judgement:
ON: Criminal Appeal No. 117 of 1961.
27 Appeal from the judgment and order dated March 21, 1960 ', of the Calcutta High Court in Criminal Revision No. 376 of 1957.
A.N. Sinha and P.K. Mukherjee, for the appellant M.C. Setalvad, Sukumar Ghose and B.N. Ghosh, for the respondent.
October 4, 1963.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal on a certificate granted by the Calcutta High Court.
The respondent, the Calcutta Tramways Co. Ltd., is running tramcars in the city of Calcutta.
It gets electricity in bulk from the Calcutta Electric Supply Company and gets the same converted from alternate current to direct current at a high voltage for electric traction for running tram cars of the company.
For this purpose it has an electric transformer house in 129/4 A and 130 D, Cornwallis Street.
The appellant Corporation was of opinion that the premises were being used for a purpose which was dangerous to life, health or property and was likely to create a nuisance.
It therefore ordered the respondent to take out a licence under section 437 (1) (b) of the Calcutta Municipal Act, No. XXXIII of 1951, (hereinafter referred to as the Act) and fixed a fee therefore.
The respondent however refused to take out a licence and consequently it was prosecuted under section 537 of the Act.
The respondent raised a number of points in defence, namely, (i) that the prosecution had not been properly filed; (ii) that the electric transformer house was neither a factory nor a place of trade, nor a place of public resort and therefore section 437 (1) (b) had no application; (iii) that the use of the transformer house for converting high voltage alternate current into low and medium pressure direct current was neither a use which was dangerous to life, health or property nor the same was likely to create a nuisance; and (iv) that as section 437 (1) (b) of the Act vests absolute power in the Corporation to form the opinion required thereunder, it was an unreasonable restriction on the freedom of trade 28 guaranteed under article 19 (1) (g) of the Constitution and therefore that provision is unconstitutional.
The Magistrate held that the complaint was properly filed.
He further held that the transformer house.
was meant for the trade which the respondent was carrying on and therefore was covered by section 437 (1) (b).
He also held that the Corporation had properly formed the opinion that the use of the transformer house was likely to be dangerous to life, health or property and was also likely to create a nuisance.
He further seems to have held that even though section 437 (1) (b)made the opinion of the Corporation conclusive and final, there could be no doubt that the use of the transformer house was dangerous to life, health or property and was likely to create a nuisance.
Finally he seems to have held that section 437 (1) (b) as it stood was not unconstitutional.
He therefore convicted the respondent and sentenced it to a fine of Rs. 100 only.
The respondent then went in revision to the High Court, and the main point urged there was that the provisions of section 437 (1) (b) were unconstitutional.
The High Court held that inasmuch section 437 (1) (b) made the opinion of the Corporation conclusive and not liable to be challenged in any court, the provision was unconstitutional inasmuch as it amounted to an unreasonable restriction on the fundamental right enshrined in article 19 (1) (g).
The High Court further held that the provision with respect to the conclusiveness and non justiciability of the opinion of the Corporation was so embedded in section 437 (1) (b) that it was not severable and therefore it struck down section 437 (1) (b) as a whole as unconstitutional.
Another point which was urged before the High Court was that the fee of Rs. 500 was in the nature of a tax which neither the State Legislature nor the Corporation of Calcutta could levy.
The High Court did not decide this question in view of its decision on the constitutionality of section 437 (1) (b).
The present appeal has been brought to this Court by the appellant on a certificate granted by the High Court.
29 Two main questions therefore that arise for our decision are: (1) whether the provision in section 437 (1) (b) which makes the opinion of the Corporation conclusive and non justiciable in any court amounts to an unreasonable restriction on the right to carry on trade etc.
enshrined in article 19 (1) (g); and (2) even if it be so, whether the provision relating to conclusiveness and non justiciability is severable or not.
Section 437 (1) (b) reads as follows: "(1) No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely, (a) (b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance; (c) The contention on behalf of the appellant is that even though the opinion of the Corporation has been made conclusive and non justiciable, the restriction on trade resulting from the imposition of licence fee on the basis of such conclusiveness and non justiciability is a reasonable restriction in the interest of the general public.
On the other hand it has been urged on behalf of the respondent that by making the opinion of the Corporation in such matters conclusive and non justiciable, the law makes it possible that any opinion of the Corporation, howsoever capricious or unreasonable it may be, must prevail and therefore the provision is an unreasonable restriction on the right to carry on any trade etc.
enshrined in article 19 (1) (g).
Reliance in this connection has been placed on the decision of this Court in Joseph Kuruvilla Vellukunnel vs The Reserve Bank of India.(1) It is urged that the mere fact that the opinion of the Corporation has been made con (1) [1962] Supp.
3 S.C.R. 632 30 clusive and non justiciable would not make the provision unreasonable with respect to carrying on any trade etc.
In that case, section 38 (1) of the Banking Companies Act, provided that notwithstanding anything contained in the , the High Court shall order the winding up of a banking company, if an application for its winding up has been made by the Reserve Bank under section 37, or this section.
It was urged in that case that the provision amounted to an unreasonable restriction on the right to carry on banking as the whole procedure was a denial of the principles of natural justice, chiefly as it denied access to courts, for ordinarily it was for the court to be satisfied after a fair trial that an order of winding up a company was called for and the court was free to.
reach a decision after the company had shown cause and there was also a right of appeal against such decision.
This Court held by a majority that in view of the history of the establishment of the Reserve Bank as a central bank for India, its position as a banker 's bank, its control over banking companies and banking in India, its position as the issuing bank, its power to license banking companies and cancel their licences and numerous other powers, the provision could not be challenged as unreasonable as the Reserve Bank makes an application for winding up only where it is satisfied that it was necessary to wind up a tottering or unsafe banking company in the interest of the depositors.
We are of opinion that the decision in that case must be confined to the very special circumstances of the trade of banking, which is a very sensitive credit organisation and to the very special position the Reserve Bank occupies in the banking world in this country.
That decision cannot be extended as a matter of course to other cases where substantially similar provisions are made in other laws relating to exclusion of the jurisdiction of courts.
In other cases of this kind, the question has to be examined on the merits in each case to see whether the restriction created by conclusiveness and non justiciability is a reasonable restriction in the circumstances of the particular case.
31 We must therefore proceed to consider whether in the circumstances of this case the restriction contained in the parenthetical clause ins.
437 (1) (b) by which the opinion of the Corporation has been made conclusive and non justiciable, can be said to be a reasonable restriction on the right to carry on trade etc.
enshrined in article 19 (1) (g).
In Dr. N.B. Khare vs The State of Delhi,(1) this Court held that a law providing reasonable restrictions on the exercise of the rights conferred by article 19 may contain substantive provisions as well as procedural provisions and the court has to consider the reasonableness of the substantive provisions as well as the procedural part of the law.
The parenthetical clause which makes the 6pinion of the Corporation conclusive and non justiciable is in the nature of a procedural provision and we have to see whether in the circumstances of this case such a procedural provision is reasonable in the interest of the general public.
It has been urged that the Corporation which is an elected body would exercise the power conferred on it under section 437 (1) (b) reasonably and therefore the provision must be considered to be a reasonable provision.
This in our opinion is no answer to the question whether the provision is reasonable or not.
It is of course true that malafide exercise of the power conferred on the Corporation would be struck down on that ground alone; but it is not easy to prove mala fide, and in many cases it may be that the Corporation may act reasonably under the provision but it may equally be that knowing that its opinion is conclusive and non justiciable it may not so act, even though there may be no mala fides.
