judgement:
No. 132 of 1951.
Peti tion under article 32 of the Constitution for a writ in the nature of mandamus.
The material facts are set out in the judgment.
Nuruddin Abroad for the petitioner.
K.N. Aggarwal for the respondents.
February 27.
The Judgment of the Court was delivered by DAs J.
This is an application under article 32 of the Constitution made by Mohammad Yasin for the protection of his fundamental right of carrying on his business which, according to him, is being infringed by the respondent.
The case sought to be made out in the petition may be shortly stated as follows: The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad.
The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission.
The respondent Committee which is a Town Area Committee has framed certain bye laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event.
The respondent Committee has by auction given the contract for sale of 575 vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who, it is alleged, has never dealt in vegetables and fruits The respondent Committee has not set up any market nor has it framed any bye laws for issue of licences to the vegetable and fruit merchants.
The bye laws also provide for prosecu tion for the breach of any of the provisions of these bye laws.
Although, in terms, there is no absolute prohibition against carrying on business as wholesale dealer in vegeta bles and fruits, the result of the bye laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits.
The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and fruits to the respondent Bishamber the respondent Committee has in effect totally prevented the petitioner from carrying on his busi ness and has thereby infringed his fundamental right under article 19(1)(g) of the Constitution.
In the alterna tive, the petitioner contends that the respondent Committee has no legal authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale tax and cannot be regarded as a licence fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under article 19 (1) (g).
The notice of motion has been served on the respondent Committee as well as on respondent Bishamber.
The respond ents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record Paragraph 4 of that affidavit is as follows : "4.
Paragraphs 4, 5, 6 and 7 of the petition are wrong and misleading and do not convey the correct idea.
If the bye laws are read from beginning to end, the correct posi tion is that the Town Area Committee has lawfully imposed certain taxes on the purchase 576 and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the 'right to collect the taxes ' and give the contract to the highest bidder or whomsoever it thinks fit and proper.
There is absolutely no restriction on anybody who wants to purchase or anybody who wants to sell; only he must pay the prescribed tax to the Town Area Commit tee through the Contractor.
The market is open, and writ large throughout the territory of the Town Area Committee and anybody can purchase from anybody and anybody can sell to anybody, without any control or intervention by the Contractor, whose position is simply that of a taxcollector on behalf of the Town Area Committee.
Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisations are less than what he paid.
This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner 's rights.
" The petitioner has to his petition annexed copies of a set of bye laws dated June 24, 1942, and a copy of a resolu tion of the respondent Committee dated March 16, 1950, recommending the addition of several bye laws to the previ ous bye laws.
At the hearing of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye laws of 1942 only and learned counsel for the respondent Commit tee has produced the original bye laws of 1942 before us.
Bye law 1 only provides that no person shall sell or pur chase any vegetable or fruit within the prescribed limits of the Town Area Committee, Jalalabad by wholesale or auction,without paying the fee fixed under these bye laws to the licensee appointed by the Town Magistrate.
Bye law 4 (b) expressly provides that any person can sell in wholesale at any place in the Town Area provided he pays the pre scribed fees to the licensee.
It is, therefore, clear that these byelaws do not in terms, prohibit anybody from dealing in vegetables and fruits as alleged by the petitioner 577 and in this respect they materially differ from the bye laws which this Court had to consider in the Kairana case(1) which consequently does not govern this case.
Learned counsel, however, contends and we think with considerable force and cogency that although, in form, there is no prohibition against carrying on any wholesale business by anybody, in effect and in substance the bye laws have brought about a total stoppage of the wholesale deal ers ' business in a commercial sense.
The wholesale dealers, who will have to pay the prescribed fee to the contractor appointed by auction, will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed lee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission.
On the other hand, if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye laws they will have to make over the whole of it to the contractor without keeping any profit themselves.
In other words, the wholesale dealers will be converted into mere tax col lectors for the contractor or the respondent Committee without any remuneration from either of them In effect, therefore, the bye laws, it is said, have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a practical point of view.
We are not of opinion that this contention is unsound or untenable.
Learned counsel for the petitioner, however, does not leave the matter there.
He goes further and urges that the respondent Committee has no legal authority to impose this fee of one anna in the rupee on the value of goods sold or auctioned and that such imposition is in the nature of a sale tax rather than a licence fee.
(1) ; 578 Learned counsel for the respondent in reply takes a preliminary objection to this line of argument.
He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitu tion, article 81(1) must be construed as referring to depri vation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right.
He contends, on the authority of the decision of this Court in Ramjilal vs Income tax Officer, Mohindargarh(1), that while an ille gal imposition of tax may be challenged in a properly con stituted suit, it cannot be questioned by an application under article 32.
This argument overlooks the difference between a tax like the income tax and a licence fee for carrying on a business.
A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all.
This aspect of the matter was not raised or considered in the case relied on by the learned counsel, and that case, therefore, has no application to the facts of this case.
Under article 19(1) (g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered.
The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in clause (6) of that article as amended by the Constitution (First Amend ment) Act, 1951.
If therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion, trade or business under article 19 (1) (g) and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution.
(1) [1951] S.C.R.127.
579 Learned counsel for the respondents then refers us to the U.P. Town Areas Act (No. 11 of 1914) which governs the respondent Committee.
Section 14 of this Act requires the Committee to annually determine and report to the District Magistrate the amount required to be raised in any town area for the purposes of this Act and provides that the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their general circumstances or to the annual rental value of the houses or lands so occupied by them as the Committee may determine.
There were, at the time when the bye laws of the respond ent Committee were framed, five provisos to this section none of which authorised the imposition of any tax on any business and, therefore, they have no bearing on the ques tion now under consideration.
Learned counsel for the respondents, however, draws our attention to section 38 of the Act which authorises the Provincial Government by noti fication in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in the United Provinces and to declare its extension to be subject to such restrictions and modifications, if any, as it thinks fit.
Then he proceeds to draw our attention to Notification No. 397/XI 871 E, dated the 6th February, 1929, whereby, in supersession of all previous notifications, the Provincial Government, in exer cise of the powers conferred by section 38(1) of the United Provinces Town Areas Act, 1914, extended the provisions of sections 293(1) and 298(2) (J) (d) of the United Provinces Municipalities Act (11 of 1916) to all the town area in the United Provinces in the modified form set forth therein.
The original bye laws produced by learned counsel purport, however, to have been framed by the respondent Committee under sections 298 (2)(F)(a)and 294 of the United Provinces Municipalities Act (11 of 1916).
We have not been referred to any notification whereby section '294 580 of the United Provinces Municipalities Act was extended to the respondent Committee.
It appears, however, that the bye laws of the respondent Committee were revised in Septem ber 1942 and were then said to have been made under section 298 (2) (J) (d).
It will have, therefore, to be seen wheth er these bye laws come within The purview of section 298 (2) (J) (d) as modified in their application to the respondent Committee.
It will be noticed that under section 298 (2) (J) (d) as modified as aforesaid the respondent Committee is authorised only to make bye laws fixing any charges or fees or any scale of charges or fees to be paid under section 9.93(1) and prescribing the times at which such charges or fees shall be payable and designating the persons authorised to receive payment thereof.
Section 293(1), as modified, authorises the respondent Committee to charge fees to be fixed by bye laws or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the Town Area Committee, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.
Bye law 1 of the respondent Committee to which a reference has already been made forbids a person from using any land within the limits of the town area for the sale or purchase of fruits and vegetables without paying the prescribed fee.
Bye law 4 (b), however, allows any person to sell in wholesale at any place in the town area, provided he pays the prescribed fees to the licensee.
These bye laws do not purport to fix a fee for the use or occupation of any immovable property vested in or entrusted to the management of the Town Area Committee including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.
Sections 293(1) and 298(2) (J) (d) of the United Province Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces do not empower the Town Area Committee to make any bye law authorising it to 581 charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street.
Therefore, the bye laws prima facie go much beyond the powers con ferred on the respondent Committee by the sections men tioned above and the petitioner complains against the en forcement of these bye laws against him as he carries on business in his own shop and not in or on any immoveable property vested in the Town Area Committee or entrusted to their management.
Learned counsel for the respondent Commit tee, however, urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner 's shop and for such use of the public street the respondent Committee is well within its powers to charge the fees.
