judgement:
Appeal No. 21 of 1966.
Appeal from the judgment and order dated January 22, 1962 of the Patna High Court in Misc.
Judicial Case No. 757 of 1961.
D. Goburdhun, for the appellant.
M. K. Ramamurthi, for the respondents.
B. Sen and section P. Nayar, for intervener No. 1.
L. M. Singhvi and section P. Nayar, for intervener No. 2.
The Judgment of J. M. SHELAT, C. A. VAIDIALINGAM, K. section HEGDE and A. N. RAY, JJ.
was delivered by HEGDE, J., SHAH, J. delivered a dissenting Opinion.
Shah, J. The High Court of Patna has declared the second part of sub section
(6) of section 144 of the Code of Criminal Procedure ultra vires.
Sub Section (6) reads "No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette, otherwise directs.
" In the view of the High Court, an order made by the State Government extending the duration of an order under section 144 imposes an unreasonable restriction on the fundamental freedom of the citizens, because the order of the State Government is not subject to judicial scrutiny and the Code provides no machinery for applying for an order of rescission or alteration of the order.
Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where imme 184 diate prevention or speedy remedy is desirable.
It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section, and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place, if he considers that his direction is likely to prevent or tends to prevent obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
The order must state the material facts of the case and it must be served in the manner provided by section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management.
In cases of emergency or in cases where the circumstances do not admit of service in due time of a notice upon the person against whom the order is directed, it may be passed ex parte.
The order remains in force for not more than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray otherwise directs.
The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor in office.
In deciding the application made to him the Magistrate must give an opportunity of appearing before him either in person or by pleader and showing cause against the order. ' and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
This Court in Babulal Parate vs State of Maharashtra and Ors.(1) held that section 144 is intended to secure the public weal by preventing disorders, obstructions and annoyances.
The powers conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature 'and may be imposed only in an emergency.
The Court further held that the restrictions which the section authorises are not beyond the limits prescribed by cls.
(2) and (3) of article 19 of the Con stitution, for the prevention of such activities as are contemplated by the section is in public interest and therefore no, less in the interest of public order.
The Court observed that the wide power under the section may be exercised only in an emergency and for preventing obstruction, annoyance, or injury etc.
as specified therein and those factors necessarily condition the exercise of the power and, therefore, the power is not unlimited or untrammelled, and that the section cannot be struck down simply on the ground (1) [1961]3 S.C.R. 423. 185 that the Magistrate might possibly abuse his power.
Challenge to the validity of section 144 in its entirety was negatived in Babulal Parate 's case(1).
The Court however did not consider the validity of the power vested in the State executive to extend the duration of the order beyond two months, apparently because no argument was advanced at the Bar in that behalf.
Power conferred upon a Magistrate to make an order under section 144(1) is subject to the jurisdiction of the High Court under sections 435 & 439 of the Code of Criminal Procedure.
Again an order under sub section
(4) refusing to rescind or alter any order under the section, may be rectified by the High Court.
The Magistrate may pass an order in the conditions prescribed in sub section
(1) and not otherwise.
The order does not remain in force for a period longer than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, directs otherwise.
The power to "otherwise direct" involves authority to extend the duration of the Magisterial order for the ,duration of the danger or emergency.
Sub section (6) however does not authorise the State to make the order of the Magistrate permanent.
The State must in "otherwise" directing take into consideration, whether it is a case of danger to human life, health or safety, or of a likelihood of a riot or an affray in respect of which an order has been made by the Magistrate, and whether it is necessary to extend the period beyond two months and then to direct that the order shall remain in force for a period longer than two months, but not after apprehension of danger or emergency ceases.
It was submitted that in the absence on any statutory restriction on the exercise of the power, the State may abuse the power and continue it in force either permanently or for a period longer than the apprehension of danger or emergency justifies.
But the validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested.
, The order, duration of which is extended by declaration of the State,, is and continues to remain the order of the Magistrate.
The source of the authority of the order is derived not from the State Government, but from the Magistrate.
The direction of the State Government only extends its duration.
The Code, it is true, provides no machinery for subjecting the direction by the State Gov ernment to a judicial scrutiny.
The direction under sub section
(6) does not depend upon the subjective satisfaction of the Government.
On appropriate grounds the direction may be challenged in a petition under article 226 of the Constitution.
Again sub section
(4) of section 144 clearly authorises a Magistrate either on his own motion or on the application of any person aggrieved, to rescind (1) ; 6Sup.
CI/70 13 186 or alter any order made under the section.
The order is passed by the Magistrate, and, the source of its authority lies in the exercise of the judicial function of the Magistrate even after its duration is extended by the State Government.
Therefore under sub section
(4) notwithstanding that the State Government has made a direction extending the duration of the order beyond two months, the Magistrate would, in my judgment, be competent, on a judicial consideration of the materials placed before him, to rescind or alter the order.
It was submitted that a Magistrate exercising power under sub sections
(1) & (4) of section 144 of the Code of Criminal Procedure is an authority subordinate to the State Government, and he cannot rescind or alter an order made by the State Government.
That argument proceeds upon a misconception of the true nature of the division of powers under our Constitution.
Since the ultimate liability for maintaining law and order lies upon the State, the Legislature has provided that the order, if it is to remain in operation for a period exceeding two months, should have the imprimatur of the State Government.
But on that account the Magistrate does got become an authority subordinate to the State Government.
The State Government is the head of the executive and exercises no authority over the judicial functions of the Magistrates.
A Magistrate is independent of the State Government and he is entitled, notwithstanding the declaration made by the State Government, if the circumstances justify, to rescind or alter the order.
Under the scheme of division of the executive and judicial functions, it is true that power to make an order under section 144 is generally vested in Executive Magistrates who are in some matters responsible to the executive authorities.
But even under the scheme of separation of judicial and executive powers the function of the Magistrates exercising power under section 144 remains judicial.
To assume in deciding a constitutional issue, that in the prevailing administrative set up, an Executive Magistrate invested with power under section 144 of the Code of Criminal Procedure may not, on extrajudicial considerations, rescind a direction of the State Government is to overlook the distinction between abuse of power and noninvolvement of power.
If in a given case, the order is matte on extra judicial considerations it is, it is liable to be set aside by recourse to appropriate remedy.
The power to amend or alter the order after its duration is extended by the State Government cannot in my judgment be denied to the Magistrate merely because he is an Executive Magistrate.
In adjudging the reasonableness of the restrictions imposed by the exercise of power on the fundamental rights of the citizens, absence of a provision for judicial review and of machinery forobtaining an order recalling or amending the order made in exercise of that power have to be given due weight : Virendra vs The 187 State of Punjab and Anr.
(1) But as already pointed out the State Government has to make an order not on any subjective satisfaction.
The order is liable to rescission or alteration under sub section
Validity of an order made by a Magistrate is open to challenge on appropriate ground even after it is extended by the direction of the State Government in a proceeding before the High Court, for the jurisdiction of the High Courts to examine the validity of the order of the Magistrate is not affected by the extension of the duration of the order by the direction of the executive.
Again under sub section
(4) of section 144 a proceeding for withdrawal or modification of the order may be initiated even after the State has by direction extended its duration.
I am unable to hold that the order of the Magistrate gets merged into the direction of the State Government when its duration is extended.
In terms, sub section
(6) provides that the order made by a Magistrate shall not remain in force for more than two months from the making thereof, unless in the classes of cases specified the State Government otherwise directs.
Therefore, even after the period is extended by the direction of the State Government the order continues to remain the order of the Magistrate.