The vice in the provision is that it makes the opinion of the Corporation, howsoever capricious or arbitrary or howsoever unreasonable on the face of it may be, conclusive and non justiciable.
The conferment of such a power on a municipal body which has the effect of, imposing restrictions on carrying on trade etc.
cannot in our opinion be said to be a reasonable restriction within the meaning of article (1) ; 32 19 (6).
Such a provision puts carrying on trade by those residing within the limits of the municipal Corporation entirely at its mercy, if it chooses to exercise that power capriciously, arbitrarily or unreasonably, though not mala fide.
We therefore agree with the High Court that the conferment of such a power on the Corporation as it stands in the parenthetical clause in section 437 (1),(b) must be held to be an unreasonable restriction on the right to carry on trade etc.
This brings us to the next question whether this parenthetical clause is severable from the rest of the provision.
In this connection it may be observed that in the Calcutta Municipal Act, 1923, which was repealed by the Act, the corresponding provision was contained in section 386 and there was no provision making the opinion of the Corporation conclusive and non justiciable.
In similar provisions of other laws also there is no provision making the opinion of the Corporation conclusive and non justiciable.
In the Madras City Municipal Act, No. IV of 1919, there was a similar provision in section 287 read with Sch.
VI, which provided for licences where a place was used for any purpose in any area which in the opinion of the Commissioner was likely to be dangerous to human life or was likely to create or cause nuisance.
Similarly in the Delhi Municipal Corporation Act, No. 66 of 1957, there is a provision in section 417 (1) which provides that no person shall use or permit to be used any premises for any purpose which in the opinion of the Commissioner was dangerous to life, health or property or likely to create a nuisance.
We have referred to these Acts and the provision in the Calcutta Municipal Act which was the predecessor of the Act to show that it is quite possible to work such a provision without the opinion of the Corporation being made conclusive and non justiciable.
The question therefore is whether this provision contained in the parenthetical clause in section 437 (1) (b) can be severed from the rest of the provision.
33 The principles governing severability were considered by this Court in R.M.D. Chamarbaugwalla vs The Union of India.(1) Seven principles were there laid down in that connection, of which three are material for our purpose, namely " (1) In determining whether the valid parts of ,1.
statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor.
The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. "(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
On the other hand if they are "so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest then it will be upheld notwithstanding that the rest has become unenforceable". "(3) Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
" Learned counsel for the appellant urges that the parenthetical clause in section 437 (1) (b)is severable in view of the first two principles set out above.
On the other hand, learned counsel for the respondent urges that in view of the third principle the parenthetical clause with respect to conclusiveness and non justiciability is not severable.
The High Court has also taken the view that even if the parenthetical clause is distinct and separate from the rest of the provision, the whole provision contained in section 437 (1) (b) constitutes a single scheme intended to be operative (1) [1957] S.C.R. 093 1 SCI/64 3 34 as a whole and therefore section 437 (1) (b) must be struck down.
We are of opinion that the view taken by the High Court is not correct.
We have already pointed out that such a provision did riot exist in the earlier Act relating to this very Corporation and it is no one 's case that without such provision the earlier provision did not work.
The first question therefore is whether it was the intention of the legislature when it passed section 437 (1) (b) that if it knew that the parenthetical clause was invalid it would not have enacted the rest of section 437 (1) (b).
The answer to this question in our opinion can only be one.
In view of the corresponding provision in the Calcutta Municipal Act, 1923, we cannot accept that the Legislature would not have provided for the licensing of premises which in the opinion of the Corporation were used for purposes which were dangerous to life, health or property or were likely to create a nuisance, unless that opinion was to be conclusive and non justiciable.
Similar provision had existed in the earlier law without the provision relating to conclusiveness and non justiciability in respect of using premises for purposes which were dangerous to life health or property or were likely to create a nuisance.
Such a provision in our opinion is a very reasonable provision in the interest of the general public and we do not see why it should be held that the Legislature would not have enacted such a provision unless the opinion of the Corporation was also to become conclusive and non justiciable.
The first proposition out of the three set out above is in our opinion clearly applicable to this case and we have no doubt that the Legislature would have enacted the provision contained in section 437 (1) (b) without the parenthetical clause.
So far as the second principle is concerned, we are of opinion that the valid and invalid provisions in section 437 (1) (b) are not so inextricably mixed that they cannot be separated.
On the other hand we are of opinion that they are distinct and separate 35 and even if we strike out the parenthetical clause as to conclusiveness and non justiciability what remains is in itself a complete code for the particular purpose independent of the invalid part.
Therefore, the remaining provision contained in section 437 (1) (b) can and should be upheld notwithstanding that the parenthetical clause providing for conclusiveness and non justiciability is invalid.
Finally we are of opinion that the third proposition does not apply in the present case.
That proposition applies only where the valid and the invalid provisions even when they are separate and distinct form part of a single scheme which is intended to be operative as a whole;if that is really so, then the whole must go and there is no question of severability.
But making a certain opinion conclusive and non justiciable is a separate matter altogether and it cannot be said that it is so embedded in section 437 (1) (b) as to make conclusiveness and non justiciability of the opinion of the Corporation a part of the scheme for licensing which is provided therein.
As we read section 437 (1) (b) it cannot be said that the whole of it is a part of a single scheme which was intended to be operative as one whole.
This is really another aspect of the first proposition relating to the intention of the Legislature and it seems to us that the scheme in section 437 (1) (b) is not such a single scheme that it must be said that the Legislature must have intended it to be operative as a whole.
We see no difficulty in holding that the provision in the parenthetical clause cannot be said to be part of a single scheme of such a nature that either the whole must be operative or nothing at all.
We are therefore of opinion that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of section 437 (1) (b) and therefore only these words of this section can be struck down and not the whole of the section.
It may be added that the respondent does not rely on any of the remaining principles set out in R.M.D. Chamarbaugwalla 's case.(1) (1) ; 36 The order of the High Court striking down the whole of section 437 (1) (b) must therefore be set aside and only the portion in parenthesis which makes the opinion of the Corporation conclusive and non justiciable struck down as an unreasonable restriction ' on the right to carry on trade etc.
under article 19 (1) (g).
In the view we have taken the judgment of the High Court must be set aside.
It has been urged on behalf of the respondent that as the Magistrate dealt with the matter on the looting that the opinion of the Corporation was conclusive and non justiciable it should be given an opportunity to show before the Magistrate that the opinion of the Corporation that the purpose for which the premises in this case were used was dangerous to life, health or property or was likely to create a nuisance was wrong.
It is also urged that the point whether the impost in this particular case was a fee properly so called or a tax which was taken before the High Court arises in this case and opportunity should be given to the respondent to raise this point before the Magistrate.
In view of this contention we set aside the order of the Magistrate also and remand the case to him for decision according to law, including the above two points.
The parties will be at liberty to adduce such relevant evidence as they think fit to do.
Case remanded.

summary:
The respondent company got its supply of electricity from the Calcutta Electric Supply Co., converted the same from alternate current to direct current in its transformer house for running its tram cars.
The appellant Corporation was of opinion that the use of the premises as transformer house was dangerous to life, health and property and was likely to cause a nuisance and asked the respondent to take a licence under section 437(1)(b) of the Calcutta Municipal Act, 1951.
The respondent refused to do so and was therefore prosecuted under section 537 of the Act.
The trial Magistrate held in favour of the appellant and convicted the respondent and sentenced it to pay a fine of Rs. 100 only.
The respondent moved 26 the High Court in revision.
