judgement:
Appeal No. 1056 of 1967.
Appeal from the judgment and decree dated May 12, 1967 of the Calcutta High Court in Appeal from Original Order No. 218 of 1966.
R. H. Dhebar and section P. Nayar, for the appellants.
section T. Desai and P. C. Bhartari, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
This appeal, under a certificate, raises two questions.
The first is as to the nature of the power of the Collector of Customs under the proviso to the %second sub section of section 110 of the Customs Act, 52 of 1962, and the second is as to whether the Collector under that proviso can extend the period 804 for giving notice under section 124 (a) of the Act either after the initial period of six months or the extended period has already expired.
In 1963, the respondent carried on business as a dealer in watches in the name and style of Walton Watch Company in Calcutta.
In 1955, he also used to have another business premises where he carried on the same business in the name of Walton Watch Company.
That business was wound up in that year and he had the stock in trade of that business transferred to his business carried on in the name of Walton Watch Company.
On March 19, 1963, the Rummaging.staff under the appellant raided the respondent 's business premises and seized 218 watches, all of foreign 'Make, 87 of these watches, however, were released on the respondent then and there producing vouchers relating to them.
Later on, 21 more watches were released on September 18, 1963 and February 27, 1964 on more vouchers having been produced.
The case of the Customs authorities, however, was that he was not able to produce documentary evidence in respect of the rest of the watches, and therefore.
Their release was not possible.
On March 6, 1964, the appellant served on the respondent a notice under section 124(a) to show cause why the rest of the said watches should not be confiscated and personal penalty should not be imposed upon him.
Watches imported without licence or ,on which proper import duty has not been paid are undoubtedly liable to confiscation under section 111(d).
1,10, which finds its place in Ch.
XIII dealing with searches, seizure and arrest, provides for seizure, inter alia, of goods.
Under sub section
(1), if a proper officer has "reason to believe" that any goods are liable to confiscation under.
the Act '.
he may seize such goods.
Sub section (2) reads as follows "(2) Where any goods are seized under sub section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months.
" Sec. 124 provides that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty.
The section does not lay down 805 any period within which the notice, required by it has to be given.
The period laid down in section 110(2) affects only the seizure of the goods and not the validity of the notice.
Since the watches in question were seized on March 19, 1963, the initial period of six months provided under the, second subsection of section 110 expired on September 19, 1963 and the respondent became entitled to the return of the said watches as no show cause notice had till then been issued to him.
But the ' appellant 's case was that an extension for a further period of four months was applied for and was granted by the Collector on September 19, 1963 under his power under the said proviso on the ground that certain inquiries at Bombay and Delhi yet remained to be made.
The extended period of four months expired on January 19, 1964 and a further extension of two months was applied for on January 3, 1964.
But the Collector passed his order granting further extension on February 20, 1964, that is to say, about a month after the first extended period had expired.
Admittedly, both the extension orders were passed ex parte and without any opportunity of being heard having been given to the respondent.
The respondent, therefore, got no chance to resist either of the two applications for extension and to show that no sufficient cause had been shown, and that therefore, no order of extension was justified or should be granted, and the watches should, as provided by section 110(2), be restored to him.
He also got no opportunity to plead before the Collector that the right to have, the watches restored to him having already accrued to him on January 19, 1964, it could not be defeated by an order of extension passed after the first extended period had already lapsed.
Aggrieved by the two orders of extension passed in the manner aforesaid, the respondent moved the High Court of Calcutta under article 226 of the Constitution, contending that the proviso to section 110(2) envisaged only one extension, and that therefore, the second extension was invalid.
The learned Single Judge, who heard the writ petition, rejected this contention holding that the proviso empowered the Collector to grant as many extensions as the completion of the inquiry and the issuance of the notice under section 124(a) required but in no case exceeding six months at a time.
The second contention urged by the respondent was that the period of the first extension having expired on January 19, 1964 and no further extension having been granted by that date, he became entitled to restoration of the said watches and the second order extending the period by two months more granted a month after the expiry of the first extended period would be of no avail to the Customs authorities.
This contention too was rejected on 806 the ground that where there is a prescribed time for doing a thing but an express power is given to an authority to extend that time, such power can be exercised even after the prescribed time has expired unless there is an express provision prohibiting to, do so.
There was no such provision.
The learned Single Judge also held that there was no need to give to the respondent any notice of the applications for extension, the only requirement being that a sufficient cause had to be shown to the satisfaction of the Collector.
The learned Judge also rejected a third contention by the respondent that in the absence of any information with the Customs officers as regards the watches save that they were of foreign manufacture, they could not have 'entertained any reasonable belief that their importation was contrary to or in violation of any statutory provision.
This contention was rejected on the strength of the supplemental affidavits of the Customs officers ordered by the learned Judge.
The result was that the learned Judge dismissed the writ petition negativing, inter alia, the res pondent 's plea as to the restoration of the seized watches.
On an appeal by the respondent, a Division Bench of that High Court took a contrary view.
It held that the watches having been seized on March 19, 1963, the period of six months expired on September 18, 1963, that if a notice under section 124(a) was not given by that time, section 110(2) imposed a statutory obligation on the customs to return the goods to the person from whom they were seized.