The declaration made by the State Government only removes the temporaly limit on its operation prescribed by sub section
In State of Madras vs V. G. Row(2), Patanjali Sastri, C.J., observed that in considering the reasonableness of laws imposing restrictions on fundamental rights, 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.
Exercise of power under section 144 is intended to ensure the maintenance of law and order, and for that purpose the section authorises the Magistrate, exercising judicial power of the State, on being satisfied on sufficient grounds, and where it is necessary that immediate prevention or speedy remedy is desirable, to make an appropriate order.
Normally an order made by a Magistrate under sub section
(1) of section 144 remains in force so long as it serves its purpose, but not longer than two months.
In case the danger or emergency or apprehension thereof is deep rooted, the State Government is competent by direction to extend the duration of the order.
The duty of maintaining law and order ordinarily lies on the executive, but since the making of an order under section 144 involves serious infringement of the rights of the citizens, exercise of, the power is conditioned by a judicial evaluation of the circumstances which necessitate it.
Whether the order remains operative for its normal duration, or is extended by direction of the execu (1) ; (2) ; 188 tive, the Magisterial verdict lends sustenance to it.
Apprehension that the executive may abuse the power to extend the duration will not, in my judgment, justify the Court in holding that the extension shifts the source of authority of the order, or vitiates the Magisterial evaluation.
I cannot accept the abstract standard that every statute in the execution of which fundamental rights of citizens may be infringed will be adjudged unreasonable, if within its framework the statute does not provide machinery for judicial scrutiny or for rescission of the action taken.
Nor can I accept the plea that absence of machinery in the Code for approaching the High Court for redress against the direction of the State, and absence of express provision for moving the State for rescission or alteration of the duration constitute a test of unreasonableness.
Reasonableness of a statutory provision cannot be determined by the application of a set formula: it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
In my view, the appeal must be allowed and the order passed by the High Court set aside.
Hegde, J.
In a proceeding under article 226 of the Constitution initiated by the respondents the High Court of Patna struck down the second part of sub section
(6) of section 144, Criminal Procedure Code as being violative of sub cls.
(b), (c) and (d) of cl.
(1) of article 19 of the Constitution.
The State of Bihar after obtaining a certificate from the High Court under article 132(1) of the Constitution has brought this appeal.
The respondents are not represented in this Court.
This Court by its order dated April 7, 1969 appointed Mr. Ramamurthi, a senior Advocate of this Court as an amicus curiae to assist the Court at the hearing of the appeal.
The Union of India has intervened and it was represented before us by Mr. B. Sen.
As the question involved in this case directly concerns a legislation by the central legislature, notice to Attorney General was also given and the Attorney General was represented by Dr. Singhvi.
The only question that arises for decision in this appeal is whether the second part of sub section
(6) of section 144, Criminal Procedure Code namely the words "unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, the (State Government) by notification in the Official Gazette, otherwise directs" are liable to be struck down as being violative of any of the clauses in article 19 (1 ) of the Constitution.
189 The facts leading to the present proceedings are as follows It appears that there was dispute between two sections of workers in the Tata Workers Union, Jamshedpur.
In that connection Shri K. N. Mishra, City Magistrate, Jamshedpur passed an order against respondent Verma under sub section
(1) of section 144, Criminal Procedure Code on May 21,1961.
He followed up that order by another order against respondents, K. K. Mishra, Sadhu Singh, P. C. Joshi and M. N. Govende on June 20, 1961.
Thereafter the State Government of Bihar passed an order under sub s, (6) of s.144, Criminal Procedure Code and notified the same in the Bihar Official Gazette on July 18, 1961.
It is the validity of this notification that is in issue in this case.
That notification reads "NOTIFICATION The 18th July, 1961.
No. 8255 C Whereas the following orders have been made under the provision of section 144, Code of Criminal Procedure, 1898 (V of 1898) by Shri K. N. Mishra, City Magistrate, Jamshedpur 1.
TO Shri R. L. Verma, Jamshedpur.
Whereas it has been made to appear to me that the President, Tata Workers ' Union, Jamshedpur, has informed you regarding the adoption of the resolution of ratification of no confidence motion against you in the General Body meeting of T.W. Union on 17th May 1961, and you received the letter on 18th May, 1961 and still you have not refrained from attending the Office of Tata Workers ' Union, situated.
at K. Road, Jamshedpur, and I am satisfied that your going to the office of Tata Workers ' Union, may lead to a serious breach of the peace, the prevention of which is immediately necessary.
I, K. N. Mishra, City Magistrate, Jamshedpur, specially empowered under section 144, Criminal Procedure Code, therefore, hereby restrain you from going to the office of the Tata Workers, Union, situated at K. Road, Bistupur, Jamshedpur, for a period of 60 (sixty) days, with effect from today.
You are also called upon to show cause by 25th May, 1961,at 6 30 a.m. as to why this order under section 144, Criminal Procedure Code, should not be made absolute against you.
190 Given under my hand and seal of the Court, this the 21st day of May 1961.
K. N. Mishra City Magistrate Jamshedpur 21 5 1961.
To (1) Shri Kamla Kant Mishra, (2) Shri Sadhu Singh (3) Shri P. C. Joshi and (4) Shri M. N. Govende, all of Tata Workers ' Union.
Whereas the officer in charge of Bistupur P.S. has submitted a report that there is serious apprehension of breach of peace in respect of the Tata Workers ' Union Office and the same still continues.
And whereas I am satisfied that a serious apprehension of breach of peace still exists due to rivalry between two rival groups of the Tata Workers ' Union and the same (breach of peace) cannot otherwise be prevented unless these four members of the O.P. are prohibited from entering into the office and compound of the Tata Workers ' Union at 'K ' Road Bistupur, for _a further period of 30 (thirty) days, I. K. N. Mishra, City Magistrate, Jamshedpur, specially empowered under section 144, Criminal Procedure Code do hereby prohibit Shri Kamla Kant Mishra, Shri Sadhu Singh, Shri P. C. Joshi and Shri M. N. Govende from entering into the office and compound of the.
Tata Workers ' Union situated at 'K ' Road, Bistupur, for a further period of 30 (thirty) days with effect from today, the 20th June 1961, and also call upon you to show cause why this order under section 144, Criminal Procedure Code, should not be made absolute against you Cause, if any be on 29th June, 1961, 'at 6 30 a.m.
Given under my hand and the seal of the Court this 20th day of June, 1961.
K. N. Mishra, City Magistrate, Jamshedpur, 20 6 1961.
And whereas the above orders expire on the 19th July, 1961, and whereas the Governor of Bihar is satisfied that the conditions which rendered these orders necessary still exist and that there is apprehension that they may continue to exist for a longer time and that it is necessary that these orders should be "tended for 191 a further period beyond the present date of their expiry in the interest of the safety of the life of the inhabitants of the town of Jamshedpur and in order to avoid the risk of riotor affray.
Now, therefore, in exercise of the powers conferred by sub section (6) of the Section 144 of the said Code, the Governor of Bihar is pleased to direct that the above orders will continue to remain in force for a period of four months, with effect from the date of publication of this notification in the Bihar Gazette, unless previously withdrawn by a notification in the said Gazette.
By Order of the Governor,of Bihar, M. Sinha, Deputy Secretary to Government.
" At this stage we may mention that the validity of the orders made by the City Magistrate, Jamshedpur on May 21, 1961 and June 20, 1961 was not challenged in the present proceedings.
Nor was the validity of any portion of section 144, other than mentioned earlier was assailed.