That Court held that the provision in s, 437(1) (b) which made the opinion the Corporation conclusive and non justiciable unreasonably restricted the fundamental right enshrined in article 19(1) (g) of the Constitution and since that provision was inseverable the entire section was unconstitutional.
The corporation appealed to this Court.
Section 437(1)(b) of the Act provided as follows ' "(1) No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely, (a) (b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance.
" Held: The power conferred on the Corporation by section 437(1)(b) of the Calcutta Municipal Act, 1951, in the parenthetical clause "which opinion shall be conclusive and shall not be challenged in any court" which was in the nature of a procedural provision, was an unreasonable restriction within the meaning of article 19(6) of the Constitution and must be struck down.
The clause makes the opinion of the Corporation, however unreasonable, capricious and arbitrary, conclusive and non justiciable and thereby places trade and business within the municipal limits entirely at the mercy of the Corporation, even though it may not act mala fide.
The decision of this Court in Joseph Kuruvilla Vellukunnel vs Reserve Bank of India, must be confined to the special circumstances of the trade of banking and cannot be extended as a matter of course to other cases involving substantially similar provisions and each case should be judged on its own merits.
Joseph Kuruvilla Vellukunnel vs The Reserve Bank of India, [1962] Supp.
3 S.C.R. 632, held inapplicable.
So judged in the light of the principles laid down by this Court, the parenthetical clause was severable from the rest of the section and, consequently, that clause alone, and not the entire section should be struck down.
The scheme of the section was not so integrated as to indicate that the Legislature wanted it to be operative as a whole.
Dr. N.B. Khare vs State of Delhi, ; and R.M.D. Chamarbaugwalla vs Union of India, [1957] S.C.R. 930, relied on.


judgement:
No. 42 of 1960.
Under Article 32 of the Constitution of India for the enforcement of fundamental rights.
G.S. Pathak, A.P. Chatterji, E. Udayarathnam, Durgabhai Deshmukh, B. Dutta and S.S. Shukla, for the petitioners and the intervener.
47 Ranadeb Chaudhuri, S.P. Varma and P.K. Bose, for respondents Nos. 1 and 2.
C.K. Daphtary, Solicitor General, S.N. Ghorai, S.N. Andley and Rameshwar Nath, For respondent No. 3.
N.C. Chattejee, S.N. Ghorai, S.N. Andley and Rameshwar Nath, for respondent No. 4.
October 7, 1963.
The Judgment of the Court was delivered by SINHA C.J.
This petition under article 32 of the Constitution arises out of the unfortunate difference which has a long history behind it, between two sections of the Calcutta High Court Bar.
The four petitioners in the petition, as originally presented, are advocates duly enrolled in the Calcutta High Court (to be hereinafter referred to as the Court) between the years 1948 and 1952, and claim to be entitled to appear and plead in the said High Court in the exercise of its Original as well as Appellate jurisdictions.
The respondents are; (1) the State of West Bengal, represented by the Chief Secretary, and (2) the Chief Justice of the Court.
It appears that the petitioners generally practice the Court in the exercise of its Original jurisdiction.
In the year 1956 they were called to the English Bar by the Hon 'ble Society of the Middle Temple in the Michaelmas Term.
The petitioners duly notified to the Registrar, Original Side of the Court, to correct the register of advocates practising on the Original side, by adding "Barrister at Law" after their names.
Thus, the petitioners who started as advocates of the Court claim to have become entitled to the additional qualification of a "Barrister" though they had not read for a period of 12 months in the chambers of a practising Barrister in England or a practising Barrister in Calcutta, as required by the rules of the Original side of the Court.
In other words, according to the rules of the Court, there were three classes of advocates practising in the Court; namely, (1) a Barrister who had read for not less than 48 12 months in the chambers of a practising Barrister in England or in Calcutta; (2) a Barrister who had not so read in the chambers of a Barrister; and (3) any person who had obtained a Bachelor 's degree in Law of a recognised university and had obtained the qualification to practise on the Original side of the Court after passing the necessary tests.
The High Court is said to maintain two lists of advocates entitled to appear and plead in the said Court on the Original side, namely, list 1 containing the names of persons enrolled as advocates on the basis of their being Barristers at Law, and list 11 containing the names of other advocates than Barristers at Law.
The petitioners claim that inasmuch as they were persons duly qualified to appear and plead in the said Court in the exercise of its Original jurisdiction and were so enrolled as advocates, it was not necessary for them to further read in the chambers to become advocates of list 1, of the Court, according to the classification set out above.
A portion of the building of the said Court has been allotted for the use of advocates of the Court.
That portion has again been sub divided into two portions; (1) one occupied by the Bar Library Club consisting of advocates.
of list 1 aforesaid, and (2) the other in the occupation of the Bar Association which consists of advocates other than advocates of list 1.
The petitioners, though they have been able to add the word "Barrister" to their names, have not been admitted to the Bar Library Club, which is rather of an exclusive character.
The petitioners thus suffer from a disability, because it is said that litigants and/or solicitors generally prefer to engage an advocate who is a barrister and is a member of the Club.
The petitioners ' application for becoming members of the Club was not entertained by it, and, thus, they are being excluded from that portion of the Court building which is in the exclusive occupation of advocates of list 1 aforesaid.
The petitioners and another advocate made representations to the Hon 'ble the Chief Justice of the Court for having equal advantage and facilities of accommodation meant for the advocates of the Court, that 49 is to say, for that portion of the building which is in the occupation of the Bar Library Club.
In reply to the aforesaid representation, the petitioners were informed by tILe Secretary to the Hon 'ble the Chief Justice that free accommodation had been provided by the Court, in different parts of the Court building, to the different sections of the legal profession, namely, for Barristers, advocates other than Barristers, and attorneys who are entitled to practise in the Court as such, and not for the use of any Club.
But it was further pointed out in that communication from the Secretary to the Chief Justice that as the petitioners had not read in the chambers of a Barrister for one year, they were not entitled to the use of the rooms allotted to Barristers of that class.
The petitioners made further representations to the Hon 'ble the Chief Justice but without any tangible results.
It further appears that a suit had been instituted in the City Civil Court, which was pending in 1960, but was withdrawn Later, with reference to the rights of accommodation similar to that claimed by the petitioners, though they were not parties to that st;it.
The petitioners were informed in February, 1960, by the Secretary to Hon 'ble the Chief Justice that the Chief Justice could not do anything in the matter in view of the pending suit.
The petitioners ' grievance seems to be contained in paragraphs 36 and 37 of their petition, which is to the following effect: "The exclusive use of a large portion of the said space and the reference to or of the Advocates who are members of the said Club as members of the English Bar and/or reference to them as counsel and to the other Advocates as Advocates has generally given an impression that Advocates who are members of the said Club are superior class of Advocates than the Advocates who are members of the Indian Bar.
Since your petitioners are not members of the said Club you, ' petitioners are generally included in the latter category.
1 SCI/64 4 50 Your petitioners state that due to the discrimination exercised and the non availability of equal opportunities to your petitioners as hereinbefore stated your petitioners have been and are being greatly prejudiced in their profession.
The provisions made in the rules for original side of the said Court and for Barristers are ultra vires the Indian Bar Council 's Act and/Or amounts to discrimination.
" Thus, the gist of the petitioners ' complaint is that they have been denied by the State equality before the law.
The petitioners further state that they made demands for justice from the respondents, which they have not yet granted to them; hence the petitioners pray for a writ in the nature of mandamus directing them to allow the petitioners to have the use and benefit of the space in the Court, now occupied by the Bar Library Club, and not to discriminate and/ or differentiate between different sections of the Advocates enrolled in the Court and entitled to practise on the Original side of that Court.
