judgement:
Appeal No. 2431 of 1966.
Appeal by special leave from the Award of the Industrial Tribunal, Gujarat in Reference (IT) NO. 88 of 1962.
176 A. section R. Chari, M. K. Ramamurthi, Shyamala Pappu, Vineet Kumar, P. section Khera and Bindra Thakur, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
This appeal, by special leave, is directed against an Award of the Industrial Tribunal, Gujarat, in an industrial dispute referred to it by the Government of Gujarat at the instance of the appellants who are 466 workmen of the Gujarat Electricity Board, Baroda (hereinafter referred to as "the Board") represented by the Saurashtra Vidyut Kamdar Sangh (hereinafter referred to as "the Sangh").
The dispute referred to related to two matters.
One was the demand made in respect of rates of dearness allowance to be paid to the workmen.
The second demand was that those of the workmen, to whom Contributory Provident Fund or Employees Provident Fund scheme was appli cable, should be granted gratuity equal to 15 days wages for every year of service in addition to the provident fund benefits, while those workmen, who were entitled to pension according to the pensionary scheme in force, should have their pension calculated after adding 50 per cent of the dearness allowance to the basic pay.
The facts needed to explain the second demand may first be stated.
The supply of electricity in the State of Saurashtra, prior to the year 1954, was being carried out departmentally by the Government of Saurashtra and the workmen employed in the power houses were, consequently, Government servants.
On 1st July, 1954, a Saurashtra Electricity Board was constituted to run the power houses and the employees of the Electricity Department of the Government were sent to work with the Saurashtra Electricity Board on deputation.
On 1st November, 1956, Saurashtra became a part of the Bombay State, hereafter the Saurashtra Electricity Board was dissolved with effect from 1st April, 1957 and its assets, liabilities, and employees were taken over by the Bombay State Electricity Board.
The employees, who were originally in the service of the Saurashtra State Government were entitled to the pensionary scheme of the Saurashtra Government, while the Bombay State Electricity Board had a Provident Fund Scheme.
The Saurashtra State Government servants, on being taken over by the Bombay State Electricity Board, were given the option of either continuing in their pensionary scheme, or of joining the Provident Fund Scheme of the Bombay State Electricity Board in which case the gratuity already accrued to them and the equivalent of pensionary benefits were credited to their accounts.
Some of the employees opted for the Provident Fund Scheme, while others continued under the pensionary 177 scheme.
Thereafter, on 1st May, '1960, the State of Bombay was bifurcated and a separate State of Gujarat was constituted; and, with effect from the same date, the Board came into existence.
The Board ;took over all the electricity, power houses ,and electricity schemes in the State of Gujarat from the Bombay State Electricity Board, including the workmen who are the appellants in this appeal.
The assets and liabilities of the Bombay State Electricity Board were divided between the Board, and the Maharashtra Electricity Board which was constituted for the State of Maharashtra which came into existence on bifurcation of the Bombay State.
The Board continued both the Pensionary Scheme as well as the Provident Fund Scheme for the employees in the manner they were in force when the employees were working under the Bombay State Electricity Board.
The employees, who were originally servants of the State Government, had ceased to be government servants with effect from 1st April, 1957 and later on 1st May 1960, became the employees of the Board, so that they were no longer entitled to the rights which the State Government might subsequently grant in respect of pension under the rules applicable to the government servants.
The result was that even improvements granted in the pensionary scheme by the State Government to its employees did not enure to the benefit of the appellants.
In these circumstances, the Sangh put forward the claim that the pension of employees, who were governed by the pensionary scheme, should be calculated not on the basis of basic salary, but after adding 50 per cent of the dearness allowance to it.
In respect of employees, who were governed by the Provident Fund Scheme, a second benefit of gratuity was claimed.
The demand for dearness allowance was that it should be linked with the scale prescribed for the Ahmedabad Millowners ' Association.
The workmen demanded that employees, drawing up to Rs. 50 as basic pay, should be given dearness allowance at the scale applicable to Ahmedabad Millowners ' Association, those drawing between Rs. 50 to Rs. 100, D.A. at that scale plus Rs. 5, and those drawing above Rs. 100, dearness allowance at that scale plus Rs. 10.
This demand was put forward before the Board originally on behalf of all the 9,208 employees of Class III and Class TV and some employees of Class I and Class II whose salary was below Rs. 300 per mensem, who were working either in the Gujarat Region or the Saurashtra Region.
These employees were represented by seven different Unions, one of which was the Sangh who represented about 3,000 employees working in the Saurashtra region.
The six Unions representing the employees working in the Gujarat region amicably settled these disputes with the Board by entering into agreements.
The 17 8 Board gave some increase in dearness allowance retrospectively with effect from 1st October, 1961, while the second demand relating to gratuity and calculation of pension after adding 50 per cent of the dearness allowance was given up.
The Sangh declined to accept this settlement, whereupon the Board offered terms in accordance with the settlement to all the employees in the Saurashtra region individually.
Out of the total of 3,042 in the Saurashtra region, 622 signed General Standing Order 56, under which the Board had made its offer to individual employees ,on the basis of the settlements arrived at before the reference to conciliation.
1152 signed before the date of the failure report by the Conciliation Officer; 2058 signed before the reference and 518 signed after the reference.
Thus, the dispute, after the reference, became confined to the remaining 466 employees who did not, on individual basis, accept the offer made by the Board.
The Tribunal considered this dispute relating to the dearness allowance raised by these employees through the Sangh as also the other demand relating to gratuity and calculation of pension, and, by the impugned Award, rejected these demands.
Consequently, the workmen have come up in this appeal through the Sangh.
The main ground for rejecting these demands, on which the Award is based, is that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if these demands are acceded to Before the Tribunal, this aspect of the case was sought to be met by the Sangh by urging that the total wage packet, including the dearness allowance claimed by them in the demand, would only satisfy the requirement of a minimum wage, so that the Board 's capacity to pay was irrelevant; but the award shows that the Sangh completely failed to provide any material to prove that the total wages, including the dearness allowance as offered by the Board on the basis of the settlements, are less than the minimum wage.
This Court, in Hindustan Antibiotics Ltd. vs The Workmen & Others(1), recognised the three concepts of minimum wage, fair wage, and living wage by quoting the following passage from the decision in The Hindustan Times Ltd. vs Their Workmen(2), and stating that it briefly and neatly defined the three concepts : "In trying to keep true to the two points of social philosophy and economic necessities which vie for consideration, industrial adjudication has set to itself certain standards in the matter of wage fixation.
At the bottom of the ladder, there is the minimum basic (1) (2) [1964] 1 S.C.R. 234. 179 wage which the employer of any industrial labour must pay in order to be allowed to continue an industry.
Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is "adequate to cover the normal needs of the average employee regarded as a human being in a civilised society".
Above the fair wage is the "living wage" a wage 'which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well being, enough to enable him to qualify to discharge his duties as a citizen." These decisions make it clear that, if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry; and, in such a case, the capacity of the industry to pay is irrelevant.
However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor, and the burden above the minimum wage can only be justifiably imposed if the industry is capable of meeting that extra burden.
On this principle, in the present case, if the appellants had succeeded in showing that they were not receiving even the minimum wage on the basis of the offer made by the Board in line with the settlements arrived at with the other Unions and individual workmen members of the Sangh, there would have been full justification for granting additional dearness allowance, ignoring the inability of the Board to meet that extra expenditure.
The finding of the Tribunal, however, is that the demand of the workmen is not confined to minimum wage, but that, as a result of the demand, the wages will be above the minimum wage.
Learned counsel appearing for the appellants before us did not try to contend that the wages which were being paid by the Board, were lower than the minimum wage, so that the claim for the additional dearness allowance cannot be considered without taking into account the capacity of the Board to meet the expenditure.