The validity of parts of section 144 other than that impugned in the present proceedings has been upheld by this Court in Babulal Parate vs State of Maharashtra and Ors.
In order to consider the validity of the impugned part of section 144 Criminal Procedure Code, it is necessary to have before us the entire section.
That section reads thus : "(1) In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub Divisional Magistrate, or of any other Magistrate (not being a magistrate of the third class) specially empowered by the (State Government) or the Chief Presidency Magistrate or the District Magistrate to act under this section (there is sufficient ground for proceeding under this section and) immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray, (1) ; 192 (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may, (either on his own motion or on the application of any person aggrieved) rescind, or alter any order made under this section by himself or any Magistrate subordinate to him, or by his pre decessor in office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing case against the order; and it the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or 'a likelihood of a riot or an affray, the (State Government) by notification in the Official Gazette, otherwise directs.
" It may be noted that orders under sub sections
(1), (2), (3), (4) and (5) of section 144 can only be passed by superior Magistrates.
This Court in Babulal Parate 's case(1) sustained the validity of an order made by a Magistrate under section 144(1) because of the various safeguards provided in the section.
It may be seen that an order made by a Magistrate under section 144(1), Criminal Procedure Code is open to be revised on the basis of any representation made by the aggrieved party and is also revisable by the High Court.
An analysis of the section shows that an order under that provision is subject to the following safeguards : (1) It has to be made by a superior Magistrate; (2) While making the order the Magistrate has to act judicially; (3) The order will be in operation for a short period an order of a temporary nature; (4) An opportunity is given, to the aggrieved party of showing cause against that order; (5) Reasons have to be recorded by the Magistrate for rejecting an application under s, 144(4) and (1) ; 193 (6) The order of the Magistrate being a judicial order, it can be challenged in revision before the High Court under section 435 read with section 439, Criminal Procedure Code.
It was urged by Mr. Ramamurthi that whereas the legislature had provided adequate safeguards in respect of orders made by Magistrates, it has failed to provide for any safeguard in respect of orders made by the State Government under the second part of sub section
(6) of section 144, Criminal Procedure Code; before making an order under that provision, the State Government is not required to make any inquiry; no opportunity is given to the aggrieved party to show cause against the order; the order made by the State Government need not be of a temporary nature and the order of the State Government is neither appealable nor revisable.
Hence according to him the restriction imposed on the fundamental rights guaranteed to the respondents under article 19(1)(b)(c) '(d) viz., to assemble peaceably without arms, to form associations or unions and to move about freely throughout India, is an unreasonable restriction.
The State has not been consistent in its stand.
Before the High Court, in its grounds of appeal filed as well as in the initial stage of the arguments of Mr. Goburdan learned counsel for the State of Bihar and Dr. Singhvi, the stand taken was that the order made by the State Government is on administrative order and as such is not amenable to any judicial review.
But after some discussion and after obviously realising the untenability of their contention, they drastically changed their stand and contended that the only operative orders are those made by the Magistrate, the Government merely extended the duration of those orders; the order of the Government got merged in the orders of the Magistrate; the extended order is open to review under sub section (4) of section 144, Criminal Procedure Code and the same is revisable under section 435 read with section 439, Criminal Procedure Code.
We shall now proceed to consider whether there is any basis for the new line of argument advanced in this Court.
We have earlier seen the scheme of section 144, Criminal Procedure Code.
Its first sub section empowers the appropriate Magistrate to make any order contemplated therein.
The second sub section confers power on the Magistrate to pass the ex parte order under certain circumstances.
The third sub section sets out the person against whom the order made by the 'Magistrate can be directed.
The fourth sub section provides for the review of the order by the Magistrate who made the order or his successor in office or by his superior either suo moto or on the representation made by the aggrieved party.
The fifth sub section lays down the procedure to be adopted by the concerned Magistrate to deal with the repre 194 sentation received.
The first part of the sixth sub section fixes the period during which the order made by a Magistrate would be in operation.
Once the process set but above comes to an end the Magistrate has no further function.
Thereafter it is clear he becomes functus officio in relation to the order made by him.
The power conferred on the Government under the second part of the sixth sub section is an independent power.
Before issuing any direction under that sub section, the Government has to examine afresh whether the danger to human life, health or safety or a likelihood of a riot or an affray continues and if it continues how long the original order made by the Magistrate should 'be kept alive.
It is true that the basic order is the Magistrate 's order but the decision that the circumstances mentioned in sub section
(6) of section 144, Criminal Procedure Code continue to exist and the original order should be continued for a certain period of time or indefinitely is that of the Government.
It is not a case of the Government order getting merged in the Magistrate 's order.
It is rather the converse.
The Magistrate 's order is adopted by the Government as its own order.
Once the Government notifies its direction.
the responsibility for the continuance of the original order is that of the Government.
It may be noted that the direction given by the Government has to be notified in the Official Gazette.
We have earlier seen that the order with which we are concerned in this case was made in the name of the Governor and signed by a Secretary to the Government.
That is the usual procedure adopted in issuing directions under section 144(6).
From all these, it is clear that the direction in question is an executive act of the State Government coming within article 166 of the ConstitutiON.
If the direction given under section 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 144(1), Criminal Procedure Code.
Further it is least likely that the legislature would have prescribed that such a direction should be notified in the Official Gazette.
It we bear in mind our legislative practice, it is difficult to accept the contention that the legislature had conferred upon the Magistrate power to review the directions given by the Government.
Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate sub ordinate to him or by a predecessor in office.
It is not possible to bring within the scope of this section the order made by the State Government.
If the legislature intended to bring within the scope of this sub section direction (which really means order) given by the State Government, it would have stated so particularly when it specifically referred to the order made by the Magistrate 's predecessor in office or that made by a subordinate Magistrate.
The scheme of the section.
the language employed therein and our legislative practice militate against the new line of defence adopted 195 on behalf of the State of Bihar, Union of India and the Attorney General in this Court.
From a plain reading of section 144(6), Criminal Procedure Code, it is clear that the power conferred on the State Government is an independent power and it is an executive power.
It is not expected to be exercised judicially.
It is open to be exercised arbitrarily.
The directions given in the exercise of that power need not be of a temporary nature.
The ambit of that power is very large and it is uncontrolled.
Dr. Singhvi at one stage urged that the only check on the exercise of that power by the Government is the searching scrutiny of governmental actions expected from our legislators.
We shall assume as Dr. Singhvi wants us to do that de executive actions of the Government are constantly being watched by the legislators.
But that does not absolve this Court 's responsibility.
To quote the felicitous expressions of one of the illustrious former Chief Justices of this Court (Sri Patanjali Sastri) in State of Madras vs Y. G. Row(1) that as regards the fundamental rights, the Constitution has assigned to this Court the role of a Sentinel on the quivive.
Proceeding further the learned Chief Justice observed in that case that "while this Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute".
It will be neither fair nor just to this Court or to our Constitution or even to our representatives, if this Court deserts its duty on the assumption that the other organs of the State would safeguard the fundamental rights of the citizens.
Dr. Singhvi 's contention ignores the very character of the fundamental rights, the basic principles underlying them and the safeguards carefully erected by our Constitution against the legislative encroachment of the fundamental rights of citizens.
Further it is based on an over simplification of the concept of the rule of the majority in a parliamentary democracy.
It overlooks the fact that these safeguards are primarily intended to protect the rights of the minority.
Dr. Singhvi 's contention also overlooks the fact that the fundamental rights constitute a protective shield to the citizens as against State actions.