The Division Bench observed that even assuming that the first extension which was granted ex parte and without any opportunity to the respondent of being heard were to be valid, the period of four months granted then having expired on January 19, 1964 and no order for further extension having admittedly been made, it was obligatory on the Customs to return the watches to the respondent.
There being such a statutory obligation under section 110(2), there was a corresponding statutory right in the respondent to have them restored to him.
The Divi sion Bench was of the view that such a right having accrued to the respondent, it could not be defeated by an order passed one month after the lapse of the first extended period.
It also held that the words "sufficient cause being shown" used in the proviso meant that the Collector had to decide an application for extension judicially, the reason being that the Collector could not fairly and justly determine that a sufficient cause was shown without hearing the pros and cons of the question, and therefore, he had no jurisdiction to grant extension without giving to the respondent an opportunity of being heard.
In this connection the Division Bench observed "As long as the period of issuing notice has not expired, it might be one thing.
But quite a different 807 set of circumstances arise when the period has expired and the right to the return of the goods is vested in the person from whose possession the goods are seized.
If you are to take away the right y on can only do that for a sufficient cause.
How can the officer concerned decide as to whether a sufficient cause has been shown, so as, to divest a vested right, unless he hears the parties affected.
Even after the supplementary affidavits were filed in this case, it is extremely doubtful whether a sufficient cause has been shown.
" According to the Division Bench, even if the Collector 's function, tinder the proviso were to be treated as an administrative, function, his authority being to determine the question affecting the, rights of the citizen, there was an implied duty to act judicially.
On this reasoning, the Division Bench held that in any event the second order of extension was bad.
It also found that the show cause notice issued under section 124(a) was vague, gave no opportunity to the respondent to explain the allegations contained therein, and therefore, was bad, with the result that the appellant would be required to give a fresh notice.
For the reasons above stated the Division Bench reversed the judgment of the Single Judge and allowed the writ petition.
The correctness of this judgment is the subject matter of this appeal.
We may at this stage mention that counsel for appellant for mulated the following two contentions only : (1) that the liability to return the goods seized under section 110(1) on the expiry of the time prescribed under sub section
(2) is not absolute as it is subject to the period being extended for a period not exceeding six months, that is to say, within the over all period of one year; that therefore, there is no question of any right being vested in the respondent on the expiry of the first six months or the extended period or such right being divested until one year from the date of seizure has expired: and (2) that the proviso to section 1 10 (2) does not contemplate any notice to the respondent as the considerations which would weigh with the Collector or which would be relevant for granting extension would be of such a nature that they could not be disclosed.
such disclosure being against public interest; that only two requirements are envisaged for the extension of time and they are (i) that a sufficient cause is shown, and (ii) that the extension is within one year.
808 As already stated, sub section
( 1 ) of section 1 1 0 authorises seizure.
the only requirement being a reasonable belief on the part of the conceded officer at the time of seizure.
The power of seizure founded on a mere reasonable belief being obviously an extraordinary power, the second sub section envisages completion of the enquiry within a period of six months from the date of seizure.
But it provides that if such an enquiry is not completed within that period and a notice under section 124(a) is, therefore.
not given, the person from whom the goods are seized becomes entitled to their restoration.
However, on the supposition that in some cases such an investigation may not be completed owing to some difficulties, the legislature gave under the proviso power to the Collector, an officer superior in rank and also an appellate authority under section 128, to extend the time on two conditions.
namely, (1) it does not exceed one year, and (2) on sufficient cause being shown.
The policy of the legislature, therefore.
clearly was that in view of the extraordinary power of seizure, the enquiry should ordinarily be completed within six months but since it might not be possible to do so in some cases, it gave power of extension to the Collector.
The legislature was thus careful to entrust the power of extension to a superior officer I who also has the power to hear inquiries under the Act involving penal consequences and also appeals.
Cases where extension would have to be asked for and granted are thus envisaged as exceptions to the general rule of six months laid down in sub section
The second limitation to the power is that such extension can be ranted only on sufficient cause being shown, a phrase often used in provisions for condonation of delay, such as section 5 of the Limitation Act, 1909.
There can be no doubt that the proviso to the second sub section of section II 0 contemplates some sort of inquiry.
The Collector, obviously, is expected not to pass extension orders mechanically or as a matter of routine, but only on being satisfied that there exist facts which indicate that the investigation could not be completed for bona fide reasons within the time laid down in section 110(2), and that therefore, extension of that period has become necessary.
He cannot, therefore, extend the time unless he is satisfied on facts placed before him that there is a sufficient cause necessitating extension.
The burden of proof in such an inquiry is clearly on the Customs officer applying for extension and not on the person from whom the goods are seized.
The question, therefore, is as to the nature of such a function and power entrusted to and conferred on the Collector by the proviso.
It will be noticed that whereas sub section
( 1 ) of section 1 1 0 uses the expression "reason to believe" for enabling a Customs Officer to seize goods, the proviso to sub section (2) uses the expres 809 sion "sufficient cause being shown" It would seem that sub section (1) does not contemplate, an inquiry at the stage of seizure, the only requirement being the satisfaction of the concerned officer that there are reasons to believe that the goods are liable to confiscation by reason of their illegal importation.
Even so, such satisfaction, as laid down in Narayanappa vs Commissioner of Income Tax, Bangalore(1), is not absolutely subjective inasmuch as the reasons for his belief have to be relevant and not extraneous.
