that it takes away the rights of the descendants of the landowner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under article 19 (1 ) (f ) but also dis crimination in favour of the head of the family infringing thereby article 14; (2) that the effect of section 32 KK is that where an undivided family is possessed of land, instead of each of the descendants getting a ceiling area of 30 standard acres, the head of the family alone gets 30 standard acres and therefore the section is violative of article 31; (3) that the section, being applicable only to Hindu undivided families infringes article 15(1) inasmuch as it discriminates by reason only of religion such families as against other undivided families in Punjab amongst communities other than Hindus and (4) that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by article 31 A. Section 32 KK, the validity of which is impeached in this appeal, reads as follows : "Notwithstanding anything contained in this Act or in any other law for the time being in force : (a) where, immediately before the commencement of this Act, a landowner and his descendants constitute a Hindu undivided family, the land owned by such family shall, for the purposes of this Act, be deemed to be the land of that landowner and no descendant shall, as member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right".
The section first lays down a fiction and then its result.
The fiction is that where a landowner and his descendants form a Hindu undivided family, the land owned by such a family shall be, deemed to be.
the land of that landowner.
The fiction so en (1) I.L.R. (1963) 16 (1) Punjab 5O. 6O6 acted is limited only for the purposes of the Act.
The result of the fiction again for the purposes of the Act is that no descendant shall, as a member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right.
There is no doubt that the section has a direct adverse ,effect on the rights of the descendants of a landowner.
It treats such a family as one unit equating the landowner and his descendants with an individual landowner depriving by such equation the descendant of the right to hold a ceiling area for himself.
Prima facie, such a provision would infringe article 19(1) (f) and article 31 and would be hit by article 13.
Article 31 A, however, provides that notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any ,estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by articles 14, 19 or 31.
If, therefore, section 32 KK falls within the scope of article 31 A, it is obviously protected there under and the validity of the section is placed beyond any ,challenge on the ground of its infringing any of the rights under articles 14, 19 or 31.
In K. K. Kochuni vs The State of Madras(1), this Court laid ,down that article 31 A properly construed envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the 'estate ' solely for that purpose and must be limited to it.
The Court held that the Act impugned there did not ,contemplate any agrarian reform or seek to regulate the rights inter se between the landlords and tenants or modify or extinguish any of the rights appertaining to janmam right leaving all the characteristics intact and, therefore, did not come within the purview of article 31 A. In Ranjit Singh vs The State Punjab (2), this Court considered the scope of that decision and held that the 'Word 'estate ' in article 31 A should be given a liberal meaning and that the changes proposed by the Punjab Consolidation Acts passed since 1948 and onwards were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands, that if agrarian reforms were to succeed, mere distribution of land to the landless was not enough, that there should be a proper planning of rural economy and conditions and that a scheme which makes villages self sufficient cannot but be regarded as part of larger reforms which consolidation ,of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate.
It is not necessary to refer to other decided cases as this decision clearly points out that the fixing of ceiling on lands and provisions (1) (2) [1965]1 S.C.R. 82.
607 relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of article 3 1 A. A brief outline of the provisions of the Act will show the objects and the policy the legislature had in mind in passing the Act and while amending it from time to time.
The Act declares that it was passed to amend and consolidate law relating to tenancy and agricultural lands and to provide for certain measures of land reforms.
Section 3 defines " permissible limit" as meaning 30 standard acres of land.
Section 5 entitles ,very landowner owning land exceeding the permissible limit to select for personal cultivation from the land held by him any parcel or parcels of land not exceeding in aggregate the permissible area.
Chapter III provides for the rights of tenants and section 7 therein lays down that no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the grounds therein set out.
Section 7 A lays down additional grounds for termination of tenancy in cases such as where the land comprising the tenancy has been reserved by the landowner for his personal cultivation or where the landowner owns 30 standard acres or less of land and the land falls within the permissible limit.
Section 9 provides the maximum amount of rent payable by a tenant.
Chapter IV deals with acquisition or proprietary rights by a tenant on such tenant paying compensation determined in accordance with the principles set out in section 26.
Chapter IV A, which was added by Act 15 of 1956, deals with ceiling on lands and acquisition and disposal of surplus land.
Section 32 A provides that no person shall be entitled to own or hold as landowner or tenant land exceeding the permissible limit.
Section 32 B obliges a person owning or holding as landowner or tenant land which exceeds the permissible limit to furnish to the Collector a return giving particulars of all his land and stating therein his selection of land not exceeding the permissible limit which he desires to retain and of lands in respect of which he claims exemption from the ceiling.