So far as the question of capacity of the board to pay is concerned, there is a clear finding by the Tribunal that the Board is running at heavy losses, so that it is not in a position to meet the extra expenditure of about Rs. 49 lakhs a year which will be involved if the dearness allowance is fixed as claimed by the Sangh.
The Tribunal has found that the Board, when constituted on 1st May, 1960, inherited an accumulated deficit 'of over Rs. 2 crores from the Bombay State Electricity Board.
In its own working, the Board sustained a loss of over Rs. 29 lakhs between 1st May, 1960 and 31st March, 1961, and in 180 the two succeeding years 1961 62 and 1962 63, the losses in curred were in the region of Rs. 39 lakhs and Rs. 41 lakhs.
The Tribunal, thus, held that the total loss was to the tune of Rs. 31 millions; and since the Board had undertaken a further liability of over Rs. 6.75 lakhs a year under the settlements and the offer to individual workmen, it could not possibly undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance.
The Tribunal was also of the opinion that, considering this financial condition of the Board, there was no justification for introducing a gratuity scheme for workmen governed by the Provident Fund Rules, nor was there any justification for calculation of pension on the basis of adding 50 per cent of the dearness allowance to the basic pay.
Mr. Chari, counsel for the appellants, challenged this decision of the Tribunal on two grounds.
The first ground was that the Tribunal was wrong in judging the capacity of the Board to pay after taking into account the deficit of over Rs. 2 crores which it had inherited from the Bombay State Electricity Board; and the second ground was that the financial capacity of the Board should be judged only on the basis of its commercial undertakings, excluding the activities of the Board which were in the nature of national duties.
So far as the first point is concerned, we think that there is some force in the submission made by learned counsel.
The deficit inherited by the Board from its predecessor cannot be treated as are venue loss which will have bearing on its paying capacity.
Such inherited deficit should really have been treated as capital loss; but even this loss cannot be completely ignored, because the paying capacity of an employer has to take into account even capital losses.
However, even if this accumulated deficit of over Rs. 2 crores is ignored, it is clear that, during the three years after its formation, the Board itself incurred heavy losses which totaled to about Rs. 110 lakhs.
Consequently, even if that accumulated deficit is not taken into account, it cannot be held that the Board will have the capacity of bearing the additional financial burden to the tune of Rs. 49 lakhs a year, if required to pay dearness allowance at the rates claimed by the Sangh.
On the second point, we are unable to accept the submission made by learned counsel.
The Board was constituted under the Electricity (Supply) Act No. 54 of 1948, and section 18 of that Act lays down the duties of the Board.
By its very constitution, the Board is charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such develop 181 ment in areas not for the time being served or adequately served by any licensee.
In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above; to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply.
When the Board was constituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the Statute requires it to carry on.
The running of Power Houses is only one of the branch of those activities.
The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its schemes for distribution of electricity to licensees or to consumers, whether in urban areas or in rural areas.
In fact, there is not even an assertion on behalf of the appellants workmen that they were employed solely in connection with a profitable undertaking of the Board and had nothing to do at all with the other activities which the Board is actually carrying on.
No doubt, learned counsel is right in urging on the basis of the decision of this Court in Hindustan Antibiotics Ltd() that the circumstance that the Board is an industry in the public sector does not exempt it from application of principles which apply to an industry in private sector, and the Board must also be made to pay wages on the same basis as Private sector employers.
This, however, does not advance the case of the appellants, because, even in a private sector, additional burden over and above a minimum wage can only be justifiably imposed in industrial adjudication, if the employer has the capacity to meet that burden.
In this case, the Tribunal has refused to grant the demand of the appellants not on the ground that the Board is an industry in public sector, but on the ground that it does not have the capacity to pay.
That capacity has rightly been judged on the basis of all the undertakings being worked by the Board.
The Tribunal, after holding that there was no justification for granting the demands of the workmen because the Board had no capacity to bear the additional burden, proceeded further to examine whether the Board 's existing scheme of payment of dearness allowance was reasonable and took into account various factors for arriving at its finding that it could not be held that the terms offered by the Board were unreasonable.
In this connection, reliance was placed on behalf of the appellants on the fact that two Electric Supply Companies were paying wages which (1) [1967]1 S.C.R.652.
182 were much higher than the wages being paid by the Board, and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies.
One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746.
The other is the Viramgam Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1968 Industrial Court Reporter at p. 1010.
The argument was that wages paid by the Board should not be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity.
The Tribunal brushed aside these example by stating that they were not comparable with the Board.
In taking this view, we do not think that the Tribunal committed an error.
In Williamsons (India) Private Ltd. vs Its Workmen(1), this Court clearly laid down what criteria had been established for considering what are comparable concerns when dealing with a question of wage fixation.
It was held : "This Court has repeatedly observed that, in considering the question about comparable concerns, tribunals should bear in mind all the relevant facts in relation to the problem.
The extent of the business carried by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reser ves, the dividends declared by them and the prospects about the future of their business these and all other relevant facts have to be borne in mind.
" In the present case, it is clear that, if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board.
As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas, but also include preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licen sees.
The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them.
The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns.
The (1) [1962] 1 L.L.J.302.
183 supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns.
Then, there is the important factor that the Board is running at a huge loss every year.
The workmen did not provide figures to show what was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit.
In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns, when dealing with the question of payment of dearness allowance by the Board.
In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, it there be no such undertakings available, of undertakings in other industries in the Saurashtra region so as to enable the Saingh to claim wages on parity with those undertakings.
We do not think that there is any justification for remanding the case for such a purpose at this stage.
It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so.
Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal.
The further request that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, net losses has also no force, be cause, when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness box, no attempt was made on behalf of the Sangh to cross examine the deponent in order to establish that the losses had not been correctly represented.
We do not think that, in these circumstances, any remand of this case is called for.
It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry cum region basis; but that mistake does not justify any interference with the award which is otherwise correct and justified.
The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of 184 the Board in the Gujarat Region as well as large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlement and only 466 employees had come forward with this demand without establishing that the demand wag restricted to bringing up their wages to the level of minimum wages.
The appeal is dismissed, but we make no order as to costs.
R.K.P.S. Appeal dismissed.

summary:
Over 9,000 employees of the Respondent Board, represented by seven Unions, demanded an increase in the dearness allowance payable to them, the payment of gratuity to some employees, and the calculation of pension payable to other employees after adding 50% of the dearness allowance.
Six of the Unions representing the employees amicably settled the disputes with the Board which granted increases in dearness allowance on the other demands being given up.
The seventh Union declined to accept the settlement and the dispute was eventually referred for adjudication by the Industrial Tribunal.
Before the Tribunal took up the reference, all except 466 of the employees individually accepted the settlement.
At the hearing of the reference it was contended by the remaining employees through the seventh Union that the total wage packet including the dearness allowance claimed by them would only satisfy the requirement of a minimum wage and the Board 's capacity to pay the increases demanded was, therefore, irrelevant; furthermore, although the Board was an industry in the public sector, it must also be made to pay wages on the same basis as private sector employers; two electric supply companies in ",the area were paving wages which were much higher and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the ,employees of those companies.
The Tribunal in its award rejected all the workmen 's demands.
It found that the demand for increased dearness allowance was not confined to achieving a minimum wage but as a result of its acceptance the wages would be above the minimum wage.
The Tribunal also found that the Board having inherited an accumulated deficit of over Rs. 2 crores from its predecessor, the Bombay State Electricity Board, having sustained heavy losses in its working and having undertaken a further liability to pay increased dearness allowance, it had no capacity to undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance or to meet the other demands.
The Tribunal held that the position in the other two electric supply companies was not comparable 'with the Board.
In appeal to this Court against the award it was contended inter alia, that the Tribunal was wrong in judging the capacity of the Board after taking into account the deficit of Rs. 2 crores which it had inherited from its predecessor; and that the financial capacity of the Board should 174 175 have been judged only on the basis of its commercial undertaking excluding the activities of the Board which were in the nature of national duties.
