judgement:
: Criminal Appeals Nos. 15 and 35 of 1967.
Appeals from the judgment and order dated October 12, 1966 of the Bombay High Court in Criminal Revision Application No. 289 of 1966.
N.S.Bindra,R.M.Parikh and S.P. Nayar, for the appellants (in Cr. A. No. 15 of 1967) and the respondents (in Cr. A. No. 35 of 1967).
N.N. Keswani, for the appellants (in Cr. A. No. 35 of 1967) and the respondents (in Cr. A. No. 15 of 1967).
K.R. Chaudhuri, for the intervener (in Cr. A. No. 15 of 1967).
The Judgment of the Court was delivered by Hegde, J.
These appeals by certificate arise from the decision of the High Court of Bombay in Criminal Revision Application No. 238 of 1966 wherein the following questions of law arise for decision: (i) Whether the prosecution from which these Criminal Revision Petitions arose is barred under article 20 (2) of the Constitution as against accused Nos. 1 and 2 in that case by reason of the decision of the Collector of Customs in the proceedings under the ? (ii) Whether under any circumstance the finding of the Collector of Customs that the Ist and 2nd accused are not proved to be guilty operated as an issue estoppel in the criminal case against those accused ? (iii) Whether the present prosecution amounts to an abuse of the process of the Court in view of inordinate delay in launching the same and consequently whether it is liable to be quashed ? (iv) Whether section 173(4), Criminal Procedure Code is applicable to the facts of this case and (v) Whether the documents mentioned in the petition filed by the 1st accused on August 3, 1965 are required tO be summoned under section 94, Criminal Procedure Code ? The aforementioned questions were raised before the trial Magistrate by the 1st accused by means of an application but 441 the learned Magistrate ' found ,no substance in the pleas advanced in that application and accordingly he dismissed the same as per his order dated 25,1 1966.
In revision, a .Division Bench of the Bombay High Court agreeing with the trial Magistrate negatived all but one of the contentions advanced on behalf of accused Nos. 1 and 2.
It did not agree with the learned Magistrate that there was no need, at that stage to summon the statements of witnesses recorded Customs Act.
It directed the learned Magistrate to summon hose statements and curiously enough, it went further and directed him to see that the prosecution made available the copies of those statements to the accused before the commencement of the enquiry in the case.
In so far as.
the Other documents called for are concerned, the High Court after indicating, what according to it, is the law on the subject left the matter to the discretion of the learned Magistrate.
Criminal Appeal No. 15 of 1967 is filed by the Assistant Collector of Customs, Bombay and the State of Maharashtra and Criminal Appeal No. 35 of 1967 is the appeal filed by accused Nos. 1 and 2 in the case (Case No. 98 of 1965 in the Court of the Chief Presidency Magistrate, Bombay).
The appellants in Criminal Appeal No. 15 of 1967 challenge the correctness of the decision of the Bombay High Court in so far as it went against them and the appellants in Criminal Appeal No. 35 of 1967 challenge that decision in other respects.
The prosecution case is that the accused persons and some other unknown persons had entered into a conspiracy at Bombay and other places in the beginning Of October, 1959 or India and in pursuance of that conspiracy they had smuggled several items of foreign goods in the years 1959 and 1960.
In that connection an enquiry was held by the Customs authorities.
In the course of the enquiry some of the goods said to have been smuggled were seized.
After the close of the enquiry those goods were ordered to be confiscated.
In addition penalty was imposed on some of the accused.
Thereafter on February 19, 1965, the Assistant Collector of Customs, Bombay after obtaining the required sanction of the Government flied a complaint against five persons including the appellants in Criminal Appeal No. 35 of 1967 (accused Nos. 1 and 2 in the case) under section 120 B,I.P.C. read with cls.
(37), (75), (76) and (81) of section 167 of the (Act VIII of 1878) as well as under section 5 of the Imports and Exports (Control) Act, 1947.
Before the commencement of the enquiry in that complaint, the 1st accused filed on August 3, 1965, the application mentioned above.
C.I./69 11 442 Now we shall proceed to examine the contentions set out earlier.
Reliance on article 20(2) is placed under the following circumstances.
In the enquiry held by the Collector of Customs, he gave the benefit of doubt to accused Nos. 1 and 2.
This is what he stated therein: "As regards M/s. Lamel Enterprises (of which accused No. 1 is the proprietor and accused No. 2 is the Manager) although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty.
Since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthorised importation, they escape on a benefit of doubt." Despite this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons.
Hence the question is whether that prosecution is barred under article 20(2) of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once.
This article has no direct bearing on the question at issue.
Evedently those accused persons want to spell out from this article the rule of autrefois acquit embodied in section 403, Criminal Procedure Code.
Assuming we can do that still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence.
In order to get the benefit of section 403, Criminal Procedure Code or article 20(2), it is necessary for an accused person to establish that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force.
If that much is established, it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he ' might have been convicted under section 237.
It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a "prosecution" nor the Collector of Customs a "Court".
In Maqbool Hussain vs The State of Bombay(1), this Court held that the wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute (1) ; 443 which creates the offence and regulates the procedure.
This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under section 167 of the and an order for confiscation of goods had been passed, was subsequently prosecuted before a criminal court for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act, the proceeding before the Sea Customs authorities was not a "prosecution" and the order for confiscation was not a "punishment" inflicted by a Court or judicial tribunal within the meaning of article 20(2) of the Constitution and hence his subsequent prosecution was not barred.
The said rule was reiterated in Thomas Dana vs State of Punjab(1) and in several other cases.
We shall not take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution.
The issue estoppel rule is but a facet of the doctrine of autrefois acquit.
In Sambasivan vs Public Prosecutor, Federation of Malaya(a), Lord MacDermott enunciated the said rule thus: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim "Res judicata pro veritate accipitur" is no less appliCable to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial.
And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.
That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.
" The rule laid down in that decision was adopted ' by this Court in Pritam Singh vs State of Punjab(a) and again in N.R. Ghose alias Nikhil Ranjan Ghose vs State of West Bengal(4).
(1) (2) at p. 479.
(3) AI.R. 1956 S.C, 415.
(4) ; 444 But before an accused can call into aid the above rule, he 'must establish that in a previous lawful trial before a competent court,he has secured a verdict of acquittal which verdict is binding on his prosecutor.
In the instant case for the reasons already mentioned, we are unable to hold that the proceeding before the Collector of Customs is a criminal trial.
From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2.
This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same.
It is urged on behalf of the accused that because of the delay in launching the same, the present prosecution amounts to an abuse of the process of the Court.
The High Court has repelled that contention.
It has come to the conclusion that the delay in filing the complaint is satisfactorily explained.
That apart, it is not the case.
of the accused that any period of limitation is prescribed for filing.
the complaint.
Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it.
The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict.
But by itself it affords no ground for dismissing the complaint.
Hence we see no substance in the contention that the prosecution should be quashed on the ground that there, was delay in instituting the complaint.
We also see no merit in the contention that the accused in this case are entitled to the benefit of section 173(4), Criminal Procedure Code which provides that before the commencement of the enquiry or trial the officer in charge of the police station who forwards a report under section 173, Criminal Procedure Code, should furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under section 173(1), Criminal Procedure Code of the first information report recorded under section 154, Criminal Procedure Code and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164, Criminal Procedure Code and the statements recorded under section 161, Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses.
On a plain reading of section 173, Criminal Procedure Code, it is clear that the same is wholly inapplicable to the facts of the present case.
In the instant case no report had been sent under section 173, Criminal Procedure Code.
Therefore that provision is not attracted.
That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code, followed up by a final report under section 173, Criminal Procedure Code.
It may be remembered that sub section
(4) of 445 173, was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 1955, presumably because of the changes effected in the mode of trials in cases instituted on police reports.
Before the Criminal Procedure Code was amended by Act 26 of 1955, there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases.
Till then in all.
cases irrespective of the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquiries or trials was identical.
In both type of cases, there were two distinct stages i.e. the enquiry stage and the trial stage.
When the prosecution witnesses were examined in a case before a charge is framed, it was open to the accused to cross examine them.