From the way the case was formulated by the learned counsel, it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petition er 's shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons.
In our opinion, the bye laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immoveable property vested in or en trusted to the management of the Town Area Committee includ ing any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye laws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution,ofimpose a restric tion on the right conferred by article 19(1) (g).
In the absence of any valid law authorising it, such illegal impo sition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by article 19(1) (g) of our Constitution 75 582 In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right.
The prayer in the petition, however, has been expressed in language much too wide and cannot be granted in that form.
The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the busi ness of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye laws to be so framed.
The respondent Commit tee will pay the costs of this application to the petition er.
Agent for the petitioner: Naunit Lal.

summary/full:
There is a difference between a tax like the income tax and a licence fee for carrying on an occupation, trade or business.
A licence lee on a business not only takes away the property of the licensee but also operates as a restric tion on his fundamental 573 right to carry on his business.
Therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32.
Under article 19(1) (g) of the Constitution a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the author ity of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in cl.
(6) of that article as amended by the Constitution (First Amendment) Act, 1951.
If therefore a licence fee imposed for carrying on an occupation, trade or business cannot be justified on the basis of any valid law, no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion, trade or business under article 19(1) (g), and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution.
Bye law No. 1 of the Bye laws of the Town Area Committee of Jalalabad (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of the Town Area Committee by whole sale or auction, without paying the fees fixed by these bye laws to the licensee appointed by the Town Magistrate.
Bye law No. 4 (b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee.
A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period of seven years applied for protection under article 32 contending that these bye laws infringed his fundamental right to carry on his trade guaranteed by article 19 (1) (g) and were there fore void.
Held, that section 293 (1) and section 298 (2) (J) (d) of the U.P. Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye law autho rising it to charge any fees otherwise than for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street.
The bye laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obvi ously ultra vires the powers of the Committee and, there fore, the bye laws cannot be said to constitute a valid law which alone may, under article 19 (6) of the Constitution, impose a restriction on the right conferred by article 19(1) (g).
In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on 74 574 his occupation, trade or business which is guaranteed to him by article 19 (1) (g) of our Constitution.
Kairana case ; and Ramji Lal vs Income tax Officer, Mohindargarh ; distinguished.


judgement:
26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956, 12, 16, 17 and 73 of 1957.
Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
M.S. K. Sastri, for the petitioners in Petitions Nos. 26 and 27 of 54 and 24 of 1955.
V.N. Swami and M. section K. Sastri, for the petitioners in Petitions Nos.
437 of 55 and 256 of 56.
341 L.K. Jha, J. M. Thakur, section N. Andley and J. B. Dadachanji, for the petitioner in Petition No. 12 of 1957.
N.S. Bindra and Harbans Singh, for the petitioners in Petitions Nos. 16 and 17 of 1957.
N.S. Bindra and Govind Saran Singh, for the petitioner in Petition No. 73 of 1957.
H. N. Sanyal, Additional Solicitor General of India, H.J. Umrigar and R. H. Dhebar, for the respondent in Petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956 and 12 of 1957.
M.Adhikary, Advocate General for the State Of Madhya Pradesh and I. N. Shroff, for the respondent in Petitions Nos. 16, 17 and 73 of 1957.
March 9.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The judgment in Petition No. 12 of 1957 shall also dispose of petitions Nos. 26 and 27 of 1954, 24 and 437 of 1955, 256 of 1956 and 16, 17 and 73 of 1957.
These petitions under article 32 arise out of alleged agreements by which some of the proprietors in the former State of Madhya Pradesh granted to one or other of the petitioners the right to take forest produce, mainly tendu leaves, from the forests included in Zamindari and Malguzari villages of the grantors.
Government has disclaimed these agreements and auctioned the rights afresh.
The petitioners state that this is an invasion of their fundamental rights.
The dates on which these alleged agreements were entered into, the terms thereof and the periods during which they were to subsist are different from case to case.
It is not necessary in this judgment to recite the terms of these documents, and it is sufficient to group them for purpose of decision on the bases whether the said agreements still subsist, and whether they are incorporated in a registered instrument or not.
Petitions Nos. 437 of 1955 and 256 of 1956 are founded on unregistered documents.
The answering respondent does not admit these documents, and contends that they cannot be looked into to prove their 342 terms, in view of the decision of this Court in Shri mathi Shantabai vs State of Bombay (1).
Petitions Nos. 16, 17 and 73 of 1957 form another group, inasmuch as the period during which the alleged agreements were to operate expired in 1955.
Additionally, the documents on which the 'claim is founded in those petitions are unregistered.
In the last mentioned case, it is pleaded that the answering State Government had recognised the agreements in favour of the petitioner but resiled from that position subsequently, which allegation has been adequately explained by the State Government in its affidavit.
The recognition was not in favour of the petitioner but in favour of one Thakur Kamta Singh, who claimed under an agreement entered into by one Vishwanath Singh on a date when he had already transferred his interest in the Zamindari to his son Onkar Prasad Singh.
This point was therefore not taken before us at the hearing, and nothing more Deed be said about it.
The main objection against these petitions is that the agreements having expired, there is nothing left to enforce either in favour of the petitioners or against the State Government, and the remedy, if any, of the petitioners is to sue the State and/or the proprietors for the breach.
The last group consists of Petitions Nos. 26 and 27 of 1954, 24 of 1955 and the present petition (No. 12 of 1957).
In these petitions, the agreements with the petitioners are made by registered documents and the terms during which they are to operate have yet to expire.
These cases, it is stated, fall outside the rule in Shantabai 's case (1), to which reference has already been made.
They are stated to fall within the decision of this Court reported in Firm Chhotabhai Jethabai Patel and Co. vs The State of Madhya Pradesh (2).
In all these petitions, counsel argue that the view expressed in the last mentioned case is correct, while the view in Shantabai 's case (1) needs further consider ation.
The argument of the petitioners in these several cases is that Government steps into the shoes of the (1) ; (2) ; 343 quondam proprietors, and is bound by the agreements into which the latter had entered, before their proprietary rights were taken over by Government.
They also raise the contention that the petitioners were not proprietors as defined in the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Act), and thus sections 3 and 4 in terms do not apply to them.
These sections, it is contended, do not apply to profit a prendre, which the petitioners enjoy under these agreements.
In support of this contention, reference is made to the decision of this Court in Chhotabhai 's case (1), and to the definition of ' proprietor ' in the Act.
Reference is also made to some provisions of the C. P. Land Revenue Act to be mentioned hereafter, to prove that the persons on whom the right to collect forest produce was conferred by the proprietors can not be regarded as proprietors even under that Act.
This, in main, is the argument in these cases, and even those petitioners whose agreements are incorporated in unregistered documents or whose agreements have since expired, adopted the same line of argument denying the necessity for registration of such agreements.
The matter in so far as it relates to the first two groups is simple.
It has already been ruled in Shantabai 's case (2) that if the right be claimed on foot of an unregistered agreement, it cannot be entertained.
Such documents were examined from five different angles in that case, and it was held that the document if it conferred a part or share in the proprietary right, or even a right to profit a prendre needed registration to convey the right.
If it created a bare licence, the licence came to an end with the interest of the licensors in the forests.
If proprietary right was otherwise acquired, it vested in the State, and lastly, if the agreements created a purely personal right by contract, there was no deprivation of property, because the contract did not run with the land.
Bose, J., who delivered a separate judgment, also held that in the absence of registration no right was created.
(1) ; (2) ; 344 In view of the clear pronouncement of this Court, the first two groups of petitions must fail.
Petitions Nos. 16, 17 and 73 of 1957 also fail for the added reason that the agreements having expired, the only remedy, if any, is to sue for breach of contract and no writ to enforce expired agreements can issue.
This brings us to the arguments advanced in the last four petitions in the third group which were also adopted by the other petitioners, whose petitions we have just considered.
All these petitioners strongly relied upon Chhotabhai 's case (1).
It is therefore necessary to examine attentively what was decided there.
In that case, it was held at p. 483 that: " The contracts and agreements appear to be in essence and effect licenses granted to the transferees to cut, gather, and carry away the produce, in the shape of tendu leaves, or lac, or timber, or wood." Reference in this behalf was made to a decision of the Privy Council in Mohanlal Hargovind of Jubbalpore vs Commissioner of Income tax, Central Provinces and Berar (2), where it was observed: " The contracts grant no interest in land and no interest in the trees or plants themselves.