Therefore there is no point in saying that the legislators would see that those rights are not impugned.
The real question for decision is whether impugned restriction is a reasonable restriction.
Unless that restriction can be considered as a reasonable restriction, it does not get the protection of Sub articles
(3), (4) and (5) of article 19, which means that restriction is violative of article 19 (1 ) (b) (c) and (d).
(1) ; 196 As observed in Dr. Khare vs State of Delhi(1), and reiterated in V. G. Rao 's case (2 ) that in considering reasonableness of laws imposing restrictions on fundamental rights both substantive and procedural aspects of the law should be examined from the point of view of reasonableness and 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.
It is not possible to for mulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se.
All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
In other words in order to be a reasonable restriction, the same must not be arbitrary or excessive and the procedure and the manner of imposition of the restriction must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable.
One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate, fair and reasonable.
Further the courts have to see whether the restriction is in excess of the requirement or whether it is imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of Sub articles
1 to 6 of article 19, if the statute fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid see The State of Madhya Pradesh vs Baldeo Prasad(3).
A restriction imposed under section 3(1) of the Punjab Special Powers Act, 1956 was struck down by this Court in Virendra vs State of Punjab(4) on the ground that the Act did not provide for any time for the operation of an order made thereunder nor for a representation by the aggrieved party.
Now adverting to the restriction impugned in this case, the power to impose the same is conferred on the executive Government and not to any judicial authority.
There is no provision to make representation by the aggrieved party against the direction given by the Government; no appeal or revision is provided against that direction and the order made need not be of temporary nature.
Hence we agree with the High Court that impugned provision is (1) ; (2) ; (3) ; (4) ; , 197 violative of article 1 9 (1) (b) (c) and (d) and is not saved by article 19(3), (4) or (5).
In the result this appeal fails and the same is dismissed.
ORDER In accordance with the opinion of the majority the appeal is dismissed.

summary/full:
Sub section (6) of section 144 of the Code of Criminal Procedure provides that no order under s, 144 shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette otherwise directs.
The City Magistrate of Jamshedpur passed orders under section 144(1) against the respondents which were later extended by the State Government of Bihar in exercise of its powers under section 144(6).
In a writ petition filed by the respondents the High Court of Patna struck down the second part of sub s.(6) of section 144 as being violative of sub cls.
(b), (c) and (d) of cl.
(1) of article 19 of the Constitution.
The State appealed and contended that the only operative orders were those made by the Magistrate and the Government merely extended those orders.
Further, since the order of the Government got merged in the orders of the Magistrate, the extended order was open to review under sub section
(4) of section 144 and the same was also revisable under section 435 read with section 439 of the Code of Criminal Procedure.
HELD : Per Shelat, Vaidialingam, Hedge and Ray, JJ. (i) The Magistrate 's order is no doubt the basic order.
But after the process in the first five sub sections of section 144 is completed he becomes functus officio.
The decision that the circumstances mentioned in sub section
(6) of section 144 Criminal Procedure Code continue to exist and the original order should be continued is that of the Government.
It is not a case of the Government order getting merged in the Magistrate 's order.
Rather the Magistrate 's order is adopted by the Government as its own order.
[194 A C] The order of the Government is made in the name of the Governor ,and signed by a Secretary to the Government.
It is published in the Official Gazette.
It is thus clearly an executive act of the Government coming within article 166 of the Constitution.
If the direction given under section 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 144(1).
[194 E F] Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate subordinate to him or by a predecessor in office.
It is not possible to bring within the scope of this section the order made by the State Government.
for if it was so intended it would have been mentioned in the section.
[194 G] From a plain reading of section 144(6) it is clear that the power conferred on the Government is an independent executive power, not expected to be exercised judicially.
It is open to be exercised arbitrarily.
The direc 182 tions given in the exercise of that power need not be of a temporary nature.
The ambit of that power is very large and is uncontrolled.
[195 B] (ii) The fact that the Legislature is expected to keep a check on governmental actions does not absolve this Court 's responsibility.
The fundamental rights constitute a protective shield to the citizen as against State actions and the Court cannot desert its duty on the assumption that the other organs of the State would safeguard the fundamental right of the citizens.
[195 C D] (iii) In order to be a reasonable restriction within the meaning of article 19 of the constitution the same must not be arbitrary or excessive and the procedure and the manner of its imposition must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable.
One of the im portant tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
Further the courts have to see whether it is in excess of the requirement or imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of sub articles
1 to 6 or article 19, if the State fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid.
[196 C F] Since section 144(6) gives the power to impose the restrictions contemplated by it to the executive Government and not to a judicial authority and there is no right of representation, appeal or revision given to ,the aggrieved party against an order which may not be of a temporary nature, it must be held that the said impugned provision is violative of article 19 (1) (b) (c) and (d) and is not saved by articles 19(3) (4) or (5).
[196 G] Babulal Parate vs State of Maharashtra and Ors. ; , ,referred to.
State of Madras vs V. G. Rao, ; ; Dr. Khare V. State of Delhi, ; ; State of Madhya Pradesh vs Baldeo Prasad ; and Virendra vs State of Punjab; , , applied.
Per Shah, J. (dissenting).
Sub section
(6) of section 144 does not authorise the ,State Government to make the order of the Magistrate permanent.
It ,cannot direct it to continue after apprehension of danger or emergency ceases.
The validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested.
The order duration of which is extended by declaration of the State is and continues to remain that of the Magistrate.
The 'source of the authority of the order is derived not from the State Government, but from the Magistrate.
It cannot be said that the order of the Magistrate gets merged with that of the Government when its duration is extended.
Although no provision is made in the Code for a judicial review of the State Government 's order under section 144(6), the said order does not depend on the subjective satisfaction of the Government and is capable of being challenged in a petition under article 226 of the Constitution ' Further the Magistrate who passed the original order may in considera tion of the materials placed before him under section 144(4) rescind or alter the State Government 's order.
In the exercise of his judicial functions 183 the Magistrate is independent of the Government and not subordinate to it.
The principle applies even in the case of an Executive Magistrate who under the scheme of separation of powers may be responsible to the executive authorities.
The above remedies being available the provision in section 144(6) cannot be held to be unreasonable on the mere ground that there is no express provision in the Code for redress against the, State Government 's order.
Reasonableness of a statutory provision cannot 'be determined by the application of set formulas : it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
B D] Case law referred to.


judgement:
Civil Appeals Nos. 942 and 943 of 1966.
Appeals by special leave from the judgment and order dated june 18, 1965 of the Kerala High Court in Writ Appeals Nos.
139 and 140 of 1964.
Jagdish Swarup, Solicitor General, T.A. Ramachandran and D. Sharma, for the appellant (in both the appeals).
S.T. Desai, M.C. Chacko, A.K. Verma, J.B. Dadachanji, and O.C. Mathur, for respondent No. 1 (in C.A. No. 942 of 1966).
A.G. Pudissery, for respondents Nos. 2 and 3 (in C.A. No. 942 of 1966).
J.B. Dadachanji, for respondents Nos. 1 and 2 (in C.A. NO. 943 of 1966).
A.G. Pudissery, for respondents Nos. 7 and 8 (in C.A. No. 943 of 1966).
The Judgment of the Court was delivered by Grover, J.
These two appeals by special leave involve a common question relating to the validity of a notification issued by the Government of Kerala in August 1963 empowering certain revenue officials including the Taluka Tahsildar to exercise the powers of a Tax Recovery Officer under the Income Tax Act 1961, hereinafter called the Act.