It is clear that the legislature was not prepared to use the same language while giving power to 'the Collector to extend time and deliberately used the expression "sufficient cause being shown".
The point is why should the legislature have used such a different expression while enacting the proviso if its intention was to confer power which would depend on a more ' subjective satisfaction as to the cause for extension.
The words "sufficient cause being shown" must mean that the Collector must determine on materials placed before hi that they warrant extension of time.
Where an order is made in bona fide exercise of power and within the provisions of the Act which confers such power, the order undoubtedly is immune from interference by a court of law and therefore, the adequacy of the cause shown may not be a ground for such interference.
But there, can be no doubt at the same time that the inquiry to be held by the Collector has to be on facts, i.e., materials placed before him.
There is there fore no question in such cases of the subjective satisfaction of the Collector ' for, what he is asked to do by the proviso is to determine that the cause shown before him warrants an extension of time.
In Lakhampal 's case(2) this Court noticed a similar diffe rence of language used in Tr.
30(1) (b) and 30 A(9) of the Defence of India Rules, 1962 which dealt with two different types of powers.
Though it was a case dealing with preventive detention, what is important is that the decision primarily depended on the difference in language used in the two rules and the difference it made in the character of the two powers.
A similar expression, though not exactly the same, also came to be construed by the House of Lords in De Verteuil vs Knaggs & Anr.(3), a case often referred to while determining the nature of power.
The question which arose there was whether under section 203 of the Trinidad Immigration Ordinance, No. 161, the government could pass an order transferring indentured labour from one employer to another without notice to the concerned employer against whom complaints as to treatment of the laborers were made.
The section provided that if at any time "it appears to the governor on (1) (2) ; (3) 810 sufficient ground shown to his satisfaction, that all or any of the immigrants indentured on any plantation should be removed therefrom, it shall be lawful for him to transfer the indentures of such immigrants to any other employer.
" Construing this provision, Lord Parmesan observed at p. 560 of the report : "The Ordinance does not prescribe any special form of procedure, but there is an obvious implication that some form of inquiry must be made, such as will enable the Governor fairly to determine whether a sufficient ground has been shown to his satisfaction for the removal of indentured immigrants.
What is the procedure which in such a case the law will imply when the Legislature is silent ? The acting Governor was not called upon to give a decision on an appeal between parties, and it is not suggested that he holds the position of a judge or that the appellant is entitled to insist on the forms used in ordinary judicial procedure.
On the other hand, the acting Governor could not properly carry through the duty entrusted to him without making some inquiry whether sufficient grounds had , been shown to his satisfaction that immigrants indentured on the La Gloria estate of the appellants would be removed.
Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice." In Kraipak vs Union of India(1) the power of a selection board to prepare a selection list from amongst the public servants for appointment in the senior and junior scales was held to be quasijudicial although the board had no power of appointment itself.
In doing so, this Court observed that the dividing line between judicial and administrative functions was thin and gradually evaporating, and that the functions performed by those doing judicial function and administrative function, where the rights of citizens are affected to their prejudice, had the same object, namely, to do justice and deciding the question fairly and justly.
In the former case, there would be express rules of procedure, but the effect of those rules is only to enable or facilitate to 'decide fairly and justly.
The Court also pointed out that in recent years the concept of quasi judicial power has been undergoing a radical change and noted with approval the decision in Regina vs Criminal Injuries Compensation Board Ex parta Lain (2) where it was (1) (2) 811 held that certiorari would be available not only where, the impugned order infringes immediately enforceable rights but also where it is a paste as a result of which legally enforceable rights may be affected.
If the power of preparing a selection list without the power to appoint, as in Kraipak 's case(), and power to transfer indentured labour from one to another employer, as in De Verteuil vs Knaggs (2) , are held, in the context of their respective provision I to be quasi judicial powers, there is no reason why, when the statute requires the determination of a sufficient cause on facts produced before the Collector should be held not to be a quasi judicial function or at least a function requiring judicial approach.
But it may be said that in both these cases there was a civil right involved and the, power, therefore, had to be held to be quasijudicial.
But in the present case also, the right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure.
Since the Collector has on facts to decide on the existence of a sufficient cause, although his decision as to sufficiency of materials before him may be within his exclusive jurisdiction, it is nonetheless difficult to comprehend how he can come to his determination unless, as the Division Bench of the High Court has said, he has before him the pros and cons of the question.
An ex parte determination by the Collector would expose his decision to be one sided and perhaps one based on an incorrect statement of facts.
How then can it be said that his determination that a sufficient cause exists is just and fair if he has before him a one sided picture without any means to check it unless there is an opportunity to the other side to correct or controvert it.
The difference in the language used in the first subsection and the proviso to sub section
(2) lends support to the contention that the power in one case may be subjective , and therefore, not calling for an enquiry, and the power in the other is one, the exercise of which necessitates an enquiry into materials placed before the Collector 'for his determination.
In our view, these considerations lead to the conclusion that the power under the proviso is not to be exercised without an opportunity of being heard given to the person from whom the goods are seized.
In a recent decision in Sheikh Mohammed Sayeed vs Assistant Collector of Customs(3) a contrary view has, however, been taken by a single Judge of the High Court of Calcutta.
The extension order there was passed before the expiry of the initial six months ' period.