They are simply and solely contracts giving to the grantees the right to pick and carry away leaves, which, of course, implies the right to appropriate them as their own property.
The small right of cultivation given in the first of the two contracts is merely ancillary and is of Do more significance than would be, e.g., a right to spray a fruit tree given to the person who has bought the crop of apples.
The contracts are short term contracts.
The picking of the leaves under them has to start at once, or practically at once, and to proceed continuously.
" The Bench next observed that there was nothing in the Act to affect the validity of the several contracts and agreements, and that the petitioners were, neither proprietors within the meaning of the Act, nor persons having " any interest in the proprietary right through the proprietors ".
After quoting from Baden Powell 's (1) ; (2) I.L.R. , 898, 345 Land Systems of British India, Vol.
1,p. 217, as to what was meant by ' proprietorship ' in the Land Revenue Systems in India, it was observed that the definition of ' proprietor ' in the Act conveyed the same sense.
Finally, repelling the argument that the agreements concerned " future goods ", it was held on the basis of a passage in Benjamin on Sale, 8th Edition, page 136, that a present sale of the right to goods having a " potential existence " could be made.
Since possession was taken under the agreements and consideration had also passed, there could be " a sale of a present right to the goods as soon as they come into existence.
" Reference was also made (at pp. 480, 481) to section 6 of the Act, which provides: " (1) Except as provided in sub section (2), the transfer of any right in the property which is liable to vest in the State under this Act made by the pro prietor at any time after the 16th March, 1950, shall, as from the date of vesting, be void.
" It was observed in the case as follows: " The date, 16th March, 1950, is probably the date when legislation on these lines was actively thought of, and sub section (1) hits at transfers made after this date.
This means that transfers before that date are not to be regarded as void.
Even in the case of transfers after the said date, sub section (2) provides that the Deputy Commissioner may declare that they are not void after the date of vesting, provided they were made in good faith and in the ordinary course of management.
The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16th March, 1950, by the proprietors by way of transfer of rights is not to be disturbed or affected, and that what vests in the State is what the proprietors had on the vesting date.
If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee, those rights would no doubt vest in the State." 44 346 It was accordingly held that the State Government could not interfere with such agreements but had only the right to enforce rights arising therefrom " standing in the shoes of the proprietors.
" It is clear from the foregoing analysis of the decision in Chhotabhai 's case (1) that on a construction of the documents there under consideration and adopting a principle enunciated by the Privy Council in Mohanlal Hargovind of Jubbalpore vs Commissioner of Incometax, Central Provinces and Berar (2) and relying upon a passage each in Benjamin on Sale and the wellknown treatise of Baden Powell, the Bench came to the conclusion that the documents there under consi deration did not create any interest in land and did not constitute any grant of any proprietary interest in the estate but were merely contracts or licenses given to the petitioners " to cut, gather and carry away the produce in the shape of tendu leaves, or lac , or timber or wood ".
But then, it necessarily followed that the Act did not purport to affect the petitioners ' rights under the contracts or licenses.
But what was the nature of those rights of the petitioners ? It is plain, that if they were merely contractual rights, then as pointed out in the two later decisions, in Ananda Behera vs The State of Orissa (3), Shantabai 's case (4), the State has not acquired or taken possession of those rights but has only declined to be bound by the agreements to which they were not a party.
If, on the other hand, the petitioners were mere licensees, then also, as pointed out in the second of the two cases cited, the licenses came to an end on the extinction of the title of the licensors.
In either case there was no question of the breach of any fundamental right of the petitioners which could support the petitions which were presented under article 32 of the Constitution.
It is this aspect of the matter which was not brought to the notice of the Court, and the resulting omission to advert to it has seriously impaired, if not completely nullified, the effect and weight of the decision in Chhotabhai 's case (1) as a precedent.
(1)[1953] S.C.R. 476.
(3)[1955] 2 S.C.R. 265.
(2) I.L.R. , 898.
(4) ; 347 The argument of counsel in these cases followed the broad pattern of the decision in Chhotabhai 's case (1).
and we next proceed to consider it.
It is contended that what vests in the State is the right which the proprietors had on the date of vesting because section 3 of the Act is not retrospective, and that the agreements are " in essence and effect licenses granted to the transferees to out, gather and carry away the produce in the shape of tendu leaves, or lac or timber or wood ".
These agreements, it is submitted, grant no 'interest in land ' or I benefit to arise out of land ', the object of the agreements can only be described as sale of ' goods ' as defined in the Indian Sale of Goods Act, and the grant of such a right is not comprehended in the firstsub section of section 3 where it says : " . . all proprietary rights in an estate, mahal in the area specified in the notification, vesting in a proprietor of such estate, Mahal or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances ".
It is finally contended that the interest of these peti tioners is not I proprietary right ' at all but a right to get I goods in the shape of leaves, lac, etc.
We have to examine these contentions critically.
Before we do so, it is necessary to set out in brief the terms of the agreements which have been produced in these cases.
In Petition No. 12 of 1957 there were two agreements, Annexures A and B. The first was executed in 1944 and granted the right from 1947 to 1956; the second was executed in 1946 and granted the right from 1957 to 1966.
These are long term agreements and they are typical from case to case.
Indeed, the second agreement was made even before the first began, and the total period is 20 years.
In addition to the right to the leaves the documents pro vided for many other matters.
It is convenient to quote only from Annexure 'B ': " Before this I had given you a similar contract selling Tendu leaves produce by contract dated (1)[1953] S C.R. 476.
348 7 7 1944 registered on 12 7 1944.
In pursuance of that registered contract, which is for five years from 1947 to 1951 and another for subsequent five years from 1952 to 1956 in all for ten years, you are to remain in possession and occupation of the areas and the Tendu leaves produce till the termination of the year 1956 for which time you continue your possession and thereafter in pursuance of this contract you continue for further period of ten years your possession and occupation from 1957 to 1966 as is usual and customary pruning and coppicing Tendu leaves plants, burning them, and instal Fadis for collection of Tendu leaves and construct Kothas (godowns) for storage of the leaves at your sweet will and choice on any open plot or land within the estate with my permission and you are allowed to take free of all costs any Adjat timber, bamboos, etc., from my forests for constructing them.
I shall charge you no further consideration.
In the same manner, for the purpose of constructing these godowns and such thing you may according to your convenience (you may) manufacture bricks at any place you like in the vicinity of any rivers, rivulet, Nala or pond at your costs.
I shall not receive from you any extra amount as rent for the use and occupation of land that will be used for construction of Kothas, for manufacturing bricks and for locating Fadis (Bidi leaves collection centres).
All those are included in the consideration fixed for this contract.
All these rights are already conferred on you in the previous contract dated 7 7 1944 and under this contract for the entire contract period.
It is also open to you to collect Tendu leaves not only those growing in the summer season but also those growing in Kartik.
During the term of this contract, if for one reason or another it becomes necessary for you to sell the Tendu leaves produce and assign this contract to any other person you can do so.
But you shall be responsible for me to give my consent after inquiring of the fitness of the intended transferee.
However, you shall continue to be responsible to pay to me the agreed amount of instalments on or before the agreed dates; and if the agreed amount of instalment is not paid to me on or 349 before the agreed date, I shall have full right to start proper proceedings in that connection ".
In Petition No. 26 of 1954, the period of the two agreements was from 1944 to 1963.
There too, the rights were similar to those in Petition No. 12 of 1957, and analogous terms are to be found in Petitions Nos. 27 of 1954 and 24 of 1955.
The question that arises is, what is the nature of this right? In English law, distinction was made between easements and profit a prendre and a right to take the produce of the soil was regarded as a profit a prendre.
While easements were not regarded as an interest in land, a right to take the produce of the soil or a portion of it was an interest in land: Fitzgerald vs Fairbanks (1).
Profit a prendre can be the subject of a grant.
Where they take the form of a grant, they are benefits arising from land.
In all these cases, there is not a naked right to take the leaves of Tendu trees together with a right of ingress and of regress from the land; there are further benefits including the right to occupy the land, to erect buildings and to take other forest produce not necessarily standing timber, growing crop or grass.