Hence there was no need for making available to the accused the documents mentioned in subs.(4) of section 173, Criminal Procedure Code.
The right given to him under section 162, Criminal Procedure Code was thought to be sufficient to safeguard his interest.
But Act 26 of 1955 as mentioned earlier made substantial changes in the procedure to be adopted in the matter of enquiry in cases instituted on police reports.
That procedure is now set out in section 251(A), Criminal Procedure Code.
This new procedure truncated the enquiry stage.
Section 251 (A), Criminal Procedure Code says that the Magistrate, if upon consideration of all the documents referred to in section 173 and making such examination if any, of the accused as he thinks necessary and after giving the prosecution and the accused an opportunity of being heard considers the charge against the accused to be groundless he shall discharge him but if he is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case which he is competent to try.
and which in his opinion could be adequately punished by him, he shall frame in writing a charge against him.
Under the procedure prescribed in section 251 (A), Criminal Procedure Code but for the facility provided to him under s.173(4)of that Code an accused person would have been greatly handicapped in his defence.
But in a case instituted on a complaint, like the one before us and governed by sections 252 to 259 of the Criminal Procedure Code, no such difficulty arises.
Therein the position is as it was before the amendment of the Criminal Procedure Code in 1955.
We are unable to agree with the learned fudges of the High Court that the legislature did not make available the benefit of s.173(4), Criminal Procedure Code in cases instituted otherwise than on police reports by oversight.
The observations of the learned Judges in the course of their judgment that "Even the great Homer occasionally nods.
There is nothing to show that the,legislature has applied its mind to the question of the amendment of the procedure so far as the investigation of an offence 446 under the is concerned at the time when it was considering amendments to the Criminal Procedure Code" is without any basis.
In the first place, it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly.
Secondly from the history of the legislation to which reference has been made earlier, the reason for introducing section 173(4) is clear.
The learned judges of the High Court were constrained to hold that s, 173(4), Criminal Procedure Code in terms does not apply to the present case.
But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case, they have directed the learned Magistrate to require the prosecution to make available to the accused, the copies, of the statements recorded from the prosecution witnesses during the enquiry under the Customs Act.
They have purported to make that order under section 94(1), Criminal Procedure Code which to the extent material for our present purpose reads: "Whenever any Court . . considers that production of any document or other thing is necessary or desirable for the purposes of any . enquiry, trial or other proceeding under this Code by or before such Court . such Court may issue a summons . to the person in whose possession and power such document or thing is believed to be, requiring him to attend and produce it.
or to produce it, at the time and place stated in the summons or order.
" This section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person That much appears to be plain from the language of that section it was impermissible for the High Court to read into section 94, Criminal Procedure Code the requirements of section 173(4), Criminal Procedure Code.
The High Court was not justified, in indirectly applying to cases instituted on private complaints the requirements of section 173(4), Criminal Procedure Code.
That apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate Whether a particular document should be summoned or not is essentially in the discretion of the trial court.
In the instant case the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs authorities and shall make avail able to the defence Counsel the statement of the concerned witness as and when he is examined.
In view of that assurance, the learned Magistrate observed in his order: "The recording of the prosecution evidence is yet commence in this case and at present there are no male 447 before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial.
As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the heating of the case.
The request made for the issue of the summons under section 94, Criminal Procedure Code is also omnibus." The reasons given by the learned Magistrate in support of his order are good reasons.
The High Court has not come to the conclusion that the documents in question, if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required.
It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences.
Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents.
Such interferences would unnecessarily impede the progress of eases and result in waste of public money and time as has happened in this case.
For the reasons mentioned above, we allow Criminal Appeal No. 15 of 1967 and dismiss Criminal Appeal No. 35 of 1967.
In other words, we restore the order of the learned Magistrate.
G.C. Criminal Appeal No. 15 of 1967 allowed.
Criminal Appeal No. 35 of 1967 dismissed.

summary:
The accused persons were charged with having entered into a conspiracy at Bombay and other places in the beginning of October 1959 or there about for the purposes of smuggling foreign goods into India and having, in pursuance of that conspiracy, smuggled several items of foreign goods in the years 1959 and 1960.
In that connection an enquiry was held by the Customs authorities.
In the course of the enquiry some of the goods said to have been smuggled were seized.
After the close of the enquiry those.
goods were ordered to be confiscated.
In addition penalty was imposed on some of the accused.
Accused No. 1 and 2 were given by the Collector benefit of doubt on the ground that there was no conclusive evidence against them.
Thereafter the Assistant Collector of Customs 'after obtaining the required sanction of the Government filed a complaint against five persons including Accused 1 and 2 under section 120 B I.P.C. read with section 167 of the as well as under section '5 of the Imports and Exports (Control) Act, 1947.
Before the commencement of the enquiry the 1st accused filed an application before the Magistrate raising therein various questions of law namely (i) whether the prosecution of Accused 1 and 2 was barred by article 20(2) of the Constitution by reason of the decision of the Collector of Customs (ii) whether the finding of the Collector of Customs operated as an issue estoppel in the criminal case against Accused 1 and 2, (iii) whether the prosecution amounted to 'an abuse of the process of the Court in view of the inordinate, delay in launching the same, and (iv) whether section 273(4) Cr.
P.C. was applicable to the facts of the case, and (v) whether the documents mentioned in the petition of Accused No. 1 to the Magistrate could be summoned under section 94 Cr.
The Magistrate dismissed the application of Accused No. 1.
In revision the High Court, while agreeing with the Magistrate on other issues, did not agree with him that there was no need at the stage to summon the statements of the witness recorded by the customs authorities in the enquiry under the .
It directed the Magistrate to 'summon those statements and to see that the prosecution made available copies of these statements to the accused before the commencement of the ennquiry in the case.
Against the orders of the High Court the customs authorities as well as the accused appealed to this Court.
HELD: (i) In order to get the benefit of section 403 Criminal Procedure Code or article 20(2) it is necessary for an 'accused person to establish 439 that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said acquittal is in force.
If that much is established.
it can be contended that he is not liable to be tried again for any other offence for which a different charge from the one made against hun might have been made under section 236 or for which he might have been convicted ' under section 237.
It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a "prosecution" nor the Collector of Customs a "Court".
Therefore in the present case the plea of the accused based on article 20(2) could not be accepted.
[442 E G] .
Maqbool Hussain vs State o/Bombay; , and Thomas Dana vs State o/Punjab, , applied.
(ii) Before the accused can call into aid the rule of issue estoppel he must establish that in a previous lawful trial before a competent court he has secured a verdict of acquittal which verdict is binding on his prosecutor.
In the instant case since the proceeding before the ' Collector was not a criminal trial it follows that the decision of the Collector did not amount to a verdict of acquittal in favour of accused Nos. 1 and 2.[444 A B] Sambasivan vs Public Prosecutor, Federation of Malaya, at p. 479, Pritam Singh vs State of Punjab, Aj.I.R. and N.R. Ghose @ Nikhil Ranjan Ghose vs State of west Bengal; , , applied.
(iii) The question of delay in filing the complaint may be a circumstance to be taken into consideration in arriving at the final verdict.
But by itself it affords no ground for dismissing the complaint.
[444 D] (iv) Section 173 Criminal Procedure is attracted only in a case in, vestigated by a police officer under Ch.
XIV of the Code followed by a final report.
Section 173(4) was incorporated into the Code by Central Act 25 of 1955 because of the changes effected in the mode of trials in cases instituted on police reports.
Under the new procedure prescribed in section 251(A) of the Code, but for the facility provided to him under section 173(4) an accuse person would have been greatly handicapped in his defence.
But in a .case instituted on complaint like the present, and governed by sections 252 to 259 of the Code no such difficulty.
arises and the position is as it was before the amendment of the Code.
in 1955.
[444 H; 445 G] The High Court was wrong in holding that the Legislature did not make available the benefit of section 173(4) Criminal Procedure Code in cases instituted otherwise than on police reports by oversight.
It is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly.[445 H] (v) Section 94 (1) does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person.
It was impermissible for the High Court to read into section 94 Criminal ProcedUre COde the requirements of section 173(4) of the, Code.