But the contention raised was that an opportunity to be heard should have been given to the petitioner.
The learned (1) (2) [1918] A.C.557.A.I.R. 812 Judge distinguished the decision of the Division Bench under this appeal (reported in A.I.R. 1968 Cal.
28) on the ground that the question involved in that decision was whether an opportunity of being heard had to be given in respect only of an extension when the right to restoration of the goods in question has already accrued to the party from whom they were seized, and therefore, the decision did not apply to the case before him when such a right had not vested in the petitioner.
I With respect to the learned Judge, the distinction was not correct, firstly, because the first 'order of extension was only assumed to be correct as the Division Bench concentrated its attention on the second order of extension which also involved the question of the right to restoration of the goods having already vested; and secondly, because the Division Bench set aside the extension order on the ground that the power of extension was quasi judicial or at any rate one which required a judicial approach.
The latter ground applied to both the orders, and therefore, if the second 'order of extension was bad, the first was for the same reason necessarily bad.
The order of extension in both the cases would deprive the person from whom the goods are seized of the right to have the goods restored to him on the expiry of six months from the date of seizure.
As for his decision on the nature of the power,, the learned Judge relied on decisions in Collector of Customs vs N. Sampathu Chetty (1), Babulal Amthalal vs Collector of Customs(2), Pukhraj vs Kohli(3) and Nathmal Jalan vs Additional Collector of CUStOMS(4) which were all cases where the exercise of power ended on reasonable belief or reasons to believe.
But he held that the power under the proviso to section 110(2) should be construed on the same princi ples laid down in those decisions.
This is made clear at page 141.
of the report where he observed "In my view the same principles, are attracted in construing the phrase 'on sufficient cause being shown ' . .
With regard to, the nature and sufficiency of the cause, it is the satisfaction of the Collector of Customs that provides the ground and justification for an order extending the time to complete the inquiry. .
If the order of extension is made before expiry of the initial period of six months, or before expiry of the extended period, it cannot in my view be challenged on the ground that notice to show cause, or opportunity of being heard was not given to the party.
" In our view, equating the power, the exercise of which depends on a mere reasonable belief with the power, the 'exercise of which depends on 'sufficient cause being shown ' envisaging at (1) ; (3) A.I.R. S.C. 1559.
(2) A.I.R. 1957 S.C. 877.
(4) 8 1 3 least some sort of inquiry on facts placed before the authority and determination by him on those facts, is not warranted.
Therefore, a conclusion based on such a premise creates difficulty in sustaining it.
Further, the distinction between an order extending before and after the expiry of the initial or the extended period does not make any different as was sought to be made by the learned Judge, when one inquires into the character of the power of extension.
Both would raise precisely the same question, whether the power is purely administrative requiring no opportunity of being heard or judicial or quasi judicial, as in both the cases the right to the goods being restored would be involved.
We cannot also agree with the learned Judge that there is no indication in the Act to suggest that the Collector is required to act judicially, firstly, because the proviso requires determination on facts and not on mere suspicion and a sufficient cause being made out by the applicant officer, and secondly; because a civil right of a citizen to the restoration of the goods on expiry of the period, whether initial or extended, is affected.
The other decision, which takes a contrary view, is of the High Court of Mysore in Ganeshmul Channilal Gandhi vs Col lector of Central Excise().
The grounds on which the learned Judges there took that view were (i) that the power was administrative, and (2) that if notice were to be necessary, the authority which applies for extension would have to make a,disclosure about the investigation, which disclosure would be detrimental to the investigation itself.
For the reasons already given we cannot agree with the first ground.
As for the second ground, we do not see any reason for the apprehension.
So far as the )initial period of six months is concerned, there is no question of disclosure of the investigation.
The legislature itself contemplated that ordinarily such an investigation would be completed within that period.
The question of disclosure would arise only in cases where for bona fide reasons something yet remains to be done.
The only disclosure in such cases would be about the fact that investigation at some place or places, or about certain matters is still incomplete and pending.
No one suggests that the inquiry to be held by the Collector would be similar to the one held in a court of law or that the officer applying for extension would be compelled to disclose the names of his informants or such other matters which would be detrimental to the investigation.
Even in more serious matters, such as applications for remand in criminal cases, opportunity to be heard has to be given No one has yet suggested that such an opportunity is detrimental to the investigation.
The unreported judgment of the High Court (1) A.T.R. 19(8 Myscre F9.
8 14 of Bombay in M/s. Prakash Cotton Mills Pvt. Ltd. vs Assistant Collector of Central Excise ' Bombay(1) does not throw any further light as it is mostly based on the reasoning of the Mysore High Court.
We are not satisfied that as between the right of the person from whom the goods are seized and the supposed danger to the investigation the matter is so weighted down that we would be compelled to hold that the legislature could not possibly have contemplated a judicial approach by the Collector when he orders extension of time, the effect of which would be the deprivation of, or in any event,, postponement of the right to restoration.
In our view, the first question must be answered In favour of the respondent, and therefore, the Division Bench was right in holding that the power under the proviso was quasijudicial, or at any rate, one requiring a judicial approach.
Consequently, an opportunity of being heard ought to have been given to the respondent before orders for extension were made.
The High Court, consequently, was justified in ordering restoration of the watches in question to the respondent.