The right of ingress and of regress over land vesting in the State can only be exercised if the State as the owner of the land allows it, and even apart from the essential nature of the transaction, the State can prohibit it as the owner of the land.
Whether the right to the leaves can be regarded as a right to a growing crop has, however, to be examined with reference to all the terms of the documents and all the rights conveyed thereunder.
If the right conveyed comprises more than the leaves of the trees, it may not be correct to refer to it as being in respect of growing crop ' simpliciter.
We are not concerned with the subtle distinctions made in English law between emblements, fructus naturals and fructus industriales, but we have to consider whether the transaction concerns " goods " or "moveable property " or " immovable property ".
The law is made difficult by the definitions which exist in the General Clauses Act, the Sale of Goods Act, the (1)[1897] 2 Ch.
350 Transfer of Property Act and the Registration Act.
These definitions must be placed alongside one another to get their ambits.
If the definitions are viewed together, it is plain that they do not tell us what " immovable property " ' is.
They only tell us what is either included or not included therein.
One thing is clear, however, that things rooted in the earth as in the case of trees and shrubs, are immovable property both within the General Clauses Act and the Transfer of Property Act, but in the latter, " standing timber ", " growing crop " and " grass " though rooted in earth are not included.
Of these, " growing crop " and " grass form the subjectmatter of the sale of goods, and standing timber " comes within the last part of the definition of ' goods ' in the Indian Sale of Goods Act, to be subject thereto if the condition about severing mentioned in the definition of ' goods ' exists.
It has already been pointed out that the agreements conveyed more than the tendu leaves to the petitioners.
They conveyed other forest produce like timber, bamboos, etc., the soil for making bricks, the right to prune, coppice and burn tendu trees and the right to build on and occupy land for the purpose of their business.
These rights were spread over many years, and were not so simple as buying leaves, so to speak, in a shop.
The expression " growing crop " might appropriately comprehend tendu leaves, but would not include, Adjat timber ', bamboos, nor even tendu plants.
The petitioners were not to get leaves from the extant trees but also such trees as might grow in the future.
They could even burn the old trees, presumably, so that others might grow in their place.
In these circumstances, the agreements cannot be said to be contracts of sale of 'goods ' simpliciter.
It remains now to consider whether the rights enjoyed by the petitioners can be said to fall within section 3(1) of the Act.
That section divests the proprietors of their proprietary rights, as also any other person having an interest in the proprietary right through the proprietor and vests those rights in the State.
That section has to be read with the section which 351 follows, and which sets out the consequences of vesting of such rights in the State.
The rights which vest can be stated briefly to be (a) all proprietary rights in the proprietor, and (b) all proprietary rights in any person having interest in such proprietary rights through the proprietor.
These rights vest in the State free of all encumbrances.
Section 4 of the Act provides inter alia that after the notification has been issued, then, ' notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act ' the following consequences (among others) shall ensue: " (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including Land (cultivable or barren), grassland, scrubjungle, forest, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazars and melas; and in all subsoil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act; (b)all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to resumption or not, determine: ".
If these petitioners can be said to be possessing " an interest in the proprietary right ", then their rights, title and interest in the land determine under the Act, and vest in the State.
The petitioners, therefore, contend that their rights under the agreements cannot be described as 'proprietary right ' or even a share of it.
They rely on the definition of 'proprietor ' in the Act, and refer under the authority of section 2(b) of the Act to the Central Provinces Land Revenue Act, 1917.
The definition in the Act is not exhaustive.
It only 352 tells us who, besides the proprietor, is included in the term 'proprietor '.
Further, the definitions in the Act are subordinate to the requirements of the context and the subject matter of any particular enactment.
From the Act, we know that the proprietor 's interest in forest, trees, shrub, grass and the like passes to the State.
The question thus resolves into two short ones did the former proprietors own proprietary interest in these trees, and did they part with that proprietary interest and convey it to the petitioners ? There is but little doubt that in so far as the Act is concerned, it does contemplate cesser of all proprietary rights in land, grass land, scrub jungle, forest and trees, whether owned by the proprietor or through him by some other person.
The contention of the petitioners is that by the term " proprietor " is meant what that term conveys in the Central Provinces Land Revenue Act, and reference is made for this purpose to various sections therein.
The term " proprietor " is defined in the Central Provinces Land Revenue Act thus: " " Proprietor " except in sections 68, 93 and 94, includes a gaontia of a Government village in Sambalpur Territory.
" This definition does not advance the matter any further.
In several sections, special explanations are added to define " proprietors ".
In all those explanations, the term is not defined, but is said to include 'thekedars or headmen with protected status ', I mortgagee with possession ', I lessees holding under leases from year to year ' and the like.
In addition, there is invariably the inclusion of I a transferee of proprietary, rights in possession ', which again leaves the matter at large.
See sections 2(5), 2(21), 53 and 68.
Counsel faced with this difficulty rely upon the scheme of settlement in Ch.
VI of the Central Provinces Land Revenue Act , and the record of rights which consists of Khewat, a statement of persons possessing proprietary rights in the mahal including inferior proprietors or lessees or mortgagees in possession, specifying the nature and extent of the interest of each; and Khasra or field book and Jamabandi or list of persons 353 cultivating or occupying land in the village.
these documents are prepard separately.
The petitioners contend that by 'proprietary right ' is meant that right which can find, a place or be entered in the Khewat, and the rights enjoyed by the petitioners are not and cannot be entered in the Khewat because thay are not 'proprietary rights '.
They also refer to the schemes of settlement under which proprietors subproprietors etc.
, are determined and offered assessment.
In our opinion, these arguments, though attractive, do not represent the whole of the matter.
What these documents record and what the settlement operations determine are the kinds of ' proprietors ' among whom the entire bundle of rights is shared.
Every proprietor or sub proprietor enjoys proprietary rights over land, forests, etc., falling within his interest.
The right to forest trees, etc., is the consequence of proprietorship, and indeed, under section 47(3) the State Government can declare which rights and interest must be regarded as ' proprietary rights '.
That sub section provides: " The State Government may declare the rights and interests which shall be deemed to be proprietary rights and interests within the meaning of sub section (2).
" The second sub section provides: " The Deputy Commissioner shall cause to be recorded, in accordance with rules made under section 227, all changes that have taken place in respect of, and all transactions that have affected, any of the proprietary rights and interests in any land.
" The matter is made clear if one refers to the provisions of section 202 of the Land Revenue Act.
That section confers on Government the power to regulate the control and management of the forest growth on the lands of any estate or mahal.
A reading of sub sections
(4) to (8) of that section clearly shows that forests belong to the proprietors from whom under those sub sections they can be taken over for management, the profits of the management less expenses being paid to the proprietors or to superior and inferior proprietors as the case may be.
Sub sections (9) and (10) provide 45 354 (9)" No lease, lien, encumbrance or contract with respect to the forest land held under direct manage ment shall be binding upon the Government.
(10)On the expiration of the period fixed for the direct management, the forest land shall be restored to the proprietor thereof" Even here, the term ' proprietor ' is explained by the usual explanation showing the same category of persons as included in the section.
From this, it is quite clear that forests and trees belonged to the proprietors, and they were items of proprietary rights.
The first of the two questions posed by us, therefore, admits of none but an affirmative answer.
If then the forest and the trees belonged to the proprietors as items in their ' proprietary rights ', it is quite clear that these items of proprietary rights have been transferred to the petitioners.
The answer to the second question is also in the affirmative.
Being a 1 proprietary right ', it vests in the State under sections 3 and 4 of the Act.
The decision in Chhotabhai 's case (1) treated these rights as bare licenses, and it was apparently given per incuriam, and cannot therefore befollowed.
Even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners, the latter can have only the benefit of their respective contracts or licenses.
In either case, the State has not, by the Act, acquired or taken possession of such contracts or licenses and consequently, there has been no infringement of the petitioners , fundamental right which alone can support a petition under article 32 of the Constitution.
The result is that these petitions fail, and are dismissed, but in view of the fact that they were filed because of the decision in Chhotabhai 's case (1), there shall be no order about costs.
Petitions dismissed.

dataset_name: IN-Abs

summary/full:
Some of the proprietors of the former State of Madhya Pradesh granted to the several petitioners rights to take forest produce, mainly tendu leaves, from the forests included in the Zamindaris belonging to the proprietors.
