judgement:
Appeal No. 1192 and 1193 of 1967.
Appeal by special leave from the order dated January 13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A. No. 6 of 1969.
699 B. Sen and G. D. Gupta, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by GROVER, J.
These two appeals by certificate from a judgment of the Allahabad High Court must succeed on the short ground that the provisions of section 4(1) of the Land Acquisition Act, 1894, were not complied with.
In C.A. 1192/67 a notification was issued under section 4 of the Act on October 15, 1960 for acquisition of the land in dispute.
Under section 17 (4) of the Act the provisions of section 5A were dispensed with.
On October 28, 1960 the notification under section 6 was issued.
The appellant was directed to be present before the Collector in pursuance of a notice under section 9 on December 4, 1960.
On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acqui sition proceedings.
The petition, was dismissed by a single judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench.
Section 4(1) of the Act is in the following terms "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be, needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality"; It is common ground that the Collector did not cause public notice of the substance of the notification to be given at convenient places in the locality where the land sought to be acquired was situated.
In other words there was no compliance whatsoever with the second part of sub section
( 1 ) of section 4.
The law as settled by this Court is that.
such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated.
We may refer in this connection to Khub Chand & Others vs The State of Rajasthan, & Ors.
In that case this Court pointed out that the object is to give intimation to a person whose land is sought to be acquired of the intention of the officer to enter the land.
Under section 4(2) such a notice is a necessary condition for the exercise of the power of entry noncompliance with that condition makes the entry unlawful.
In State of Mysore vs Abdul Razak Sahib(2) no notices as required by section 4(1)of the Act were published in the locality till after the lapse of about 10 weeks.
The question for consideration ' (1) ; (2) C. A. 2361 of 1968 dt.
August 11.
700 was whether the notification issued under section 4 was a valid one.
This Court held that in the case of a notification under section 4 the law has prescribed that in addition to publication of a notice in the official gazette the Collector must also give publicity: of the substance of the notification in the concerned locality.
Unless both these conditions are satisfied section 4 of the Act cannot be said to have been complied with.
The purpose behind such a notice was that interested persons should know that the land is being acquired so.
as to prefer any objections under section 5 A which confers a valuable right.
Learned counsel for the State has, however, contended that according to these decisions it is only when the persons interested can file objections under section 5 A that the, public notice of the substance of the notification under section 4(1) by the Collector would be necessary whereas in the present case the, applicability of the provisions of section 5 A have been dispensed with under section 17(4) of the Act at the same time the notification under section 4(1) was issued.
It is wholly unnecessary that the interested parties should have the requisite information of the acquisition proceedings as they are not entitled to file objections under section 5A.
We are unable to accept such a contention.
In our judgment the provisions of section 4(1) cannot be held to be mandatory in one situation and directory in another.
Section 4(1) does not contemplate any distinction between those proceedings in which in exercise of the power under section 17 (4) the appropriate government directs that the provisions of section 5 A shall not apply and where such a direction has not been made dispensing with the applicability of section 5A.
It lays down in unequivocal and clear terms that both things have to be simultaneously done under section 4(1), i.e., a notification has to be published in the official gazette that the land is likely to be needed for any public purpose and the Collector has to cause notice to be given of the substance of such notification at convenient places in the locality in which the land is situated.
The scheme of section 4 is that after the steps contemplated under sub section
(1) have been taken the officer authorized by the Government can do the various acts set out in sub section
It is not required under section 17(4) of the principal Act that when a notification under section 4(1) is issued the direction should be made simultaneously if the State Government so desires.
Such an order or direction can be made even at a later stage.
The effect of the direction made under section 17(4) is that a declaration can be made under section 6 in respect of the land at any time after the Publication of the notification under section 4(1) and thereafter the Collector can take possession.
But as mentioned before in a given case the appropriate government may not consider it necessary to take action under section 17(4) simultaneously with the notification under section 4(1) and it may choose to invoke its provisions only at a later stage in view of any urgency that may crop 701 up.
Thus the construction of section 4(1) cannot be made to depend upon any action or direction which the State Government may choose to make under section 17 (4) of the principal Act.
In our opinion section 4 (1) has to be read as an integrated provision which contains two conditions; the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given.
These two conditions must be satisfied for the purpose of compliance with the provisions of section 4(1).
In the above view of the matter the appeals which involve the same point must succeed.
They are consequently allowed and the acquisition proceedings in question in both the appeals shall stand quashed.
The appellants will be entitled to costs in this Court One hearing fee.
S.B.W Appeals allowed.

summary:
A notification was issued under section 4 of the Land Acquisition Act on October 15, 1960 for acquisition of the land in dispute.
The Collector did 'not.
cause Public notice of the substance of the notification to be announced at convenient places in the locality where the land sought to be acquired was situate, as required by the second part of section 4(1).
Under section 17(4) of the Act the provisions of section 5A were dispensed with.
On October 28, 1960 the notification under section 6 was issued.
The appellant was directed to be present before the Collector in pursuance of a notice under Sec. 9 on December 4, 1960.
On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acquisition proceed ings.
The petition was dismissed by a single Judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench.
Allowing the appeals, HELD : (i) The law as settled by this Court is that such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated.
Under section 4(2) such a notice is necessary condition for the exercise of the power of entry.
Non compliance with that condition makes the entry unlawful.
The purpose behind such a notice is that interested persons should know that the land is being acquired so as to prefer any objections under section 5 A which confers a valuable right., [699G] Khub Chand and Others vs The State of Rajasthan and Ors. ; and State of Mysore vs Abdul Razak Sahib, C.A. 2361 of 1968 dt.
August 11, 1972 referred to.
(ii)The construction of S.4(1) cannot be made to depend upon any action or direction which the State Govt.
may choose to make under section 17(4) of the principal Act.
section 4(1) has to be read as an integrated provision which contains two conditions both being mandatory.
, Requirement of public notice in the locality cannot be rendered directly by a notification under section 17(4) dispensing with hearing under Sec.
5A. [700H]


judgement:
Appeal No. 1044 of 1968.
Appeal from the judgment and order dated October 3, 1967 of the Gujarat High Court in Special Civil Application No. 380 of 1965.
section T. Desai, V. B. Patel and I. N. Shroff, for the appellant.
section S Shukla, for respondents Nos. 1 to 9.
The Judgment of the Court was delivered by Dua, J.
This appeal has been presented to this Court by the Ahmedabad Manufacturing & Calico Printing Co., Ltd., pursuant to the certificate granted by the Gujarat High Court under article 187 133(1)(c) of the Constitution.
The Gujarat High Court had, on being approached by the respondents under article 227 of the Constitution, quashed and set aside the order of the Industrial Court, Gujarat dated February 5, 1964 which had affirmed the order of the Second Labour Court, Ahmedabad dated August 9, 1963, and after setting aside that order had directed the Industrial, Court to decide the matter afresh in the light of the observations made by the High Court in the impugned order.