The High Court was wrong in indirectly applying to cases instituted on private complaints the requirements of section 173(4).
[446 E F] Further the High Court was not justified in interfering with the discretion of the learned Magistrate.
Whether a particular document should be summoned or not is essentially in the discretion of the trial court.
In the present case the reasons given by 'the Magistrate.:for his 440 order were good reasons.
Unnecessary interference with the orders of the ,trial court results in waste of public money and time as had happened in the present case.
[447 D]


judgement:
Appeals Nos.
2464 and 2465 of 1966.
Appeal from the judgment and order dated April 8, 1964 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 75 D of 1962.
M.C. Chagla and Lily Thomas, for the appellants (in C.A. No. 2464 of 1966) and the respondents (in C.A. Nos. 2465 of 1966).
A.K. Sen and 1.
N. Shroff, for the respondents (in C.A. E No. 2464 of 1966) and the appellants (in C.A. No. 2465 of 1966).
The Judgment of the Court was delivered by Bachawat, J.
One Mehtab Singh, the landlord, is the owner of the premises No. 279, situate in Dariba Kalan, Delhi.
His son Muni Subrat Dass resides on the first floor while the ground F floor is in the occupation of the tenants, Bahadur Singh and Daryao Singh where they set up a workshop and installed machinery for manufacturing purposes.
According to Muni Subrat the workshop was a nuisance and caused him great annoyance.
He made a number of complaints to the Municipal Committee for stoppage of the nuisance.
On June 10, 1954, Muni Subrat G and the tenants agreed in writing to refer the disputes between them to the arbitration of two named arbitrators.
The landlord was not a party to the agreement.
The arbitrators made their award on July 14, 1954.
The award directed that (i) Muni Subrat would withdraw the applications pending before.
The Municipal Committee; (ii) the tenants would be at liberty to run the workshop during the day time upto December 31, 1957; (iii) on January 1, 1958, the tenants would remove the machinery; (iv) on the same date they would give vacant possession of the ground floor to the landlord and (v) the tenants would pay rent 434 to landlord for the period of their occupation.
.The award was signed by the arbitrators and the parties to the reference and was attested by the landlord.
It was filed in COurt under section 14 of the .
On August 26, 1954, the tenants and Muni Subrat stated in Court that they had no objections against the award.
On the same date the Court pronounced judgment according to the award and a decree followed accordingly.
On August 23, 1958 Muni Subrat and the landlord jointly applied for execution of the decree `for delivery of possession of the premises.
In anticipation of the application for execution of the decree, on January 9, 1958 the tenants filed an application under sec.
47 of the Code of Civil Procedure raising the following objections to the execution of the decree as to the delivery of possession of the premises to the landlord: (i) the award was beyond the scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) and was void; and (iii) the landlord could not execute the decree.
The Subordinate Judge, First Class, Delhi, dismissed the objection.
He held that (i) that the objection that the award was without jurisdiction could not be raised under sec.
47; (ii) the decree was not in contravention of the Rent Act; and (iii) the landlord was entitled to execute the decree.
On appeal,the Additional Senior Sub Judge, Delhi, held that (i) the question as to the validity of the award could not be agitated in the execution proceedings; (ii) the decree for eviction was passed in contravention .of the Rent Act and was void; (iii) the appeal against the order allowing the landlord to execute the decree was incompetent and (iv) Muni Subrat was entitled to execute the decree for removal of the machinery but he could not execute the decree for eviction.
In the result, he dismissed the appeal in part so far 'as it was directed against the landlord, allowed the appeal in part against Muni Subrat and declared that he could get the machinery removed but he could not claim eviction.
The tenants and the decree holders filed two separate appeals in the Punjab High Court at Delhi.
Gurdev Singh 1.
held that (i) the first appeal filed against the order in favour of the landlord was competent; (ii) the decree for eviction did not contravene the provisions of the Rent Act and (iii) the landlord was entitled.
to execute the decree for eviction.
In the result, he accepted the decree holder 's appeal and dismissed the tenant 's appeal.
The tenants filed an appeal under clause 10 of the Letters Patent.
A Divisional Bench of the High Court held that (1) the objection to the validity of the award could not be entertained in the execution proceedings; (2) the decree directing delivery of possession of the premises to the landlord was passed in contravention of the Rent Act; (3)neither the landlord nor Muni Subrat could 435 enforce that part of the decree; (4) the decree directing removal of the machinery was 'separable and was void and Muni Subrat was entitled to execute it.
In the result, the DiviSional Bench allowed the appeal and restored the order of the Additional Senior Sub Judge, Delhi.
In passing this order the Bench overlooked that the Senior Sub Judge had dismissed the appeal against the landlord as incompetent.
Having regard to the fact that the appeal against the landlord was competent, the Bench should have also set aside the order favouring the landlord.
The present appeals have been filed by the tenants as also by the landlord and Muni Subrat after obtaining certificates from the High Court.
The following points arise for determination in these appeals, (1) Can the objection as to the ' validity of the award be raised after a decree is passed ' on the award, and can the decree be pronounced to be a nullity on the ground that it was based on an invalid award; (2) Is the decree directing the tenants to deliver possession of the premises to the landlord a nullity on the ground that it was passed in contravention of the Rent Act; (3) Is this portion of the decree enforceable either by the landlord or by Muni Subrat; and (4) Is the decree so far as it directs removal of the machinery valid and enforceable by Muni Subrat.
The award was filed in Court under section 14 of the and on notice to the tenants and in their presence a decree, was passed according to the award under section 17.
It is not Open to the tenants now to take the objection that the award was in excess of the 'authority of the arbitrators or was otherwise invalid.
Having regard to the scheme of sections 14 'to 17 and 31 to 33 all ' questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court.
An award which is invalid on any ground can be set aside under section 30.
After a decree is passed on the award it is not ' open to the parties to the reference to raise any ' objection as to ' the validity ' of the award.
As between them the decree conclusively determines that the award is valid.
Nor can the decree be pronounced to be a nullity on the ground that ' the award was invalid.
A decree passed on an invalid award in arbitrations in suits under the second schedule to the Code of Civil ' Procedure, 1908, stood on the same footing, see Rabindra Deb Manna vs Jogendra Deb Manna(1) where Rankin, '1. 'observed: "An award made out of time, Or otherwise 'invalid, is no longer a nullity it is 'liable to be set aside by the Court, but, if not set aside, a decree made for its enforcement is not without jurisdiction, Shib Kristo Daw vs Satish Chandra Dutt The next question is whether the decree directing the tenant to deriver possession of the premises to the landlord was.
passed A.I.R. 1923 Cal.
410, 413.
436 in contravention of section 13 (1) of the Delhi and Ajme Rent Control Act, 1952.
That sub section provided that: "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied. " Then followed a catalogue of grounds on which the decree for recovery of possession could be passed.
The other sub sections to section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant.
Section 13 (1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed.
Now the decree in the present case is on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.
The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed.
On the plain wording of section 13 (1 ) the Court was forbidden to pass the decree.
The decree is a nullity and cannot be enforced in execution.
The contusion that a decree passed in contravention of section 13 (1) is a nullity is supported by the decision in Peachey Property Corpn.
vs Robinson(1).
In that case the landlords issued a writ to recover possession of a flat let to tenants who resided there for non payment of rent.
No appearance was entered and judgment was signed in default of appearance.
On an application for leave to issue a writ for possession, the Court held that the judgment was a nullity as it was given without any determination that it was reasonable to do so in contravention of section 3 (1) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933.
As the decree was a nullity the Court refused to issue a writ for possession.
Winn, L.J. said : "Accordingly,the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3(1) was made to apply to these premises and that sub section provided: 'No Order or judgment for the recovery.
of possession of any dwelling house to which the principal Acts apply or for the ejection of a tenant therefrom shall be (1) , 983. 437 made or given unless the Court considers it reasonable to make such an order or give such a judgment. and. " One or other of two additional conditions is satisfied.
It is perfectly plain from what I have said that before the judgment in default of appearance was entered no court had determined whether it was reasonable to make such an order or give such a judgment.