The agreements conveyed to the petitioners in addition to the tendu leaves other forest produce like timber, bamboos, etc., the soil for making bricks, and the right to build on and occupy land for the purpose of their business.
These rights were spread over many years, but in the case of a few the period during which the agreements were to operate expired in 1955.
Some of the agreements were registered and the others unregistered.
After the coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the Government disclaimed the agreements and auctioned the rights afresh, acting under section 3 of the Act under which " all proprietary rights in an estate . . in the area specified in the notification, vesting in a proprietor of such estate. or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances".
The petitioners filed petitions under article 32 of the Constitution of India challenging the legality of the action taken.
by the Government on the ground that it was an invasion of their fundamental rights.
They contended (1) that the Government stepped into the shoes of the quondam proprietors and was bound by the agreements into which the latter had entered, before their proprietary rights were taken over by the Government, (2) that the petitioners were not proprietors as defined in the Act and therefore sections 3 and 4 of the Act did not apply to them, (3) that the agreements were in essence and effect licenses granted to them to cut, gather and carry away the produce in the shape of 340 tendu leaves, or lac, or timber or wood, (4) that the agreements granted no 'interest in land ' or 'benefit to arise out of land ' and that object of the agreements could only be described as sale of goods as defined in the Indian Sale of Goods Act, and (5) that the interest of the petitioners was not proprietary right but only a right to get goods in the shape of leaves, etc The petitioners relied on the decision in Firm Chhotabhai jethabai Patel and Co. vs The State of Madhya Pradesh; , Held : (1) that the agreements required registration and in the absence of it the rights could not be entertained.
Srimathi Shantabai vs State of Bombay, ; , followed.
(2)that in cases where the period stipulated in the agree ment had expired, the only remedy, if any, was to sue for breach of contract and no writ to enforce expired agreements could issue.
, (3) that on their true construction the agreements in question were not contracts of sale of goods.
(4) that both under the Act in question and the Central Provinces Land Revenue Act, 1917, the forests and trees in the Zamindari area belonged to the proprietors and they were items of proprietary rights.
Consequently, the rights conveyed to the petitioners under the agreements were proprietary rights, which under sections 3 and 4 of the Act, became vested in the State.
(5)that assuming that the agreements did not amount to grant of any proprietary right by the proprietors to the petitioners, the latter could have only the benefit of their respective contracts or licenses.
In either case, the State had not, by the Act, acquired or taken possession of such contracts or licenses and, consequently, there had been no infringement of the petitioners ' fundamental rights which alone could support a petition under article 32 of the Constitution.
Chhotabai jethabai Patel and Co. vs The State of Madhya Pradesh, ; , not followed.
Ananda Behera vs The State of Orissa, [1955] 2 S.C.R. gig, followed.


judgement:
mpt Petition No. 82 of 1992.
WITH Writ Petition No. 232 of 1992.
(Under Article 32 of the Constitution of India).
Vijay Kumar and Shiv Kumar Suri for the Petitioner/Applicant.
Milan K. Banerjee, Attorney General, D.P. Gupta, Solicitor General, V.C. Mahajan, Kapil Sibal, Mg.
A. Subhashii Gaurab Banarjee, K. Swamy, Ms. section Janani, S.K. Battacharya and L.K. Poonam for the Respondents.
The following Order of the Court was delivered: This matter came up for our consideration on December 8, 1992" pursuant to the order dated November 24, 1992, to decide the appropriate 774 order which needs to be made in the existing situation.
A brief resume of the events leading to the present stage may first be given.
This Court has held that the Speaker while deciding the question of disqualification of a Member of the Legislative Assembly under the Tenth Schedule to the Constitution acts as a statutory authority, in which capacity the Speaker 's decision is subject to judicial review by the High Court and this Court.
Pursuant thereto, certain orders were made by this Court in proceedings arising out of the order of disqualification of certain members, made by the contemner, Dr. H. Borobabu Singh who holds the office of Speaker of the Manipur Legislative Assembly, in spite of the clear decision of this Court that an order made under the Tenth Schedule by the Speaker relating to the disqualification of a Member of the Legislative Assembly is subject to judicial review and the Speaker while making an order under the Tenth Schedule acts merely as a statutory authority amenable to the court 's jurisdiction in that capacity, the contemner continued to resist the implementation of such orders made by this Court.
The petitioner, 1.
Manipal Singh was then the Secretary of the Manipur Legislative Assembly.
In his capacity as Secretary of the Assembly, the petitioner, 1.
Manilal Singh took steps to implement this Court 's orders.
The allegation made by 1.
Manilal Singh is that the contemner, Dr. H. Borobabu Singh got annoyed with him for or his attempt to secure obedience and implementation of this Court 's orders and, therefore, as an act of reprisal, the contemner has made an order of his compulsory retirement.
The petitioner, 1.
Manilal Singh, therefore, challenged the order of his compulsory retirement made by the contemner inter alia on the ground that it was mala fide being an act of reprisal by the contemner for the petitioner 's obedience of this Court 's orders.
This Court stayed the operation of the impugned order of compulsory retirement of the petitioner, I. Mandal Singh as well as the order of is sub is suspension passed by the contemner.
The petitioner then complained that in spite of this Court 's orders, the contemner was not permitting him of function as, the secretary of the Manipur Legislative Assewbly and was also not paying him his salary and other dues; and that another person had been appomted by the contemner to function as the Secretary.
On July 22, 1992, this Court made an order reiterating that the petitioner, 1.
Manilal Singh shall be allowed to function as the Secretary of the Manipur Legislative Assembly without delay and that all concerned with enable him to so function, and some further directions were also given 775 On August 4, 1992 another order was made by this Court as a result of the grievance made by the petitioner, I. Manilal Singh that in spite of the orders of this Court, he was neither allowed to function as the Secretary of the Legislative Assembly nor had he been paid his salary etc.
In that order, this Court further directed the Chief Secretary of the State of Manipur to ensure that the direction given for payment of dues to the petitioner was promptly obeyed.
When the matter was again taken up on August 25, 1992, the petitioner, I. Manilal Singh stated that another order had been made on August 19, 1992 declaring that the petitioner is to retire from service on August 31, 1992 as Joint Secretary which was in disobedience of this Court 's orders, and was a further act of reprisal against him by the contemner.
Accordingly, in the order dated August 25, 1992, this Court after recording that this action appears to be prima facie in violation of this Court 's order, stayed the operation of the order dated August 19, 1992.
The order after mentioning the statement made by the learned counsel for the Chief Secretary, H.V. Goswami expressed this Court 's concern at the apathy exhibited towards obedience of the mandate under Article 144 of the Constitution and after hearing all the counsel including Shri S.K. Bhattacharya, learned counsel for the contemner, directed that the Chief Secretary, H.V. Goswami, Deputy Secretary, Manipur Legislative Assembly, R.K. Chinglensana Singh and Dr. H. Borobabu Singh should be personally present in court at the next hearing which was fixed for September 8, 1992.
On September 8, 1992 the matter was adjourned to September 9, 1992.
On September 9, 1992, the Chief Secretary, Manipur, H.V. Goswami and R.K Chinglensana Singh, Deputy Secretary, Manipur Legislative Assembly were personally present.
On behalf of Dr. H. Borobabu Singh who did not appear, a request was made by his counsel, Shri Bhattacharya to adjourn the matter till after September 22, 1992 on the ground that the Manipur Legislative Assembly was in session.
The matter was, therefore, adjourned to September 25, 1992.
On September 25, 1992, in spite of earlier order in the contempt proceeding directing Dr. H. Borobabu Singh to appear in person, he did not appear.
His counsel.
Shri Bhattacharya filed an affidavit stating inter alia that Dr. H. Borobabu Singh is immune from such directions of the 776 court in view of his constitutional position as Speaker.
Accordingly, Shri Bhattacharya was heard on his objection which was found to be without substance.
On September 25, 1992, the Court while rejecting the contention of Shri Bhattacharya stated as under: ".
This is a case in which Dr. Singh 's function is not as a Speaker in the House.
The facts of the case which are on record in this matter clearly show that Dr. Singh was acting as Authority under the Tenth Schedule to the Constitution and in that capacity certain orders were passed which gave rise to the present contempt petition.