HELD : The Tribunal had rightly rejected the demands of the appellants.
(i) As the appellants had failed to show that they would not be receiving the minimum wage with their basic pay and the increased dearness allowance offered by the Board, the financial capacity of the Board for acceding to the demands made became a relevant consideration.
Hindustan Antibiotics Ltd. vs The Workmen & Others, ; and The Hindustan Times Ltd. vs Their Workmen, [1964] 1 S.C.R. 234 referred to.
Although the deficit inherited by the Board from its predecessor could not be treated as a revenue loss for determining the Board 's financial capacity and was in the nature of a capital loss, even this loss could not be completely ignored.
Apart from this, it was clear 'On the facts that during three years after its formation the Board had incurred heavy losses of about Rs. 110 lakhs and it did not, therefore, have the capacity of bearing the additional financial burden involved in meeting the appellants ' demands.
[179 D F; 180 E] (ii) When the Board was constituted under the Electricity (Supply) Act No. 54 of 1948 and was, by its constitution, charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State, its capacity to bear the burden of paying wages to its employees had to be worked out after taking into account all the activities which the statute required it to carry on.
The running of power houses was only one of the branches of those activities.
The profit that the Board earned could only be worked out after including in the accounts all the expenditure incurred by it on all its development and other schemes for distribution of electricity to consumers in urban and rural areas.
[181 B D] While an industry in the public sector was not exempt from application of principles which apply to an industry in the private sector and the respondent board must also be made to pay wages on the same basis as private sector employers the additional burden in either sector for paying anything above a minimum wage can only be justifiably imposed in industrial adjudication if the employer bad the capacity to meet that burden.
[181 E F] The Tribunal had rightly held that neither of the other two electric companies were comparable with the Board.
These two companies merely carried on the activity of direct supply of electricity to consumers in the towns and cities whereas the functions of the Board included the development and execution of schemes for supply of electricity to new areas.
Williamsons (India) Private Ltd. vs Its Workmen , referred to.


judgement:
Appeal No. 1438 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated April 22, 23, 1968 of the Gujarat High Court in Election Petition No. 22 of 1967.
I.M. Nanavati, P. M. Raval, D. N. Mishra and J. B. Dada chanji, for the appellant.
H.R. Gokhale, K. G. Vakharia, K. L. Hathi and Atiqur Rahman, for respondents Nos. 1 and 2.
The Judgment of SIKRI and BACHAWAT, JJ. was delivered by BACHAWAT, J. HEGDE, J. delivered a separate opinion.
Bachawat, J.
This appeal is directed against a judgment of single judge of the Gujarat High Court setting aside the election of the appellant from the Banaskantha Parliamentary constituency.
At the last general election to the Lok Sabha from the ' Banaskantha constituency in Gujarat there were three contesting candidates.
The appellant, the Swatantra party candidate, secured 110,028 votes.
Respondent No. 2, the Congress party candidate secured 1,05,621 votes.
Respondent No. 3, an independent candidate secured 14,265 votes.
The appellant was declared elected.
The election petition was filed by respondent No. 1, an elector in the constituency.
Respondent No. 1 alleged a number of corrupt practices on the part of the appellant or his election agents, but at the trial, he pressed only the charge of corrupt practice under section 123 (2) proviso (a) (ii) of the Representation of the People Act, 195 1.
In the petition the charge was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the congress party candidate they would become the objects of divine displeasure and spiritual, censure.
In the particulars of this charge it was alleged that in the public meetings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad Bhabhar and other places one Shambhu Maharaj told the electors that if they voted for the congress candidate they would commit the sin of cow slaughter and urged them in the name of mother cow to take a vow not to vote for the congress candidate with the result that several members of the audience publicly took the vow.
At a late stage of the trial on March 7, 1968, the High Court gave leave, to respondent No. 1 to, amend the petition by adding fresh particulars of the corrupt practice.
The substance of the new charge was that at those meetings Shambhu Maharaj 220 induced or attempted to induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his Command would be a sin and would be visited with spiritual censure and divine displeasure.
The High Court found that the aforesaid practice was committed by Shambhu Maharaj with the Consent of one Punambhai, the election agent of the appellant, and declared the appellant 's election to be void.
The appellant challenges the legality of the order passed by the High Court on March 7, 1968 allowing the amendment.
The election petition was filed on April 10, 1967.
The appellant filed his written statement on June 1; on September 9, the High Court gave leave to respondent No. 1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go hatya, Brahma hatya and Sadhuhatya, if they worked for the congress candidate.
The order disallowed amendments seeking to introduce, charges of appeal to voters in the name of religion under section 123 (3).
The appellant filed his additional written statement on October 19.
Issues were framed on November 30.
Respondent No. 1 filed his list of witnesses on January 11, 1968.
On February 21, the trial started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.
P.W. 4, Ram Swarup was a witness with regard to the meeting at Amirgadh.
The issues were amended on March 1, so as to make it clear that there was no charge of any corrupt practice under section 123(3).
On the same date, respondent No. 1 was examined as P.W. 5.
On March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were examined.
P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar.
P.W. 9 Bhogilal spoke about the meeting at Ikbalgadh.
On March 4, P.W. 10 and P.W. 11 were examined and spoke, about the meetings at Wav and Laxmipura.
On the same day, P.W. 12 section P. Pandya, a sub inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short hand writer were examined.
The examination of Barot was concluded on March 6.
Barot proved that he, took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhabhar, Laxmipura, Wav and Tharad and sent reports of the speeches to section P. Pandya.
On March 6, P.W. 14 and P.W. 15 were examined.
On March 5, respondent No. 1 filed, an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command.
The application was allowed on March 7, 1968.
The trial was, then adjourned and started again on April 8.
Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and, D.W. 2 were examined.
, The judgment was delivered on April,22 and 23.
221 The first question is whether the trial judge should have allowed the amendment.
Section 83(1)(b) provides that "An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement ;as possible of the names of the parties alleged to have committed such corrupt practice and the date, and place of the commission of each such practice".
The section is mandatory.
Where a corrupt practice is charged against the returned candidate the election petition must set forth full particulars of the corrupt practice so as to give the charge a definite character and to.
enable the court to understand what the charge is.
The charge must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not disclosed in the particulars.
On a charge, of telling the electors that by giving their vote to the Congress candidate, they would commit the sin of go hatya, evidence cannot be led to prove the charge of telling them that they would commit a sin of Brahma hatya or the sin of disobeying the command of their religious leader.
Section 86(5) allows amendment of the particulars,.
It provides that "the High Court may, upon such terms.
as to, costs and otherwise as it may deem fit, allow the particulars of any corrupt ' practice alleged in the, petition to, be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice, not previously alleged in the petition.
" In Harish Chandra Bajpai vs Triloki Singh(1) the Court held that though under the English law the petitioner was not obliged to give, the particulars of the corrupt practice in his petition the difference was a matter of form and not of substance and that under section 83(3) as it stood before 1955 the Court could allow an amendment introducing fresh instances of the corrupt practice alleged in the petition.
Referring to the English practice the Court observed at page 382 : "it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial".
Section 83(3) has been repealed and is now replaced by section 86(5) which forbids any amendment introducing particulars of a corrupt practice not previously alleged in the petition.
Assuming that the amendment of March 7, 1967 was permissible under section 86(5), the question is whether the High Court rightly allowed it.
Normally an application for amendment under section 86(5) should be made within a reasonable time before the commencement of the trial.
The Court has power to allow an amendment even after the commencement of the trial, but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner could not with (1)[1957] S.C.R. 371.
222 reasonable diligence have discovered the new facts earlier.
Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started.
According to respondent No. 1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 Was present and at Wav where.
one Chotaji Bhattji was present and that he came to know of the, corrupt practices from those persons.