This Court, in due course, directed the rule to issue and also granted liberty to the petitioners to apply for impleading the Bar Library Club as a party respondent.
In response to the notice, the Registrar of the Court put in an affidavit on behalf and under the direction of the second respondent the Chief Justice of the Court.
The affidavit states the relevant facts as follows.
Separate accommodation is provided in the High Court building for (1) Barristers who practise as advocates of the Court on being enrolled under the Original side rules of the Court; (2) for Advocates enrolled as such by the High Court and (3) for the Attorneys of the Court for their legal work in the Court.
Setting out the history of the privilege of occupation of certain rooms in the Court by the different branches of the legal profession, it is stated that free accommodation in the then Supreme Court building was first provided in the year 1825 51 to the Barristers then practising before the Supreme Court, and that privilege has been continued in the High Court building as well.
The Barristers have their association known as the Bar Library Club.
The association of the other advocates is known as the Bar Association, and the association of the attorneys is called the Incorporated Law Society.
Each of the three branches of the profession looks after the accommodation provided by the Court.
The accommodation thus provided by the Court is only for bona fide professional business.
The Barristers, Advocates and Attorneys are all licensees in respect of the accommodation provided for them, which is rent free; the cost structural additions or alterations are borne by the Government; only electrical installations are to be set up and maintained by the licensees at their own cost.
It was further stated that the legal position in regard to the High Court building is and has always been that it has been placed at the disposal of the Hon 'ble the Chief Justice and the Hon 'ble Judges of the Court for the administration of justice, and that the allocation of accommodation inside the Court building is a matter entirely for the Court, subject of course to the condition that no part of the premises should be allowed to be utilised except for bona fide purposes of the Court 's work.
As regards the representation made by the petitioner to the Chief Justice, it is stated that the matter was examined by His Lordship and a minute was recorded, the relevant portion of which is as follows: "But the persons recently called to the English Bar under consolidated regulation No. 43, arc not entitled to practise in this Court as Barristers.
Under the Rules of the Court, a Barrister of England or Northern Ireland becomes qualified to practise in this Court as a Barrister Advocate only after reading for twelve months in the Chambers of a Barrister in London or in Calcutta and upon his enrollment as an Advocate thereafter.
The Advocates who have recently been called to the English Bar under regulation 43 but who have not read in Chambers for a year 52 and have not been enrolled as Advocates on the completion of such reading, are only entitled to practise in the Court, including the Original Side, on the strength of their being Advocates of the Appellate Side, but they are not entitled to practise in Court as Barristers.
Consequently, at the present moment, they are not entitled to use the rooms allotted to Barristers, entitled to practise as such.
" It was also stated in the affidavit that further representations were made to the Hon 'ble the Chief Justice, but it was not considered proper by him that any administrative order should be passed on those representations in view of the pendency of a suit, which in the meantime bad been filed in the City Civil Court at Calcutta, being Title Suit No. 339 of 1958 with leave under Order 1 rule 8 of the Code of.
Civil Procedure for a declaration that all Advocates are entitled to the use of the rooms in the High Court building now used by the Barristers.
It appears that in pursuance of the leave granted by this Court, Shri Dipak Kumar Sen and Shri Mathura Nath Banerjee, joint secretaries of the Bar Library Club of the Court, who were added as respondents 3 and 4, put in an affidavit in answer to the petitioners ' claim, by way of an objection to the maintainability of the Writ Petition.
They state that they were not public servants, and, therefore, no writ lay against them or against any other member of the Bar Library Club, or the Bar Library Club itself, for anything done by them.
They denied the petitioners ' right to be members of the Club or to use the rooms in the possession.
of the Club.
It is further stated that the Bar Library Club is "a private proprietary Association of members governed by its own Rules", and that the action of the said members or of the said Club is not amenable to any writ.
They add that the Hon 'ble the Chief Justice of the Court was also not amenable to any writ for actions complained of; the Hon 'ble the Chief justice had discharged his administrative duties and his actions were not justici 53 able.
Likewise, it was further contended that the 'first respondent, the State of West Bengal, also was similarly not amenable to any writ inasmuch as the said respondent had discharged executive and not judicial functions in allowing certain accommodation in the High Court building to be used by the members of the Bar Library Club.
The history of the establishment of the Club is then set out.
Dealing with the claim of the petitioners, it is stated that by a resolution of the Bar Library Club, passed on June 14, 1957, and confirmed on February 14, 1958, it was decided by the members of the said Club that Advocates of the Calcutta High Court, called to the, Bar under regulation 43, should not be admitted as members of the Bar Library Club.
The statement in the affidavit filed under the directions of the Hon 'ble the Chief Justice, as aforesaid, to the effect that the accommodation was given to Barristers practising in the Calcutta High Court as such was not correct and that the true position was that it was "given to the members of the Bar Library Club".
It was claimed that the accommodation given respectively to the three Associations, namely, the Bar Library Club, the Bar Association and the Incorporated Law Society was used and controlled by the said Associations for the benefit of their respective members and persons who were not members of the respective associations could not claim any legal right to use the accommodation provided for that particular association.
In answer to the contention that the petitioners had been denied equality before the law, it was asserted that the High Court orders regulating the manner in which the different associations shall be provided accommodation was based on reasonable classification of legal practitioners, and that there was no discrimination.
It was also claimed that the Club had complete discretion in he matter of admission of members to it; that no ne had a legal right to claim membership of th Club and that as the petitioners were not members of the Club, they had no legal right to use the accommodation allotted to it And, lastly, it was contended that the petition 54 was bad for non joinder, first, of the Hon 'ble Judges of the High Court, and secondly, of the members of the Bar Library Club, other than those already impleaded, namely, the respondents 3 and 4 aforesaid.
On these pleadings and further affidavits filed on behalf of some of the petitioners and some of the respondents, the matter was placed before a Constitution Bench of this Court, presided over by Gajendragadkar J., on April 16, 1962, and the Court made the following order: "Mr. A V. Viswanatha Sastri for the Petitioners wants to raise the larger question about the constitutionality of the allotment of rooms to different sections of the Bar in the Calcutta High Court.
We think that it is desirable that the petitioners should move the learned Chief Justice of the Calcutta High Court and place before him their case that the allotment of the rooms offends against article 14 of the Constitution and that the Barristers, who constitute the Bar Library Club, cannot be treated as constituting a branch of the profession by themselves.
Since this aspect of the matter was not placed before the learned Chief Justice it is necessary that the petitioners should pray for redress before the learned Chief Justice of the Calcutta High Court in the first instance before moving this Court.
The petition, is, therefore, adjourned for three months to enable the petitioners to move the Chief Justice in that behalf.
" In pursuance of the order of this Court, set out above, the petitioners made a further representation to the Hon 'ble the Chief Justice of the Court on May 11, 1962, stating that all advocates enrolled in the Court and entitled to appear and plead on the Original side stand on the same footing, without any distinction and/or discrimination, and as such are entitled to the use of the accommodation allotted to and occupied by the Bar Library Club in a portion of the Court building.
They also recited the previous 55 history of their representations to the successive Chief Justices of the Court and pointed out that the allotment of separate accommodation for Barristers as such, who cannot practise as such, offended against article 14 of the Constitution.
They, therefore, represented to the Hon 'ble the Chief Justice that as advocates of the Court they may be allowed to use the said space occupied by the Bar Library Club and/or its members, and equal rights and privileges for the purpose of carrying on their ' profession may be accorded to them.