The respondents in this Court had applied to the Labour Court under section 79 of the Bombay Industrial Relations Act, No. XI of 1947 (hereinafter called the Act) in December, 1962 complaining that the appellant company was liable to pay to the respondents (applicants before the Labour Court) dearness allowance every month according to the Dearness Allowance Award made by the Industrial Court but the same had not been paid for the month of September, 1962 which was distributed in October, 1962.
It was alleged that from October, 1962 the Company had been committing breach of the Dearness Allowance Award of the Industrial Court.
In that application the present respondents had based their claim on the following averments in para 3: ". the applicants are being paid Rs. 68 as basic pay by the opponent.
The maintenance of the garden is the legal responsibility of the opponent and for the health, welfare, recreation of the employees working in the several departments and for the decency of the adjacent offices the opponents are maintaining it.
The applicants are doing the entire work in respect thereof.
" In the written statement the appellant company raised several pleas in opposing that application.
The pleas which were pressed in the Second Labour Court and in the Industrial Court and which are now strongly pressed before us are contained in paras 3. 8 and 10 which so far as relevant may be reproduced: 3.
That the applicants not being in the employment of the opponent they have no locus standi to make an approach or to file this application.
That the opponent is not the employer of the applicants and the applicants are not its employees within the meanings of those words in the Act and as such the application is misconceived and not legally tenable.
With respect to the allegations and averments made in paras 1 to 4 of the application it is denied that the applicants are the employees of the opponent within the meaning of that term of the Act as alleged or that 188 they are entitled to the benefits of the dearness allowance as alleged or otherwise.
The true fact is that the applicants are not employed in any work which is ordinarily a part of the undertaking and as such they are not the employees within the definition of that word in the Act.
The applicants are employed as coolies by a gardening contractor Messrs Dbiraj Painters and they are paid by the said contractor.
The said garden lands include a large area of offices of some other concerns, a Government Post Office and a Museum which are open to the public, some quarters for workers as well as assistants and officers a hospital.
It is for the garden of the area which comprises these buildings and the area round caustic plant factory as well as the field in Dani Limda that this agreement was entered into with the contractor for keeping the trees and plants in proper trim.
Hence the work which they are performing has been held to be not ordinarily a part of the undertaking and as such the application is wholly misconceived and not legally tenable and is clearly barred by res judicata.
" The Second Labour Court dismissed the respondent 's appli cations.
In that Court 's view the real question in issue was whether the appellants did any work which is ordinary part of the undertaking.
The plea of res judicata based on the decision of the Labour Appellate Tribunal of India, Bombay (Appeal No. 135 of 1954 reported in was negatived but it was observed that the principle laid down in the earlier case would govern the present case as well.
After quoting the following passage from the earlier case "Now the Industrial Court was correct in holding that the agreement applied to the area which was outside the factory proper.
But to our mind the principle question involved is whether the maintenance of trees and plants can be said to be work which is ordinarily part of the undertaking.
In another case, this Tribunal had decided that a ration shop was a part of the work which is ordinarily a part of the, undertaking, but the maintenance of these trees and plants stands on a different footing and can hardly be regarged as part of the work of this particular undertaking which in fact is concerned with the production of cloth.
We can see no intrinsic connection between the maintenance of the trees and plants and the work which is ordinary part of the undertaking." the Labour Court observed that the "applicants ' gardeners or malis who are contractor 's employees cannot thus invoke the statutory definition of the employer".
189 On appeal by the aggrieved malis the Industrial Court in the course of its judgment observed that there was no dispute that the appellants in that court had been working as gardeners or garden mazdoors and had been employed through a contractor and not directly by the mill.
After referring to the decision of this Court in J.K. Cotton Spg. & Wvg.
Mills Co. Ltd., vs Labour Appellate Tribunal of India (1) and to the decision of the Madras High Court in Thyagaraja Chettiar vs Employees State Insurance Corporation( ' ') the, Industrial, Court observed : "Shri Jyotikar had urged that the term 'mill premises ' as interpreted by the courts would include even Places around the factory and so the question whether the appellants were working in one compound or the other would not be material.
But it is not necessary to consider this contention because looking to the nature of the work done by the appellants and to the fact that they were .not directly employed by the employer but through a contractor, it has been held that they cannot be covered within the scope of section 3(13).
Shri Jyotikar had also argued that under the Standing Orders, the term 'operative 'has been defined to include persons employed through contractor; but the Standing Orders would apply to a particular person only if he is an employee as defined under the Bombay Industrial Relations Act.
The definition under the Standing Orders cannot; therefore.
be of any help in considering whether a person is covered within the scope of the Bombay Industrial Relations Act or not.
Shri Jyotikar had then urged that in view of the fact that matters concerning health, safety and welfare of the employees are included in Item 3 of Schedule III, maintenance of gardens would be an ordinary part of the work of the undertaking.
It is true that maintenance of gardens may be a matter concerning health or welfare of the employees, but there is no, legal obligation to maintain such gardens.
Had any such obligation been created under any provision of law, the position might have been as urged by Shri Jyotikar; but, as the facts stand at present, it is not mandatory on a management of a cotton textile undertaking to maintain any garden and hence the work of maintenance of a garden cannot be said to be a work which is a part of the ordinary work of a cotton textile mill.
It is clear from the above that the appellants cannot be held to be employees as, defined under the Bombay Industrial Relations Act and so the Labour Court was right in dismissing the a plication." (1) [1964] 3 S.Ck. 24.
(2) [1963] II L.L.J. 207.
190 The High Court, on being approached by the aggreived malis tinder article 227 of the Constitution, went into the matter at considerable, length and after copiously quoting from the decision in the case of J. K. Cotton Spg.
& Wvg.
Mills case (supra) the High Court found it difficult to agree with the reasoning of the Industrial Court that the work of maintaining the garden was not a part of the ordinary work of a cotton textile mtill.
Earlier in the course of its judgment the High Court, after referring to the definitions of the term "employee" in section 3(13) and of the word "industry" in section 3(19) of the Act had observed : ".
The definition of the term 'industry ' is thus wide enough to include a workman employed in any calling, service, employment, handicraft, or industrial occupation or avocation of employees and it would not be correct to assume that simply because a workman happened to be engaged as a gardener, he would not fall within the definition of the term 'employee ' as given in the Bombay Industrial Relations Act.
A garden when attached to a mill is an amenity that is provided to the workers employed in the mill and it is not necessary that an amenity should arise from a statutory requirement or obligation and it hardly makes any difference if the garden was provided for voluntarily or under a statutory obligation.
The activities in an undertaking suck as a textile mill are not confined purely to factory work of manufacturing textile fabric within the mill premises, but various other incidental and connected institutions such as hospital, a canteen, a playground and a garden might be maintained by the mill to provide amenities to its workers and these activities could be considered as the activities made in relation to and in the usual course of conducting the affairs of the mill.
Not merely within the turning of the wheels of the machine which, no doubt, is directly responsible for the production of the article for which the plant of the particular industry was installed and not merely in utilising the power to move the machine to action, the field of activities of the undertaking is restricted and exhausted, but there are many more varieties though allied and complementary activities which are being carried on by the management and which help, though in an indirect manner, in creat ing a healthy atmosphere of well being and cooperation amongst the workers by providing essential facilities such as means for treating of their ailments, for general entertainment and care not only of the workers but of the children who are left unattended while their parents are engaged in their work in the factory.