In my view, therefore, by express force of that section the judgment in default of appearance here was a nullity.
It was, according to its terms, a judgment for recovery of possession of these premises, and that is something which the section prohibits unless there has been a prior determination by the court that it was reasonable to give such a judgment." As the decree for the delivery of possession of the premises to the landlord is a nullity it cannot be enforced or executed either by the landlord or by the landlord 's son Muni Subrat.
The decree in so far as it directs the removal of the machinery from the premises is clearly valid and separable from the rest of the decree and may be executed by Muni Subrat.
In the result, it is declared that (a) the objections as to the validity of the award cannot be entertained in the execution proceedings; (b) the decree in so far, as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed either by Muni Subrat or by Mehtab Singh and (c) the decree in so far as it directs removal of the machinery is valid and may be executed by Muni Subrat.
Subrat to the declarations mentioned above the appeals are dismissed.
There will be no order as to the costs in this Court.
Y.P. Appeals dismissed.

dataset_name: IN-Abs

summary:
The tenants occupying the ground floor of a building set up a workshop therein.
According to the landlord 's son M, who resided in the first floor, the workshop was a nuisance and caused him great annoyance.
M and tenants agreed to refer the dispute to arbitration.
The landlord was not a party to the agreement.
The award directed that the tenants would run workshop up to certain time and ' thereafter remove the machinery.
and on that day give.
vacant possession of the ground floor to the landlord.
The award was signed by the arbitrators, the tenants, and M, and it was attested by the landlord.
It was filed in Court under section 14 of the Arbitration Act.
The tenants and M stated in Court that they had no objections against the award.
The Court pronounced judgment according to the award and decree followed.
On the expiry of the date fixed for removing the, machinery and for vacating the premises, M and the landlord jointly applied for the execution of the decree.
The tenants objected under section 47, Code of Civil Procedure to the execution contending that (i) the award was beyond the, scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 and was void; and (iii) the landlord could not execute the decree.
HELD: (i) The award was filed in Court under section 14 of the Arbitration Act and on notice to the tenants and in their presence a decree was passed according to the award under section 17.
It was not open to the tenants then to take the objection that the award was in excess of the authority on the arbitrators or was otherwise invalid.
Having regard to the scheme of ss, 14 to 17 and 31 to 33 all questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court.
An award which is invalid on any ground can be set aside under section 30.
After a decree is passed on the award it is not open to the parties to the reference to raise any objection as to the validity of the award.
As between them the decree conclusively determines that the award is valid.
Nor can the decree be pronounced to be a nullity oh the ground that the award was invalid.
[435 E G] Rabindra Deb Manna vs Jogendra Deb Manna A.I.R. 1923 Cal. 410, and Shib Kristo Daw vs Sottish Chandra Dutt approved.
(ii) The decree for delivery of possession to the landlord was a nullitv and could not be enforced in execution.
Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952 prohibited the Court, from passing a decree or order for recovery of possession of any premises in 433 favour of a landlord against a tenant except in such a suit or proceeding instituted by the landlord against the tenant for recovery of possession on one of the grounds stated therein, and unless the Court was satisfied that a ground of eviction existed.
The decree in the present case was on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.
The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed.
[436 C E] Peachey Property Corpn.
Robinson [1966] 2 All E.R.981, applied.
(iii) The decree in so far as it directed the removal of the machinery from the premises was clearly.
valid and separable from the rest of the decree and could be executed by M.


judgement:
ivil Appeal No. 1654 of 1966.
395 Appeal from the judgment and order, dated March 8, 1963 of the Bombay High Court in Appeal No. 7 of 1963.
and Civil Appeals Nos. 1019 and 1020 of 1967.
Appeals from the judgment and order, dated August 20, 1964 of the Bombay High Court in Appeals Nos.
53 and,55 of 1963.
C.K. Daphtary, Attorney General, N.S. Bindra, R. Gopalakrishnan and S.P. Nayar, for the appellant (in C.A. No. 1654.
of 1966).
Niren De, Solicitor General, G.L. Sanghi, and 1.
B. Dadachanji, for the appellants (in C.As.
1019 and 1020 of 1967) and respondents Nos. 3 and 4 (in C.A. No. 1654 of 1966).
Sen and 1.
N. Shroff, for respondents Nos. 1 and 2 (in C.A. No. 1654 of 1966) K.K. Singhvi, S.C. Agarwala, R.K. Garg, D.P. Singh and K. Gupta, for the respondents (in C.A. No. 1020 of 1967).
The Judgment of the Court was delivered by Shah, J.
The High Court of Bombay has declared section 372(g) and a part of section 385 of the Bombay Municipal Corporation Act 3 of 1888 as amended by Act 14 of 1961 ultra vires because in their view these provisions infringe the guarantee of articles 19 (1 ) (f) & (g) of the Constitution.
The State of Maharashtra and the Municipal Corporation of Greater Bombay have appealed to this Court.
The first respondent in Appeal No. 1654 of 1966 is a society registered under the , and carries on, within the limits of Greater Bombay, the business of skinning carcasses of dead animals and utilising the products for industrial uses.
The second respondent is an owner of a stable of milch cattle at Andheri within the limits of Greater Bombay.
By Act 14 of 1961 the Legislature of the State of Maharashtra amended, amongst others, sections 367, 372 and 385 of Act 3 of 1888 enacting that an owner of the carcass of a dead animal shall deposit it at the place appointed in that behalf by the Corporation, and entrusted the Corporation with power to arrange for disposal of the carcasses.
On October 14, 1961 the Assistant Head Supervisor of the Municipal Corporation called upon the first respondent to stop removing carcasses from the "K" Ward of the Corporation.
On November 27, 1961, the Corporation published a notification inviting the attention of the public concerned to the provisions of section 385 and other provisions of the Act and warned the persons concerned that violation of the provisions was liable 396 to be punished.
On January 10, 1962, the Corporation resolved to grant a contract authorising removal and disposal of carcasses under section 385 of the Act in respect of Wards, H, K, L, M, E, P, B & T to the Harijan Workmens Co operative Labour Society Ltd., and declared that no other person or agency was authorised to remove and dispose of carcasses under the provisions of section 385 of the Act.
Respondents Nos. 1 & 2 to this appeal moved a petition in the High Court of Bombay for an order canceling or setting aside the notice dated October 14, 1961, and the notification dated November 27, 1961, for an order restraining the Corporation from demanding fee for removal of such carcasses, from taking any steps or proceedings against the respondents for enforcement of the provisions of sections 366,.
367(c), 372(g) and 385 of the Act and from claiming ownership in the carcasses of the dead animals of private owners.
The State of Maharashtra was later impleaded as a party respondent to the petition.
Kantawalla, J., dismissed the petition.
He held that sections 366, 367(c) and 385 of the Act were "enacted for the promotion of public health and for the prevention of danger to life of the community and in the larger interest of the public", and that the restrictions upon the rights of the owners of cattle and persons carrying on business in carcasses were, because of the special protection granted by article 31(5)(b)(ii) not inconsistent with or repugnant to the fundamental rights guaranteed under article 31(2) of the Constitution, and since the impugned provisions were protected, the second respondent could not claim that his fundamental right guaranteed by article 19(1)(f) of the Constitution was infringed.
The learned Judge also held that the restrictions imposed by the impugned provisions were reasonable and in the interest of the general public and were on that account not within the protection of article 19(1)(g) of the Constitution.
In appeal under the letters patent the High Court modified the order passed by Kantawalla, J., and declared section 372(g) and a part of section 385 of the Act invalid.
The High Court did not pass any order consequential on the declaration.
Against that order the State of Maharashtra has preferred this appeal with certificate granted by the High Court.
Section 3 (z) defines 'nuisance ': it includes any act, omission, place, or thing which causes or is likely to cause .injury, danger, annoyance or offence to the sense of sight,.
smelling or hearing, or which is or may be dangerous to life or injurious to health or property. ' Section 61 sets out the obligatory and discretionary duties of the Corporation.