The Bar Association of the Court separately wrote a letter dated May 22, 1962, representing to the Hon 'ble Chief Justice their grievances in similar terms.
To that representation, the Secretary to the Hon 'ble the Chief Justice sent an answer dated June 21, 1962.
In that letter it is stated "that his Lordship thinks that it is eminently desirable that the Bar Library Club and the Bar Association should amalgamate, and that the rooms in the High Court buildings allotted to the Bar Library Club and the Bar Association should no longer remain in their exclusive occupation but should be thrown open to all who are members of the two Associations, on terms and conditions to be mutually agreed upon between the two Associations. . and that nothing will give His Lordship greater pleasure than to see the two Associations merge into one and occupying the rooms allotted to them jointly from July 1, when the Centenary celebration of the Calcutta High Court will begin.
" A copy of the said letter was also forwarded to the petitioners in answer to their representation to the Chief Justice.
Apparently the two wings of the profession, represented by the two organisations aforesaid, could not agree to such terms as were contemplated in the letter aforesaid.
The attempt at amalgamation of the two organisations or to come to any agreed terms between them having failed, the Bar Association moved this Court by making an application for intervention by the members of the Bar Association.
That application for inter 56 vention, filed in July 1962, was allowed by the Court on September 27, 1962.
With the application for intervention the correspondence between the previous Chief Justices and the Association was enclosed.
It is noteworthy that the scope of the representation made by the Association is much wider than the grievance sought to be ventilated by the petitioners in their petition to this Court, as will appear from the Following extract from their representation to the Chief Justice: "Accordingly we on behalf oF the Bar Association humbly represent 'that no separate space may be allotted to the said group of Advocates who call themselves Barristers but who practise in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all Advocates practising in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association.
" In answer to the petitioners ' further affidavits and the application for intervention filed and allowed, as aforesaid, an affidavit was filed in this Court on behalf of respondents 3 and 4 to the effect that accommodation in the Court building had been provided for the use of the three groups of lawyers, namely.
(1) Banister Advocates who are not entitled to act and do not act either on the Original side or the Appellate side, and plead only; (2) Attorneys who only act on the Original side, and (3) Non Barrister Advocates who both act and plead and who belong to the Bar Association.
It is also stated that the space occupied by the Bar Library Club is used exclusively as library and reading room to enable the members of the Club to prepare for the hearing of the cases in which they are engaged; the inner study room of the Club, where silence has to be maintained, is exclusively reserved 57 for members oF the Club for the purposes of study only: in other rooms of the Bar Library Club every member of the legal profession is allowed free access.
A very important statement was also made in the affidavit to the effect that in view of the controversy raised recently about admission of non Barrister Advocates as members of the Bar Library Club, the Club by its resolution adopted on 'March 2, 1962, has altered its rules so as to admit non Barrister Advocates also as members.
We shall have to say something more later with respect to this.
It is further stated that as a result of the amendment aforesaid, of the rules of the Club, there is now no restriction whatever against any member of the legal profession, not being an Attorney, becoming a member of the Club, irrespective of whether or not he is a Barrister, provided that he confines his practice to pleading only.
In pursuance of this amendment, it was further stated that three Advocates who were not Barristers had been recently admitted as members of the Club and that more such applications have been received for admission as members.
And, finally, it is said that the Attorneys who only act on the Original side have been given two rooms in the Court building for their occupation, the Bar Library Club whose membership is confined only to those advocates who only plead but do not act has been allotted four rooms, and the Bar Association whose members are entitled both to act and to plead have been allotted six rooms in the premises of the Court.
Besides those statements in their affidavit, in answer, the respondents 3 and 4 have also raised several points in answer to the petition, as originally made, as also in the intervention petition.
It is contended that the original petitioners or the members of the Bar Association have no fundamental rights which they can enforce by a writ under article 32 of the Constitution, and that, therefore, they have no cause of action.
It is also pointed out that the case tried to be made out by the original petitioners and that 58 made out in the petition for intervention are inconsistent inasmuch as the former claim to be admitted to the use and occupation of the accommodation allotted to the Bar Library Club in preference to the space occupied by the Bar Association whereas the interveners represented to Hon 'ble the Chief Justice that there should be no preferential accommodation given to the Club and that both the wings should become one.
It is also contended that all the wings of the profession being mere licensees of the Court in respect of the accommodation allotted respectively to them, none of the Associations can claim any legal or fundamental rights.
It is also suggested that the allotment of three separate portions of the Court premises, as aforesaid, can be justified on the ground of reasonable classification, having regard to the nature of business transacted by them in the discharge of their respective duties.
It would thus appear that the condition now prevailing at the Bar of the Calcutta High Court vis a vis the different sections is the result of a historical process which began about two hundred years ago, soon after the grant of the Diwani to the East India Company in 1765.
When the Supreme Court was established in Calcutta, most of the work was in the hands of English Barristers so far as pleading was concerned, and so far as acting was concerned it was in the hands of attorneys or firms of Attorneys, again mostly British.
Even before the establishment of the Calcutta High Court in 1862, the Bar Library Club had come into existence in 1825 and the Court had granted the members of the English Bar accommodation within the Court precincts.
After the establishment of the High Court, this arrangement continued and the three sections of the Bar which came to function in the High Court were allotted separate accommodation.
The Bar Library Club continued to have its separate accommodation from that allotted to the Vakils, as they were called until the passing of the Indian Bar Councils Act (XXXVIII of 1926).
It was again the result of British rule in India, which 59 introduced their own legal system in this country, that the member of the English Bar who practised in the High Court on the original side, or even on the appellate side, continued to enjoy higher status in the matter of seniority, so much so that a Vakil on the appellate side of the High Court of even 50 years ' standing would be junior to a Barrister with even one year 's standing.
This naturally led to the agitation for a unified bar with equal rights of audience, according to seniority in standing, irrespective of whether he was a Barrister from England or was a Vakil with a law degree from one of the recognised universities in India.
The result was the Indian Bar Councils Act, (XXXVIII of 1926).
So far as practice on the original side of the Court was concerned, much depended on the goodwill of the Attorneys or firms of Attorneys, who in course of time ceased to be entirely British in character.
Thus, we have now most of the members of the English Bar who are Indians, and so are the Attorneys.
Much of the differences, between an Advocate who was not a Barrister and an Advocate who was a Barrister, and much of the disabilities of the former class in the way of appearance on the original side, have disappeared as a result of the Indian Bar Council Act, 1926, and the Advocates Act (XXV of 1961) which have the benefit of unifying the Bar of India.
In spite of that, vested interests die hard, and this litigation is a result of the conflict between vested interests viz. those who wish to join that group of vested interests, and those who wish to abolish those interests.
The petition, as filed in this Court originally, was based on the grievance that in spite of the fact that those advocates had been called to the English Bar they were not being admitted to the Bar Library Club, and represented an attempt to be admitted to those exclusive rights which were enjoyed by the members of the Club.
On the other hand, the members of the Bar Association, who have intervened later in this controversy in this Court, have attempted to abolish the exclusiveness and to claim those rights for every one who is entitled to be called an Advocate.
60 Successive Chief Justices of the Court, beginning from late Sir Trevor Harris have sympathized with the attempt of the Advocates of all classes to get unified into one organisation on an equal footing, but they rightly pointed out that the desired result could be achieved only by mutual agreement amongst the two sections of Advocates.
The present Chief Justice reiterated in his letter of June 21, 1962, that the Court would be very pleased to see that the two Associations merge into one and occupy the rooms allotted to them jointly with effect from July 1, 1962, which was the date originally fixed for ' the Centenary celebrations of the Court.