While, there 191 fore, construing the words 'in the course of ' and 'ordinarily a part of the undertaking ' we must give them a meaning which is natural and consistent with the working of a factory as it exists in the present times and while doing so, our approach should not be theoretical and academic but pragmatic and practical.
The activities that are usually conducted as a part of an undertaking by which not only workers participate in the actual running of the machinery but also activities which conduce to the smooth working of the plant as a whole must be considered to fall within the ambit of the definition.
We are, therefore, unable to agree with the contention of Mr. Patel that the application of the Act must be restricted to only those workers who are directly engaged in the manufacture of textile fabric." While commenting on the order of the Industrial Court where it is stated that the maintenance of gardens though a matter concerning health or welfare of the employees was not mandatory on the management of a cotton textile mill undertaking and hence the work of maintenance of a garden could not be said to be part of the ordinary work of such mill, the High Court observed that " an activity undertaken as a part of the undertaking and in the course of its conduct may be undertaken voluntarily or as a result of a statutory duty or obligation but what is necessary is that the activity must reasonably be attributable to the undertaking in its, usual and ordinary course in the conduct of the business or undertaking, and if that be so then such an activity could be considered as the activity of a, worker who would fall within the definition of employee within section 3(13) of the Act.
" It was, however, contended in the High Court on behalf of the present appellant that the garden in which the present respondents had been working as gardeners was not situated within the premises of the mill and that the garden area included office of some other concerns, a Government post office and a museum which was open to the public and, some quarters for workers as well as assistance and officers of the hospital.
The garden area, according to Mr. Patel who reprented the present appellants in the High Court comprised of the buildings just mentioned and the area round the caustic plant factory as well as the field at Dami Limda in respect of which an agreement had been entered into with the contractor for keeping the trees and plants in proper trim.
This contention having not been considered by the 192 Industrial Court the High Court, as already observed, sent the case back to the Industrial Court for a fresh decision in the light of the observations of the High Court.
In this Court Shri Desai on behalf of appellants contended that the High Court, while exercising its jurisdiction under article 227 of the Constitution, was not =powered to reverse the findings of the Industrial Court and the Labour Court because under that Article it could not perform the functions of an appellate or a revisional court.
On the merits also he contended that having regard to section 2(3) of the Act read with the notification dated May 30, 1939, the Act only applied to cotton spinning and cotton weaving department, mechanics shops, dyeing and bleaching and printing departments and offices of the appellant, and to no other activities of the appellant company.
The counsel further contended that cis.
(13) and 14(e) of section 3 of the Act have to be road together and when so read they could not take within their fold a person employed by an independent contractor because such a person could by no means be considered as an employee of the appellant company unless the work done by him can be described as "ordinarily part of the textile undertaking".
While developing this point the learned counsel said that the word "ordinarily" occurring in the context "work which is ordinarily a part of the undertaking" in section 3 (14) (e) conveys the idea that the work should be in the line or in the regular or norm* course of the textile undertaking or any part of it.
The work 'it was explained, should be such as, in the regular or normal course, is part and parcel of the textile undertaking and not merely having some sort of incidental connection with the same.
The work of gardening, added the counsel, cannot be considered to have done in "execution" of any "work" which is "ordinarily" part of the textile undertaking.
Before considering these points it would not be out of place to mention that in the certificate of fitness granted by the High Court there is no indication about the precise point or points which induced the High Court to certify the case to be fit for appeal under cl.(c) of article 133(1).
This clause though couched in general terms is intended to apply to special cases in which the question raised is of such great public or private importance as deserves appropriately to be authoritatively settled by this Court.
This clause of course does not in terms say so but it has always been so construed.
The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court.
The word "certify" used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal.
The mere grant of a certificate would, however, not preclude this Court from determining whether the conditions pre requisite for the grant are 193 satisfied.
It is, therefore, always desirable and expedient for the High Court to give its reasons for granting the certificate.
That would assist this Court better in appreciating if the conditions pre requisite are satisfied.
In the application for certificate in the present case a number of grounds were stated for securing it.
We are unable to find from the certificate as to which ground was considered by the High Court to be important enough to justify the certificate.
Now, in this case the respondents in fact questioned before us the competence of the High Court to grant the certificate of fitness but the objection raised by Shri Shukla was based only on the Submission that Art 133 is inapplicable because the impugned order is not a final order, We may first deal with this preliminary objection.
Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal.
The material part of this Article substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by this Article to Tribunals as well.
Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction The power under article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors: see Naryan Singh vs A mar Nath (1).
At this stage we consider it proper to refer to some of the judicial pronouncements by this Court with regard to the right of appeal under article 133 from interlocutary orders.
In Tarapur & Co. vs M/s. V/O Tractors Export(2) it was observed that an order of the High Court in appeal which does not dispose of the suit but merely refuses to grant an interim injunction is not a final order within the meaning of article 133 even though as a result thereof the pending suit as framed may become infructuous requiring amendment of the plant.
On the other hand, an order dismissing a writ petition challenging industrial award which disposes of only one of the items of a charter of demands by the workmen, leaving the rest of the items to be adjudicated by a subsequent award was held in Asbestos Cement Ltd. vs Savarkar(3) to be a final order in a civil proceeding and, therefore, appealable under article 133.
Under article 226 of the Constitution it may in this connection be pointed out the High Court does not bear an appeal or a revision : that court is moved to interfere after (2) [1969] 2 S.C.R. 699.
(1) ; (3) ; 194 bringing before itself the, record of a case decided by or pending before a court, a tribunal or an authority, within its jurisdiction.
A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding.
An appeal or a revision on the other hand is generally.
considered to be a continuation of the original suit or proceeding and in a case, where the High Court deals with an appeal or a revision, finality for the purpose of article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one.
, (see Ramesh vs Ganda Lal(1) The impugned order before us was made by the Gujarat High Court on an application under article 227 of the Constitution, the prayer in that application being, to remove the record of the case of the High Court "and after examining the same" (a) to quash the order and judgment of respondent No. 2 at Annexure 'B ' and (b), to direct respondent No. 2 to dispose of the appeal of the petitioner according to law." Now, in some, High Courts article 227 is utilised for the purpose of securing relief by way of writs or directions in the nature of writs more accurately contemplated by article 226 of the Constitution : (Ramesh vs Ganda Lal(1) and in some this Article is invoked for getting orders of tribunals revised just as section 115, C.P.C. is utilised for revision of orders of subordinate courts : (Surinder Nath vs Stiphen ( 2 ) (P) Ltd.
As such power under article 227 may also be exercised suo motu.
In the present case article 227 appears to us to have been used in effect as a substitute for article 226 for seeking a direction in nature of a writ for quashing the orders of the subordinate tribunals.
At least it appears that the proceeding before the High Court was so treated by all concerned.