In a petition filed by the petitioner, Manilal Singh, directions issued by this Court relating to his service conditions which have, according to the allegations, not been respected by Dr. Singh.
In this context and background, we do not have any doubt that the capacity in which Dr. Singh was functioning was not that of the Speaker of the House, but as administrative head of the Secretariat of the Legislature in relation to the rights of one of the employees.
Accordingly, we hold that there is no merit at all in the plea raised regarding the jurisdiction of this Court and the objection is, therefore, rejected.
We asked Mr. G. Ramaswamy, learned Attorney General to examine the matter and indicate his opinion as to the enforceability of the directions of this Court requiring the personal appearance of Dr. H. Borobabu Singh in Court.
On earlier occasion also, learned Attorney General had indicated that this Court would have been justified in taking a far stricter view of the conduct of Dr. Singh and it is an appropriate case where it is not only within the power of this Court, but also its bounder duty to take such steps which will reassure the people of their faith in, and respect for the Institution, now that it is obvious that the indulgence granted so far to Dr. H. Borobabu Singh has been misplaced.
Mr. Altar Ahmed, learned Additional Solicitor General appearing for the Union of India fully supports the opinion and submission of learned Attorney General.
777 3.
Mr. Kapil Sibal who represents the Chief Secretary of Manipur also expressed his opinion on these lines. ' The remaining part of the order then considered the fact that Dr. H. Borobabu Singh was included as a Member of the Indian Parliamentary delegation to attend a conference abroad and the Court adjourned the matter to October 20, 1992 requiring the contemner, Dr. H. Borobabu Singh to give a written Undertaking, before he left the country that he would appear in the Court, and the Government of India was required to ensure compliance of that direction.
It is sufficient to mention that the contemner, Dr. H. Borobabu Singh did not give such an undertaking in spite of the persuasion of senior officers of the Government of India as well as the Union Home Minister, as appears from the documents filed on behalf of the Government of India.
Accordingly, the Government of India did not permit the contemner to leave the country.
When the matter was taken up on October 20, 1992, the contemner, Dr. H. Borobabu Singh did not appear in spite of the earlier direction given and the indulgence granted to him.
However, his counsel Shri Bhattacharya prayed for a short adjournment on the ground that he would be advising Dr. H. Borobabu Singh to file an unconditional affidavit to appear in person in court in pursuance to the direction of the court and to make a separate application for condoning his absence and exempting him from personal appearance in the court.
In spite of the background, we granted further indulgence to the contemner and accepting the request of Shri Bhattacharya adjourned the case to October 23, 1992 stating that if in addition to the unconditional affidavit to appear personally in the court pursuant, to the direction, a separate application, as indicated by Shri Bhattacharya, for condoning his absence and exempting him from personal appearance was filed by the contemner, the same would be considered on its merits.
At the request of Shri Bhattacharya, learned counsel for Dr. H. Borobabu Singh, we again adjourned the matter to November 12, 1992 recording his statement in the order as under : "Mr. S.K. Bhattacharya, the learned counsel for Dr. H. Borobabu Singh states that he has been instructed personally by Dr. H. B. Singh to make a statement in this Court that Dr. H.B. Singh will be filing his affidavit in the terms of our order of the last date.
We asked Mr. Bhattacharya 778 to clarify whether our order has been correctly understood that the affidavit has to be filed giving an unconditional undertaking to appear in this Court in pursuance of a direction by this Court and the application which Dr. H. B. Singh wants to make with a prayer for dispensing with his personal presence will be filed separately and be not a condition of the affidavit.
He states that the position has been correctly understood by Dr. H. B. Singh who has instructed Mr. Bhattacharya to state accordingly.
Mr. Bhat tacharya further states that the affidavit could not be filed today as Dr. H. B. Singh could not come to Delhi because of the prevailing deterioration of law and order situation due to insurgency in the eastern part of the country due to which he was advised by the authorities responsible for his security not to undertake a journey to Delhi at this stage.
He has also referred to the partial disruption in the air services between Manipur and Delhi.
Mr. Bhattacharya adds that the affidavit shall be filed by the 5th or the 6th November, 1992.
" When the matter was taken on November 12, 1992, the contemner, Dr. H. Borobabu Singh was again not present and the only thing done by him in the meantime was to file an affidavit dated November 6, 1992 indicating that he would not personally appear before the Court.
Thus, in spite of the clear statement made by Shri Bhattacharya on instructions of Dr. H. Borobabu Singh as stated by him and recorded in the order dated October 23, 1992, the contemner once again remained absent and neither filed the requisite affidavit containing his undertaking to appear nor made any application praying for condoning his absence and exempting him from personal presence for cogent reasons.
In these circumstances, it became necessary to consider the making of necessary consequential orders.
The matter was, therefore, adjourned to November, 24, 1992 to hear the learned Attorney General of India and all the other counsel appearing in the case for deciding the future course of action.
On November 24, 1992, the learned Solicitor General informed the Court that Mr. G. Ramaswamy had resigned from the office of Attorney General and, therefore, the matter may be adjourned to enable his successor in office to assist the court with his arguments.
The matter was, 779 therefore, adjourned to December 8, 1992.
On December 8, 1992 we have heard the learned Attorney General of India, the Solicitor General, on behalf of Union of India, Shri Kapil Sibal learned counsel for the Chief Secretary of the State of Manipur, Shri S.K Bhattacharya, learned counsel for the contemner, Dr. H. Borobabu Singh and learned counsel for the petitioner.
It may be mentioned that the contemner, Dr. H. Borobabu Singh has filed affidavits, the last being of December 7, 1992, making it amply clear repeatedly that he would not obey the orders of this Court directing his personal presence in the contempt matter nor would he make any application for condoning his absence and exempting him from personal presence for any cogent reasons.
The only reason indicated in the affidavit filed by Dr. H. Borobabu Singh and also reiterated by his counsel, Shri S.K. Bhattacharya is that by virtue of the office of Speaker of the Manipur Legislative Assembly held by Dr. H. Borobabu Singh, he is immune from the process of this Court even in a contempt proceeding where the direction for his personal presence has been given as a result of prima facie opinion formed by the court that he has wilfully disobeyed the orders of this Court in a capacity which does not relate to his functions as Speaker inside the House and has further deterred certain persons including the Chief Secretary of the State and officers of the Assembly Secretariat from acting in aid of this Court 's directions/orders in addition to taking ad ministrative action against the petitioner.
Manilal Singh, Secretary of the Manipur Legislative Assembly as an act of reprisal for his acting in aid of this Court 's orders.
This stand has been taken and continues to be persisted in spite of the contention being considered and rejected expressly on merits including in the order dated September 25, 1992.
The question, therefore, is of the action to be taken and the kind of order which it would be appropriate to make in these circumstances for implementation of this Court 's orders, to uphold the majesty of law for preservation of the 'rule of law.
The learned Attorney General submitted that the undisputed facts and the unequivocal stand taken by the contemner, Dr. H. Borobabu Singh leave no doubt about his wilful and contumacious disregard and disobedience of this Court 's orders which is without any doubt by itself sufficient to constitute criminal contempt of this Court.
The learned Attor 780 ney General submitted that apart from the power which this Court has under the and the Rules framed thereunder, the power of this Court under several provisions of the Constitution of India is wide enough to indicate that the procedure available to it for ensuring compliance of its orders directing the personal presence of the contemner, Dr. H. Borobabu Singh are not confined merely to the provisions in the and the Rules framed thereunder.
The learned Attorney General added that all steps considered necessary to ensure compliance of this Court 's order requiring the personal presence in this Court of the contemner, Dr. H. Borobabu Singh, are available to this Court which has a constitutional obligation to uphold the rule of law.
He submitted that the stage has now reached when this step can no longer be avoided due to the continuing contemptuous conduct of the contemner in persistently refusing to obey this Court 's orders requiring his personal presence in this contempt matter.
The learned Attorney General added that this Court also has the power to direct the Government of India to take the necessarily to produce the contemner, Dr. H. Borobabu Singh in this Court if the ordinary course of requiring a magistrate to produce him in the court is considered inappropriate in the present case.
The learned Solicitor General of India on behalf of the Government of India supported the submissions of the learned Attorney General of India and assured us that in case the Court considered it necessary to direct the Government of India to take the necessary steps to produce the contemner.