All the meetings are referred to in the election petition.
If Shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful, P.W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed.
No explanation is given as to why respondent No. 1 withheld this information in the petition.
Respondent No. 1 now says that on April '17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967.
Assuming that he could not get certified copies of the reports, he could set forth in the petition ' the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants.
He knew of the reports of C. B. Barot before April 17, 1967.
Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started.
He was aware that the charge of telling the electors that they would commit the sin of go hatya was quite different from the charge of telling them that they would commit the sin of Brahma hatya or the sin of disobeying the command of their religious leader Sri Shankracharya.
On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma hatya and Sadhu hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.
The, trial commenced on February 29, 1968.
On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya.
On an objection being raised by the appellant 's counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P.W. 4 would not be treated as part of the evidence on the record.
Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would not rely on the charge with regard to the, command of Jagadguru Shankra charya.
On that footing the appellant 's counsel adopted a definite 223 line of cross examination.
On March 4, he consented to the marking of the full reports of the speeches of , Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj.
Counsel adopted this line of cross examination because he took, the stand that the speeches did not prove the corrupt practice alleged in the petition.
The application, for amendment was filed on March 5 and was allowed on March 7.
The order allowing the amendment has resulted in manifest injustice to the appellant.
His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the congress party , Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial.
He deliberately refrained from taking the new charge earlier.
Under section 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court.
The procedure in appeal is regulated by section 116C.
All the provisions of the Code of Civil Procedure including section 105 apply to the appeal, and any error in an order of the Trial court affecting the decision of the case may be taken as a ground of objection in the appeal.
In an appeal under section 116A the whole case is within the jurisdiction of this Court.
Normally the Court does not interfere with the Judge 's discretion in granting amendments except on grounds of law but where, as in this case, the order has resulted in manifest injustice, the Court has the power and the duty to correct the error.
In Evans vs Bartlam(1) Lord Atkin observed "Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the court of appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge 's discretion except on grounds of law, yet if it sees, that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.
" We, therefore, hold that the order of the trial judge allowing the amendment was erroneous and must be set aside.
Respondent No. 1 proved six speeches of Shambhu Maharaj.
He did not rely in the trial court on the speeches at Laxmipura, Bhabhar and Tharad.
Mr. Gokhale stated that he did not rely on these 'speeches for any purpose whatsoever.
Accordingly, those speeches were not read in this Court.
There is no charge (1) [1937] A.C.473,480 481 224 against the, appellant on the ground of appeal to the electors ,on the ground of religion.
The only.
charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of his election agent Punambhai told the electors that "if they voted for the congress party candidates the voters would commit the sin of cow slaughter (gaumata vadh).
" Respondent No. 1 has not proved the charge that the electors were urged in the name of mother cow to take a vow not to vote for the congress party candidates, with the ,result that several members of the, audience publicly took the vow.
The Ikbalgadh speech (exhibit B1) and the Amirgadh speech (exhibit B3) were delivered on February 8, 1967.
The Wav speech (exhibit B4) was delivered on February 9, 1967.
There was then an acute political controversy with regard to the total ban on cow slaughter.
Section 5(1) of the Bombay Animal Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as amended by Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in Gujarat.
But there was no absolute ban, on cow slaughter in several other States.
The Swatantra party was agitating for a total ban on cow slaughter throughout India.
Public criticism of the Congress party for not abolishing cow slaughter throughout the country was permissible and legitimate.
But the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2), that is, if he interferes or attempts to interfere with the free exercise of electoral right.
Under. section 123(2) proviso (a) cl.
(ii) there is such undue influence if any person with the consent of the candidate or his election agent induces or attempts to induce a candidate or an elector to believe that be, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure.
" The actual effect of the speech is not material,.
Corrupt practice, is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the: electors in the matter, see Ram Dial vs, San; Lal & Others(1).
In considering the speeches the status of the speaker and the character of the audience are relevant considerations.
Shambhu Maharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion.
The audience consisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and scheduled castes.
In this background, let us now consider the speeches.
Respondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (exhibit B1), passages in the Wav speech (exhibit B4) and 3 passages '.
in the Amirgadh speech (exhibit B3).
(1) [1959] Supp. 2.
S.C.R. 748, 758, 760.
225 The learned trial judge found that the corrupt practice was not committed by the 1st and 2nd passages in exhibit B1, the 1st, 2nd and 3rd and 6th passages in exhibit B4 and the 1st passage in exhibit B3.
But the learned Judge held that 3rd and 4th passages in exhibit B1 and the 4th and 5th passages in exhibit B4 amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the congress and that if they disobeyed his command they would incur divine displeasure and spiritual censure.
We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned judge with regard to those passages.
We find that the passages do not show any corrupt practice as alleged in the petition.
In the 2nd passage, in the, Amirgadh speech (exhibit B3) the speaker referred to the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue.
He also said : "Sun rises and twenty two thousand cows are slaughtered .
In Ahmedabad there is a prohibition oh cow slaughter but the slaughtering of calf and ox is continued.
The earth took the form of a cow and if the said 'Gaumata ' or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth.
" In the third passage (exhibit B3), the speaker said: "In the year 1942 sixteen lacs and in.
1946 twenty four lacs and in 1947 after India became separate and at present about 1 crore cows are slaughtered.
You say whether to vote for congress is to become partner in sin or anything else.
If you give cooperation for good cause you may get good fruit and if you cooperate in committing a sin you become a partner of sin.
Why you become a partner of sin by giving votes to congress ?" He then referred to the command of Sri Shankracharya that the electors should not vote for the Congress party.
But even apart from the command of Sri Shankracharya the electors are distinctly told that though there was a ban on cow slaughter in Ahmedabad, the congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin of gohatya and those who vote for the congress would be partners in the sin.
The dominant theme of the speech was that those who commit the sin of go hatya would be visited with divine displeasure.
Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of 226 electoral right.
In Narbada Prasad vs Chhagan Lal & Ors.
Hidayatullah, C.J., observed : "It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It, is also believed that one of the cardinal sins is that of go hatya.
Therefore, it is quite obvious that to remind the voters that they would be committing the sin of go hatya would be to remind them that they would be objects of divine displeasure or spiritual censure." In Encyclopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is stated: "A well known verse (Mahabharata, xiii.
74.4) says : 'All that kill, eat and permit the slaughter of cows, rot in hell for as many years as there are hairs on the body of the cow so slain. "Reverence for the cow has not diminished in modem times.
It is well known that the Hindus of the present day 'are filled with horror at the slaughter of the cow, which is therefore prohibited in native States under treaties with the English.
" According to B. N. Mehta 's Modern Gujarati English Dictionary, vol. 1, page 480, gohatya (go, a cow+hatya, killing) means in Gujarat "slaughter of a cow; killing a cow, being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment." Accordingly, the offending passages in the Amirgadh speech fell within section 123 (2) proviso (a) (ii).
We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant.
Punambhai was present at the Amirgadh meeting.
He addressed the meeting before Shambhu Maharaj spoke.
Shambhu Maharaj addressed several other election meetings of the Swatantra party.
Punambhai issued a pamphlet calling one of the meetings.
P.W. 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion.
Punambhai accompanied Shambhu Maharaj from one place to another.
On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh (1) [1969] S.C.E. 499.
227 and thereafter went to Amirgadh.
On February 9, he went with Shambhu Maharaj to the meeting at Wav.
The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter.
They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhai 's consent.
Punambhai did not raise any objection to the impugned speeches at the 'meeting.
He gave evidence in Court but did not say that he was not a consenting party to the offending passages.
We hold that the corrupt practice under section 123(2) proviso (a) (ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.
In the result, the appeal is dismissed.
There will be no order as to costs.
Hegde, J. I have had the advantage of reading the judgment just now read out by Bachawat, J.
I agree that the appeal should be dismissed.