We should, however, not be understood to express our approval of the use of article 227 for seeking relief by way of writs or directions in the nature of writs for which purpose article 226 is expressly and in precise language designed.
From that point of view if otherwise the High Court, while disposing of a petition under article 227, finally settles some points affecting the rights of the parties then to that extent the impunged order may be considered to operate as a final order just as an order made under article 226 would.
As to whether the High Court has jurisdiction to make the impugned order while exercising its power under article 227 will depend on our conclusion when considering the merits of the case.
Coming to the merits of the case we should like first to reproduce the notification dated May 30, 1939 and the definitions of the word "employee" and "employer" so far as relevant for our purpose as contained in the Act.
The notification reads : (1) A.T.R. at 1449.
(1) ; 195 "BOMBAY CASTEL, 30th May, 1939 BOMBAY INDUSTRIAL DISPUTES ACT, 1939 No. 2847/34 A.
In exercise of the powers conferred by sub section (3) of Section 2 of the Bombay Industrial Disputes Act, 1938 (Bom.
XXV of 1938), and in supersession of Government Notification in the Political and Service Department No. 2847/34 2 dated the 14th March, 1939, the Government of Bombay is pleased to direct that the provisions of the Act which have been extended to the Province of Bombay under Government Notification in the Political and Services Department No. 2847/34 1, dated the 14th March, 1939, shall apply to the cotton Textile Industry as specified below: (a) All concerns using power and employing twenty or more workers which are engaged in cotton spinning; (b) all concerns using power and employing twenty or more workers which are engaged in cotton weaving with or without an admixture of silk, rayon, artificial silk or one or more of these; (c) all mechanics shops attached to and (all dyeing bleaching and printing departments, whether situated within or outside the precincts, of and forming integral part of) the concerns falling under clause (a) or (b).
(d) All the offices, whether situated within or outside the precincts of the concerns falling under clause (a) or (b)." "Employee" and "employer" so far as relevant for our purpose ,ire defined as "3.
In this Act unless there is anything repugnant in the subject or context (13) 'employee ' means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes (a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub clause (e) of clause (14); (14) 'employer ' includes (e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking 196 contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, the owner of the undertaking." Shri Desai on behalf of the appellant submitted that the respondents in this Court who were gardeners employed by a contractor cannot fall within the definition of the word employee as contained in section 14(e) of the Act.
He further contended that the notification issued under the Act extending its applicability to the textile undertaking does not take within its fold the respondents who are not directly connected with any part of the activity with which the appellant textile industry is directly concerned.
In support of his contention he relied on some decided cases.
The first decision to which our attention was drawn is reported as Kesar Lal Narsing Bhai vs Mls.
Calico Printing Ltd.(1).
This is a decision by the Labour Appellate Tribunal of India, Bombay and the present appellant was a respondent in that case.
There, the gardeners who used to work outside the gate of the factory and had been employed through a contractor had applied under section 78(1 ) (A) (c) of the Act for a declaration from the first Labour Court that the mill 's failure to pay wages and Dearness Allowance in accordance with the Standardisation Award amounted to an illegal change.
The Labour Court had granted their application but the Industrial Court on appeal had reversed that decision.
The employees took the matter on further appeal to the Appellate Tribunal but without success.
In that case the employees had wrongly asserted in their applications that they were direct employees of the mills in question and the relief claimed was based on this erroneous assertion.
The Standardisation Award by which the company was bound, it is pertinent to point out, was given only in respect of those persons who had been employed directly for the purpose of looking after the garden of, the factory proper.
it would thus be obvious that the employees ' claim there was liable to fail on the short ground that they were not direct employees as wrongly claimed by them and that the relief under the award was confined to direct employees only.
But this apart, it is further clear from the decision of the Appellate Tribunal that under the agreement with the contractor there the latter had been employed for the purpose of looking after the garden not within the factory compound proper but beyond it.
Indeed, the contractor 's obligation to look after the garden extended further beyond even that area.
It is in this context and background that the Appellate Tribunal observed in the concluding part of its order that "statutory definition of an employee in our opinion cannot be invoked by a gardener who has been employed through a contractor for the work as undertaken here." (emphasis supplied).
This decision, (1) 1955 Industrial Court Reporter 1105.
197 therefore, does not assist us on the precise question raised.
The next decision relied upon by Mr. Desai is reported as Hakim Singh vs J. C. Mills Ltd.(1).
In that case the mills had employed a contractor to supply packing material.
The contractor because of the nature, of his work was given a room in the mills premises for preparing a particular packing material.
An employee of the contractor applied to the Industrial Court for relief under the pro visions of the Act.
It was held that he could not be deemed to be an employee of the mills because the work which was carried on by the employer of the petitioner was not a part of the industrial undertaking.
While commenting on the scope of section 3 (13) (a) and section 14(e) of the Act which define the words "employee" and " employer", it was said that for the purpose of these provisions, there must be an industrial undertaking owned by somebody ' some work, which is ordinary part of the undertaking must have been entrusted by the owner to the contractor: that contractor must be employed an employee ' that employee can then by the combined operation of these provisions insist upon being treated as employee of the owner himself, the obvious idea behind this scheme being that the owner of an industrial undertaking should not be allowed to evade responsibilities towards his employees which are imposed by the labour laws, by entrusting a part or whole of the undertaking to a contractor.
The actual decision of this case is on different facts and is clearly not of much help though the observations regarding the purpose of the provisions of the definitions admit of no controversy.
Reliance was further placed by Shri Desai on the decision of this Court in Messrs Godavari Sugar Mills Ltd. vs D. K. Worlikar(2) where a notification applicable to the manufacture of sugar and its by products was held not to cover the head office of the sugar mills at Bombay and the employees engaged there, when the head office was Separated from the factories by, hundreds of miles.
The notification was held not to cover sugar industry as such Shri Desai also sought support from Begibhai M. Chokshi vs Ahmedabad Manufacturing & Calico Printing Co. Ltd. (3 ) (a decision of the Industrial Court, Bombay) which dealt with running of a retail shop; New India Tannis vs Aurora Singh Moibi ( 4 ) a case of doing repairs to the machinery of the factory and from section M. Ghose vs National Street & Metal Works Ltd.(5) a case of an employee of a contractor engaged to paint the premises.
Both the Calcutta.
decisions are under the Workmen 's Compensation Act.
(1) [1963] M.P.L.J.714.
(2) ; (3) (4) A.I.R. 1947 Cal.
(5) A.t.
R. 198 The respondents ' learned counsel, apart from urging that the High Court has sent the case back for deciding the nature of work done by the malis in this case and that, there are, tie appellant cannot appropriately ask this Court to determine these questions which are awaiting decision by the Industrial Court, also relied on Basti Sugar Mills Ltd. vs Ramjagar(1) and on J. K. Colton Spg. & W. vs Mills (supra).
In the former case the respondents there employed by a contractor to remove press and from the sugar factory were held to be workmen employed by the factory because removing press.
mud was considered ordinarily to be a part of the sugar industry.