The notification was expressly stated to be effective from 1st April 1962 a date prior to the date of the notification.
The facts in one of the appeals (C.A. 942/66) may be stated: One Kunchacko of Alleppey allowed the income tax dues from him to fall into arrears.
The Income Tax Officer took steps to recover the arrears through the Tahsildar.
Certain shares standing in the name of the assessee were attached by the Tahsildar.
The first respondent Ponnoose claimed to have obtained a decree for a certain sum against the assessee.
He also got the shares 680 standing in the name of the assessee attached in execution proceedings, Ponnoose filed a petition under article 226 of the Constitution in the High Court of Kerala in which he challenged the action taken by the revenue officials including the Tahsildar for getting the shares, which had been attached, sold for satisfaction of the income tax dues of the assessee.
The learned Single Judge held that the notification empowering the Tahsildar to exercise the powers of a Tax Recovery Officer under the Act with retrospective effect was invalid.
Consequently ' the attachments made by the Tahsildar were quashed.
This view was affirmed by a division bench in appeal.
The Act came into force on first April 1962.
Section 2(44) defined the expression "Tax Recovery Officer" in the following.
terms: "Tax Recovery Officer ' means (i) a Collector; (ii) an additional Collector or any other officer authorised to exercise the powers of a Collector under any law relating to Land revenue for the time being in force in a State; or (iii) any gazetted officer of the Central or a State Government who may be authorised by the Central Government by notification in the Official Gazette, to exercise the powers of a Tax Recovery Officer".
Section 4 of the Finance Act, 1963 substituted a new definition for the original definition of Tax Recovery Officer.
It was provided that the new definition "shall be and shall be deemed always to have been substituted".
The new definition was as follows: "Tax Recovery Officer" means (i) a Collector or an additional Collector; (ii) any such officer empowered to.
effect recovery of arrears of land revenue or other public demand under any law relating to land revenue or other public demand for the time being in force in the State as may be authorised by the State Government, by general or special notification in the Official Gazette, to exercise the powers of a Tax Recovery Officer; (iii) any Gazetted Officer of the Central or a State Government who may be authorised by the Central Government, by general or special noti 681 fication in the Official Gazette, to exercise the powers of a Tax Recovery Officer.
" The impugned notification dated August 14, 1963 which was published in the Kerala Gazette dated August 20, 1963 referred to the powers conferred by sub clause (ii) of clause (44) of section 2 of the Act read with sub rule (2) of rule 7 of the Income tax (Certificate Proceedings) Rules, 1962 and authorised the various revenue officials mentioned therein including the Taluk Tahsildar to exercise the powers of a Tax Recovery Officer under the Act in respect of the arrears etc.
The concluding portion was, "This notification shall be deemed to have come into force on the first day of April 1962".
The Tahsildar had effected attachment of the shares subsequent to first April 1962 but prior to August 14, 1963.
In other words on the date on which he had effected attachment he was not a Tax Recovery Officer but he got the powers of a Tax Recovery Officer by virtue of the notification dated August 14, 1963.
The short question for determination, therefore, was and is whether the State Government could invest the Tahsildar with the powers of a Tax Recovery Officer under the aforesaid provisions of the Act with effect from a date prior to the date of the notification, i.e., retroactively or retrospectively.
Now it is open to a sovereign legislature to enact laws which have retrospective operation.
Even when the Parliament enacts retrospective laws such laws are in the words of Willes J. in Phillips vs Eyre(1) "no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.
" The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.
The Parliament can delegate its legislative power within the recognised limits.
Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation.
It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect.
But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye law which can operate with retrospective effect; (see Subba Rao J. in Dr. lndramani Pyarelal Gupta vs W. R. Nathu & (1) 40 Law J.Rep.(N.S.) Q.B. 28 at p. 37.
682 Others(1) the majority not having expressed any different opinion on the point; Modi Food Products Ltd. vs Commissioner of Sales Tax U.P.(2); India Sugar Refineries Ltd. vs State of Mysore(3) and General section Shivdev Singh & Another vs The State of Punjab & Others(4).
it can hardly be said that the impugned notification promulgates any rule, regulation or bye law all of which have a definite signification.
The exercise of the power under sub clause (ii) of cl.
(44) of section 2 of the Act is more of an executive than a legislative act.
It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation.
In Strawboard Manufacturing Co., Ltd. vs Gutta Mill Workers ' Union(5) an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950.
The award, however, was made on April 13, 1950.
On April 26, 1950 the Governor issued a notification extending the time up to April 30.
It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity.
This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tehsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.
It may next be considered whether by saying that the new definition.
of "Tax Recovery Officer" substituted by section 4 of the Finance Act, 1963 "shall be and shall be deemed always to have been substituted" it could be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect.
The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted.
The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in section 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express (1) ; (2) A.I.R. 1956 All. 35.
(2) A.I.R. 1960 Mys, 326 (4) (5) ; 683 provision in section 2(44) of the Act itself.
It may be noticed that in a recent decision of the Constitution Bench of this Court in B. 8.
vadera etc., vs Union of India & Others(1) it has been observed with reference to rules framed under the proviso to article 309 of the Constitution that these rules can be made with retrospective operation.
This view was, however, expressed owing to the language employed in the proviso to article 309 that ' 'any rules so made shall have effect subject to the provisions of any such Act".
As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations.
Moreover when the language employed in the main part of article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service.
The legislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only.
till a provision in that behalf is made by or under an Act of the appropriate legislature.
As the legislature can legislate prospectively as well as retrospectively there can be hardly any .justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as welt as retrospective operation.
For these reasons the ambit and content of the rule making power under article 309 can furnish no analogy or.
parallel to the present case.
The High Court was consequently fight in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable.
The appeals therefore fail and are dismissed with costs.
One hearing fee.
Y.P. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
By a notification dated August 14, 1963, issued by the State of Kerala the Taluka Tehsildar was authorised to exercise the powers of a Tax Recovery Officer under the Income tax Act, 1961.
The notification was made effective from April 1962.
The shares of the assessee, who was in arrears of his income tax, were.
attached by the Taluka Tehsildar after April 1, 1962 but prior to August 14, 1963.
A petition under article 226 of the Constitution was filed challenging the, action of the Tehsildar.
The High Court held that the notification empowering the Tehsildar to exercise the powers of a Tax Recovery Officer with retrospective effect was invalid and consequently quashed the attachments.
This view was affirmed by the Division Bench in appeal.
Dismissing the appeal by the Revenue, this Court, HELD: The courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.
The Parliament can delegate its legislative power within the recognised limits.
Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation.
It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect.
But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions rule, regulation or bye law .
which can operate with retrospective effect.
[681 F H] It can hardly be said that the impugned notification promulgates any rule, regulation or bye law 'all of which have a definite signification.
The exercise of the power under sub cl.
(ii) of cl.
(44) of section 2 of the Income tax Act, 1961 is more of an executive than a legislative act.
[682 B] Dr. Indramani Pyarelal Gupta vs
W.R. Nathu & Ors. ; , Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ; , followed.
Phillips vs Eyre, 40 Law L Rep. (N.S.) Q.B. 28 at p. 37, referred to.
Modi Food Products Ltd. vs Commissioner of Sales tax U.P.A.I.R. [1956] All.
35, India Refineries Ltd. vs State of Mysore, A.I.R. 1960 Mys.
326 and General 8.
Shivdev Singh & Anr.
v, The State of Punjab & Ors. , approved.