The occassion was quite an appropriate one for the consummation of the desired unification of the entire Bar of the Court.
But circumstances did not prove propitious to such a desirable result.
It only shows that we cannot completely wipe out the past and that much of ' the legal system introduced during the British regime must continue for the better or for the worse.
The situation has not been rendered less complex by the continued existence of the third wing of the profession, the Attorneys.
Though opinion has been sharply divided as to the desirability of the continuance of this old institution imported from England, the fact remains that a large section of litigants on the Original side of the Court continues to employ the services of that class, and those who have been cultivating the good will of that class naturally have the advantage on their side.
We have, therefore, to take full notice of the fact that there are two sections of Advocates practising at the Bar of the Court, besides the Attorneys, namely, the members of the Bar Library Club who only plead but do not act, and, secondly the members of the Bar Association who not only plead but act also, though there may be many who only plead but do not act.
And then there are the Attorneys who only act.
It is entirely the lookout of the litigants, through their attorneys, to engage as their advocates, only for pleading, such members of the Bar as they 61 choose.
It is not entirely correct to assert that membership of the Club is a determining factor in being chosen to plead a case.
Litigants are naturally interested in the best results in their litigation and must be presumed to act in the best interests of their cause.
And, therefore, what has happened in the Bombay High Court during the last 50 years and more, may also happen in the Court, if the Bar Association is able to throw up advocates of the right caliber.
Viewing the whole case from the point of view of the litigant public and the practising lawyers themselves, we think that the best interests of the Court will be served, and we are only interested in the best interest of the Court itself, by recognising the necessity for the three categories of legal practitioners in the Court, namely, (1) those who only plead, (2) those who both plead and act, and (3) those who only act.
With that end in view, and at the instance of the Court, the members of the Bar Library Club recognised the need for amending their rules so as to admit such advocates as would only plead irrespective of the question whether or not they were Barristers.
Accordingly, they intimated to the Court that they had made necessary amendments in their rules. 'the principal amendment is in rule 1, which is to this effect: "1. Rule (1) shall be deleted and the following shall be substituted in its place: 1.
The Bar Library Club shall consist of: (a) Barristers of England or Ireland, or members of the Faculty of Advocates in Scotland after passing the examination or examinations prescribed by the authorities in England or Ireland or Scotland, as the case may be, who arc enrolled Advocates of the Calcutta High Court: (b) Other Advocates of the Calcutta High Court, who are entitled to practise on the Original side of the Calcutta High 62 Court under the rules lot the time being as the Committee of the Club may from time to time determine as hereinafter referred to." In Rule 25, the following consequential changes had been made: "In rule 25 after the words 'purposes of the Club ' add the words: " 'and determine from time to time having regard the accommodation in the club the number of the Advocates mentioned in Rule 1 (b) herein to be admitted as members of the Club '.
" It was pointed out on behalf of the petitioners and the interveners that the Club has, even by amending rule 1 read with additions to rule 25, quoted above, reserved to itself the right to limit the membership.
The learned Solicitor General, on behalf of the Bar Library Club, very appropriately intimated to us that the additions to rule 25, objected to on behalf of the petitioners, shall be withdrawn so that the petitioners may be assured that there will be no discrimination exercised in the matter of admission and that any application for admission shall be dealt with on its merits.
Of course, only those Advocates who undertake not to act shall be eligible for admission as members of the Club.
This arrangement, agreed to by the respondents 3 and 4 representing their Club, is a great improvement upon the position as it was when this Court was moved, and we are satisfied that nothing better could have been achieved as a result of these proceedings.
It will be noticed that we have not dealt with this case in the legalistic way in which it was sought to be presented on either side.
We have been chiefly guided by considerations of 'public good ', that is to say, that the Court should be assured of efficient and willing assistance from the Bar.
It is only to be hoped that this forward step is a precursor of further improvements in the relations between the 63 different sections of the Bar so that they may grow into a unified bar with all the best traditions which it has inherited from the past and which it is its duty to uphold in the years to come to the lasting credit of the legal profession and to the lasting benefit of all concerned with law and litigation.
In view of what we have said, the final position which emerges is this.
There are three sections of the Bar in the Court, viz., (1) those who only plead, (2) those who both plead and act and (3) those who only act.
This classification in our opinion is reasonable taking into account the past history to which we have already referred.
Grant of separate accommodation therefore to these three sections of the Bar cannot amount to denial of equality before the law.
The Bar Library Club has already agreed before us to change its rules so that the Club conforms exactly to the first section;and admission to it will be governed by rules which are common to all lawyers who want only to plead;there is therefore no reason to interfere with accommodation provided by the Court to the three sections of the Bar.
We have also no doubt that the Chief Justice will see that the undertaking given by the Bar Library Club will be carried out.
We may add that in case the undertaking is not carried out, the Chief Justice will see that necessary and appropriate rules are framed which will carry out the purpose for which the accommodation is placed at the disposal of the three sections of the Bar and the same are implemented so that there is no denial of equality before the law and accommodation is used for the three sections we have indicated above.
In this view of the matter, the petition fails and is hereby dismissed.
We leave the parties to bear their own costs.
Petition dismissed.

dataset_name: IN-Abs

summary:
The High Court of Calcutta had separately allotted rooms in the Court premises to the Barristers for use and occupation for their Bar Library Club, to Advocates other than Barristers for their Bar Association and to the Attorneys for their Incorporated Law Society.
The petitioners, who were Advocates of the Calcutta High Court and generally practiced on its Original Side and were called to the English Bar, had not read for a period of 12 months in the Chambers of a practising Barrister in England or in Calcutta as required by the rules of the Original bide but applied for becoming members of the Bar Library Club and their applications were refused.
Their representation to the Chief Justice was also refused.
On their application under article 32 the Constitution this Court issued a Rule against the State of West Bengal and the Chief Justice.
The Joint Secretaries of the Bar Library Club were later on added as parties and the Bar Association appeared as intervener.
The result of this intervention of the Bar Association was that the petition as it originally stood was broadend into a claim to abolish the exclusiveness of the Bar Library Club in favour of all other Advocates as was indicated in the representation made by the Association to the Chief Justice of Calcutta High Court which to the following effect : 46 We on behalf of the Bar Association humbly represent that no separate space may be allotted to the said group of advocates who call themselves Barristers but who practice in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all the Advocates practicing in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association.
" While the matter was pending in this Court, the Bar Library Club altered its rules so as to admit all such Advocates as would undertake only to plead and not to act and the Attorney General, appearing on its behalf, gave the assurance that there would be no discrimination, all Advocates who undertook not to act would be eligible for admission to the club.
This position was agreed to by the Joint Secretaries representing the Bar Library Club.
field: This altered position meant a great improvement on the existing one and no better could be expected in the presents proceeding.
Regard being had to the historical growth of the three sections of the Bar in the Calcutta High Court, namely, (1) those who only pleaded, (2) those who both pleaded and acted, and (3) those who only acted, it could not be said that classification was unreasonable or that the grant of separate accommodation to them amounted to a denial of equality before the law.
Since the Bar Library Club had agreed to change its rules so as to conform exactly to the first classification, admission to it would be governed by rules which would be common to all lawyers who wanted to plead only and, consequently, there was no reason to interfere with the separate grant of accommodation by the court to the three sections.
If the Bar Library Club failed to carry out the undertaking given by it would be the duty of the Chief Justice to frame such rules as were necessary to carry out the purpose for which the accommodation was granted and to see that there was no violation of equality.