The latter case is an authority for the proposition that an employee engaged in any work or operation which is incidentally connected with the main industry is a workman if other requirements of section 2(s) of the Industrial Disputes Act, 14 of 1947 ,are satisfied and that the malis in that case were workers within the meaning of section 2 of U.P. Industrial Disputes Act, 28 of 1947.
The bungalows and gardens on which the malis in that case worked were a kind of amenity supplied by the mills to its officers and on this, reasoning the malis were held to be engaged in operations incidentally connectd with the main industry carried on by the employer.
It was by relying on the ratio of this decision that the High Court in the present case came to the conclusion that the workers in order to come within the definition of "employee" need not necessarily be directly connected with the manufacture of textile fabrics.
This decision.
is binding on us and indeed Shri Desai also fairly accepted its ratio.
He only contended that the malis employed by a contractor unless, directly connected with the textile operations cannot get the benefit of this decision.
In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai.
As observed in J. K. Cotton Spg. & Wvg.
Mills case (supra) the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law.
This concept of social justice has a comprehensive sweep and it is neither pedantic nor one sided but, is founded on socioeconomic equality.
It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modem times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere.
The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the (1) [1964]2 S.C.R. 838.
199 respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within section 3(13).
This is what the High Court has said "It was urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital.
It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim.
It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the, work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of section 3 (13) of the Bombay Industrial Relations Act.
Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent No. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.
Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C) No. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above 200 There is no cogent ground why this matter should be, decided by this Court and not by the Industrial Court in the normal course as directed by the High Court, In our opinion the order of the High Court is legally correct and is also eminently.
just and fair.
We are unable, therefore, to.
agree with Mr. Desai that this order requires any intereference.
The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. & Wvg.
Mills case (supra).
The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under article 227 of the Constitution to quash them.
The appeal accordingly fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondents were malis who under a contractor looked after the maintenance of a garden adjacent to but outside the Premises of the appellant company which produced textiles.
In an application before the Labour Court the respondents claimed that they were employees of the company within the meaning of section 3(13) of the Bombay Industrial Relations Act 11 of 1947 and therefore entitled to dearness allowance.
The Labour Court rejected the claim on the ground that the respondents worked under a contractor.
On appeal the Industrial Court held that the company was under no legal obligation to maintain the garden and therefore the respondents did not fall within the definition of employee.
The High Court in a petition under article 227 of the Constitution held that statutory obligation was not necessary condition of an activity being considercd a part of the ordinary work of an undertaking but what had to be seen was whether the activity was reasonably attributable to the undertaking in its usual and ordinary course in the conduct of the business or undertaking.
Since the appellant company contended before the High Court for the first time that the garden area in question did not pertain only to the appellant but to several other employers the High Court remanded the matter to the Industrial Court for a fresh decision in the light of the observations of High Court.
The appellant company in appeal by certificate contended that the High Court had exceeded its jurisdiction under article 227 of the Constitution, that a employed through an independent contractor could not be an employee and that maintenance of a garden could not be considered to be work which was ordinarily Li part of the undertaking within the meaning of section 3(14) of the Act.
The respondents raised a preliminary objection that the order of the High Court was not a. 'final order ' and, therefore, the certificate granted by the High Court under article 133 was incompetent.
HELD : (i) in this case article 227 appears to have been used as a substitute for article 226 for quashing the orders of the subordinate tribunals.
If, therefore, while disposing of the petition under article 227 theHigh Court finally settles some points then to that extent the impugned order may be considered to, operate as a final order just as an order under article 226 would.
[194F] (ii) The mere grant of a certificate would not preclude this Court from determining whether the conditions pre requisite for the grant are satisfied.
it is, therefore, always desirable and expedient for the High Court to give its reasons for granting the certificate.
That would assist this Court better in appreciating if such conditions are satisfied.
[192H] LI208SupCII72 186 Waryam Singh vs Amar Nath, , Tarapur & Co. vs Mls.
Y/O Tractors Export, [1969] 2 S.C.R. 699, Asbestos Cement Ltd. vs Savarkar, ; , Ramesh vs Ganda Lal; , at 1449 and Surinder Nath vs Stiphen (P) Ltd., ; , referred to.
(iii) As held by this Court in J.K. Cotton Spg.
and Wvg.
Mills an employee engaged in any work or operation which is incidentally connected with main industry is a workman if other requirements of section 2(s) of the Industrial Disputes Act 14 of 1947, are satisfied.
The bunglows and ' gardens on which the malis in that ease worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malls were heldp to be engaged in operations incidentally connected with the main industry carried on by the employer.
The High Court rightly relied on that decision in arriving at its conclusion in the present case that the workers in order to come within the definition of 'employee ' need not necessarily be directly connected with the manufacture of textile fabrics.
The problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law.
[198F] J. K. Cotton Spg.
& Wvg.
Mills Co. Ltd. vs Labour Appellate Tribunal of India, ; , applied.
Thyagaraja Chettiar vs Employees State Insurance Corporation [1963] It L.L.J. 207; Kesar Lal Narsing Bhai V. Calico Printing Ltd., 1955 Industrial Court Reporter, 1105, Hakim Singh vs J.C.Mills Ltd., , Messrs Godavari Sugar Mills Ltd. vs D. K. Worlikar.
; , Begibhai M. , Chokshi vs Ahmedabad Manufacturing & Calico Printing Co. Ltd., , New India Tannis vs Aurora Singh Moibi, A.I.R. 1947 Cal. 613, section M. Ghose vs National Sheet & Metal Works Lid.
, A.I.R. 1950 Cal.
548 and Basti Sugar Mills Ltd. v .
Ramjagar, ; , referred to.
(iv) The High Court had remanded the case to the industrial Court because the appellant 's contention that the garden pertained to several ,other offices and buildings in the area and not to the appellant 's factory alone, had not began considered by the industrial Court.
There was no cogent ground why this matter should be decided by this Court and not by the Industrial Court.
The order of the High Court was legally correct and it was within its authority under article 227 to quash the decisions of the Labour Court and the Industrial Court which were based on misconception of the legal position.
[200A]


judgement:
iminal Appeal No. 14 of 1972.
Appeal by special leave from the judgment and order dated August 11, 1971 of the Bombay High Court in Crl.
Application No. 618 of 1971.
section B. Wad, for the appellant.
M. C. Bhandare and B. D. Sharma, for the respondents.
The Judgment of the Court was delivered by CHANDRACHUD J.
This appeal by special leave is directed against the judgment dated August 11, 1971 of the High Court at Bombay, dismissing the petition filed by the appellant under Articles 226 and 227 of the Constitution to challenge an order of externment passed by the 1st respondent.
On October 9, 1969 a notice of even date was served on the appellant under section 59 of the Bombay Police Act, 22 of 1951, asking him to appear before the Assistant Commissioner of Police, 'M ' Division, Bombay, in answer to allegations contained in the notice.
Briefly, the allegations were that the appellant 's_acts and movements were causing harm, 6 L63lSup.