It is thereby incumbent upon the Corporation to make adequate provision, inter alia, for scavenging, removal and disposal of excrementitious and other filthy matters, 397 and of all ashes, refuse and rubbish, reclamation of unhealthy localities, removal of noxious vegetation and generally the abatement of all nuisances.
By sections 365, 366, 367, 368, 372 and 385 it was provided that section 365 "For the purposes of securing the efficient scavenging and cleansing of all streets and premises.
the Commissioner shall take measures for securing (a). . . . . . (b) the removal of the contents of all receptacles and depots and of the accumulations at all places provided or appointed by him under section 367 or 368 for the temporary deposit of any of the matters specified in the said sections.
" section 366 "A11 matters collected by municipal servants or contractors in pursuance of the last preceding section and of section 369 and carcasses of dead animals deposited in any public receptacle, depot or place under section 367 shall be the property of the Corporation.
" section 367 "The Commissioner shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of (a) dust, ashes, refuse and rubbish; (b) trade refuse; (c) carcasses of dead animals and excrementitious and polluted matter; Provided that (i) the said matters shall not be finally disposed of in any place or manner in which the same have not heretofore been so disposed of, without the sanction of the corporation or in any place or manner which the State Government think fit to disallow; (ii) any power conferred by this section shall be exercised in such manner as to create the least practicable nuisance." section 368 "(1) It shall be incumbent on the owners and occupiers of all premises to cause all dust, ashes, refuse, rubbish and trade refuse to be collected from their respective premises and to be deposited at such times as the Commissioner, by public notice, from time to time prescribes in the public receptacle, depot or 398 place provided or appointed under the last preceding section or the temporary deposit or final disposal thereof. .
" section 372 "No person (a) who is bound, under section 368 or section 370, to cause the removal of dust, ashes, refuse, rubbish and trade refuse or of excrementitious or polluted matter, shall allow the same to accumulate on his premises for more than twenty four hours or neglect to cause the same to be removed to the depot, receptacle or place provided or appointed for that purpose; .
" (g) shall deposit the skin or otherwise dispose of the carcass of any dead animal at a place not provided or appointed for this purpose under section 367.
" section 385 "(1) It shall be the duty of the Commissioner to provide for the removal of the carcasses of all animals dying within Greater Bombay; (2) The occupier of any premises in or upon which the animals shall die or in or upon which the carcass of any animal shall be found, and the person having the charge of any animal which dies in the street or in any open place, shall within three hours after the death of such animal, or if the death occurs at night, within three hours after sunrise, report the death of such animal at the municipal health department office of the division of the Greater Bombay in which the death occurred or in which the carcass is found and shall not unless authorised by the Commissioner in this behalf, remove or permit to be removed the carcass of any animal dying in or upon any place within Greater Bombay; "(3) For every carcass so removed by municipal agency, a fee for the removal of such amount as shall be fixed by the Commissioner, shall be paid by the owner of the animal or, if the owner is not known, by the occupier of the premises in or upon which, or by the person in whose charge, the said animal died.
" The provisions are manifestly enacted with the object of ensuring expeditious removal of carcasses .of dead animals which, if allowed to remain, are likely to constitute a grave nuisance and are likely to endanger public health.
The carcass of a dead animal is a noxious thing, which in the hot and humid climate of Bombay petrifies within a short time after the death of the animal and defiles the place and atmosphere with foul smells, and is likely 399 to spread disease if immediate and proper steps for removal and disposal are not taken.
The Municipal Corporation is entrusted with authority to take steps to ' protect the health of the residents within the municipal area.
To ensure against a grave nuisance to the residents, duty is imposed by the Act upon the owner of the animal or occupier of the premises in or upon which the animal dies or the person having charge of the animal to remove the carcass with the permission of the Commissioner in that behalf at his own expense, or to have it removed through the agency of the Corporation.
If it is removed by the Corporation, the owner is required to pay the prescribed fee for such removal.
After it is deposited by the owner or by the Corporation in a receptacle, depot or place which is set apart for that purpose, the carcass may be disposed of by the Corporation in a manner which is likely to cause the least public nuisance.
For that purpose the carcass is at the disposal of the Corporation.
The Act does not make any provision relating to the manner in which the Corporation is to dispose of the carcass, but it is implicit in the scheme of the Act that the Corporation will provide a place removed from the inhabitated localities where the carcasses may be disposed of without involving any danger to public health.
To facilitate this object it is enacted by the Legislature that the carcasses of dead animals deposited in any public receptacle, depot or place shall be the property of the Corporation.
Unquestionably it is in the interest the residents of the Municipal Corporation and for promotion of public health and for prevention of danger to the community that carcasses of the dead animals shall be removed expeditiously and shall be disposed of in a manner which is likely to cause the least nuisance.
The carcass of a dead animal is private property and belongs to the owner of the animal, and the carcass on sale by the owner, when it.
is of a bull, cow or buffalo, fetches a small price.
Counsel for the second respondent urged that the provisions of the Act which place restrictions upon the right of the owner to dispose of the carcass and compel him to incur expenditure for removal or to pay a fee for that removal to the appointed place, and extinguish his ownership in the carcass when it is deposited in the place appointed, infringe the fundamental right to property guaranteed under article 19(1)(f) and article 31 (2) of the Constitution.
Counsel for the first respondent urged that by the impugned provisions the first respondent is deprived of his right to carry.
on business, and on that account infringe the right guaranteed by article 19(1)(g) of the Constitution.
Counsel for the Corporation conceded that a carcass is property which is capable of being owned.
Counsel, however, submitted that a carcass is not commercial property and the first respondent could not claim to carry on business in disposal of 400 carcasses.
The judgment of the Supreme Court of the United States in Gerrit W. Clason vs State of Indiana(1) on which reliance was placed by counsel for the Corporation merely decided that a State statute requiring the owner of a dead animal not slaughtered for food to bury or burn such .body on his premises or to deliver it W the representative of a disposal plant licensed to do business within the State, and prohibiting transportation over the high ways of the State of the body of such animal except to a licensed disposal plant and with certain sanitary. precautions, did not unduly discriminate against and burden toter state commerce.
The judgment does not support the plea that a citizen carrying on the business in the disposal of the carcasses is not entitled to the constitutional protection against unreasonable restrictions on the carrying on of any lawful business or occupation.
The second respondent is not a dealer in carcasses.
He has a right of ownership in the carcass.
He claims that before the enactment of the impugned provisions he was accustomed to sell the carcass of an animal dying in his/stable for a price; he is under the Act enjoined to deposit the carcass in an appointed place and for that purpose to incur expenditure for removal of the carcass or to pay a fee to the Corporation for arranging for its removal.
On account of the impugned provisions he says that he cannot sell the carcass, and when he deposits the carcass in the appointed place his ownership in the carcass ceases and he has to pay for removal of the carcass.
Article.
19(1)(f) of the Constitution confers upon all citizens the right to acquire, hold and dispose of property.
Carcass of an animal belonging to a person is his property and he has the right of disposal of the carcass.
But that fundamental right, like all other rights in article 19( 1 ).
is not absolute: it is subject to reasonable restrictions.
By el.
(5) it is enacted that: "Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of the general public or for the protection of the interests of any Scheduled Tribes.
" 401 the Municipal agency with the least practicable delay is conceived in the interests of the general public and no serious argument to the contrary was advanced before us.
A law designed to abate a grave nuisance and for protection of public health is prima facie one enacted for the protection of the interests of the general public.
But that alone is not sufficient: the restriction imposed by the law must be reasonable, i.e., the restriction must not be arbitrary or excessive, and must not place upon the right of the citizen a limitation which is not calculated to ensure protection of the interests of the general public.
In the view of the High Court the law which compels the owner to deposit the carcass in the appointed place and thereby prevents him from selling it, and involves him in expenditure for removing it, or in the payment of a fee for removal, imposes an unreasonable restriction.
The High Court also observed that a law which declares that as soon as the carcass which is a valuable property is deposited, it becomes the property of the Corporation makes an unreasonable provision since "it makes no difference whether the carcass is disposed of by a purchaser from the owner of the carcass or by a contractor who purchased it from the Corporation".
But in so holding, in our judgment, the High Court ignored the hazard to the public health arising from adulteration of the food of the people.