judgement:
il Appeals Nos. 62 and 63 of 1953.
Appeals under Article 132 (1) of the Constitution of India from the Judgment and Order dated 22nd December, 1952, of the High Court of Judicature at Patna (Ramaswami and Sarjoo Prosad JJ.) in Miscellaneous Judicial Cases Nos. 238 and 242 of 1952.
P. R. Das (J. C. Sinha and L. K. Chaudhry, with him) for the appellant in both the appeals.
M. C. Setalvad, Attorney General for India (L. N.Sinha and Bajrang Sahai, with him) for the respondents in both the appeals.
April 17.
The Judgment of the Court was delivered by section R. DAB J.
721 DAS J.
This judgment disposes of Civil Appeals No. 62 of 1953 and No. 63 of 1953 which have been heard together.
The Motipur Zamindari Company Ltd., the appellant in Civil Appeal No. 6.) of 1953, was incorporated in 1932 under the Indian Companies Act and has its registered office in Bengal.
It supplies sugar cane to a sister concern named Motipur Sugar Factory Ltd. Raja Jankinath Roy and Narendra Nath Roy and Co., Ltd., the appellant in C. A. No. 63 of 1953, was incorporated in 1933 under the Indian Companies Act and also has its registered office in Bengal.
This company owns Zamindari Properties in Purnea in the State of Bihar as well as in Malda in the State of West Bengal.
It carries on business, amongst others, as banker and financier.
On the 30th December, 1949, a bill entitled the Bihar Land Reforms Bill was passed by the Bihar Legislature and having been reserved for the consideration of the President received his assent on the 11th September, 1950.
The Act so passed and assented to was published in the Bihar Gazette on the 25th September, 1950, and was brought into force on the same day by a notification made by the State Government in exercise of powers conferred on it by section 1(3) of the Act.
Many of the proprietors and tenure holders of Zamindari estates took proceedings against the State of Bihar for appropriate orders restraining the State Government from taking over the estates under the provisions of the Act which they claimed to be beyond the legislative competency of the Bihar Legislature and otherwise void.
On the 12th March, 1951, a Special Bench of the Patna High Court held that the Act was unconstitutional on account of its contravention of article 14 of the Constitution.
The State of Bihar appealed to this Court.
Pending that appeal, the provisional Parliament passed the Constitution (First Amendment) Act, 1951.
The respondents in the main appeal took proceedings in this Court, contending that the Act amending the Constitution was invalid.
This 722 Court however, on 5th October, 1951, upheld the validity of the amending Act.
On 6th November, ' 1951, notifications were issued under section3 of the Bihar Act declaring that certain Touzies belonging to the appellants specified in the notification had passed to and become vested in the State.
Both the appellants made separate applications to the Patna High Court under article 226 of the Constitution praying for mandamus or suitable direction or order restraining the respondent from taking possession of their respective estates or tenures by virtue of the said notifications and for other ancillary reliefs.
The appeals filed by the State of Bihar against the order of the Special Bench declaring the Act to be void came up for hearing before this Court and this Court upheld the validity of the Act, except as to a few provisions mentioned in the majority judgment which were hold to be severable.
Thereafter, the two applications made by the two appellants under article 226 before the Patna High Court came up for hearing and were dismissed by a Bench of that Court on the 22nd December, 1952.
The present appeals have been filed with leave of the Patna High Court against the said dismissal.
The question raised before the High Court was whether the Act was, on its true construction, intended to apply to Zamindari estates of companies incorporated under the Indian Companies Act.
In support of the appellants ' contention that it was not, it was urged that the Bihar Legislature had no authority to legislate with respect to trading corporations or non trading corporations whose objects were not confined, to one State.
Reference was made to entries 43, 44 and 45 of List I to show that it was Parliament alone which was authorized to make law with respect to matters set forth in those entries.
The contention was that the Bihar Legislature in enacting the Act invaded the Union field and so the Act was invalid.
This argument was sought to be reinforced by reference to the provisions of the Act and the winding up provisions of the Companies Act.
The Patna High 723 Court overruled this contention and Mr.P.R.Das appearing in support of these appeals has not challenged this part of the decision of the Patna High Court.
The main point urged by Mr. P. R. Das is that even if the Bihar Legislature could make a law for acquiring Zamindari estates of incorporated companies it did not, by the Act, in fact do so.
Section 3 authorises the State Government to declare by notification that the estates or tenures of a proprietor or tenure holder have passed to and become vested in the State.
It will be recalled that it was under this section that the State Government on the 6th November, 1951, issued the notifications with respect to the estates of the appellants situate within the State.
Mr. P. R. Das 's principal contention is that the appellant companies do not come within the terms, " proprietor" or " tenure holder" as defined by the Act and consequently no part of their estates were intended 'to be vested or did in fact vest in the State.
" Proprietor" is defined by section 2(o) as meaning a person holding in trust or owning for his own benefit an estate or a part of an state and includes the heirs and successors in interest of a proprietor and, where a proprietor is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator.
Tenure holder is defined by section 2 (r) as meaning a person who has acquired from a proprietor or from any tenure holder a right to hold land etc.
The argument is that the word "person" in the two definitions referred to above does not, in the context of the Act, include a company.
It is conceded that under section 4(40) of the Bihar General Clauses Act the word "person" would ordinarily include a company, but it is urged by Mr. P.R. Das that the definitions given in that section apply only where there is nothing repugnant in the subject or context.
His contention is that the definition of "proprietor" and "tenureholder" indicates that a company which owns Zamindaries is not covered by that definition.
We are unable to accept this contention.
It is not disputed 94 724 that a company can own an estate or a part of an estate and, indeed, the appellant companies are fighting these appeals only to protect the estates they own.
Therefore, they come within the first part of the definition.
The definition after stating what the word means proceeds to state what else the definition would include under certain specified circumstances, namely, the heirs and successor in interest etc.
The word "heir" certainly is inappropriate with regard to a company, but there is nothing inappropriate in the company having a successor in interest.
It is pointed out that there is no provision in the definition of proprietor to include the directors, managing agents and, in case of winding up, the liquidator of the company.
This circumstance does not appear to us to be a cogent reason for holding that the word "proprietor" as defined does not cover a company.
It is to be noted that the agent or, in case of insolvency, the official assignee or receiver of an individual proprietor are also not included in the definition.
Reference to proprietor who is a minor or of unsound mind or an idiot and his guardian etc.
, was obviously necessary because those proprietors suffer from legal disabilities.
Mr. P. R. Das refers us to various sections and rules framed under section 43 of the Act to show that ' only natural persons were intended to be affected by the Act, because, ha urges, the company is not competent to do the acts therein referred to.
It is not ,disputed by Mr. P. R. Das that there is no difficulty on the part of an incorporated company to do all these acts by its directors or managing agents or other officers empowered in that behalf by its articles of association, but his contention is that the provisions of the Indian Companies Act should not be imported into the consideration of the provisions of his Act.
He relies primarily on the case of Pharmaceutical Society vs The London and Provincial Supply Association, Limited(1) whore it was held,that a corporation (1) 725 did not come within the word "person" used in the Pharmacy Act, 1868 (31 & 32 Vic., Chapter 121).
Reliance was placed upon the observations of Lord Selborne L.C. at page 863.
The preamble to that Act recited, amongst other things, that it was "expedient for the safety of the public that persons keeping open shop for the retailing, dispensing or compound ing of poisons, and persons known as chemists and druggists should possess a competent practical knowledge of their business.
" This clearly comtemplated persons skilled in matters pharmaceutical and not impersonal corporate bodies which would know nothing about that particular business.