CI/73 66 alarm and danger to the residents of certain localities within the, jurisdiction of Vile Parle Police Station, that he was given to assaulting the residents of those localities either because, they were suspected to be, police informants or because they failed to accede to the demands of money, that he had committed robberies in the particular localities, that since March 1969 he had committed several acts of the above description and that witnesses were not willing to come forward to depose against him in public.
The appellant appeared before the Assistant Commissioner of Police, offered his explanation and examined 16.
witnesses to refute the, allegations.
He contended that the allegations were vague and general, that they were made at the instance of one Damayanti Deshpande who was inimical to him, that he was a social worker of some standing, that he was, a member of the Congress Party and that in two criminal cases which were filed against him he was acquitted in spite of the evidence led by the prosecution.
Later, the appellant was heard by Shri G. K. Nadkarni, Deputy Commissioner of Police, Zone IV, Greater Bombay.
On a consideration of the explanation and the evidence tendered by the appellant, the Dy.
Commissioner passed an order dated July 23, 1970 under section 59 of the Act, externing him from the limits of Greater Bombay and the District of Thana, for a period of two years.
The order of externment was directed to take effect within two days of the decision of two criminal cases which were then pending against the appellant and in case he was sentenced in the aforesaid cases to a term of imprisonment, the order was to take effect within two days from the date of his release from jail.
Against that order, the appellant filed an appeal under section 60 of the Act, to the 2nd respondent, the Government of Maharashtra, but that appeal was dismissed on May 20, 1971, have with the modification that the externment was to be effective from May 31, 1971.
The appellant then filed a petition in the Bombay High Court under Articles 226 and 227 of the Constitution to challenge the order of externment.
Two contentions were made in the High Court on behalf of the appellant : one, that the allegations contained in the show cause notice where, too vague to afford him a reasonable opportunity to defend himself and two,that his activities were at best confined to specific localities withinthe jurisdiction of the Vile Parle police station and thereforethe order asking him to remove himself from the limits of the Districts of Greater Bombay and Thana was excessive and unreasonable.
On the first contention, reliance was placed by the appellant on the judgment dated April 29, 1971 of a Division bench of the Bombay High Court in Criminal Application No. 67 332 of .1971, in which a similar notice was stuck down on the ground of vagueness.
The learned Judges declined to follow that judgment as, in their opinion, it was inconsistent with the view taken by this Court in State of Gujarat and Anr.
vs Meliboob Khan Usman Khan etc.(1).
On the second contention, distinguishing the judgment of a Division Bench of the High Court in Balu Shivling Dombe vs The Divisional Magistrate, Pandharpur (71 Bombay Law Reported 79) and following a judgment dated March 17, 1968 of another Division Bench in Criminal Application No. 1427 of 1966, the Iearned Judges held that in the circumstances of the case it was reasonable to extern the appellant from the Emits of Greater Bombay as also of the Thana District.
The correctness of this view is under challenge before US.
Learned counsel appearing on behalf of the appellant has raised the following points : (i) The allegation that witnesses were not willing to come forward to depose against the appellant in public is falsified by the very record of the present proceedings.
(ii)The particulars contained in the notice issued under section 59 of the Act are so vague that the appellant could not possibly meet the allegations made against him and thus he was denied reasonable opportunity to defend himself.
(iii)The externing authority must pass a reasoned order or else the right of appeal would become illusory.
(iv)The State Government also ought to have given reasons in support of the order dismissing the appeal.
Its failure to state reasons show non application of mind, and (v) The order of externment imposes unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities are alleged to be restricted to an area within the jurisdiction of the Vile Parle police station, the order of externment not only extends to the Whole District of Greater Bombay but to the District of Thana also.
Regarding the first point, it is urged that in Criminal Cases No. 2106/P of 1969 and 2337/P of 1969 which were filed (1) ; 68 against the appellant in the court of the learned Presidency Magistrate, 22nd Court, Andheri, Bombay, five witnesses were examined by the persecution in each case thereby falsifying the. assertion that witnesses were not willing to come forward to depose against the appellant in public.
We cannot accept this contention.
No connection is shown to exist between the two particular criminal cases and the incidents referred to in the externment order.
Counsel attempted to establish that connection by saying that Damayanti Deshpande who was inmical to the appellant was the motive force behind the prosecution as well as the externment proceedings.
But the, affidavit of the Deputy Commissioner has specifically denied that allegation.
Besides, as held by this Court in Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana & Ors.
(1), though, in order to attract the operation of section 56 of the Act, the officer concerned has to satisfy himself that witnesses are not willing to come forward to give evidence in public, it is not necessary that all the witnesses must be found thus unwilling to give evidence.
The circumstance therefore that in the two criminal cases certain witnesses came forward to depose against the appellant in public cannot falsify the assertion that witnesses were unwilling to give evidence against the appellant in public.
On the second point, it is necessary to call attention to the notice issued to the appellant, which was in these terms : "NOTICE UNDER SECTION 59 OF THE BOMBAY POLICE ACT, 1961 Name, address and age : Shri Pandharinath Shridhar Rangnekar, Hindu, 28 years, Res.
Rama Niwas, Nariman Road, Vile Parle (East), Bombay 57.
Under Section 59 of the Bombay Police Act, 1951 (Bom.
XXIII of 1951) you are hereby informed that the following allegations are made against you in proceedings against you under section 56 of the said Act.
In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 9 A.M. on 16 10 1969 to receive your explanation and to hear you and your witness, if any, in regard to the said allegations I Shri N. section Joshi, Assistant Commissioner of Police 'M ' Division, Bombay therefore require you to appear before me at Vile Parl e Police Station on the said date viz. 16 10 1969 at 9 A.M. for the said purpose and to pass a bond in the (1) ; the 69 sum of Rs. 5001 for your attendance 'during the enquiry of the said proceedings.
Should you fail to appear before me and to pass the bond as directed above, I shall proceed with the enquiry in your absence.
Take note.
Allegations: 1.Since March 1969 in the localities of Nehru Road, Azad Road, Monghibai Road, Mahatma Gandhi Road, Ram Mandir Road and the areas adjoining thereto in the jurisdiction of Vile Parle Police Station, Great of Bombay your acts and movements are causing harm, alarm and danger to the residents of the aforesaid localities 'and areas.
2.That you assault the residents of the aforesaid localities and areas either suspecting them of giving information to the police about your illegal activities or because they fail accede to your demand of money which offences are punishable under chapter XVI of.
the Indian Penal Code.
3.That you commit robberies by extorting money and articles from the residents of the aforesaid localities and areas by means of assault and/or under threats of assault which are offences punishable under chapter XVII of the Indian Penal Code.
4.That since March,, 1969, you have committed several acts of the matter described in paras 1, 2 and 3 above.
5.That the witnesses to your above described acts and movements are not willing to come forward and depose against you in public by reason of apprehension on their part as regards the safety of their persons in that they apprehend danger to the safety of their person or property, if they do so.
Sd/ 9 10 1969 N. section Joshi, Assistant Commissioner of Police 'N ' Division, Bandra, Bombay.
" Section 56 of the Act provides, to the extent material, that whenever it shall appear in Greater Bombay to the Commissioner (a) that the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission 70 of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, the said officer may by order in writing direct such person to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof contiguous thereto, within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed to remove himself.