But I am unable to agree that the amendment complained of was not properly allowed.
The learned trial judge has given good reasons in support of his order.
In my opinion no case is made out to interfere with that order.
I am also of the opinion that each and everyone of the speeches made by Shambhu Maharaj which are the subject matter of this appeal, read as a whole as we should do, fall within the vice of proviso a(ii) of section 123(2) of the Representation of the People Act, 1951.
Nothing so bad as those speeches I have come across in election cases.
They are fanatical outpourings and a direct challenge to the concept of a secular democracy.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate.
On April 10, 1967, the first respondent, an elector in the constituency filed an election petition.
In the petition he charged the appellant with corrupt practice under section 123(2) proviso (a) (ii) of the Representation of the People Act, 1951.
The allegation was that one: S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate, they would commit the sin of cow Slaughter and would become objects of divine displeasure.
On September 25, 1967 the first respondent 'obtained 'an order giving him leave ,o amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.
On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.M. giving a speech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contravention of the mandate would be visited with spiritual censure.
On an objection being raised by the appellant 's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence.
The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of cross examination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.
However on March 5, 1968, the first respondent 'applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Court allowed the amendment.
The, High Court set aside the 'appellants election on its finding that the corrupt practice in relation to the command of Sri Shankaracharya was proved.
In appeal to this Court on the questions (1) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice, HELD : The appellant 's election was rightly set aside.
(Per Bachawat, J.) : (1) The High, Court erred in allowing the amendment.
When a corrupt practice is charged against the returned candidate the election petition Must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is.
It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis 7Sup CI/69 15 218 closed in the particulars.
Section 86(5) of the Act, however, allows amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time.
Though the Court has power to allow an amendment even after commencement of the trial, leave to amend would not he granted if the petitioner was not acting in good faith or had kept back facts known to him.
[221 B D, G H; 222 A B] In the present ease, the first respondent knew of both items of corrupt practice ' from his witnesses who were present at the speeches made by S.M.
If S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or when he first amended his petition.
He was aware of the difference between the two charges of telling the electors about the sin of gohatya and that of telling the electors about the sin of disobeying the command of their religious leader.
But the :first respondent deliberately refrained from taking the new charge earlier and moved the application for amendment in bad faith at a very late stage of the trial.
Ordinarily, in an appeal under section 116A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in 'manifest injustice, this Court has the power and duty to correct the error.
[222 B D, F H; 223,A E] (Per Hegde, J.) The High Court has given good reasons in support of its order allowing the amendment and no case was made out to interfere with it.
[227 D] (2) (Per Bachawat, J.) There is ' no absolute ban on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban.
Public criticism 'of the Congress party for not abolishing cow 'Slaughter was permissible, but the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2) of the Act.
Under section 123(2), proviso ( a) el.
(ii), there is such undue influence if any person, with the consent of the candidate or his election agent, attempts to induce an elector to, believe that he will be tendered an object of divine displeasure or spiritual censure.
[224 D F] In the present case, S.M. spoke at the meeting on February8, 1967 with the consent of the election agent of the appellant.
S.M.was a Kirtankar of repute and well known and respected for his lectures on Hindu religion, while his audience consisted mostly of illiterate and ortho dox Hindus of rural areas who are filled with horror at the slaughter of a cow.
The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure.
Therefore, even apart from the charge relating to the command of Sri Shankaracharya, the speech was calculated to interfere with the free exercise of electroral right.
The corrupt practice was thus committed at the meeting on February 8, 1967, with the consent of the election agent of the appellant.
[224 G H; 225 G H; 226 F G 227 B C] Narbada Prasad vs Chhagan Lal, ; , followed.
(Per Hegde, J.) Everyone of the speeches made by S.M., read as a whole, are fanatical outpourings and a direct challenge to the concept of a secular democracy, and fell within the vice of the proviso (a)(ii) of section 123(2) of the Act.
[227 E] 219


judgement:
No. 328 of 1968.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
R. K. Garg, for the petitioners.
Debabrata Mukherjee, P. K. Chakravarti and G. section Chatterjee, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is a petition under article 32 of the Constitu tion by Sushanta Goswami and 46 others for a writ in the nature of Habeas Corpus challenging the detention of the petitioners under the provisions of the , hereinafter called the "Act".
Petitioner No. 4 Krishna Mondal and Petitioner No. 21 Madhu Kanjilal are stated to have been released.
No orders need he 139 made with regard to them.
As regards petitioners Nos. 2, 8, 9, 15, 22, 24, 32, 41 and 47 their matters will be taken up for consideration later as the State has been directed to file further affidavits.
We now proceed to dispose of the cases of the other petitioners.
Petitioner No. 1 (Sushanta Goswami) This petitioner was detained by an order of the District Magistrate 24 Parganas dated July 30, 1968.
His detention was directed under section 3(2) of the Act on the ground that it was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation to the Advisory Board which, after hearing the petitioner and considering his representation, expressed its opinion that there was sufficient cause for his detention.
Consequently the detention order dated July 30, 1968 was confirmed on September 20, 1968 by the Government of West Bengal.
The grounds for detention have been perused by us.
According to the first ground the petitioner had been committing offences of forming unlawful assembly, assaulting the police and peaceful inhabitants, snatching away cash and valuables, teasing school girls and criminal intimidation.
The instances which were given are seven out of which it is necessary to mention only the following which are typical " (ii) That on 14 11 66 at 21.15 hrs.
, you with your associates formed an unlawful assembly on Dum Dum Road in front of the Fire Brigade Office and assaulted Shri Pranab Bose of P 18 Matijheel Avenue and you snatched away a fountain pen worth Rs. 10 from his pocket.
(vi) That on 18 3 68 at 19.30 hrs.
, you with your associates closely followed Sm.
Sipra Kundu (18) from Satgachi crossing on Jessore Road and uttered indecent language towards her, as a result of which she got terrified and ran away to save her modesty.
" Ground No. 11 is to the effect that as a result of the petitioner 's nefarious activities prejudicial to the maintenance of public order he has become a nuisance to the society and there have been disturbances and confusion in the lives of peaceful citizens of Dum Dum police station and the inhabitants thereof are in constant dread of disturbance of public order.
We do not consider that the above grounds are relevant to public order and if some of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons; vide Dwarka 140 Das Bhatia vs The State of Jammu & Kashmir(1), and the recent decision of this Court in Pushkar Mukherjee vs State of West Bengal (2) .
There the order of detention is hereby set aside.
Petitioner No. 3 Panchu (Gopal Mondal).
This petitioner was detained by an order of the District Magistrate 24 Parganas dated March 23, 1968 made in exercise of the power conferred by section 3 (2) of the Act on the ground that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the community.
He was supplied with the grounds and he made a representation.
It was sent to the Advisory Board which,, after hearing him and considering all the material placed before it, expressed, ' its opinion that there was sufficient cause for his detention.
The Government of West Bengal confirmed the detention order on July 17, 1968.
We have perused the grounds of detention and we find that most of them relate to matters for which penal or other action could be taken under the relevant statutes.
For instance ground No. 1(ii) is as follows : "That on 12 1 68 at 11.30 hrs.
you were found operating your husking machine at puraton Bongaon and on demand by S.I.S. Chatterjee of S.E.B. (7) you could not produce the requisite license or permit.
That though you were prosecuted for operating your husking machine on 12 1 68, you carried on further operation with it as it was left on your bond of production, violating again the provisions of West Bengal Husking Machine (Control of Operation) Amendment Order 1967.
" The fact that the petitioner could not produce the requisite licence or permit can hardly be regarded as relevant for detention on the ground of activities prejudicial to the maintenance of supplies essential to the community.
For the aforesaid reasons this petitioner is also entitled to be released.
Petitioner No. 5 (Debendra Nath Das) This petitioner was detained by an order dated May 9, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act.