There is evidence on the record which is not controverted that meat and fat from the carcasses are used by unscrupulous persons for adulterating the food of the community.
Mere imposition of an injunction to remove the carcass within the prescribed period abates the nuisance likely to result from the carcass remaining on the premises of the owner: it does not eliminate grave hazard to public health by the adulteration of the food of the people by the products from carcasses.
By merely enacting that the carcass will be removed expeditiously, the second object cannot be served.
The Corporation has control over the contractor to whom the carcasses are entrusted for disposal.
It has set apart a place for skinning and has supervision over the disposal of the products.
Even by imposing stringent supervision upon persons carrying on the business of skinning carcasses protection of the community against adulteration of its food cannot be effectively secured, because it would not be difficult for a purchaser not subject to the control of the Corporation to remove the carcasses beyond the Corporation limits and then to bring contaminated meat and the fat back into the Corporation area.
The Legislature has designed a scheme by which reasonable restrictions are placed upon the right of a citizen to dispose of his property: possibility of an alternative scheme which might have been but has not been designed, will not justifiably expose the first scheme to the attack that it imposes unreasonable restrictions.
402 Reasonableness of restrictions imposed by a law has to be adjudged in the light of the nature of the right, danger or injury which may be inherent in ' the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise of the right.
In each case the test is whether the restriction is commensurate with the need of protection of the interest of the public against the exercise of the right.
But the fact that the owner is unable to sell for a price the carcass and required to pay a fee for removal of the carcass does.
not, in judgment, render a provision which is essentially conceived in the interests of the general public, as indicated .earlier, unreasonable.
The Corporation has to arrange for effectively disposing of the carcass, and it would be necessary for effectuating that purpose to provide that the title of the owner in the carcass should be extinguished.
Unless the title of the owner in the carcass is extinguished, various complications may arise in the way of disposal of the carcass.
We are unable to agree with the High Court, that for/he purpose of ensuring proper disposal, transfer of ownership to the Municipal Corporation was not necessary or that the provisions went "far beyond the legitimate purpose of making them." In determining the extent of the right which a citizen may claim to exercise, the Court is concerned to deal with the reasonableness of the restriction imposed upon the exercise of the right.
As observed by Patanjali Sastri, C.J., in State of Madras vs If.
G. Row(1) "the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the: evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at ' the time, should all enter into the judicial verdict.
" As stated by Mahajan, I., in Chintamanrao vs State of Madhya Pradesh(2) at p. 763: The word 'reasonable ' implies intelligent care and deliberation.
that is the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1) (g) and the social control permitted by clause (6) of article 19 it must be held to be wanting in that quality.
" The High Court was of the view that looking to the object intended to be achieved it was not necessary to impose "such wholesale restriction on the owner of carcasses as also on those who carry (1) ; 607.
(2) ; 403 on the trade as has been imposed.
" We do not think, however, that the provisions incorporated by Act 14 of 1961 were arbitrary or excessive.
Reasonableness of the restriction imposed upon the right to acquire, hold and dispose of property must be evaluated in the light of the nature of the commodity and its capacity to be detrimental to the public weal.
The power of the State to impose reasonable restrictions may extend to prohibiting acquisition holding or disposal of a commodity if the commodity is likely to involve grave injury to the health or welfare of the people.
In adjudging the reasonableness of restrictions imposed upon the holding or disposal of a carcass which is noxious, maintenance of public health is the paramount consideration.
Restriction imposed upon the right of an owner of a carcass to dispose it of in the manner indicated, in the Act, being enacted solely in the interest of the general public, cannot be deemed arbitrary or excessive merely because they involve the owner into a small financial burden.
Under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by article 19(1 )(f) and (g) and the interests of a citizen in the exercise of his right to 'acquire, hold or dispose of his property or to carry on occupation, trade or business.
In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen to the commodity.
The law which compels the removal of the carcass expeditiously from the place where it is lying is not contended to be arbitrary or excessive.
The law which compels removal to the appointed place and disposal of the carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive, merely because the enforcement of the law involves some pecuniary loss to the citizen.
We are unable to agree that by compelling disposal of carcasses by leaving to the owner of the carcass to dispose it in any manner he thinks fit, danger to the public health could be effectively avoided.
was faintly argued that the levy of Rs. 20 as fee for removal of each carcass was excessive.
But there is no evidence before the Court about the expenses which the Corporation is required to incur in performing the service relating to the removal of carcasses of all animals some of which may yield in the disposal valuable by products and others not.
Evidently in a large and crowded metropolitan city it would be necessary to maintain covered wagons for removal of carcasses, to maintain an inspecting staff.
to, make adequate arrangements for deposit of carcasses at certain places.
and for their disposal under the supervision of the Municipal staff.
Whether the fee levied from the owner of the 404 carcass of an animal in excess of the expenditure which the Corporation will have to incur for the maintenance of the service is not commensurate is a matter on which no investigation appears to have been made and this Court cannot enter upon that question for the first time.
It was, however, urged that a provision which not only extinguishes the title of the owner in the carcass thereby involving him in the loss of the value which he would have obtained by sale of the carcass, but ' simultaneously imposes upon him a liability to remove the carcass at his own expense is per se unreasonable.
We do not think so.
If the carcass is likely to be deleterious to public health and its removal from the place where it is lying being in the interests of the public health, imposition of an obligation upon the owner to remove the carcass at his own expense or to pay for its removal, cannot be regarded as unreasonable, even if the charge which falls upon the owner is in addition to the loss which he suffers by reason of the extinction of his title in the carcass.
If the owner 's right to dispose of his property is by the enactment of the impugned section subjected to reasonable restrictions, it must follow that the right of the skinner, assuming that he has a right in the carcass, is also subjected to reasonable restrictions, imposed in the interests of the general public.
The impugned provisions do not infringe the guarantee of freedom under article 19(f) of the Constitution.
But even if it be established that the law which imposes a reasonable restriction upon the right of a citizen to acquire, hold and dispose of property, is not on that account free from the challenge that it infringes the guaranteed freedom under article 31.
Article 31, after it was amended by the Constitution (Fourth Amendment) Act, 1955, provides: "(1) No person shall be deprived of his property save by authority of law.
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.
(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by 405 the State, it shall not be deemed to provide for the com pulsory acquisition Or requisitioning of property, not withstanding that it deprives any person of his property.
. . (5) Nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply, or (b) the provisions of any law which the State may hereafter make (i) .
(ii) for the promotions of public health or the prevention of danger to life or property, or (6) .
Before the Constitution (Fourth Amendment) Act, 1955, the prevailing opinion in this Court was that articles 31(1) & (2) dealt with the same subject matter and were not mutually exclusive in their scope and content, and should be read together and understood as dealing with the same subject, namely, the acquisition or taking possession of property referred to in cl.
(2) of article 31, and that article 31 (before amendment) is a self contained Article providing for a subject different from that dealt with in article 19.
But since the enactment of the Constitution (Fourth Amendment) Act, 1955, clauses (2) & (2A) of article 31 and cl.
(1) of article 31 deal with different subjects: Clauses (2) & (2A) deal with acquisition and requisitioning of property; and cl.
(1) with deprivation of property by authority of law: Kavalappara Kottarathil Kochuni and Ors.
vs The State of Madras and Ors.(x) It was also held in that case that the word 'law ' used in article 31 (1 ) indicates its limitation and refers back to article 19 and any law made under article 31 (1 ) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public, and that the correct approach should be first to ascertain the fundamental right and then to see whether the law infringes that right.
If ex facie it does so, it has to stand the test of article 19(5).
In certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under that Article.
It was also observed that the word 'law ' in article 31 ( 1 ) must mean a valid law, and such a law must satisfy two tests ( 1 ) that the legislature is competent to enact it; and (2) that it (1) 916.
406 does not infringe any fundamental right.
A law that deprives a citizen of his property may, therefore, be invalid if it infringes article 19(1) (f) of the Constitution, unless it is protected by cl, (5) of article 19.
It was however ruled by a unanimous decision of this Court in Smt.