.Under section 58, an order of externment passed under section 56 can in no case exceed a period of two years from the date on which it was made.
The relevant part of section 59(1) provides that before an order under section 56 is passed against any person, the officer shall inform that person in writing "of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding those allegations.
The proposed externee is entitled to lead evidence unless the authority takes the view that the application for examination of witnesses is made for the purpose of vexation or delay.
Section 59 also confers on the person concerned a right to file a written statement and to appear through an advocate or attorney.
These provisions show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances.
An order of externment can be passed under clause (a) or (b) of section 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed externee by reason of apprehension on their part as regards the safety of their person or property.
A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding.
If the show cause notice were to furnish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in these incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public.
There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence.
And Illegal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public, That explains why section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee "of the general nature of the material allegations against him".
That obligation fixes 71 the limits of the co relative right of the proposed externee.
He is entitled, before an order of externment is passed under section 56, to know the material allegations against him and the general nature of those allegations.
He is not entitled to be informed of specific particulars relating to the material allegations.
It is true that the provisions of section 56 make a serious inroad on personal liberty but such restraints have to be suffered in the larger interests of society.
This Court in Gurbachan Singh vs The State of Bombay and Another(1) had upheld the validity of section 27(1) of the City of Bombay Policy Act, 1902, which corresponds to section 38 of the Act.
Following that decision, the challenge to the constitutionality of section 56 was repelled in Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana & Others (2 ).
We will only add that care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards Which those provisions offer are made available to the proposed externee.
In Hari Khemu Gawali V. The Deputy Commissioner of Police, Bombay and Another(3), in which an order of externment was passed under section 57 of the Act, it was held by this Court on an examination of the general scheme of the Act that the provisions of sections 55, 56, 57 and 59 cannot be held to be invalid on the grounds that only the general nature of the material allegations is required to be disclosed to the externee, and ,that it would be difficult for him to get the matter judicially examined.
Sinha J., speaking for the majority, observed: "The grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under section 107 or section 110.
But the special provisions now under examination proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as not to permit the ordinary laws of the land being put in motion in the ordinary way mainly of examining witnesses in open court who should be cross examined by the party against whom they were deposing. ' The provisions we are now examining are plainly intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure." (1) ; (2) ; (3) ; 72 In State of Gujarat and Anr. etc.
vs Mehboob Khan Usman Khan etc.
(1) this Court, reversing the judgment of the High Court of Gujarat, rejected the argument that a notice substantially similar to the one in the instant case was bad for vagueness.
It was held that the person proposed to be extend was entitled to be informed of the general nature of the material allegations and not to the particulars of those allegations.
As to the meaning of the phrase "general nature of the material allegations", it was observed : "Without attempting to be exhaustive we may state that when a person is stated to be a 'thief, that allegation is vague.
Again, when it is said that 'A ' stole a watch from X on a particular day and at a particular place ', tie allegation can be said to be particular.
Again, when it is stated that ' X is seen at crowded bus stands and he picks pockets ' it is of a general nature of a material allegation.
Under the last illustration, given above, will come the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague.
Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasised that when he has to tender an explanation to a notice, under section 59, he can only give an explanation, which can be of a general nature.
It may be open to him to take a defence, of the action being taken, due to mala fides, malice or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like.
" We must therefore reject the argument that the particulars contained in the notice are vague.
We endorse the view of the High Court that Criminal Application No. 332 of 1971 in which judgment was delivered on April 29, 1971 by another Division Bench of that court was not correctly decided, to the extent to which the notice therein was held to be vague.
The view taken in that case is inconsistent with the view expressed by this Court in Mehboob Khan 's case.
The third and fourth point have the same answer as the second point just dealt with by us.
Precisely for the reasons for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment.
If those authorities were to discuss the evidence in the case, it would be easy to fix the identity of witnesses who were unwilling to depose in (1) ; 73 public against the proposed externee.
A reasoned order con taining a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment.
As regards the last point, it is primarily for the externing, authority to decide how best the externment order can be made effective, so as to subserve its real purpose.
Now long, within the statutory limit of 2 years fixed by section 58, the order shall operate and to what territories, within the statutory limitations of section 56 it should extend, are matters which must depend for their decision on the nature of the data which the authority is able ,to collect in the externment proceedings.
There are cases and cases and therefore no general formulation can be made that the order of externment must always be restricted to the area to which the illegal activities of the externee extend.
A larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings.
An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted that is reasonable in the circumstances of the case.
The decision of the Bombay High Court in Balu Shivling Dombe vs The Divisional Magistrate, Pandharpur (71 Bombay Law Reporter 79) is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case.
The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as the districts of Sholapur, Satara and Poona.
These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts.
The exercise of the power was therefore arbitrary and excessive, the order having been passed without reference to the purpose of the externment.
But Balu Shivling 's case furnishes no analogy in the instant matter.
A vast city like Bombay presents its own peculiar problems of law and order.
It has an ever growing industrial complex and the city has spread its areas far and wide.
A fair proportion of its teeming population is, mobile, with large multitudes streaming in and out of the city in the pursuit of their daily avocations.
An order of externment restricted to the particular area chosen by the externee for his unlawful activities and to a small periphery thereof would in such circumstances fail of its true purpose.
It would be impossible to secure obedience to such an order and its enforcement would raise practical problems which would impair the efficacy of the order.
An order in the instant case if restricted, say, to the areas within the jurisdiction of the Vile Parle police station and its periphery would not serve its purpose.
Rather than solving a problem of law and order, it would create yet one more.
74 That is why, on similar facts, the Bombay High Court has consistently repelled challenges made to externment orders on the ground that they extended not only to the district of Greater Bombay but to the district of Thana as well.
In Criminal Application No. 1427 of 1968 a Division Bench (Kotval C. J. and Kamat J.) observed in their judgment of March 17, 1968 : "In the present case the area of activity of the externee was undoubtedly stated to be Santacruz, but Santacruz is a fairly wide area.
Moreover, it is very intimately connected with the surrounding area of Thana district.
It is common knowledge that Thana town in the surrounding area is also an area where large industries have grown contiguous with the industrial area of Greater Bombay and that the entire industrial area is connected together by several means of communication Including suburban trains of which there are several during each day,, by taxis plying to and from Greater Bombay and by bus services operating between Greater Bombay and several parts of Thana District.
Therefore, the Police could reasonably have thought that it would not be sufficient to ask the petitioner to keep off only from the area of Greater Bombay which has an equally busy and highly industrialised area contiguous to it.
Therefore, the order was extended to Thana District.
" A similar view taken by Palekar and Gatne JJ.
in Criminal Applications 30 and 93 of 1970 decided on February 23, 1970 by Tulzapurkar J. in 73 Bombay Law Reporter 442 at pp.
453 454 and by Bhasme and Kania JJ.
in Criminal Application No. 149 of 1972 decided on March 3, 1972.