His detention was considered necessary for preventing him from acting in any manner prejudicial to the maintenance of public order His representation was sent to the Advisory Board which, after hearing him personally and, considering all the materials, expressed an opinion that there was sufficient cause for the petitioner 's detention.
His detention was confirmed by the Government of West (1) [1956] S.C.R.945.
(2) ; 141 Bengal by an order dated July 17, 1968.
The grounds of detention have been considered by us and we are of the opinion that they relate mainly to the question of law and order and are not relevant to public order.
Moreover there are allegations of offences under the Indian Penal Code for which prosecution could be launched.
As has been observed in Pushkar Mukherjee & I Ors.
vs State of West Bengal(1) the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large.
A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head.
Ground No. 1 (viii) which is typical may be specifically mentioned: "That on 26 2 68 at about 09.00 hrs.
you and your associates stabbed Constable Bhupendra Nath Chakraborty of Gouripur T.O.P. under Dum Dum P.S. near Birati Railway Level Crossing gate and stole away his wrist watch.
" We are satisfied that the petitioner could not have been detained on the grounds which are before us.
He is, therefore, entitled to be released.
Petitioner No. 7 (Abdul Waheb).
He was detained by an order dated May 27, 1968 of the District Magistrate 24 Parganas under section 3(2) on the ground that his detention was necessary for preventing him from acting in a manner prejudicial to the maintenance of public order.
He was supplied the grounds on which he made a representation to the Advisory Board which heard him personally and after considering all the material an opinion was expressed that there was sufficient cause for his detention.
The Government of West Bengal confirmed the detention order on August 21, 1968.
We have perused the grounds for the petitioners ' detention.
They relate mostly to the question of law and order and are not relevant to public order.
Consequently the petitioner is entitled to be released.
Petitioner No. 6 (Anil Das).
This petitioner was detained by an order of the District Magistrate, Howrah dated May 18, 1968 made under section 3(2) of the Act, the detention being considered necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
The representation made by the petitioner was forwarded to the Advisory Board which considered all the material before it and was of the opinion (1) [1969]2 S.C.R. 635. 142 that sufficient cause for his detention existed.
On July 29, 1968 the Government confirmed the order of detention.
Most of the grounds are not at all relevant to maintenance of public order.
Ground No. 1 (a) is that on August 12, 1966 at about 10.00 hrs.
"you being drunk demanded Rs. 2 from Shri Santi Das. . near the betel shop of Shalta Lal. and threatened him with murder when he refused to pay you the said money" We are satisfied that the petitioner 's detention cannot be upheld and it is hereby set aside.
Petitioner No. 10 (Dilip Kr.
Chakraborty @ Konkan) This petitioner was detained by an order dated June 13, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
One of the grounds, namely, 1 (ii) is .
"That on 13 3 67 you with your associate Debu Biswas assaulted one Paresh Nath Koley of Ghosepara with fists and blows".
Such a ground cannot possibly relate or be relevant to public order.
In view of our previous decisions mentioned before we are of the opinion that the petitioner is entitled to be released.
It may be mentioned that this petitioner had also filed a petition under article 226 in the Calcutta High Court but his counsel has undertaken to withdraw that petition.
Petitioner No. 12 (Ashoka Kumar Mukherjee).
This petitioner was detained by the order of the District Magistrate, 24 Parganas, dated May 25, 1968 made under section 3(2) of the Act; the reason for his detention being the prevention of activities prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation which was considered by the Advisory Board which, after giving a personal hearing, expressed an opinion that his detention was justified.
The Government confirmed the 'original order of detention on August 8, 1968.
We have examined the grounds and they suffer from the same infirmity as in the case of petitioner No. 7 (Abdul Waheb).
Ground No. 1 (i) may be reproduced : "That on 3 6 67, you assaulted one Nabalchandra Saha a hawker, with knife." This petitioner is also entitled to be released.
Petitioner No. 13 (Ram Kamal Dhar @ Leda) This petitioner was detained by an order dated July 30, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view 143 to preventing him from acting.
in any manner prejudicial to the maintenance of public order.
The grounds of detention.
disclose the same infirmities which are to be found in the case of petitioner No. 7 (Abdul Waheb) and Petitioner No. 10 (Dilip Chakraborty @ (Konkan).
For instance one of the grounds, No. 3 is in these terms : "On 1 5 68 at about 12.35 hrs.
you along with your two associates being armed with daggers, snatched away a wrist watch worth Rs. 130 from the person of the Kulak Chandra Sarkar S/o Late Sahadeb Sarkar of Madhab Nibas Colony, P. section Titagarh, Dist.
24 Parganas near Dum Dum South home signal at the point of dagger causing bleeding injury.
You were arrested with property red handed.
" Therefore the petitioner is entitled to be released.
Petitioner No. 14 (Gopal Show).
This petitioner was detained by an order dated July 11; 1968 made by the District Magistrate Howrah on the ground that his detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him, on which he made a representation which was considered by the Advisory Board by which he was also personally heard.
On the report of the Advisory Board that there was sufficient cause for his detention the original order was confirmed by the Government of West Bengal on October 7, 1968.
This case falls very much in the same group as that of the petitioners Nos. 7, 10 and 12 above mentioned.
According to one of the grounds the petitioner had, on Octo ber 12, 1967 along with his associates committed a daring burglary in Howrah Tobacco Store by breaking open 6/7 padlocks and removed Cigarette cases worth Rs. 10,000.
He is thus entitled to be released.
Petitioner No. 16 (Makhan Lal Saha).
This petitioner was., detained by an order dated March 23, 1968 made by the District Magistrate 24, Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him on which he made a representation which was sent to the Advisory Board.
After hearing him personally and considering all the materials, the Advisory Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the original order of detention on July 29, 1968.
An examination of the " grounds shows that they relate mostly and are relevant to the head " maintenance of supplies and services essential to the community".
144 For instance ground No. 1 (i) is that on March 28, 1968 the petitioner together with his associate committed theft of over head traction wires including contact wire disrupting the train services in Bongaon Section for more than 7 hours.
The grounds may have been relevant to the other head but none of them appears to be relevant to "maintenance of public order".
It is somewhat surprising and altogether incomprehensible how any District Magistrate or even the Government could have missed seeing that the ,detention of this petitioner might have been justified under the head "maintenance of supplies and services essential to the com munity" but not the "maintenance of public order".
Therefore the detention order cannot be sustained and must be set aside.
Petitioner No. 17 (Sk.
Yunus Ali).
This petitioner was detained by an order made by the District Magistrate, Howrah, on March 7, 1968 under section 3(2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
He was supplied the grounds and he made a representation which was considered by the Advisory Board.
The Board heard him personally and made a report that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on July 3, 1968.
The grounds suffer from the same infirmity as in the cases of petitioners Nos. 7 and 10.
For instance ground No. 1 (b) is : "That on 12 3 67 at about 06 00 hrs.
, you and your associates showed ugly gesture and posture to some women vendors of vegetables in platform No. 6 of Uluberia Rly.
Station and started whistling in mouth on seeing those women.
RPF head Rakshak K. C. Chandra of Santragachi Crime Branch objected to such indecent behaviour towards women by you all when Shri Chandra was physically assaulted with slaps by you and was threatened with dire consequences by you and your associates.
" The detention of this petitioner cannot be upheld and is hereby set aside.
Petitioner No. 18 (Gaddu Ghosh).
This petitioner was detained by an order of the District Magistrate, Malda, dated June 3, 1968 made under section 3 (2) of the Act with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation which was considered by the Advisory Board.
The Board after hearing him personally and considering all the materials before it, expressed an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal ,confirmed the order of his detention.
Practically all the grounds 145 do not appear to be relevant to public order.
Ground No. 2 (a) is typical and may be reproduced : "That on the midnight of 21 7 67 you grazed your 17 heads of cattle on maize plants in the land of Amal Roy of Kbasbari P. section English Bazar.