In this view it is not necessary for us to decide the second question raised by counsel for the respondent.
We are also not dealing with the question as to whether the notice under section 124(a) was vague, and therefore, void as decided by the Division Bench.
That part of the decision of the High Court was not challenged before us, and therefore, we are not called upon to give our decision on that part of the case.
In the result, the judgment of the Division Bench has to be upheld.
The appeal will stand dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
Under section 110(1) of the if a proper officer has ,reason to believe ' that any goods are liable to confiscation under the Act, he may seize such goods.
Section 124 provides that no order confiscating any goods shall be made unless the owner of the goods is given notice in writing informing him of the grounds on which it is proposed to confiscate the goods.
Under section 110(2) where any goods are seized under sub section
(1) and no notice in respect thereof is given under section 124 within six months ,of the seizure, the goods shall be returned to the person from whose possession they were seized; provided, the period of six months may 'on sufficient cause being shown ' be extended by the Collector of Customs for a period not exceeding six months.
On March 19, 1963 goods were seized from the respondent and, on September 19, 1963 an extension for a period of four months was applied for by the customs authorises and was granted by the Collector on the , round that certain inquiries yet remained to be made by them.
On February 20, 1964, that is, one month after the extended period had expired, the Collector passed an order granting further extension for two months.
Both the extension orders were passed without giving any opportunity to the respondent.
The respondent challenged the second extension and the High Court held that the orders of extension were bad as the Colle ctor had to decide the application for extension judicially.
In appeal lo this Court, HELD : The power of extension under the proviso was quasi judicial, or at any rate, one requiring a judicial approach, and therefore, an opportunity of being beard ought to have been given to the respondent before ,ordering extension.
[811 B C] (a) The policy of the Legislature is, that in view of the extraordinary power of seizure the inquiry should ordinarily be completed within six months, but in exceptional cases, the legislature entrusted to a superior officer the power of extension on sufficient cause being shown.
The Collector is not expected to pass extension orders mechanically or as a matter of routine but only on being satisfied that there exist facts which indicate that investigation could not be completed for bona fide reasons within the time of 6 months laid down in section 110(2), [808 C E, F G] (b) Whereas section 110 (1) uses the expression reason to believe for enabling a customs officer to seize the goods, the proviso to sub section
(2) uses the expression sufficient cause being shown.
Sub Section (1) does not contemplate an inquiry at the stage of seizure, the only requirement being the satisfaction of the concerned officer that there are relevant reasons to believe that the goods are liable to confiscation by reason of illegal im 803 portation.
The words sufficient cause being shown mean that the Collector must determine on materials placed before him that they warrant extension of time.
Further, the civil right to have the seized goods restored which accrues on the expiry of the initial six months is defeated on exten Therefore, when the ' statute requires the determination being grantedtion of a sufficient cause on facts produced before the Collector it should be held to be a quasi judicial function or at least a function requiring judicial approach; and there is no, distinction between extension orders passed before and those passed after the expiry of the initial or the extended period.
[808 H; 809 A, C D; 811 C D] (c) When an order is made in bona fide exercise of power and within the provisions of the Act, which confer such power, the order is immune from interference by a court of law and therefore, the adequacy of the cause shown may not be a ground for interference, but the Collector has to hold an inquiry on facts, that is, on material placed before him, and consider the pros and cons of the question.
[809 D E; 811 E] (d) By holding such inquiry there is no danger of disclosure of facts which would be detrimental to the investigation.
The only disclosure would be about the fact that investigation at some place or places and about certain matters was still incomplete and pending.
As between the tight of the person from whom the goods were seized and the supposed danger to the investigation, the matter is not so weighted that it should he held that the Legislature could not possibly have contemplated a judicial approach by the Collector when he orders of extension of time.
[813 G H; 8 14 B D] Kraipak vs Union of India, [1970] .1
S.C.R. 457, followed.
Lakhanpal 's case; , and De Verteuil vs Knaggs, , referred to Sheikh Mohammed Sayeed vs Asstt.
Collector of Customs, A.I.R. 1970 Cal.
134, Ganeshmul Channilal Gandhi vs Collector of Central Excise, A.I.R. 1968 Mys. 89 and M/s. Prakash Cotton Mills Pvt. Ltd. vs Asstt.
Collector of Central Excise, Bombay, M.P. No. 127/1963 dt. 31 8 1970, overruled.


judgement:
Appeal No. 1256 of 1969.
Appeal from the judgment and order dated February 17, 1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 153 ,of 1969 with Civil Miscellaneous Petition No. 4499 of 1969.
Application by respondent No. 1 for revocation of the certificate granted by the High Court under article 133(1)(b) of the Constitution.
section T. Desai, Tarkeshwar Dayal and section N. Prasad, for the appellant.
L. M. Singhvi and U. P. Singh, for respondents Nos. 1 and 3 to 5.
7 27 Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh, for respondents Nos. 2 and 6 to 10.
The Judgment of the Court was delivered by Vaidialingam, J.
In this appeal, on certificate, the appellant challenges the order dated February 17, 1969 of the Patna High Court dismissing summarily C.W.J.C. No. 153 of 1969 filed under article 226 of the Constitution.
The appellant was appointed by the order dated March 21, 1968, by the State of Bihar temporarily to act as Director of Public Instruction, Bihar.