679 By saying that new definition of "Tax Recovery Officer" substituted by section 1 of the Finance Act, 1963, "shall be and shall be deemed always to have been substituted" was to make the new definition a part of the income Tax Act from the date it was enacted.
The legal fiction could not be extended beyond its legiitimate field and the aforesaid words occurring in s.4 of the Finance Act, 1963 could not be construed to embody conferment of 'a power for retrospective authorisation by the State re.the absence of any express provision in section 2(44) of the Income Tax Act itself.
[682 G] B.S. Vadera etc.
vs Union of India & Ors. ; , distinguished.


judgement:
Appeal No. 1121 of 1966.
Appeal by special leave from the judgment and order dated August 17, 1965 of the Punjab High Court, in Letters Patent Appeal No. I 10 of 1965.
203 Janardan Sharma and R. N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Punjab accepting the petition filed by the rate payers of Municipal Committee, Rohtak, respondents before us, and ordering that the State Government shall not proceed with the constitution of the Rohtak Improvement Trust under the notification of August 30, 1961.
The High Court allowed the petition because it held (1) that sub section
(3) of section I of the Punjab Town Improvement Act (Punjab Act IV of 1922) here in after referred to as the Act only envisages the creation 'of a Trust in a Municipal area where a Committee is functioning and so is in a position to hold a special meeting to decide whether or not it considers the creation of a trust desirable, and (2) that once a trust ceases to exist under section 103(l) of the Act in order to recreate the trust, the Act has to be applied again, and as the Municipal Committee had at a special meeting held on November 9, 1962, decided unanimously that the Act should not be applied the Government was bound to give effect to that decision.
The learned counsel for the appellant, Mr. Sachthey, contends that the High Court has placed a wrong interpretation on the two provisions mentioned above and somehow section 4 A of the Act was not noticed by the High Court.
Before we deal with the interpretation of the provisions mentioned above it is necessary to state a few facts.
The Rohtak Municipal Committee was superseded on August 2, 1954.
The Government purported to extend the provisions of the Act to the whole of the area of the Municipality on May 21, 1958.
The notification to this effect reads "In pursuance of the provisions of sub section of Section I of the Punjab Town Improvement Act 1922 (Punjab Act No. IV of 1922), the Governor of Punjab proposes to apply the provisions of the said Act to the whole of the area of the municipalities specified below with effect from 9th June, 1958 1. . 2. . 3.
Rohtak,. " Sub section (3) of section 1 of the Act reads as follows "1.
(3) This section and section 66 shall come into force at once.
The State Government may by notification propose to apply the rest of the Act to the whole or any part of any municipality and to any locality adjacent 204 thereto, on such date as may be specified in such notification; and the Act shall come into operation after the, lapse of three months unless within that period the municipal committee concerned at meeting convened for the purpose of considering the application of the Act resolve by a majority of two thirds that the Act should not be so applied.
" In pursuance of this notification a trust was set up.
But on August 30, 1961, the Government issued a notification in exercise of its powers under sub section
(1) of section 103 of the Act and declared that the Rohtak Improvement Trust shall be dissolved with effect from August 30, 1961 from which the Chairman and the trustees of the aforesaid Trust ceased to function.
Section 103(1) of the Act reads as follows : "103.
(1) When all schemes sanctioned under this Act have been executed or have been so far executed as to render the continued existence of the trust, in the opinion of the State Government, unnecessary, or when in the opinion of the State Government it is expedient that the trust shall cease to exist, the State Government may by notification declare that the trust shall be dissolved from such date as may be specified in this behalf in such notification; and the trust shall be deemed to be dissolved accordingly.
" It appears that on the supersession of the Municipality of Rohtak in 1954 an Administration was appointed under section 238 of the Punjab Municipal Act, 191 1.
This section, inter alia, provides: "238.
(1) . (2) When a committee is so superseeded.
the following consequences shall ensue (a). (b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such persons as the State Government may appoint in that behalf;" Fresh elections of the Municipal Committee, Rohtak, were held in July 1961, and the Municipal Committee reconstituted on January 10, 1962.
On October 23, 1962, the Government informed the Deputy Commissioner, Rohtak, that it had decided to reconstitute Rohtak Improvement Trust immediately and asked the Deputy Commissioner to recommend a panel of six names of suitable persons for appointment as trustees and the Government also asked him to call upon the Municipal Committee, Rohtak, to elect its representatives as trustees.
205 This was not to the liking of the Municipal Committee and the Municipal Committee unanimously passed a resolution on November 9, 1962, strongly opposing the reconstitution of the Improvement Trust, Rohtak.
The Government by notification dated January 10, 1963, in exercise of powers conferred 'by sub section
(2) of section 4 of the Act appointed one Major section K.Mehta as Chairman, Rohtak Improvement Trust.
The Municipal Committee was again requested to send two names of three members of the Municipal Committee to be appointed as trustees as required by cl.
(b) of sub section
( 1) of section 4 of the Act.
Thereupon 32 rate payers filed the petition under article 226 of the Constitution challenging the reconstitution of the Rohtak Improvement Trust.
Coming to the first point decided by the High Court, it seems to us that section 4 A to the Act was not brought to its notice and if it had been brought to its notice the High Court may well have come to the contrary conclusion.
Section 4 A which, was inserted by Punjab Act VIII of 1936 reads : "4 A.
During the period of supersession of a Municipal Committee under section 238 of the Punjab Municipal Act, 191 1, the three seats allotted to the Municipal Committee on the trust under clause (b) of sub section (1) of section 4 shall be filled by the State Government by appointing any three persons by notification in the Official Gazette.
The term of office of every trustee so appointed shall be three years or until the Trust is dissolved, whichever period is less, provided that if the Municipal Committee is reconstituted three members of the Municipal Committee shall be elected or appointed in accordance with the provisions of section 4, and on their election or appointment the three trustees appointed by the State Government under this section shall cease to be members of the Trust.
" Reading section 1(3) and section 4A of the Act, and section 238 of the Punjab Municipal Act, 191 1, together, it seems to us that the true meaning of the latter portion of sub section (3) of section 1 is that when the Government applies the section and the Municipal Committee has been superseded before that date, it is the Administrator who would exercise the powers given under the latter part of that sub section; in other words, the Administrator would be competent to say to the Government that the Act shall not come into operation.
The words of section 238 of the Punjab Municipal Act are very wide and it is difficult to limit the expression "all powers and duties of the committee" in any manner.
The Municipality exercised powers by resolution passed by majority and the fact that this particular resolution had to be by two third majority does not lead 206 to the conclusion that the power to oppose the application of the Act vesting in the Municipal Committee cannot be exercised by the Administrator under section 238, Punjab Municipal Act.
Section 4A of the Act clearly proceeds on the basis that while the Municipal Committee stands superseded the appointment of trustees which was originally to be made by the Municipal Committee would be made 'by the State Government.
As the High Court did not have section 4 A before it had relied on the anomaly that where a Municipal Committee was suspended the Government could nominate some members of the suspended Committee as members of the Trust or otherwise fill these vacancies, and the High Court felt that it could not believe that it was the intention of the Legislature.
Coming to the second point.
made by the High Court, it seems that the High Court has wrongly,, held that once the Act has been applied it is necessary that it should be applied again when the Municipal Committee is reconstituted.
There is nothing in the words of sub section
(3) of section I to 'warrant this conclusion.
Once the Act has come into operation in accordance with the provisions of sub section
(3) of section 1 there is no provision by which the Act can cease to apply.