You threatened Amal Roy with further mischief for impounding your cattle." His detention cannot be upheld and is hereby set aside.
Petitioner No. 19 (Ratanlal Kairi).
This petitioner was de tained by an order of the District Magistrate, 24 Parganas, dated April 19, 1968; his detention being considered necessary in order to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was referred to the Advisory Board which considered it along with the other material and expressed an opinion that there was sufficient cause for his detention.
The Government made an order on July 10, 1968 confirming the order of detention.
The grounds have been perused by us and they appear to be relevant.
The activities which are mentioned therein show that they are of such a nature that they relate to public order.
We would therefore decline the prayer for setting aside the order of detention.
Petitioner No. 20 (Farid Ali Naskar).
This petitioner was detained by the order of the District Magistrate, 24, Parganas, dated July 30, 1968 Made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which considered it along with the other materials but made a report against him.
The Government thereupon confirmed the order of detention on September 19, 1968.
We have seen the grounds of detention and they appear to relate mostly to removal of rice bags in a clandestine manner.
These activities might have some relevance to the head "maintenance of supplies and services essential to the community but by no stretch of reasoning can they be regarded as relevant to public order.
The detention of the petitioner therefore is set aside.
Petitioner No. 23 (Sk. Makbul).
The petitioner was detained by the order dated March 8, 1968 made by the District Magistrate, Howrah, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.
On receiving the grounds of his detention, he made a representation to the Advisory Board which, after considering the same and giving 146 him a personal hearing, reported that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the detention order.
The grounds disclose the same infirmity as in other cases e.g. Petitioner Nos. 7 and 10.
Ground No. 1 (a) is typical and may be reproduced : "That on 10 2 67 at about 21.50 hrs.
you and your associates threatened R.P.F. Head Rakshak Prakash Chandra Mitra of CID Kharagpur at Andul Railway Station with stabbing when Shri Mitra objected to your passing of indecent remarks at a lady passenger." Consequently the detention order is set aside.
Petitioner No. 25 (Uday Chand Namadas).
This petitioner was detained by an order of the District Magistrate Jalpaiguri, dated the 11 th July 1968 made under section 3 (2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation which was considered by the Advisory Board.
The Board gave a personal hearing and after considering all the materials reported that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the detention order.
Ground No. 1 is altogether vague and may be reproduced : "That you have been for a long time engaged in anti social, illegal and high handed criminal activities and in the course of such activities you have on different occasions held out threats to different persons and that you have associated yourself with anti social elements.
Whenever the peace loving citizens questioned your bona fide and protested against your activities and whenever they offered themselves as witnesses to your activities you threatened to burn down their houses.
" The detention of this petitioner cannot be sustained because of the existence, of the above ground which is so vague that the petitioner could not possibly have made any representation with regard to it.
In view of our previous decisions referred to his detention is set aside.
Petitioner No. 26.
(Abdul Bari Karikar).
This petitioner was detained by the order made by the District Magistrate, Murshidabad, on July 6, 1968 under section 3 (2) of the Act on the ground that the detention was necessary in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which was considered by it.
The Board, after giving a personal hearing and considering all the materials expressed an opinion that there was sufficient cause for detention.
147 The Government of West Bengal confirmed the order of detention on September 12, 1968.
We have read the grounds and we consider that some of them are so irrelevant that it is incomprehensible how any order of detention could have been made on those grounds.
For instance ground No. 1 is "On 26 8 65 you were committed to trial before the court under section 406 of the Indian Penal Code on a charge of deceitfully misappropriating the cycle belonging to Bishu Khan of village Chonya Pathan Para." Ground No. 4 is equally irrelevant.
It has been stated that "On 19 5 67 at about 7.30 a.m. you threatened Karim Sheikh of village Chonya Pathan Para with assault as he had instituted a case against you.
" If such grounds can be considered to be relevant to public order it would be open to the authorities to detain citizens without a trial for such petty matters as have been mentioned in these grounds.
Moreover the first ground is also not reasonably proximate in time.
It relates to some incident which happened in the year 1965 whereas the detention order was made on July 6, 1968.
The detention of the petitioner cannot possibly be upheld and is hereby set aside.
Petitioner No. 27 (Nagendra Nath Saha).
This petitioner was detained by an order dated April 19, 1968 made by the District Magistrate, 24 Parganas, under section 3 (2) of the Act; the grounds of detention being the prevention of activities prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which reported that there was sufficient cause for his detention.
On July 10, 1968 the Government of West Bengal confirmed the detention order.
Two of the grounds may be reproduced : "2 (c) That your complicity transpired during investigation of Sealdah GRPS Case No. 181 dt.
26 3 65 u/s 379 I.P.C. and you were reasonably suspended in the case.
(d) That your complicity transpired during investigation of Sealdah GRPS Case No. 180 dt.
26 3 65 u/s 379 I.P.C. and you were reasonably suspected in the case.
" These cannot possibly have any relevance to "maintenance of public order", the proper implications of which expression have been fully discussed in the decisions of this Court including the recent decision in Pushkar Mookherjee & Ors.
vs The State of 148 West Bengal(1).
The petitioner 's detention cannot therefore be upheld and it is hereby set aside : Petitioner No. 28 (Habibullah Khan).
This petitioner was :detained by an order dated February 17, 1968 made by the District Magistrate, 24 Parganas, under section 3(2) of the Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which expressed an opinion in favour of his detention.
The Government of West Bengal confirmed the detention on April 17, 1968.
We have perused the grounds of detention which do not relate to public order; for instance one of the grounds If iv) is to the following effect : "that on 27 12 67 at about 03.30 hrs ' you and your associates committed theft of signalling and telecommunication materials from location box No. L 60 worth about Rs. 3,000." His detention is consequently set aside.
Petitioner No. 29.
(Naba Kumar Ghosh).
This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated July 13, 1968 made under section 3(2) of the Act on the ground that it was necessary to detain the petitioner in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
Ms representation was considered by the Advisory Board which made a representation that there was sufficient cause for his detention.
On September 19, 1968 the detention order ,was confirmed by the Government.
Some of the grounds are not at all relevant to maintenance of public order; for instance ground No. 1 (ii) is "That on 1 3 68 at about 02.00 hrs.
, you and your associate Ram Nehore Kouri were seen to conceal your presence by the side of a wagon standing at Chitpur yard with a view to commit theft from standing wagons.
Being chased, you and your associate,,,, were arrested by the (1) on duty RPF staff and prosecuted.
" The detention of the petitioner cannot be upheld and is set aside.
Petitioner No. 30 (Abdul Main Mirza).
This petitioner was detained by the order of the District Magistrate, Howrah, dated March 7, 1968 on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board which reported that there was sufficient ,cause for his detention.
On June 12, 1968 the Government confirmed the detention order.
Most of the grounds are not relevant (1) ; 149 to the maintenance of public order.
For instance ground No. 1 (a), is : "That on 24 2 67 at about 21.26 hrs.
you and your associates abused C.I.B. Head Rakshak 3646 Hara Kumar Mukherjee of Shalimar and also threatened him with dire consequences at Andul Rly.
Station when Shri Mukherjee objected to the passing of indecent remarks at a lady passenger of 358 Dn.
(Midnapur Howrah Passenger) train.
" The detention of this petitioner cannot be upheld and is hereby set aside.
Petitioner No. 31 (Nripen Chakraborty).
This petitioner was detained by an order made by the District Magistrate, 24 Parganas on April 4, 1968 on the ground that his detention was necessary in order to prevent him from acting in a manner prejudicial to public order.
His representation was sent to the Advisory Board which on considering the same with other material reported that there was sufficient cause for the detention.
The detention order was consequently confirmed by the Government on June 12, 1968.
Most of the grounds do not appear to be relevant to maintenance, of public, order.