As against the judgment last mentioned the externee had filed special leave petition No. 487 of 1972 in this Court, one of the grounds stated therein being that the externment order was void because the externee was asked to remove himself not only out of the district of Greater Bombay but from the limits of Thana district as will.
The petition was dismissed by this Court (Palekar and Dwivedi JJ.) on September 20, 1972.
These judgments of the Bombay High Court have taken the view that the districts of Greater Bombay and Thana form, so to say, a single unit.
Palekar J. observes in his judgment in Criminal Applications Nos. 30 and 93 of 1970 : "It may be that the area of operation may be in a particular locality, but if the externment is limited only to that area, then it might be impossible to prevent the externee from visiting that area every day.
Any part in Bombay is easily connected by transport with any other part of Greater Bombay and also the Thana District, and if, for example, 'an externee is externed outside the limits of Greater Bombay, then he should not take more than 15 minutes 'to reach Kurla 75 from a Place like Thana if the latter is excluded from externment.
The very object of externment is to make it as difficult as possible to the externee to return to the field of his activities.
" Tulzapurkar J. expressed the same view by saying that "the contiguous area of Thana district is intimately connected with the industrial area of Greater Bombay with cheaper and quicker means of transport and communication." According to Bhasme J. who delivered the judgment of the Bench in Criminal Application No. 149 of 1972, "By reason of the means of communication and proximity, the districts of Greater Bombay and Thana are for all practical purposes one local area or one district.
" Deshmukh J. in the _judgment under appeal, says that "Greater Bombay and Thana districts are . intimately connected by Several communications".
In matters of local colour and conditions the view so consistently expressed by the learned Judges of the High Court must, in our opinion, be accepted as correct.
In the result the appeal fails and is dismissed.
K.B.N. Appeal dismissed.

summary:
Section 56 of the Bombay Police Act provides that whenever it shall appear, in Greater Bombay, to the Commissioner (a) that the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of offence involving force or violence or an offence punishable under Chapter 22, 16 and 17 of the Indian Penal Code, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards safety of their person or property, the said officer may by order in writing direct such person to remove himself outside the area districts, or any part thereof contiguous thereto, within such time as the said officer may prescribe and not to enter or return to the said area, from which he was directed to remove himself.
Section 59(1) requires that before an order under section 56 is passed against any person the officer shall inform that person in writing "of the general nature of the material allegations against him" and give him a reasonable opportunity of tendering an explanation regarding those allegations.
The appellant was served with a notice under section 56 of the Act.
The allegations were that the appellant 's acts and movements were causing alarm and danger to the residents of certain localities within the jurisdiction of Vile Parle Police Station, that he was given to assaulting the resi dents of the localities either because they were suspected to be police informants or because they failed to accede to the demands of money, that he had committed robberies in the particular localities, and that witnesses were not willing to come forward to depose against him in public.
The appellant offered his explanation and examined his witnesses to refute the allegations.
On a consideration of the explanation and the evidence tendered by the appellant an order was passed externing him from the limits of Greater Bombay and the District of Thana for a period of two years.
The order was confirmed in appeal by the State government.
A writ petition to the High Court was dismissed.
in the appeal to this Court it was contended (i) the allegations that witnesses were not willing to come forward to depose against the appellant in public was falsified by the very record of the present proceedings; (ii) the particulars contained in the notice issued under section 59 of the Act were so vague that the appellant could not possibly meet the allegations made against him and thus he was denied reasonable opportunity to defend himself; (iii) the extern ing authority had the duty to pass a reasoned order or else the right of appeal would become illusory; and the State Government also ought to have given reasons in support of the order dismissing the appeal and its failure to do so showed non application of mind; and (iv) the order of 64 externment imposed unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities were alleged to be restricted to an area within the jurisdiction of the Vile Parle police station, the order of externment not only extended to the whole district of Greater Bombay but to the district of Thana also.
Dismissing the appeal, HELD (1) In order to attract the operation of section 56 of the Act the officer concerned has to satisfy himself that witnesses are not willing to come forward to give evidence in public.
, But it is not necessary that all the witnesses must be found unwilling to give evidence.
The circumstance, therefore, that in two criminal cases certain witnesses came forward to depose against the appellant cannot falsify the assertion that witnesses were unwilling to give evidence against the appellant to public.
[68C] Dhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana & Ors.
; , referred to.
, (2)The relevant provisions of the Act show that the reasons which necessitate or justify the passing of an externment order arise out of extraordinary circumstances.
An order of externment can be passed under Clause (a) or (b) or selection 56 if, and only if, the authority concerned is satisfied that witnesses are unwilling to come forward to give evidence in public against the proposed extend by reason of apprehension on their part as regards the safety of their person or property.
A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of externment proceedings.
There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial, because, in such trials, there can be no conviction without legal evidence.
And, legal evidence is impossible to obtain because out of fear of reprisals witnesses are unwilling to depose in public.
That explains why section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee "of the general nature of the material allegations against him".
That obligation fixes the limits of the correlative right of the proposed externee.
He is entitled before an order of externment is passed under section 56 to know the material allegations against him and the general nature of those allegations.
He is not entitled to be informed of specific particulars relating to the material allegations.
Though the provisions of section 56 make a serious inroad on personal liberty, such restraints have to be suffered in the larger interests of society.
However, care must be taken to ensure that the terms of sections 56 and 59 are strictly complied with and that the slender safeguards which those provisions offer are made available to the proposed externee.
[70E] Gurbachan Singh vs The State of Bombay and another; , ; Bhagubhai Dullabhabhai Bhdndari vs The District Magistrate Thana & others ; ; Hari Khemu Gawali vs The Deputy Commissioner of Police, Bombay and Another ; and State of Gujarat and Anr.
vs Mehboob Khan Usman Khan etc.
[1968] 3 S.C.R. View of the Bombay High Court in Criminal application No. 332 of 1971 in judgment dated April 29, 1971 disapproved.
65 (3)Precisely for the reason for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority nor the State government in appeal can be asked to write a reasoned order in the nature of a judgment.
If those authorities were to discuss the evidence in the case it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee.
[72H] (4)It is primarily for the externing authority to decide how best the externment order can be made effective so as to subserve its real purpose An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be premitted than is reasonable in the circumstances of the case.
An order of externment restricted to the particular area chosen by the externee for his unlawful activities and to a small periphery thereof may in certain circumstances fail of its true purpose.
A larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings.
[73 B, D] Balu Shivling Dombe vs The Divisional Magistrate, Pandharpur section 71 Bombay Law Reporter, 79, held inapplicable.
The High Court of Bombay has, on similar facts, consistently repelled challenges made to externment orders on the ground that they extended not only to the district of Greater Bombay but also to the District of Thana.
In matters of such local colour and conditions, the view so consistently expressed by the learned judges of the High Court must be accepted as correct.
[75C] Criminal Application No. 1427 of 1968, judgment dated March 17, 1968; Criminal Application 30 to 93 of 1970 judgment dated February 23, 1970, 73 Bombay L.R. 442; Criminal Application No. 149 of 1972 decided on March 3, 1972, referred to.