On the date of the said appointment the appellant was the Director of State Institute of Science.
In the endorsement in this order, ' it was stated that the appellant 's appointment as Director of Public Instruction has been made by promotion on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission.
By order dated November 18, 1968, the State Government passed an order posting the appellant as Director of State Institute of Education.
It is stated in the said order that the appellant had been officiating in the post of Director of Public Instruction by virtue of the order dated March 21, 1968.
The appellant filed C.WJ.C. No. 153 of 1969 before the High Court challenging this order of November 18, 1968 on various grounds.
He had also alleged mala fides in the passing of the said order.
In the view that we take that the order of the High Court granting the certificate has to be remitted for fresh consideration, we do not propose to refer to the various grounds of attack made by the appellant in his writ petition before the High Court.
The High Court by its order dated February 17 1969 has taken the view that as the appellant 's appointment as Director of Public Instruction was on a temporary basis for a period not exceeding six months in anticipation of the concurrence of the Public Service Commission, the Public Service Commission, which was subsequently consulted did not give its concurrence to the appointment of the appellant as Director of Public Instruction and therefore, the government passed the impugned order dated November 18, 1968 posting the appellant as Director.
State Institute of Education.
As the appellant was appointed purely on a temporary basis, he has no right to claim the post.
The High Court has further expressed the view that it is not satisfied prima facie that there was any mala fides on the part of the Public Service Commission in not giving its concurrence to the appointment of the appellant or on the part of the government in not appointing the appellant as Director of Public Instruction.
A further contention taken on behalf of the appellant 728 that the impugned order was not in conformity with the decision of the Council of Ministers, was rejected by the High Court.
On this reasoning the High Court held "as no prima facie case has been made out for interference with the order of the Government, as contained in Annexure 1, this application is summarily rejected".
Annexure 1, in the above quotation was the impugned order dated November 18, 1968.
It may be noted that the writ petition was dismissed without issuing notice to the State and other respondents therein.
On behalf of the appellant Mr. section T, Desai, learned counsel, attempted to argue on merits by urging that the High Court, in view of the allegations made by the appellant in the writ petition, was not justified in rejecting the petition summarily.
The learned counsel also attempted to argue that even on the basis of the materials placed before the court, the order is unsustainable.
On behalf of the first respondent, State of Bihar, C.M.P. No. 4498 of 1969 has been filed for revoking the certificate granted by the High Court under article 133(1)(b) of the Constitution.
Dr. L. M. Singhvi, learned counsel for the State, therefore, raised preliminary objection that the certificate granted by the High Court is not valid and as such it should be revoked.
If the certificate is revoked, as prayed for by the State, the counsel urged, then there will be no need to go into the merits of the appeal, sought to be canvassed by Mr. section T. Desai, learned counsel for the appellant.
As the preliminary objection has to be first dealt with it is now necessary to refer to the order of the High Court granting the certificate.
After dismissal of the writ petition by the High Court, the appellant filed an application (Supreme Court Appeal No. 42 of 1969) for grant of certificate of fitness to appeal to this Court.
That application, no doubt, was opposed by the present respon dents.
The High Court by its order dated March 13, 1969 granted the certificate to the effect "that the requirement of valuation to enable the petitioner to get a certificate is fulfilled under Article 133(1) of the Constitution." From the order of the High Court it is seen that the, application for the grant of certificate was made under articles 132(1) and 133(1) of the Constitution.
So far as article 133(1) was concerned, the request for certificate was made under clauses (a) and (c) and not under clause (b).
But, however, during the course of arguments, the appellant 's counsel relied on clause (b) of article 133(1) and that was permitted by the High Court.
Therefore, ultimately the certificate was prayed for under article 132(1) and article 133(1) clauses (a) to (c).
After 'discussing the case of the appellant, the High Court held that in a case of this nature the 7 29 salary or allowances attached to the office of the appellant cannot be considered to be the subject matter of dispute within the meaning 1 of clause (a) of article 133(1) of the Constitution.
According to the High Court, the subject matter of the dispute is the right to continue in office and not the right to get the salary if he is allowed to continue in office.
In this view the High Court held that the appellant cannot be granted a certificate under clause (a) of article 133(1).
The High Court then considered the question of granting a certificate under clause (b) of article 133(1) of the Constitution.
The High Court was of the view that it is perhaps possible to hold that the emoluments attached to the office can be taken into consideration for the purpose of valuation under clause (b).
The High Court has expressed the view that the future emoluments which an incumbent of an office will be, getting, if he succeeds in getting the office, will be the property respecting which some claim or question will be directly involved in the judgment sought to be appealed against provided it is a property.
But, however, the High Court entertained a doubt whether the emoluments which became payable to an incumbent of the office in future, if an incumbent does not lose The office, due to any other reason, other than the subject matter of the dispute in the case, can be said to be property within the meaning of clause (b).
But inspite of all these doubts, the High Court held that certificates have been granted by the High Court of Patna in several cases and then finally concluded ". but for the purpose of determination of the question of valuation it is legitimate to assume in his favour that he claims a right to the office of the Director of Public Instruction which could have brought him the emoluments for a period of 3 years 3 months, if he succeeds.
" Ultimately the High Court certified that the requirements of valuation to enable the appellant to get a certificate is fulfilled under article 1 3 3 ( 1 ) of the Constitution.