Section 32 D directs the Collector to prepare a draft statement on the basis of the information given in the said returns showing the total area of land owned or held by such person and the land selected by him by way of permissible limit the exemption claimed by him and the surplus area.
Section 32 E provides that in the case of surplus area of a landowner or a tenant which is not included within the permissible limit such area shall on the date on which possession thereof is taken by the State Government, be deemed to have been acquired by the State Government for a public purpose.
Section 32 F authorises the Collector to direct the landowner or the tenant in possession of the surplus area to deliver possession thereof within the prescribed time.
Section 32 FF provides that no transfer or 608 other disposition of land made after August 21, 1956 shall affect the right of the State Government to the surplus area to which it would be entitled to but for such transfer or disposition.
Section 32 G lays down principles on which compensation in respect of surplus area is to be determined.
Section 23 J deals with disposal of such surplus area.
Section 32 KK already recited above was inserted in the Act by Punjab Act XVI of 1962.
It is clear from these provisions that the objects of the Act are : (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land,to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land.
The principle laid down by the, Act is that no person, whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of society.
In following this principle the Act lays down two corollaries, namely, (1) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equates an individual landowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres.
In our view, it cannot be gainsaid that section 32 KK deals with an estate within the meaning of article 31 A and is concerned with agrarian reform.
The decision in Kochuni 's case(1) cannot, therefore, avail the appellants.
In Pritam Singh vs The State of Punjab (2) , this Court up held the validity of section, 32 FF and held that that section was protected by article 31 A against any challenge under article 19.
If a transfer or a disposition of land can validly be ignored under section 32FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by article 31 A, it is difficult to say why section 32 KK which, as aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article.
The object of enacting section 32 KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard ' acres and preventing thereby distribution of surplus area.
As to (1) (2) ; 609 the pros and cons of such a provision much can be said on either side.
The appellants could have perhaps contended that such a provision amounted to an unreasonable restriction.
But such a contention is debarred by article 31 A an d a challenge to the validity of that Article is no longer possible in view of the recent decision in 1.
C. Golak Nath vs The State of Punjab(1).
The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the above mentioned objects of the Act in general and of section 32 KK in particular.
Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section.
Nor is it possible to say that 'the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner.
The section does not effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them.
The contention as to the validity of section 32 KK, therefore, must fail.
The next contention was that the section infringes article 15 inasmuch as by limiting it only to Hindu undivided families it discriminates against descendants forming such families on the ground of religion only.
It was argued that the customary law in Punjab recognises joint and undivided families amongst non Hindu persons also and since the section affects only the Hindu undivided families, it violates article 15.
In support of this contention passages from Rattigan 's Digest of Customary Law, 14th Ed. pp. 35 to 36 were relied on to show that the institution of undivided family exists amongst certain classes of Muslims in certain districts of Punjab.
Support was also sought from the decisions in Banarsi Das vs Wealth Tax Officer.(2) and Mammad Kevi vs Wealth Tax Officer (3).
The former was concerned with the question whether a Hindu undivided family is embraced within the term 'individuals ' in Entry 56 of List 1 of the Seventh Schedule to the Constitution for purposes of the Wealth Tax Act, 1957.
The latter decision does not touch the question under article 15.
Neither of the two decisions, therefore, can assist.
On the other hand, in the case of Bhagat vs State of Punjab(4) the High Court of Punjab has held that section 32 KK does not create any discrimination on the ground of religion.
In 'the present case, it is not possible to give (1) ; (3) L7Sup.
Cl/67 9 (2) (4) I.L.R. [1963] 16 (1) Punj.
610 any concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question.
We, therefore, refrain from examining that contention.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
While ascertaining the surplus land under the Pepsu Tenancy and Agricultural Lands Act, the excess over 30 acres owned by the appellants, a Hindu undivided family was declared surplus.
In ascertaining the surplus, the authorities ignored the transfer of land by the Karta of the family to an outsider by a registered deed.
The appellants unsuccessfully filed writ petition.
In appeal to this Court, the appellants contended that section 32 KK deprives a coparcener in a Hindu undivided family of his rights of property.
in that it takes away the rights of the descendants of the land owner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under article 19(1) (f) but also discrimination in favour of the head of the family infringing thereby article 14 and that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by article 31 A. HELD:The appeal must fail.
In Pritam Singh vs State of Punjab [(1967) 2 S.C.R. 536] this Court upheld the validity of section 32 FF and held that that section was protected by article 31 A against any challenge under article 19.
If a transfer or a disposition of land can validly be ignored under section 32 FF for the purpose of ascertaining surplus land and acquisition of such surplus land bit he State and that section is protected by article 31 A, it is difficult to say why section 32 KK which, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article.