Dr. H. Borobabu Singh the direction would be duly and promptly complied with Shri Kapil Sibal on behalf of the Chief Secretary of the State of Manipur also supported the submission and so did the counsel for the petitioner, 1.
Manilal Singh, Shri S.K Bhattacharya, learned counsel for the contemner, Dr. H. Borobabu Singh reiterated the stand taken by the contemner that by virtue of the office of the Speakar which he holds, he is immune from the court 's process even in a contempt matter like this which does not relate to his function as Speaker inside the House.
The undisputed facts expose the conduct of the contemner, Dr. H Borobabu Singh, evident from the statement contained in his affidavits filed in this Court refusing to obey the orders of this Court directing him to appear in person in this Court to enable the hearing of the contempt proceedings against him, after the tentative opinion formed by this Court that his wilful and contemptuous violation of this Court 's orders and 781 deliberate obstruction of the persons acting in the aid of this Court 's orders coupled with his act of reprisal against the Secretary of the Legislative Assembly for obeying the orders made by this Court make out prima facie case of 'criminal contempt ', was recorded in the orders made in the presence of his counsel and known to him.
The contemner had refused to accept the notices sent to him directly but continued to be represented by counsel Shri S.K Bhattacharya through whom he communicated with the Court, in addition to filing some of his own affidavits to clearly indicate his refusal to appear in Court.
The only reason given by him, through counsel and in his affidavits is, that he being Speaker of a Legislative Assembly, is immune from process of court even in such a proceeding The present situation arises as a. result of repeated and emphatic refusal of the contemner to appear in person in this Court after due notice of the fact that his presence is required before the court on the date fixed for the hearing of the contempt proceeding to answer this charge of criminal contempt committed by him by acts done which were not per formed as a Speaker within the House.
Reference may now be made to some provisions of law applicable to the situation as indicated by the learned Attorney General and the other counsel supporting his submissions.
"The Rules to Regulate Proccedings for Contempt of the Supreme Court, 1975 ' framed by this Court provide in Rule 3 that the Court may take action even suo motu in such a matter.
Rule 6 requires the contemner, unless otherwise ordered, to appear in person before the Court as directed on the date fixed for hearing of the proceeding and to continue to remain present during hearing till the proceeding is finally disposed of by order of the Court.
Rule 10 provides that the Court may direct the Attorney General or the Solicitor General to appear and assist the Court.
It is in this manner that the Attorney General was directed to appear.
and assist the Court which the Solicitor General appeared in this matter for the Union of India.
Rule 11 provides that the Court may, if it has reason to believe, that the person charged is absconding or is otherwise evading service of notice, or if he fails to appear in person or to continue to remain present in person in pursuance of the directions, direct a warrant bailable or non bailable for his arrest, addressed to one or more police officers and the warrant shall be executed by the officer or officers to whom it is 782 directed.
These Rules, therefore, provides for procuring the personal appearance of the contemner in this Court if the Court has reason to believe that the contemner is evading service or he fails to appear in person in spite of the directions of this Court.
In the present case, the contemner 's repeated and categorical refusal to appear in this Court in spite of this Court 's orders and grant of considerable indulgence to him till now is clear from the statements made in his affidavits and through his counsel who has appeared for him throughout.
The learned Attorney General, the learned Solicitor General and Shri Kapil Sibal are right in their submission that the power of this Court in such matters is not confined merely to the provisions of the and the Rules framed thereunder but is plenary to punish any person for contempt of court, and for that purpose to require his presence in person in this Court in the manner considered appropriate in the facts of the case.
They refer particularly to Articles 129 and 142 apart from Article 145 of the Constitution of India.
Article 129 says that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself Article 142 provides for enforcement of decrees and orders of Supreme Court and lays down that the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself, Article 141 declares the binding effect of the law declared by the Supreme Court which is a clear provision to indicate that the meaning of 'law ' is to be understood as declared by the Supreme Court.
Obviously, it is not for any one else including the Speaker to decide what the 'lay/ is, and make an interpretation of the 'law ' contrary to the declaration of law made by the Supreme Court.
Article 144 contains the constitutional obligation of all authorities in the territory of India to act in aid of the Supreme Court.
These provisions are well known and they are mentioned in this order once again in the, present case merely for the benefit of the contemner who has wilfully and deliberately refused to obey and ignored not merely the orders of this Court but has also chosen to ignore the provisions in the Constitution itself, to which he must have sworn allegiance before taking his seat as a Member 783 of the Manipur Legislative Assembly.
The contention of the contemner 's immunity from the process of this Court even in a contempt proceeding, wherein a prima facie case of criminal contempt is made out against him, requiring his personal presence to answer that charge and to be present at the hearing, hinted by the contemner in his affidavits and raised by his counsel is totally misconceived, and this was indicated to his counsel repeatedly.
The immunity given by Article 381 of the Constitution is not to a Speaker and no other provision supports this submission.
From the documents filed by the Union of India, it is evident that even the Union Home Minister has strongly advised the conteimner to desist from the course he has chosen to adopt and to obey the orders of this Court, which is his constitutional obligation.
The present Attorney General as well as his predecessor in office and the Solicitor General have also categorically and repeatedly expressed their opinion that it is the duty of the contemner to obey the orders of this Court and appear in this Court in person as directed.
Shri Kapil Sibal who appears for the Chief Secretary of the State of Manipur has also expressed the same view in his submissions.
After hearing learned counsel at laugh on December 8, 1992 we had reserved the order for further reflection.
On further and in depth consideration of this matter on account of the fact that the contemner also happens to occupy the office of Speaker of a Legislative Assembly, we find that there is no escape from the obvious and logical conclusion emerging from the submissions made by the learned Attorney General of India and endorsed by the learned Solicitor General of India and Shri Kapil Sibal.
While we reach this unfortunate decision in discharge of our constitutional obligation, we draw some solace from the fact that this situation is the creation of the contemner, Dr. H. Borobabu Singh himself who continues to persist in his contumacy by repeatedly declaring that he would not obey the orders of this Court directing his personal appearance to participate in the contempt proceedings against him.
It is unfortunate that a person who holds the constitutional office of Speaker of a Legislative Assembly has chosen to ignore the constitutional mandate that this country is governed by the 'rule of law and what the law is, is for this Court to declare in discharge of its constitutional obligation which binds all in accordance 784 with Article 141 of the Constitution of India and Article 144 then says that all authorities are to act in aid of the orders made by this Court.
The contemner has chosen to ignore also the obvious corollary of rule of law that no person is above law.
Having done our best to make the contemner see reason and be present by granting him indulgence repeatedly to the extent that the learned Attorney General of India at one of the earlier stages said that our indulgence and leniency was being construed as the weakness of the court, we are constrained to now take the only appropriate and logical course to which the court is driven in these circumstances.
That obvious course is to require the production of the contemner, Dr. H. Borobabu Singh in person before this Court, giving such a direction to the authority considered to be appropriate, in the circumstances of the case, to ensure compliance of this order.
It is our constitutional duty which requires us to make this order, to uphold the majesty of law and justify the confidence of the people, that no one in this country is above the law and governance is not of men but of the 'rule of law.
It is unfortunate that this action has to be taken against a person who happens to be the Speaker of a Legislative Assembly, but that does not permit us to apply the law differently to him when he was wilfully and contumaciouly driven the court to this course.
We must remind ourselves that the 'rule of law ' permits no one to claim to be above the law and it means 'be you ever so high the law is above you. ' It was said long back : 'to seek to be wiser than laws, is forbidden by the law.
We are also of the opinion that the issuance of a direction to any Magistrate to produce the contemner in this Court would be merely an exercise in futility in view of the obvious conduct of the contemner which includes the threat even to the Chief Secretary of the State as indicated by him.
The learned Solicitor General of India appearing for the Union of India submitted that in case it is considered appropriate to issue such a direction to the Government of India, necessary action in this behalf would be taken by the Government of India to comply with the order.
We have no doubt that in the existing situation to which this Court has been driven by the wilful and contumacious conduct of the contemner himself, the only appropriate order to make is to direct the Government of India to produce the contemner, Dr. H. Borobabu Singh in person in this Court on the next date of hearing, taking such steps as are necessary for the purpose direct, accordingly.
It is further clarified that the Government of India 785 would be entitled to take all such steps, which are necessary including the use of minimilm force which may be required, for compliance of this Court 's order directing the production of the contemner in this Court.