Dr. L. M. Singhvi 's contention is that the certificate granted by the High Court is not valid.
His argument ran as follows The High Court has not granted the certificate under article 1 3 3 ( 1) (c); the High Court has categorically held that the appellant cannot be granted a certificate under article 133 (1) (a).
Though the concluding part of the order granting the certificate states that it has been granted under article 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under article ' 1 3 3 (1 ) (b).
This is on the ground that the appellant claimed his right to the office of the Director, Public 730 Instruction, which would have brought him the emoluments re ferred to by him for a period of 3 years and three months, if the impugned order had not been passed.
This method of valuation for the purpose of clause (b) is not correct.
We are to state that the appellant had claimed that on the date of the impugned notification, he was getting a monthly salary of Rs. 1950/ .
The post of Director of Public Instruction was in the scale of Rs. 1850 100 2250.
He was entitled to get an annual increment of Rs. 100/ .
But for the impugned order the appellant claimed that he would have continued in service for a period of 3 years and 3 months before attaining the age of superannuation, and as such during this period he would have earned a salary of Rs. 83,000/ .
Mr. section T. Desai, learned counsel for the appellant urged that the grant of a certificate under clause (b) of article 33(1) is correct.
In the alternative he contended that as the claim made by the appellant for grant of a certificate under article 132(1) and under article 13 3 (1 ) (e) has not been at all discussed or decided by the High Court and, if it is held that the certificate as now 'granted is not valid, the High Court may be required to consider the grant of a certificate under articles 132(1) and 133(1)(c).
Mr. Desai also urged that as very serious allegations of mala fides in the passing of the impugned order have been made by the appellant, the High Court was not justified in rejecting the writ petition summarily without issuing notice to the respondents.
He contended that all the material records bearing on the matters arising for consideration are available in this Court and in view of this circumstance, he requested that the hearing of the appeal may be proceeded with by this Court.
We are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, this Court can proceed to hear the appeal on merits.
Mr. Desai relied on the decision of this Court reported in Century Spinning and Manufacturing Company Ltd. and another vs The Ulhasnagar Municipal Council and another(1) in support of his contention that the High Court was not justified in dismissing the writ petition summarily.
It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extra ordinary jurisdiction under article 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust, the High Court may decline to entertain the petition.
But if a party claims to be aggrieved by the unlawful, arbitrary (1) [1970] 1 S.C.C. 582. 731 or unjust order of a public body or authority, he is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition in limine.
Following the above decision in M/s Exen Industries vs The Chief Controller of Imports and Exports and others(1), Mitter J., speaking for the Court set aside the order of the High Court dismissing the writ petition in limine with the following observations : "However the High Court though competent to decline to exercise its extraordinary jurisdiction under article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie cage for investigation is made out.
The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under article 226 of the Constitution." Similarly in Gyan Chand and others vs State of Haryana and others (2 ) where allegations of mala fides have been made and a writ petition was dismissed in limine by the High Court, this Court set aside the order and remanded the matter for a fresh consideration after calling upon the authorities concerned to file a return.
The above decisions are of no assistance to the appellant as the orders of remand were passed in those appeals which came to this Court either on a proper certificate issued by the High Court or on special leave granted by this Court.
In all those cases there was a proper appeal pending before this Court in which merits of the points raised for decision in the appeal were gone into and suitable directions were given therein.
If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal.
There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal.
Dr. Singhvi urged that the grant of ' certificate under article ' 133 (1) (b) in this case is not justified because the method of valuation adopted by the High (1) C.A. No. 971 of 1967 decided on 22 1 1971.
(2) C.A. No. 64 of 1970 decided on 21 8 1970.
73 2 Court is not correct.
In this context Dr. Singhvi relied on the decisions of this Court in Chhitarmal vs M/s Shah Pannalal Chandulal(1) and Satyanarain Prasad vs State of Bihar(1) regarding the test to be applied for the purpose of granting a certificate under clause (a) or (b) of article 133(1).
Dr. Singhvi also relied on the first of the above references, in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed.
Mr. section T. Desai, learned counsel for the appellant, urged that the High Court has not properly considered the claim made by the appellant for a certificate under articles 132 (1) and 133 (1) (b) and (c).
Article 132(1) has not been considered at all nor has the High Court considered clause (c) of article 133 (1) (c).
Even with regard to clause (b), the High Court has given a very halting finding.
Therefore, the counsel urged that the High Court may be required to consider the application for grant of a certificate afresh.
It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under article 13 3 (1 ) (b).
As we have pointed out earlier, it has expressed doubts here an& there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificates under similar circumstances.
As the High Court is being required to consider this matter afresh, we do not think it necessary to express any opinion on this aspect.
Admittedly the High Court has not considered the question whether the appellant wig be entitled to a certificate under article 132 ( 1 ) or article 13 3 ( 1 ) (c).
It was pointed out to us on behalf of the respondent that the High Court did not consider the grant of a ,certificate under clause (c) of article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution.
No ,doubt there is such a passing remark in the order of the High ,Court, but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court.
We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court.
Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent.
But the matter does no rest there.
In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this Court has directed the High Court to consider the question whether a case has been made out for issue ,of a certificate under such other provisions.
(Vide Satyanarain (1) [1965]2 S.C.R. 751.