Sitabati Debi and Anr.
vs State of West Bengal and Anr.(1) that the decision in Kavalappara Kottarathil Kochuni 's case(2) was not concerned with a law of requisition or acquisition and a law relating to acquisition and requisition of property falling within the terms of article 31(2) of the Constitution need not stand the test of reasonableness under article 19 (5).
In the present case the restrictions imposed by the impugned law upon the right of the owner however satisfy, for reasons already stated, the test of reasonableness under article 19(5).
The question still remains whether the impugned law is void because it does not provide for payment of compensation for the loss occasioned to the owner of the carcass resulting from the extinction of his title thereto.
Since the amendment by the Constitution (Fourth Amendment) Act, 1955, cls.
(2) & (2A) of article 31 deal with the acquisition or requisitioning of property movable or immovable for a public purpose.
The protection of cl.
(2) is attracted only if there is acquisition or requisitioning of the property for a public purpose i.e., for using the property for some purpose which would be beneficial to the public.
The right guaranteed by article 31(2) is that property shall not be compulsorily acquired or requisitioned for a public purpose save by authority of law which provides.
for compensation for the property so acquired or requisitioned.
The expression "acquired or requisitioned . . for a public purpose means acquired or requisitioned for being appropriated to or used for a public purpose.
But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose: its primary purpose is destruction of the carcass in the public interest, and not utilisation of the property for a public purpose.
The case would not, therefore, fall within the terms of article 31 (2).
In any case the statute is squarely protected by cl.
(5)(b)(ii) of article 31 and on that account the owner is not entitled to compensation for loss of his property.
The words of article 31 (5) (b) (ii) are express and specific.
Nothing in cl.
(2) shall affect the provisions of any law which the State may hereafter make for the promotion of public health or the prevention of danger to life or property.
If a law is enacted directly for the promotion of public health or for ,the prevention of danger to life or property, then, notwithstanding that it may incidentally (1) (2) 407 fall within the terms of cl.
(2), no compensation is payable.
Where the State acquires property and seeks to utilise it for promotion of public health or prevention of danger to life or property, the State is liable to pay compensation.
But a law which directly and immediately seeks W promote public health or to prevent danger to life or property falls within the exemption under cl.
(5)(b)(ii) even if thereby the interest of the owner in perry is extinguished and interest in that property is vested in the State for destruction of that property.
Reliance was placed by counsel for the respondents upon a recent judgment of this Court in The Deputy Commissioner and Collector, Kamrup and Ors.
vs Durganath Sarma(1).
In this case the Government of Assam took possession of lands belonging to a citizen.
Thereafter the Assam Acquisition of Land for Flood Control and Prevention of Erosion Ordinance 2 of 1955 was promulgated by the Governor which authorised the State Government to acquire lands for works or other development measures in connection with flood control or prevention of erosion.
The Ordinance was with the assent of the President replaced by the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act 6 of 1955.
Under the Act the owner of the land was not entitled to the market value of the land at the date of acquisition.
The owner of the land moved a petition in the High Court Assam for a declaration that the Act 6 of 1955 was invalid, and for an order directing the State Government to forbear from giving effect to the notices of acquisition of his land issued thereunder.
Act 6 of 1955 was enacted before the Constitution (Fourth Amendment) Act, 1955, which Came into force on April 29, 1955.
The High Court held, inter alia, that Act 6 of 1955 was a law for acquisition of property and was not protected by cl.
(5)(b)(ii) of article 31.
This Court confirmed the order passed by the High Court.
It was observed by this Court (p. 402): "It is to be noticed that cl.
(5)(b)(ii) saved laws for the promotion of public health or the prevention of danger to life or property.
It did not save laws for the acquisition of property.
We are satisfied that cl.
(5) (b) (ii) was not intended to except laws for the acquition of property from the purview of el.
(2) . .A law for promotion of public health or for prevention of danger to life or property sometimes has to provide for destruction and impairment of value of private property and the taking of temporary possession of the property by the State.
It may be necessary to destroy contaminated food or to burn plague infested buildings for the promotion of public health, to pull down a building to prevent a fire from spreading and consuming other (1) ; 408 buildings in the locality, to demolish a building in a ruinous condition endangering the safety of its occupants and other persons in its vicinity.
The destruction and .the temporary talking of property for such purposes, though necessary for promoting public health or preventing danger to life or property, mounted to taking of property within cl.
But for cl.
(5)(b)(ii), a law authorising such a taking of property would have been invalid unless it provided for compensation.
Clause (5)(b)(ii) saved such laws from the operation of cl.
(2 ) and those laws were not invalid because they authorised such a taking without payment of compensation.
A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of cl.
(5)(b)(ii).
" Counsel for the second respondent, however, invited our attention to the following passage in the judgment of the Court: "Clause 5(b)(ii) will protect laws providing for requisitioning or temporary occupation of property strictly necessary for promotion of public health or prevention of danger to life or property.
The law may authorise the State to requisition the property temporarily for abating the public menace without payment of compensation if the menace cannot be abated in some other recognised way.", and contended that el.
(5)(b)(ii) only applies where there is "temporary occupation of property"; where there is deprivation of property with a view to destroy it, el.
(5) (b) (ii) has no application.
But evidently the expression is used in dealing with the claim to compensation for acquisition of immovable property.
Where possession of movable property is under the authority of law taken with a view to destroy it in the interest of the general public i.e., for prevention of grave danger to life or property, the guarantee of article 31(2) is not attracted.
The law enacted by the Legislature extinguishing the interest of the owner in the carcass and creating an interest in the Corporation being a law directly enacted for _prevention of grave danger to the health of the community fell within the terms of cl.
(5) (b) (ii) and no compensation was _payable in respect thereof, article 31(2) notwithstanding.
We may observe that this Court in Deputy Commissioner Kamrup 's case(1) _proceeded to observe that even though since the amendment by the Constitution (1) ; 409 (Fourth Amendment) Act, cls.
(1) & (2) of article 31 dealt with separate.
subject matters, since el.
(5) (b) (ii) of article 31 has not been amended, its connotation could not be deemed to have been altered.
If originally it was intended to be a restriction on the right to property as delineated by cls.
(1) and (2) of article 31, it continued to have the same operation.
In Deputy Commissioner, Kamrup 's case(1), however, the Court was not directly called upon to declare the precise inter relation between cl.
(5) (b) (ii) and 'el.
(2) as amended for the impugned Assam Act was enacted before the amendment of the Constitution by the Constitution (Fourth Amendment) Act.
It is sufficient for the purpose of this case to hold that a law declaring extinction of the right of the owner in movable property not with a view to use it for a public purpose but to destroy it for abating nuisance and preventing danger to public health and vesting it in the Corporation entrusted with power to take steps to maintain public health is not a law for acquisition of property for a public purpose.
In any event the law is not, because of the exemption contained in el.
(5)(b)(ii) of article 31 of the Constitution, invalid.
even if It does not provide for payment of compensation for deprivation of the right to property.
The owner of the carcass is, therefore, unable to sustain his plea that article 19(1)(f) or article 31(2) were infringed by the impugned provisions.
The claim of the first respondent who.
would, but for the law have been able to purchase carcasses from the second respondent does not require any elaborate discussion.
The first respondent is carrying on business as a skinner of carcasses and claims protection of its fundamental right under article 19(1)(g) of the Constitution.
Evidently it has no right in the carcass until it purchases the carcass.
Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser, who, but for the restriction, may have been able to purchase it.
Assuming, however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent, we are of the view, having regard to the character of the legislation and its avowed object that it imposes reasonable restrictions upon the right to carry on occupation or business within the meaning of article 19 (6) of the Constitution.
The first respondent cannot claim the protection of article 31(2) of the Constitution, because until it purchases the carcasses from the owner it has no right in the .property, and it cannot set up a grievance for loss of property which it does not own.
(1) A.I.R. 968 S.C. 394.
CI/69 9 410 It was urged that the Corporation instead of disposing of the carcasses under its own supervision had given contracts to the rivals in business of the first respondent and the law which authorised the Corporation, by exercise of legislative authority, to destroy the business of the first respondent must be regarded as imposiag unreasonable restrictions upon the right of the first respondent to carry on business.