The object of enacting section 32 KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area.
[608 F H] The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the objects of the Act in general and of section 32 KK in particular.
Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section.
Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner.
The section does not effect any change in the rights of 604 the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them.
[609 B E] The decision of Ranjit Singh vs The State of Punjab ([1965] 1 S.C.R. 82) points out that the fixing of ceiling on lands and provisions relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of article 31 A. [607 H]


judgement:
(Case No. 24 of 1050).
Appeal under article 132 (1) of the Constitution of India, against the judgment and order of the High Court of Judicature at Calcutta in Criminal Miscellaneous Case No. 361 of 1050.
A.C. Gupta and Sudhansu Sekhar Mukherjee (Arun Kumar Dutta and S.N. Mukherjee, with them) for the appellants.
M.C. Setalvad, Attorney General, (B. Sen, with him) for the respondent.
Jan. 25.
The Judgment of Kania C.J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ., was delivered by Kania C.J. Patanjali Sastri and Das JJ.
delivered separate judgments.
KANIA C.J. This is an appeal under article 132 of the Constitution of India from the judgment of the 214 High Court at Calcutta, which rejected the habeas corpus petitions of the appellants.
The detention orders under the , in all cases were served on the appellants on the 26th February, 1950, and the grounds for the detention were served on the 14th March, 1950.
By way of specimen we quote one of them: "You are beings detained in pursuance of a detention order made under sub clause (ii) of clause (a) of subsection (1)of section a of the , (Act IV of 1950), on the following grounds: (1) That you have been assisting the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Government under section 16 of the Indian Criminal Law Amendment Act (Act XIV of 1908), and which has for its object commission of rioting with deadly weapons, robbery, dacoity, arson and murder and possession and use of arms and ammunitions and explosives and thus acting in a manner prejudicial to the maintenance of public order and that it is necessary to prevent you from acting in such manner.
(2) That as a member of the C.P.I. on its Kishan front, you have fomented trouble amongst the peasants of Howrah District and incited them to acts of lawlessness and vio lence: and have thereby acted in a manner prejudicial to the maintenance of public order: That as a worker of the C.P.I. you have tried to foment trouble amongst the tramways men and other workers at Cal cutta and in speeches which you delivered at the University Hall and other places you actually incited them to resort to acts of violence and lawlessness; and have thereby acted in a manner prejudicial to the maintenance of public order.
" On the 16th of July, 1950, the Government of West Bengal served on the appellants "in continuation of the grounds already furnished on the 14th of March, 1950, supplementary grounds" for their detention a specimen of which is in the following terms: 215 "In continuation of the grounds already furnished under order No. 6163 H.S. dated 14th March, 1950, you are being informed of the supplementary grounds for your detention which are as follows: You as the Secretary of the Bengal Chatkar Mazdoor Union, as a member of the Executive Committee of the Federa tion of Mercantile Employees ' Union, as the honorary report er of the 'Khabar ' newspaper (C. P.I. organ) carried on the disruptive programme of the C.P.I.
On the 29th July, 1948, you along with others led a procession at Howrah preaching discontent against Government and have been thus acting in a manner prejudicial to the maintenance of public order. ' ' As in the case of the first grounds, these "supplemen tary grounds" were also served on each appellant separately.
The appellants applied for a Rule of habeas corpus separate ly under section 491 of the Criminal Procedure Code and on the 21st July, 1950, the High Court issued a Rule in each case on the Chief Secretary to the Government of West Ben gal.
A second set of grounds were communicated to the appellants on the 22nd or 23rd of July, 1950.
A specimen of one is in the following terms: "In continuation of the grounds already furnished under order No. 12820 dated 14th July, 1950, you are being in formed of the supplementary grounds for your detention which are as follows: 1.
That in a meeting held at the University Institute on the 19th March, 1947, under the auspices of the Calcutta Tramway Workers ' Union, you held out the threat that any attempt to take out tram cars on the 20th March, 1947, would be inviting disaster and you further said that if the au thorities tried to resume the tram service you and your friends would not hesitate to remove the tram lines and cut the wires.
That on the 13th June, 1948, you presided over a meeting under the auspices of the Students ' Federation (C. P.I. controlled) and delivered speech 28 216 advocating withdrawal of ban on the Communist Party of India and its organ Swadhinta." The High Court after considering the whole matter re jected the petitions of the appellants and the appellants have thereupon come in appeal before us.
In the High Court, it was first contended on behalf of the appellants that the communication of the grounds dated the 14th March was not a compliance with article 22 (5)of the Constitution of India, as those grounds were not commu nicated "as soon as may be.