A copy of this order be sent forthwith by the Registrar (Judicial) to the Home Secretary, Government of India for prompt compliance.
The next date of hearing is fixed for March 23, 1993 on which date the Government of India must produce the contemner, Dr. H. Borobabu Singh before this Court.
List on March 23, 1993.
ORDER In obedience to the earlier directions of this Court, Dr. H. Borobabu Singh is present in person in Court.
We take note of his earlier affidavit filed on 18.3.93 that he has fully complied with all the orders and directions relating to the case of Manilal Singh.
Dr. Singh has also expressed regret for the unhappy events.
We appreciate this gesture on his part, though he could have done the same much earlier.
We take note of this and drop all further proceedings in the matter.
These contempt proceedings, therefore, come to an end.
N.V.K Petitions dropped.

summary/full:
Dr. H. Borobabu Singh, the first respondent in the Contempt Petition held the office of Speaker of Manipur Legislative Assembly.
This Court having held that the Speaker while deciding the question of disqualification of a Member of the Legislative Assembly under the Tenth Schedule to the Constitution acts as a statutory authority, in which capacity the Speaker 's decision is subject to judicial review by the High Court and this Court, made certain orders quashing the disqualification of certain members of the Manipur Legislative Assembly.
In spite of the clear decision of this Court it was submitted, the contemner continued to resist the Implementation of such orders made by this court.
petitioner In the contempt petition 1.
Manilal Singh was then the of the Manipur Legislative Assembly, and as the Secretary be took steps to implement this Court 's orders.
The allegation made by him was that the contemner Dr. H. Borobabu Singh got annoyed with him for his attempt to secure obedience and implementation of this Court 's orders and, therefore, as an act of reprisal, the contemner had made an 769 770 order of his compulsory retirement.
The petitioner challenged the aforesaid order of his compulsory retirement, alleging that it was mala fide being an act of reprisal by the contemner for the petitioner 's obedience of this Court 's orders.
This Court stayed the operation of the order of compulsory retirement as well as the order of suspension passed by the contemner.
The petitioner then complained that the contemner was not permitting him to function as the Secretary of the Manipur Legislative Assembly, and was also not paying him his salary and other dues; and that another person had been appointed by the contemner to function as the Secretary.
On July 22, 1992, this Court made an order reiterating that the petitioner shall be allowed to function as the Secretary of the Manipur Legislative Assembly without delay and that all concerned will enable him to so function.
Further directions were also given.
As a result of the grievance made by the petitioner that in spite of the orders of this Court, he was neither allowed to function as the Secretary nor paid his salary etc.
another order was made on August 4, 1992 directing the Chief Secretary of the State to ensure that the direction given for payment of dues was promptly obeyed.
On August 25, 1992 the Court after recording that the action to retire the petitioner from service on August 31, 1992 as Joint Secretary appeared to be prima facie in violation of the Court 's order, stayed the operation of the order, expression its concern at the apathy exhibited towards obedience of the mandate under Article 144 of the Constitution, and after hearing all the counsel made an order directing that the Chief Secretary, Deputy Secretary of the legislative Assembly and the contemner should be per sonally present in Court at the next hearing in September 9, 1992.
On the aforesaid date the Chief Secretary and the Deputy Secretary were personally present, but on behalf of the contemner his Counsel sought an adjournment till September 22, 1992 on "he ground that the Manipur Legislative Assembly was in session, which was granted.
On September 25, 1992 the contemner did not appear in person but his Counsel filed an affidavit that he is immune from the directions of the Court in view of his constitutional position as Speaker.
The Court heard 771 the Counsel and rejected the contention and adjourned the matter to 20, 1"2 the contemner to give a written undertaking before be left the country as a member of the Indian parliamentary delegation that he would appear in the court.
The contemner did not give the aforesaid undertaiking and when the matter was taken up on November 12, 1M, the contemner was not present and the only thing done by him was to Me an affidavit dated November 6, 1992 indicating that he would not personally appear before the Court In the aforesaid circumstances and having regard to the attitude adopted by the contemner It became necessary for the Court to consider the making of necessary consequential orders to secure the presence of the contemner.
It accordingly heard arguments on December 8, 1992.
The Attorney General of India submitted that the undisputed and the unequivocal stand taken by the contemner left no doubt about his wilful and contumacious disregard and disobedience of the Court 's orders which is without any doubt by Itself sufficient to constitute criminal contempt of this Court.
That, apart from the power which this Court has under the and the Rules framed thereunder, the powers of this Coon under several provisions of the Constitution of India is wide enough to indicate that the procedure available to It for ensuring compliance of it,; orders Includes the taking of all steps considered necessary to ensure compliance of this Court 's orders which is a constitutional obligation of the Court, to uphold the role of law , and that the Court also had the power to direct the Government of India to take the necessary steps to produce the contemner in the Court if the ordinary course of requiring a Magistrate to produce him In the Court Is considered inappropriate.
The Solicitor General of India on behalf of the Government of India; and the Counsel for the Chief Secretary and the petitioner supported the submissions of the Attorney General, while the Counsel for the contemner reiterated the stand taken by the contemner, that by virtue of the office of the Speaker which he holds, he is immune from the Court 's process even in a contempt matter which does not relate to his function as Speaker inside the House.
Directing the production of the contemner Dr. H. Borobabu Singh before the Court on March 23, 1"3.
HELD : 1.
The undisputed facts expose the conduct of the contemner, Dr. H. Borobabu Singh, in refusing to obey the orders of this Court 772 directing him to appear in person in this Court to enable the hearing of the contempt proceedings against him, after the tentative opinion formed by this Court that his wilful and contumacious violation of this Court 's orders and deliberate obstruction of the persons acting in the aid of this Courts orders coupled with his act of reprisal against the Secretary of the legislative Assembly for obeying the orders made by this Court, make out a prima facie case of ' contempt, as recorded in the orders made and known to him.
[780G H, 781A] 2.The contemner 's repeated and categorical refusal to appear in person in this Court in spite of this Court 's orders and grant of considerable indulgence to him is clear from the statements made in his affidavits and through his counsel, who has appeared for him throughout [782B] 3.
From the documents filed by the Union of India, it is evident that even the Union Home Minister has strongly advised the contemner to desist from the course he has chosen to adopt and to obey the orders of this Court, which is his constitutional obligation.
[783C] 4.
Articles 141, 142 and 144 of the Constitution are well known and they are mentioned for the benefit of the contemner who has wilfully and deliberately refused to obey and ignored not merely the orders of this Court but has also chosen to ignore the provisions in the Constitution itself, to which he must have sworn allegiance before taking his sent as a Member of the Manipur Legislative Assembly.
[782H] 5.
The immunity given by Article 361 of the Constitution is not to a Speaker and no other provision supports the submission made by the contemner.
It is unfortunate that a person who holds the constitutional officer of Speaker of a Legislative Assembly has chosen to ignore the constitutional mandate that this country is governed by the 'rule of law, and what the law is, is for this Court to declare in discharge of Its constitutional obligation which bind all in accordance with Article 141 of Constitution of India, and Article 144 then says that all authorities a are to act in aid of the orders made by this Court.
The contemner has chosen to ignore also the obvious corollary of rule of law that no person is above law.
[782F G] 773 7.
Having doen its best to make the contemner see reason and be present by granting indulgence repeatedly, to the extent that the Attorney General said that the indulgence and leniency was being construed as the weakness of the Court, this Court is constrained to now take the only appropriate and logical course to which the Court is driven in these circumstances, viz. to require the production of the contemner Dr. H. ' Borobabu Singh in person before this Court It is the constitutional duty ' of this Court to uphold the majesty of law and justify the confidence of the people, that no one in this country is above the law and governance is not of men but of the 'rule of law '.
[783B D] 8.The Government of India is directed to produce Dr. H. Borobabu ' Singh in person in this Court on the next date of hearing taking such steps as are necessary for the purpose.
The Government of India would be entitled to take all steps, which are necessary including the use of minimum force which may be required for compliance.
[784H, 795A] 9.
A copy of the order to be sent forthwith by the Registrar (judicial) to Home Secretary, Government of India for prompt compliance.
The next, date of hearing fixed for March 23, 1993.
[785B]