The Act, however, contains no provisions about the manner in which the Corporation shall dispose of the carcasses which may come into its possession; it leaves it to the Corporation to take adequate and effective steps for the purpose of disposal.
Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon their fundamental right is a matter on which no argument was advanced at any stage before the trial Court or the High Court, though it was strenuously urged before us.
Prima facie, the argument has no substance: in any case, it cannot affect the validity of the statute or the provisions which have been declared to be invalid by the High Court.
The facts which give rise to the two other appeals are the same and for reasons already stated the claim made by the respondents must be The appeals are allowed and the orders passed by the High Court set aside.
The petitions shall stand dismissed.
No order as to costs throughout.
V.P.S. Appeals allowed.

summary:
To ensure against the grave nuisance which may be caused to the residents of a locality if carcasses of dead animals are allowed to remain on the premises within the city, 'a duty is imposed by sections 367, 372 and 385 of the Bombay Municipal Corporation Act, 1888, as amended by Act 14 of 1961, upon the owner of the animal or the person having charge of the animal or the occupier of premises in which the animal .dies, to remove the carcass at his own expense with the permission of the Commissioner of the City of Bombay.
or, to have.
it removed through the agency of the Corporation, for which he was required to pay a fee of Rs. 20.
It was further enacted that after it was removed it shall be deposited in 'a receptacle, depot or other place set apart for the purpose, either by the owner or the Corporation.
Thereupon, the owner lost his property in the carcass and ' it became the property of the Corporation.
Under the Act it was the duty of the Corporation to arrange for its disposal causing the least practicable nuisance.
The second respondent was the owner of a stable of filch cattle in Bombay.
He was selling the carcasses of animals dying in his stable for a price.
The first respondent was a purchaser of carcasses and carried on the business of skinning the dead animals and utilising the products for industrial uses.
The Corporation prohibited the first respondent from removing carcasses and resolved to grant the contract for the disposal of carcasses deposited under the provisions of the Act to Harijan Workmen 's Cooperative Labour Society.
The respondents challenged the provisions and the High Court declared them ultra vires.
In appeal to this Court, on the questions: (1) Whether the obligation not to sell the carcass but to dispose it of as per the provisions of the Act infringe the fundamental rights of the respondents under article 19(1)(f); (2) Whether there was infringement of the fundamental right because of the obligation on the second respondent to incur expenditure for its removal; (3) Whether fee of Rs. 20 was excessive; (4) Whether the second respondent 's loss of ownership and property in the carcass on depositing it as per the provisions of the Act violated the.
respondents ' fundamental right under article 31; and (5) Whether the granting of the contract to the Harijan Society destroyed the business of the first respondent and infringed its fundamental right to carry on business.
HELD: (1) The second respondent had a right of ownership in the carcasses of his animals.
But he was only entitled to constitutional protection against unreasonable restriction on his right to sell the carcasses.
393 Reasonableness of restrictions imposed by a law has to be.
adjudged in the light of the nature of the right, danger or injury which may be inherent in the unbridled exercise of the right and the necessity of protection against danger which may result to the public by the exercise of the right.
In each case the test is whether the restriction is commensurate with the need for protection of public interest against the exercise of the right.
[400 C; 402] A mere imposition of an injunction to remove a carcass only abates the nuisance arising from a dead animal remaining on the premises: it does not eliminate the graver hazard caused by the adulteration of food of the people from its products.
Meat and fat from carcasses are used by unscrupulous persons for adulterating the food of the community.
Even b.y imposing stringent supervision upon persons carrying on the business of skinning carcasses,, protection of the community against food adulteration cannot be effectively secured, because, a purchaser who was not subject to the Corporation control could remove it beyond the Corporation limits and bring back contaminated meat and fat.
Therefore, the Legislature has devised a scheme by which reasonable restrictions are placed upon a citizen 's right to dispose of the carcass.
Under the Act, the Corporation has to set apart a place for depositing the carcass and it is implicit in the scheme of the Act that the Corporation shall provide a suitable place for skinning it.
The Corporation has control over the contractors entrusted with the disposal of carcasses and has supervision over the disposal of the products.
A law which compels the removal of a carcass to an appointed place and its disposal under the supervision of the Corporation which has the duty to take steps for maintaining public health, cannot be regarded as arbitrary or excessive.
The Corporation, has to arrange for effectively disposing of the carcass and it would be necessary for effectuating that purpose to provide that the tatle of the owner in the carcass should be extinguished.
Such a provision is not beyond ' the legitimate purpose for which it was intended, and the fact that the owner is unable to sell for a price the carcass does not render a provision, which is essentially conceived in the interest of the general public,unreasonable.[401 E H;402 B D; 403 E; 404 D] Restriction upon the right of the owner to sell the carcass does not directly infringe the fundamental right of the purchaser.
who, but for the restriction may have been able to purchase it.
Assuming however, that the imposition by law of the restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent having regard to the character of t_he legislation and its avowed object,the restriction upon the first respondents right to carry on his occupation or business is a reasonable one within the meaning of Art 19(5) and (6).
[409 E G] .
Chintaman Rao vs State of M.P. [5950] S.C.R. 759 and State Row; , , followed.
(2) If the carcass is likely to be deleterious to public health and its removal from the place where it is lying being in the interests of the public health, imposition of an obligation upon the owner to remove the carcass at his own expense or to Pay for its removal cannot be regarded as unreasonable, even if the charge which falls upon the owner is in addition to the loss which he suffers by reason of the extinction of his tetle in the carcass.
[404 B D] (3) Whether the fee of Rs. 20 levied on the owner of a carcass for its removal was in excess of the expenditure which the Corporation may go.
Cll69 s 394 have to incur.
was not investigated into by the High Court.
and therefore the question could not, be raised for the first time in this Court.
[404 A B] (4) (a) In the present case, the restrictions imposed by the impugned law upon the right of the owner satisfy the test of reasonableness under article 19(5) and (6).
Therefore, though there is a deprivation of property, it is by a valid law and hence there is no violation of article 31(1).
[406 C D] Smt.
Sitabati Debi vs Stale of West Bengal, , followed.
Kavalappara Kottarathil Kochuni vs State of Madras, referred to.
(b) A law which provides for extinction of the ownership and creation of an interest in the Corporation for .the purpose of disposal of the carcass is not a law for acquisition 'of property for a public purpose: its primary purpose is destruction of a carcass in the public interest, and not its utilisation for a public purpose.
The case does not, therefore, fall within the terms of article 31(2).
[406 F G] (c) In any case the statute is squarely protected by article 31 (5) (b) (ii) and on that account the owner is not entitled to compensation for loss of his property.
Where the State acquires property and seeks to utilize it for promotion of public health or prevention of danger to life or property the State is liable to pay compensation.
But a law which directive and immediately seeks to promote public health or to prevent danger to life or property falls within the exemption of cl.
(5)(b)(ii) even if thereby, the owner 's interest in the property is extinguished and is vested in the State for purposes of destruction.
[406 G H; 407 A B] (d) Article 31(5)(b)(ii) is not confined to 'temporary occupation of property.
In the case of acquisition of immovable property, to have the protection of the clause the occupation of the property must be temporary.
But in the case of movable property, even if its possession is taken with a view to destroying it, if such destruction is in the interests of general public, that is.
for the prevention of danger to life or property, it need not be temporary.
Even such taking of movable property will be protected by cl.
(5) (b) (ii) and the guarantee of article 31(2) would not be attracted.
[408 E G] Deputy Commissioner and Collector, Kamrup vs Durganath Sarma, ; , explained.
The first respondent cannot claim the protection of article 31(2), because, until it purchases the carcasses from the owner it has no right in the property, and it cannot set up a grievance for loss of property which it does not own.
[409 H] (5) Whether by virtue of the contracts given by the Corporation to other persons who are claimed to be rivals in business of the first respondent unreasonable restrictions may be deemed to be placed upon the first respondent 's fundamental right is a matter on which no argument Was advanced before the High Court.
In any event, it cannot affect the validity of the statute or its provisions.
[410 B D]