" The High Court rejected this contention.
Under the circumstances of the case, we agree with the High Court and are unable to hold that in furnish ing the grounds dated the 14th March, 1950, the authorities had failed to act in accordance with the procedure laid down in article 22 (5) of the Constitution.
Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained.
The validity of that Act was being challenged in the High Court and the judgment was expected to be delivered towards the end of February, 1950.
The , was passed by the Parliament of India in the last week of February, 1950, and these orders on all those detenus were served on the 26th of February, 1950.
Having regard to the fact that the Provin cial Government had thus suddenly to deal with a large number of cases on one day, we are unable to accept this contention of the appellants.
On behalf of the appellants it was next urged that there has been a non compliance with the procedure laid down in article 22 (s)of the Constitution and section 7 of the in the manner of supplying grounds to the appellants resulting in not providing to the appel lants the earliest opportunity to make a representation, which they had a right to make.
In the judgment delivered today in Case No. 22 of 1950(1) we have discussed in detail the nature of the two rights conferred under article 22 (5).
We have to apply those principles to the facts of this appeal for its decision.
(11 Supra, P. 167. 217 When the authorities sent their second communication dated 16th July, 1950, to the appellants they described it as "in continuation of the grounds already furnished" and as the "supplementary grounds for your detention".
Relying on the wording of this communication it was argued that these were additional grounds which were furnished to the detenu and therefore the procedure prescribed under article 22 (5) had not been followed.
It was argued that the obligation to communicate grounds "as soon as may be" was absolute.
The grounds for detention must be before the Provincial Government before they could be satisfied about the necessity for making the detention order.
If the grounds before the detaining authorities on the 26th of February, 1950, were only those which they communicated on the 14th of March, they cannot support the detention on additional grounds which were not before them on that day and which they set out in the second communication four months later.
It was also contended that the fact of this communication showed that the authorities were not satisfied on the origi nal grounds and had therefore put forth these supplementary grounds as an afterthought.
In our opinion these arguments cannot be accepted.
A 'description of the contents of the second communication as "supplementary grounds" does not necessarily make them additional or new grounds.
One has to look at the contents to find out whether they are new grounds as explained in our judgment in Case No. 92 of 1950(1).
Examining the contents of the later communication in that way we find that they only furnish details of the second heads of the grounds furnished to the appropriate appellant on 14th March, 1950, in respect of his activities.
We are unable to treat them as new grounds and we agree with the High Court in its conclusion that these are not fresh or new grounds.
We do not think it proper to consider the true effect of the communication only by reading its opening words.
The whole of it must be read and considered togeth er.
The contention that the authorities were not satisfied on the original (1) Supra, p. 167.
218 grounds and therefore put forth this.
communication as the supplemental grounds is again unsound.
The fact that these details were communicated later does not necessarily show that they were not within the knowledge of the authorities when they sent the communication dated the 14th of March.
The contention that this communication of the 16th of July, 1950, was not "as soon as may be", has to be rejected having regard to the principles set out in our judgment in Case No. 22 of 1950.
The facts in each case have to to be taken into consideration and if the detained person contends that this part of the procedure prescribed in article 22 (5) was not complied with, the authorities will have to place materials before the court to refute that contention.
In the present case the High Court has considered that there has been no infringement of this procedural law and we see no reason to come to a different conclusion.
It was next argued that the grounds being vague, they could not be considered as grounds at all and therefore they could not be sufficient "to satisfy" the authorities.
On this point we have nothing to add to what we have stated in our judgment in Case No. 22 of 1950.
We are unable to accept the contention that "vague grounds" stand on the same footing as "irrelevant grounds".
An irrelevant ground has no connection at all with the satisfaction of the Provincial Government which makes the order of detention.
For the reasons stated in that judgment we are also unable to accept the contention that if the grounds are vague and no repre sentation is possible there can be no satisfaction of the authority as required under section 3 of the .
This argument mixes up two objects.
The sufficiency of the grounds, which gives rise to the satis faction of the Provincial Government, is not a matter for examination by the court.
The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the court, but only from that point of view.
We are therefore unable to accept the contention that the quality and characteristic of 219 the grounds should be the same for both tests.
On the ques tion of satisfaction, as has been often stated, one person may be, but another may not be, satisfied on the same grounds.
That aspect however is not for the determination of the court, having regard to the words used in the Act.
The second part of the enquiry is clearly open to the court under article 22 (5).
We are therefore unable to accept the argument that if the grounds are not sufficient or adequate for making the representation the grounds cannot be suffi cient for the subjective satisfaction of the authority.