Indeed, Lord Blackburn in his speech in the House of Lords in the Pharmaceutical Society 's case(1) referred to this preamble and observed at page 870: "Stopping there, it is quite plain.
that those who used that language were not thinking of corporations.
A corporation may in one ' sense, for all substantial purposes of protecting the public, possess a competent knowledge of its business,, if it employs competent directors, managers, and so forth.
But it cannot possibly have a competent knowledge in itself.
The metaphysical entity, the legal 'person ', the corporation, cannot possibly have a competent knowledge.
Nor I think, can a corporation be supposed to be a 'person known as a chemist and druggist '.
" His Lordship then referred to the provisions of sections 1 and 15 of that Act and came to the conclusion that the word "person" in that Act.
meant a natural person.
The effect of 'that case is that whether the word "Person" in a statute can be treated as including a corporation must depend on a consideraiion of the object of the statute and of the enactments passed with a view to carry that object into effect.
In view of the object of that Act as recited in the preamble there could be no manner of doubt that the word "person" in that Act could not possibly, include a corporation.
Lord Selborne towards the end of page 863 indicated, by reference to the 18th (1) (188o) L.R. 5 App.
857 726 section, that the legislature by the word "person" referred only to individual persons as it was clearly repugnant to the subject of that Act to include a corporation within the word "person" as used in 'that Act.
Mr. P. R. Das urges that the judgment of Lord Selborne was founded on the fact that the corporation could not come within the term "person" on the ground that it could not make an application in writing signed by it.
From this Mr. P. R. Das urges that the necessary implication of this part of the judgment of Lord Selborne is that it was not permissible to take the provisions of the Companies Act into consideration for construing another Act.
If that were the implication of the speech of Lord Selborne, with respect, we are unable to accept the same.
Indeed, one cannot think of a company unless one has in view the provisions of the Companies Act, for a company is the creature of the Companies Act.
Its existence, powers and rights are all regulated by that Act.
The trend of the, speeches of the noble Lords in the case relied on by Mr. P. R. Das is that the object of the particular Act under consideration was entirely repugnant to the word "corporation" being included within the term "Person" as used in that Act, and as we apprehend it, that decision lays down nothing beyond that.
In support of his contention that a company owning an estate was never intended to be affected by the Act, Mr.P. R. Das draws our attention to the winding up sections of the Indian Companies Act and urges that it is not possible to fit in the scheme of winding up into the scheme of the Bihar Act.
If the Zamindari assets of the company are taken over and compensation is paid by non transferable bonds it will, he contends, be impossible, to apply the law of winding up in case the company goes into liquidation.
There will, according to him, be conflict of jurisdiction between the Court where the winding up is proceeding, which may conceivably be in another State, land the Bihar Government and its officers. 'We see no force in this contention.
Upon a 727 notification being issued under section 3, the Zamindari estate will vest in the State and the company will cease to have any interest in it.
Its only right will be to receive compensation.
In case of winding up the liquidator will have to pursue the remedy provided by this Act.
He or the company will be in no worse position than the official assignee or official receiver of an individual proprietor who may happen to become insolvent in another State.
Finally, Mr. P. R. Das strongly relies on section 41 of the Act and contends that that section would be wholly inapplicable to a company and that circumstance by itself would indicate that the Bihar Legislature did not intend that a company owning an estate should be governed by this Act.
A corporation, it is true, cannot be made liable for treason, felony or any misdemeanour involving personal violence or for any offence for which the only penalty is.
imprisonment or corporal punishment.
(Halsbury, 2nd Edition, Volume IX, article 5, p. 14).
Section 41 does not prescribe punishment by imprisonment only.
Mr. P. R. Das suggests that the infliction of imprisonment or fine would depend upon the gravity of the offence and not on the character of the offender.
This argument, however, would seem to run counter to the opinion of Lord Blackburn set forth at pages 869 870 of the report of the very case relied on by Mr. P. R. Das.
The recent cases of Director of Public Prosecutions vs Kent and Sussex Contractors Limited(1) and Rex vs I.C.B. Haulage, Limited and Another(2) seem to indicate that a corporation may be convicted even of an offence requiring an act of will or a state of mind.
Apart, however, from the consideration whether a company may be held guilty of wilful failure or neglect, as to which we need not express any definite opinion on this occasion, there can be no difficulty in applying the provisions of section 41 to the officers or agents of the company.
On a notification under section 3(1) being published the estate vests in the State.
Section 4 sets out the (1) [1944] I.K.B. 14 6.
(2) [1944] I.K.B. 551.
728 consequences of such vesting.
Clause (g) of that section empowers the Collector by written order served in the prescribed manner to require any person in possession of.
such an estate or tenure or any part thereof to give up possession of the same by a date specified in the order and to take such steps or use such force as may be necessary for securing compliance with the said order.
If any officer or agent of the company in the possession of the estate wilfully fails or ignores to comply with such lawful order, then surely he can be proceeded against under section 41.
Likewise, under section 40, the.
officers therein mentioned are authorized at any time before or after the date of vesting by a written order served in the prescribed manner to require a proprietor or tenureholder or any other person in possession of such an estate or tenure or any agents or employees of such proprietor, tenure holder or other person to produce at a time and place specified in the order such documents, papers or registers or to furnish such informa tion relating to such estate or tenure as such officer may from time to time require for any of the purposes of this Act.
A wilful failure or neglect to comply with such order would clearly bring the recalcitrant officer or agent of the company within the penalty provided under section 41.
Section 41 therefore, does not necessarily preclude the application of the Act to incorporated companies.
It cannot be denied that a company is competent to own and hold property.
The whole.
object of the impugned Act is thus stated by Mahajan J. in the State of Bihar vs Kameshwar Singh(1): " Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principle on which the Constitution of India is based.
The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the (1) at p. 941.
729 material resources which come in the hands of the State as to subserve the common good as best as possible.
In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised.
" In view of this, purpose there is no reason to differentiate between an individual proprietor and a company which owns estates or tenures.
Indeed, there is not only nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company owning estate within the definition of "proprietor", such inclusion is necessary in order to give full effect to the very object of the Act.
In Appeal No. 63 of 1953 Mr. P. R. Das raises an additional point, namely, that the appellant company in that appeal owns estates which are situate in Purnea in the district of Bihar and in Malda in the district of West Bengal but it has to pay a single Government revenue at Purnea.
It is further alleged that the appellant company has let out portions of the estates on Patni leases, each of the Patnis comprising land situate both within and outside Bihar.
The acquisition of that part of the estate, which is situate in Bihar has made it difficult, if not impossible, for the appellant company to pay its revenue or recover its rent.
That part of the estate which is in Bihar cannot be severed from the rest and therefore the notification covering only the portion of the estate situate in Bihar is invalid.
We do not think there is any substance in this argument.
As stated by the High Court it is a simple case of apportionment of the revenue and also apportionment of the rent.
The necessity for such apportionment cannot possibly affect the validity of the notification.
For reasons stated above these appeals fail and must be dismissed with costs.
Appeals dismissed.

summary:
The word " person " in the definitions of " proprietor "" and tenure holder " contained in a. 2 (o) and section 2 (r) respectively of the Bihar Land Reforms Act, 1950, includes companies incorporated under the Indian Companies Act, 1913.
There is nothing repugnant in the subject or context of the Act to prevent the inclusion of a company within the terms proprietor " and " tenure holder ".
On the contrary such inclusion is necessary in order to give full effect to the object of the Act.
Pharmaceutical Society vs The London and Provincial Supply Association, Limited distinguished.