The only point that remains is,: when a trust has been dis solved under section 103 of the Act, can it be reconstituted under the Act ? The only provisions under which a trust can be reconstituted under the Act are sections 3 and 4.
Section 3 reads : "3.
The duty of carrying out the provisions of this ' Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a board to be called "The (name of town) Improvement Trust" hereinafter referred to as the 'The Trust"; and every such board shall be a body corporate and have perpetual succession and common seal, and shall by the said name sue and be sued.
" Section 4 reads; "4.
(1) The trust shall consist of seven trustees, namely The other sub sections of section 4 provide how the trustees are to be appointed.
It seems to us that if the trust could originally be created under sections 3 and 4, reading sections 3 and 4 and section 12 of the General Clauses Act, the Government has the power to create a view trust or reconstitute a new trust.
We may mention that section 12 of the Gene 207 ral Clauses (Punjab.) Act, 1898, provides that "where by any Punjab Act any power is conferred then that power may be exercised from time to time as occasion requires.
" In the result the judgment of the High Court is set aside, the appeal allowed and the writ petition dismissed.
There, will be no order as to costs throughout.
Y.P. Appeal allowed.

summary/full:
The Rohtak Municipal Committee was superseded in August 1954, and an Administrator was appointed under section 238 of the Punjab Municipal Act, 1911.
In June 1958 the provisions of the Punjab Town Improvement Act, 1922, were extended to the Municipality and the Rohtak Improvement Trust was set up under the Act.
In August 1961, the Government issued a notification under section 103 (1) of the 1922 Act dissolving the Trust.
The Municipal Committee was reconstituted in January 1962 and in October 1962 the Government decided to reconstitute the Trust.
The Municipal Committee thereupon passed a resolution opposing the reconstitution of the Trust.
In January 1963, however, the Government re constituted the Trust and the Municipal Committee was asked to name its representatives to be appointed as trustees.
The rate payers filed a writ petition challenging the reconstitution of the trust and the High Court allowed the petition.
In appeal to this Court, HELD : (1) The attention of the High Court was not drawn to section 4A of the 1922 Act and therefore it erred in holding that the Trust could not be set up in 1958 because, under section 1(3) of the 1922 Act a Trust cannot be created in a Municipal area unless the committee was functioning.
Under section 4A, where the Municipal Committee was superseded the State ,Government could appoint the trustees, and there was no anomaly in the Government nominating the trustees, because, the Administrator who had all the powers and duties of the Committee under section 238 of the 1911 Act was competent to say to the Government that the 1922 Act should not be applied to the Municipality.
[205 C D 206 B] (2) Once the 1922 Act had come into operation under section 1(3), it ,continues to apply and it was not necessary to apply it again when the Municipal Committee was reconstituted in 1962.
[206 D] (3) Under sections 3 and 4 of the 1922 Act and the General Clauses (Punjab) Act, 1898, Government has the power to create a new trust or reconstitute a Trust which was dissolved.
[206 H]


judgement:
Appeal No. 1191 of 1967.
Appeal by special leave from the judgment and order dated May 23, 1962 of the Allahabad High Court in Special Appeal No. 592 of 1961.
C. B. Agarwala and 0.
P. Rana, for the appellants.
The respondent did not appear.
The Judgment of the Court as delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court whereby it allowed the 267 writ petition file by the respondent, Kumari Chittra Srivastava, hereinafter referred to as the petitioner, and quashed the impugned order but left it open to the Board of High School and Intermediate Education, hereinafter referred to as the Board, to reconsider the case after giving the petitioner a chance to offer her explanation.
The facts are not in dispute and the only question which arises is whether in the circumstances the petitioner was entitled to an opportunity to represent her case before the Board prior to the passing of the impugned order.
The relevant facts in brief are these.
The petitioner was in 1959 60 session a student of Basant Girls Intermediate College, Varanasi.
She appeared at the Intermediate examination in 1960 but failed.
She then joined the Government Inter College for Girls at Jaunpur.
Her name was sent up for Intermediate examination to be held in 1961 by the Principal.
She appeared in the examination but her result was not declared by the Board.
On May 24, 1961, the Board addressed a letter to the Principal making enquiries regarding the attendance of the petitioner.
According to the regulations framed by the Board no candidate can be presented for the Intermediate examination unless he/she has attended during two academical years 75% of lectures given in each subject in which the candidate is to be examined.
In the case of a failed candidate, like the petitioner, the percentage shall be calculated for one academical year, but Regulation 5(xiii) enables the head of a recognised institution to condone the deficiency in certain cases.
This regulation reads "(xiii) The rule regarding minimum attendance shall be strictly enforced.
The head of the recognised institution may condone a deficiency in attendance of not more than (a) ten days in the case of a candidate for the High School Examination; and (b) ten lectures (including periods of practical work, if any) given in each subject in the case of a candidate for the Intermediate Examination.
All cases in which this privilege is exercised shall be reported to the Director of Education as the Chairman of the Board.
In the cases of failed or detained candidates whose attendance of one year will be taken into account, the shortage to be condoned shall be reduced to half." 268 The Principal received the letter when on vacation outside Jaunpur.
The Principal replied on June 14, 1961, saying that a proper reply to paragraphs 1 and 2 of the letter will be sent after July 8, 1961.
She, however, stated "When Km.
Chitra Srivastava absented herself for a pretty long period on account of her illness, the position :was explained to her, besides informing her guardian also who was even called to the office and acquainted with the circumstances.
At that time, it was possible for her to make good this shortage by her regular attendance.
The teacher in Home Science took leave in February, 1961.
Chitra was short in attendance in other subjects also, but she made good the shortage by her regular attendance.
When, during the days the classes were held, lectures in other subjects were held and the girl attended there, it was, not considered proper to detain her from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were not held.
I got the student admitted to the examination as I was confident that the officers of the Board will agree with my view.
" The substance of the letter was that the shortage in lectures was due to the lecturer taking leave.
The Board was, however, impatient.
It is not clear whether this letter was received by the Board because no reference to it is made in the letter dated July 6, 1961.
The Board wrote: "In continuation of this office letter No. E.I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 1 have the honour to inform that you have not furnished the desired information about the student Km.
Chitra Srivastava, roll No. 50452.
From your previous letter No. 143/E dated 6th May, 1961, ' it is learnt that the admission of the student by you to the examination.
by condoning her absence from seven lectures on the subject of Home Science was contrary to rules.
Hence the student 's Inter Examination of 1961 is cancelled.
Kindly communicate this to the student under intimation to this office." 269 The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be not awarded to the petitioner.
On October 6, 1961, the petitioner filed a petition under article 226 of the Constitution challenging the impugned order dated July 6, 1961.
Mathur, J., dismissed it summarily.
On appeal, Srivastava and Katju, JJ., allowed the petition, as mentioned earlier.
They were of the view that the Board, while cancelling the examination, acted in a quasi judicial capacity.
The Board was "by cancelling the examination inflicting a penalty" and if opportunity had been given to the petitioner to present her case she might have persuaded the Board not to cancel the examination.
The learned counsel for the appellant, Mr. C. B. Aggarwal.
contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner.
He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice .
We are unable to accept this contention.
Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority 's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.
We agree with the High Court that the impugned order imposed a penalty.
The petitioner has appeared in the examination and answered all the question papers.
According to her she had passed.
To deny her the fruits of her labour cannot but to be called a penalty.
We are unable to appreciate the contention that the Board, in "cancelling her examination" was not exercising quasijudicial functions.