As regards the grounds furnished by the Government in each case in its first communication, it is sufficient to notice that while the first ground is common to all the appellants, the second ground is different in most cases.
The High Court has considered the case of each appellant in respect of the communication dated the 14th of March, 1950, sent to him.
In their opinion those grounds are not vague.
They have held that the procedural requirement to give the detained person the earliest opportunity to make a represen tation has not been infringed by the communication of the grounds of the 14th of March and by the subsequent communi cation made to the appellants in July.
This point was not seriously pressed before us.
After hearing counsel for the appellant we see no reason to differ from the conclusion of the High Court on this point.
The result is that the appeal fails and is dismissed.
PATANJALI SASTRI J.
This appeal was heard along with Case No. 22 of 1950 (The State of Bombay vs Atma Ram Sridhar Vaidya)(1), as the main question involved was the same.
In the view I have expressed on that question in my judgment delivered today in that case, this appeal cannot succeed and I agree that it should be dismissed.
DAS J.
The same important questions have been raised in this appeal by 100 detenus against an order of a Bench of the Calcutta High Court as were raised (1) Supra, p. 167, 220 by the detenu in the appeal of the State of Bombay in which judgment has just been delivered.
One additional point raised in this appeal was that the fact that a large number of fresh orders of detention were made "overnight" indicates bad faith on the part of the authorities, for the authori ties could not have applied their minds to each individual case.
I am unable to accept this contention as correct.
The authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act of a particular kind it was necessary to make an order of detention against them under the local Acts.
There being doubt as to the validity of the local Acts and the Preven tive Detention Act having been passed in the meantime the question was to make a fresh order under the new Act.
The minds of the authorities having already been made up as to the expediency of making an order of detention against them, an elaborate application of mind, such as is now suggested, does not appear to me to be necessary at all.
I do not think there was any failure of duty on the part of the authorities which will establish bad faith on their part.
In my view, for reasons stated in my judgment in the other appeal, there being no proof of any mala fides on the part of the authori ties, no fundamental rights of the petitioners have been infringed.
In the case of each of the detenus, apart from the common ground, there were one or more specific grounds of detention which are quite sufficient to enable the detenu concerned to make his representation.
Therefore, the ques tion of supplementary particulars does not arise at all.
In my opinion the conclusions arrived at by Roxburgh J. were correct and well founded, and, therefore, this appeal should be dismissed.
Appeal dismissed.

summary:
A large number of persons were detained under the Bengal Criminal Law Amendment Act, 1930.
The validity of this Act was being challenged in the High Court.
Meanwhile, the Preventive Detention Act of 1950 was passed on 26th Febru ary, 1950, and on the same date detention orders under this Act were served on them.
The grounds of detention were served on them on the 14th of March, and on the 16th of July the Government served on them "supplementary grounds" in continuation of the grounds already furnished on the 14th of March.
A second set of grounds were communicated to the appellants on the 22nd or 23rd of July.
They applied to the High Court of Calcutta for writs of habeas corpus contending that the orders of detention were invalid on various grounds.
The High Court rejected these applications and they appealed to the ' Supreme Court.
Held per KANIA C.J., FAZAL ALI, MUKHERJEA and CHANDRASEK HARA AIYAR JJ. (i) that in the particular circumstances of the case, especially in view of the fact that a large number of causes had to be dealt with on the passing of the Preven tive Detention Act in February, 1950, it cannot be said that the grounds were not communicated to the appellants "as soon as nay be" within the meaning of article 22 (5); ' 213 (ii) it cannot be held that the appellants were not given the "earliest opportunity" to make a representation, as required by article 22(5), merely because further details and facts were communicated to the appellants on the 16th July and 22nd July as these later communications did not contain any new or additional grounds (though they were described as "supplementary grounds ") but only furnished details of the heads of grounds furnished on the 14th March; (iii) merely because a ground is vague it cannot be considered that it is no ground at all and therefore cannot be sufficient to ' satisfy '.the authorities; a ' vague ' ground does not stand on the same footing as an irrelevant ground, which can have no connection at all with the satis faction of the Government; (iv) the sufficiency of the grounds for the purposes of satisfaction of the Government is not a matter for examina tion by the court; their sufficiency to give the detained person the earliest opportunity to make a representation can be examined by the court, but only from that point of view.
Held also, per DAS J.
The fact that a large number of fresh orders of detention were made overnight did not neces sarily indicate bad faith on the part of the authorities in the circumstances of these cases as the authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act, it was neces sary to detain them.
The State of Bombay, vs Atma Ram Sridhar Vaidya supra P.167 followed.