Ground No. (ii) may be reproduced : "That on 7 10 66 you pulled the alarm chain of the train at Bongaon Ranaghat Section while you were bringing rice for sale from Ranaghat to Bongaon, without having booked them and without having any ticket." His detention cannot therefore be upheld and it is hereby set aside.
Petitioner No. 33 (Nanda Kishore Rabi Das).
This petitioner was detained by an order dated April 25, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order.
He made a representation to the Advisory Board which after considering all the materials reported that there was sufficient cause for his detention.
The detention order was consequently confirmed by the Government of West Bengal on July 2, 1968.
The grounds for detention in the case of this petitioner appear to be relevant to maintenance of public order.
He has apparently been acting with a large number of associates and committing acts which could have led to disturbance of public order.
His detention is therefore upheld.
Petitioner No. 34 (Samiron Sarkar).
This petitioner was de tained by an order dated August 2, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary to prevent him from acting in any 150 manner prejudicial to the maintenance of public order.
His representation was forwarded to the Advisory Board which reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on October 9, 1968.
His case is similar to that of many others inasmuch as most of the grounds are not relevant to the maintenance of public order.
By way of example ground No. 1 (ii) is reproduced "That on 30 9 67 at about 21.00 hrs.
you with your associates Amal Karali, Bapu, Tripti and others forced Shri Dulal Chandra Kundu, Abdul Jabbar and Gobinda Das Roy Choudhury of Barisha to go to the shop of Nilan Maity inside Sakher Bazar and you forcibly took away Rs. 65 from the pocket of Gobinda Das Roy Choudhury, one wrist watch, a gold ring and cash Rs. 18 from Abdul Jabbar and Rs. 70 and 20 packets of cigarettes from Dulal Chandra Kundu.
" His detention cannot be upheld and is set aside.
Petitioner No. 35 (Ashwini Kumar Karmakar).
This petitioner was detained by an order dated July 30, 1968 of the District Magistrate 24 Parganas made under section 3(2) of the Act, the detention being considered necessary with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on September 19, 1968.
The activities which have been alleged in the grounds are again of at type, which cannot be relevant to public order.
For instance ground No. 1 (c) which is in these terms : "That on 6 10 67 at about 06.30 hrs.
you and your associates were seen to remove sugar bags from a sealed wagon of a goods train and to despatch the same by hand pulling car while the train stopped at Bagmari Rly.
Bridge for red signal.
" His detention cannot be upheld and is set aside.
Petitioner No. 36 (Sri Panchanan Das).
The District Magis trate, 24 Parganas, made an order dated June 13, 1968 directing under section 3(2) of the Act petitioner 's detention with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention.
Thereupon the Gov ernment confirmed the detention order on August 29, 1968.
Most of the grounds are not at all relevant to the maintenance of public ,order; see for instance ground No. 1 (c) which is in these terms : 151 "That on 18 2 68 at about 11.30 a.m. you and your associates were found to remove rice from a running Railway wagon by breaking seal of the wagon door at Bagmari Rly.
pool and overhead Chitpur Bridge.
" His detention cannot be upheld.
Petitioner No. 37 (Indrajit Debnath).
This petitioner was detained by an order of the District Magistrate 24 Parganas dated May 23, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board along with the other materials.
The Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on August 1, 1968.
Most of the grounds contain allegations of theft of overhead traction wire.
They cannot possibly be relevant to maintenance of public order.
The detention order cannot be upheld and is hereby set aside.
Petitioner No. 38.
(Surjit Singh).
This petitioner was detained by the order of the District Magistrate, 24 Parganas under section 3 (2) of the Act on April 4, 1968; the detention being considerd necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board along with the other materials and the Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the detention order on June 29, 1968.
Some of the grounds cannot possibly relate to maintenance of public order.
Ground No. 1 (viii) is in these terms : "That on 16 2 68 you fled away from the R. G. Kar Hospital while you were undergoing treatment under police guard." His detention consequently cannot be upheld and is hereby set aside.
Petitioner No. 39 (Badal Pal).
This petitioner was detained by an order, dated July 30, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act, his detention being considered necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board with other materials which reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention.
Some of the grounds have absolutely no relevance to the maintenance of public order.
See for instance grounds Nos. 1 (d), (e) and (f).
His detention cannot, therefore, be upheld and is set aside.
152 Petitioner No. 40 (Sona Karmakar) .
This petitioner was de tained by an order of the District Magistrate dated July 30, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board with the other materials but the Board reported that there was sufficient cause for his detention.
On September 18, 1968 the Government confirmed the order of detention.
Some of the grounds cannot possibly be regarded as relevant to maintenance of public order.
See grounds Nos. 1 (b) and (c).
His detention cannot be upheld and is hereby set aside.
Petitioner No. 42 (Jaganath Goila).
This petitioner was de tained by an order of the District Magistrate,, 24 Parganas made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board together with the other materials.
The Board reported that there was sufficient cause for his detention.
On October 7, 1968 the detention order was confirmed.
A perusal of the grounds shows that most of the grounds are not relevant to maintenance of public order and in this connection reference may be made to ground Nos. 1 (ii) and (iii).
The detention of this petitioner cannot, therefore, be upheld and is hereby set aside.
Petitioner No. 43 (Shyamal Pal).
This petitioner was detained by an order of the District Magistrate, 24 Parganas made unders.
3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds of detention the petitioner made a representation which was considered by the Advisory Board together with the other materials.
The Board reported that there was sufficient cause for his detention.
On May 17, 1968 the Government confirmed the order of detention.
We have examined the grounds of detention.
Most of them do not relate to or are relevant to maintenance of public order.
The activities mentioned cover acts of theft, robbery etc.
but they cannot be considered relevant for the purpose of public order, in view of our previous decisions.
The detention is consequently set aside.
Petitioner No. 44 (Suvranghshu Mitra).
This petitioner was detained by an order dated April 20, 1968 of the District Magis 153 trate, 24 Parganas, made under section 3 (2) of the Act on the ground that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was forwarded to the Advisory Board which gave an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the order of detention on June 28, 1968.
Some of the ,grounds are wholly irrelevant to maintenance of public order.
For instance ground No. 1 (i) is "That on 11 10 67 at about 11.45 hrs.
you assaulted Shri Narayanchandra Das of 6A, Baikuntha Ghose Road, Calcutta 42 with fists and blows.
" He is therefore entitled to be released.
Petitioner No. 45.
(Madan Mohan Mandal).
This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated January 16, 1968 on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board which gave an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the order of detention on May 1, 1968.
Some of the grounds of detention do not appear to be relevant to maintenance of public order.
See for instance ground No. 1 (iv).
Consequently he is entitled to be released.
Petitioner No. 46.
(Rangalal Debnath).
This petitioner was detained by an order dated March 16, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which gave an opinion that there was sufficient cause for his detention.
The Government of West Bengal confirmed the order of detention on June 10 1968.
His case is similar to others inasmuch as most of the grounds are not relevant to the maintenance of public order.
See for instance ground No, 1 (iv).
The detention of the petitioner, therefore, cannot be upheld and is hereby set aside.
G.C. Petitions allowed.

summary:
The petitioners were detained under the .
They filed a petition for Habeas Corpus under article 32 of the Constitution.
The Court considered their cases individually in the light of the grounds of detention supplied to them.
HELD :(i) If some of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons.
[139 H] Dwarka Das Bhatia vs The State of Jammu & Kashmir, and Pushkar Mukherjee vs State of West Bengal, ; , applied.
(ii) The grounds supplied to most of the petitioners were not relevant to the 'maintenance of public order '.
The contravention of any law always affects order but before it can be said to affect public order it must affect the public or the community at large.
A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head.
[141 B C] (iii) Citizens must not be detained under the Act for petty matters and the grounds must be reasonably proximate in time.
[141 D]