The learned counsel urges that this would be, casting a heavy burden on the Board.
Principles of natural justice are to some minds burdensome but this price a small price indeed has to be paid if we desire a society governed by the rule of law.
We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination.
We are not concerned with this question and say nothing about it.
The learned counsel invites us to hold that the decision of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures.
But we decline to into these questions.
We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit.
Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.
270 The learned counsel further invites us to say that the possible courses which the petitioner 's counsel had outlined before the High Court will not be legal or justified.
The petitioner 's counsel had pointed out that the Board could have been persuaded to adopt some of the following courses "(1) To accept the explanation of the principal as valid.
(2) To condone the shortage of two lectures which the Principal could not condone.
The question whether the Board had power to condone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others versus G. Vishwanath Nayar but was not decided and was left open.
It is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board.
The Regulations only provide the extent to which shortage in attendance can be condoned by the heads of institutions.
There is nothing in the Regulations to limit the power of the Board itself to admit a candidate to an examination after condoning shortage which could not be condoned by the head of the institution.
(3) After noting that a technical breach of rules had been committed the Board or the Chairman may have decided not to take any action.
(4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases.
(5) The Board could have given an authoritative interpretation of the words 'lectures given ' in clause (iii) of regulation 5 of chapter XII and decided whether the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason.
" But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage.
In the result the appeal fails and is dismissed.
As the petitioner (now respondent) is not represented there will be no order as to costs.
V.P.S. Appeal dismissed.

summary/full:
The respondent appeared in the Intermediate examination and passed, but the appellant, instead of declaring her result, addressed a letter on May 24, 1961, to the Principal of the college in which the Respondent was studying, making enquiries regarding the respondent 's attendance.
According to the regulations, a candidate must attend 75% of the lectures given in each subject.
The Principal, by her letter dated June 14, 1961, replied that the respondent was at one time short of attendance, that she made good the 'shortage in all subjects except one, but the shortage in that subject was due to the fact that lectures Were not given in that subject the lecturer having been on leave.
By its letter dated July 6, 1961, the appellant cancelled the respondent 's result and no reference was made to the Principal 's letter in the appellant 's letter.
The respondent thereupon filed a writ petition challenging the appellant 's order cancelling the result, and the High Court allowed the petition.
In appeal to this Court, HELD : The appellant should have given an opportunity to the respondent to present her case and pursuade the appellant not to cancel her result.
[269 C] Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority 's satisfaction that the person to be penalised has no defence but On the nature of the order proposed to be passed.
In the present case, the impugned order imposed a penalty on the respondent as she was denied the fruits of her labour, and when passing it, the appellant was exercising quasi judicial functions.
[269 D F]


judgement:
ivil Appeal Nos.
736 to 739, 91 3 and 1621 of 1968.
Appeal from the judgment and order dated December 2, 1964 of the Calcutta High Court in Income tax Reference Nos.
131 of 1961 etc.
Jagdish Swarup, Solicitor General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in 'all the appeals).
P. Barman Ranjit Ghose and Sukumar Ghose, for the respondents (in all the appeals).
In a proceeding for assessment to Income tax for the year 1949 50 the respondents in these appeals claimed that the dividend distributed by the Ukhra Estate Zamindaries Ltd. was exempt from tax, because the fund out of which the dividend was distributed did not form part of the "accumulated profits" of the Company.
The Income tax Officer rejected the contention and brought the dividend 'to tax in the hands of the respondents.
The Appellate Assistant Commissioner held that Rs. 1,12,500 out of a total amount of Rs. 2,24,000 distributed by the Company, represented capital gains arising to the Company on or after April 1, 1948 and not being dividend within the meaning of section 2(6A)of the Income Tax Act, 1922, the share distributed to the shareholders out of that amount was exempt from income tax.
The order of the Appellate Assistant Commissioner was reversed in appeal by the Tribunal.
In the view of the Tribunal the definition of 'dividend ' in section 2(6A) in force in the year of assessment was not exhaustive, and if the amount distributed was "dividend in ordinary parlance it became chargeable under the general charging section", and that clause 2(6A) "was concerned with deemed dividends, and exclusion of certain capital gains by the proviso had no beating on the issue raised by the revenue" The following question referred by the Tribunal to the High Court of Calcutta .under section 66( 1 ) of the Indian Income tax Act: "Whether on the facts and in the circumstances of the case the amount of Rs. 28,125 was rightly included as dividend in the total income of the assessee for the assessment year 1949 50?" was answered in the negative.
The Commissioner has appealed to this Court.
with certificates granted by the High Court.
"Dividend ' in its ordinary connotation means the sum paid to or received by a share holder proportionate to his share holding in a company out of the total sum distributed.
The relevant part of the definition contained in section 2(6A) of the Income tax Act, 1922, in the year of assessment 1949 50 was as follows: "Dividend" includes (a) any distribution by a company of accumulated profits whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company; Explanation.
The words 'accumulated profits ' wherever they occur in the clause, shall not include 'capital profit '; 667 Provided further that the expression "accumulated profits", wherever it occurs in this clause, shall not include capital gains arising before the I st day of April 1946 or after the 31st day of March, 1948." Dividend distributed by a Company being a share of its profits declared as distributable among the shareholders, ' is not impressed with the character of the profits from which it reaches the hands of the shareholder.
It would be therefore difficult to hold that the mere fact that a distribution has been made out of the capital gains, it has the attributes of capital gains in the hands of the shareholders.
But that does not assist the case of the Revenue, for the Legislature has expressly excluded from the content of dividend ', capital gains arising after March 31, 1948.
The proviso to the Explanation clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "dividend".
The definition is, it is true, an inclusive definition and a receipt by a shareholder which does not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context negatives that view.
But it is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax.
According to the definition in section 2(6A) of the Income tax Act only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the Company, alone will be deemed the taxable component.
There is now warrant for the view expressed by the Tribunal that the definition of 'dividend ' only includes deemed dividend.
To hold that the capital gains within the excepted period are not part of the accumulated profits for the purpose of the definition under section 2(6A) and a distributive share thereof does not on that account fall within the definition of 'dividend ' and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute.
We do not see any reason why such a strained construction should be adopted.
We agree with the High Court that the proportionate share of the capital gains out Of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under section 12 as dividend income liable to tax.
Counsel for the Revenue sought to argue that share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend.
But no such contention was raised before the Tribunal or the High Court 668 and no question was raised in that behalf.
We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court.
The appeals fail and are dismissed with costs.
One hearing fee.
R.K.P.S. Appeals dismissed.

summary/full:
In assessment proceedings for the year 1949 50 the, respondents claimed that certain dividend distributed to them by a company was exempt from tax as the fund out of which it was distributed represented capital gains and not "accumulated profit" of the company.
The Income tax Officer rejected the claim, but the Appellate Assistant CommissiOner held that a part of the total amount distributed represented capital gains and not being dividend within the meaning of section 2(6A) of the Income tax Act, 1922, the share distributed to the share holders out of that amount was exempt from income tax.
This order was reversed in appeal by the Tribunal but the High Court, on a reference, held in favour of the assessee.
On appeal to this Court, HELD: Dismissing the appeal: The proviso to the explanation to section 2(6A)(a) clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "Dividend".
Although the definition of dividend in section 2(6A) is an inclusive definition and a receipt by share holders which does not fall within the definition may, in some circumstances, regarded as dividend within the meaning of the Act, it is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax.
According to the definition in section 2(6A) only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the company alone will be deemed the taxable component.
[667 D]