(2) 733 Prasad vs State of Bihar(1)and M/s Shree Krishna Gyanodaya Sugar Ltd. vs The State of Bihar and others(1).
As the High Court has not properly considered the applica tion filed by the appellant, that is, Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, that application will be taken up by the High Court afresh.
The High Court will consider whether the appellant is able to satisfy the court that he is eligible to got a certificate under article 132(1) or under article 13 3 ( 1 ) (b) or (c) of the Constitution.
It is not necessary for the High Court to consider whether the certificate is to be granted under clause (a) of article 13 3 ( 1 ) as that question is already concluded against the appellant in its order dated March 13,1969.
The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted.
We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is issued under article 133(1).
As already a long time has elapsed, the High Court is required to dispose of the said application as expeditiously as possible within a period not exceeding two months from the date of receipt of this order by the High Court.
Subject to the observations contained above, the appeal is dismissed.
There will be no order as to costs in this appeal.
V.P.S. Appeal dismissed.
(1) (2) A.I.R. 1970 S.C. 2041.

dataset_name: IN-Abs

summary/full:
The appellant, who was acting as Director of Public Instruction, challenged an order posting him as Director of State Institute of Education by a writ petition in the High Court, on various grounds.
It was dismissed.
He applied for grant of certificate to appeal to this Court under articles 132(1) and 133(1)(a) to (c) of the Constitution.
The High Court held that article 133(1)(a) did not apply, did not consider whether articles 133 (1) (c) and 132 were applicable, doubted whether article 133 (1) (b) would apply, but ultimately granted a certificate under Art, 133(1).
On the question whether the certificate was properly granted.
HELD : As the High Court has not properly considered the application for grant of certificate,under articles 132(1) and 133(1)(b) and (c), it will have to be remanded to be considered by the High Court afresh.
The High Court, in the fresh order to be passed, must clearly indicate ,under what particular Article or clause of the Article the certificate is granted [733 A C] Saya Narain Prasad vs State of Bihar ; and M/s Krishna Gyanodaya Sugar Ltd. vs The State of Bihar and Ors.
A.I. R. , followed.


judgement:
ion No. 91 of 1964.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 358 of 1966.
Appeal by special leave from the judgment and order dated September 9, 1963 of the Allahabad High Court in Civil Writ Petition No. 1885 of 1962.
J.P. Goyal and Raghunath Singh, for the petitioner (in W.P. No. 91 of 1964).
A.K. Sen, J. P. Goyal and Raghunath Singh, for the appel lants (in C.A. No. 358/66).
B.Sen and section P. Nayar, for respondent No. 1 (in W.P. No. 91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of 1966).
N.N. Sharma, for respondent No. 2 (in W.P. No. 91/64) and respondents Nos. 16 and 17 (in C.A. No. 358/66).
843 The Judgment of the Court was delivered by Bbargava, J.
This writ petition and the appeal challenge the validity of the Hindi Sahitya Sammelan Act No. 13 of 1962 (hereinafter referred to as "the Act").
The facts leading up to the passing of this enactment are that, in the year 1910, some eminent educationists assembled at Banaras and founded an Association for the development of Hindi and its propagation throughout the country.
This Association was named as the Hindi Sahitya Sammelan.
On the 8th January, 1914, it was registered as a Society under the No. 21 of 1860, with Head Office at Allahabad, under the name of Hindi Sahitya Sammelan.
The rules and bye laws of the Society laid down the objects of this Association and the manner of its working.
It had three classes of members, viz., special members (Vishisht Sadasya), permanent members (Sthayi Sadasya), and ordinary members (Sadharan Sadasya).
Under the bye laws, apart from the original members constituting the Society, further mem bers could be admitted under these three classifications on being elected by the working committee of the Society.
Under the Rules and bye laws of the Society, other bodies could be constituted for carrying on activities of the Society.
These included a Governing Body, a Working Committee, a Hindi University Council, Literary Council (Sahitya Samiti), Library Committee, Parchar Samiti and Rashtriaya Bhasha Prachar Samiti.
Through the agencies of these various Committees, the Society carried on the work of development and propagation of Hindi, of spreading the use of Devnagri scrip, of holding examinations, and of confer ring Degrees for proficiency in Hindi.
The Society owned landed properties and buildings at Allahabad as well as at some other places such as Warding, and was holding considerable funds for carrying on its activities.
The Society worked very successfully for a number of years.
It appears that in the year 1950, some differences arose between the members of the Society, and attempt was made to alter the constitution, of the Society.
while one section wanted the alterations, another section was opposed to it.
This resulted in litigation.
Three different suits were instituted in the civil Courts at Allahabad in this connection and injunctions were sought by one party against the other.
Ultimately, the Court appointed a Receiver.
In view of these circumstances, the U.P. Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36 of 1956, under which a statutory body was created under the name of Hindi Sahitya Sammelan, and the word "Sammelan" was defined as referring to the Hindi Sahitya Sammelan constitu ted under the Act.
Under that Act.
Under that Act, the mana 844 gement and properties of the original Hindi Sahitya Sammelan, which was a registered Society, were to be taken over by the new statutory Sammelan.
That Act was, however, declared void by the Allahabad High Court on the ground that Act had made the original Sammelan cease to exist and provided for the constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say, so that Act infringed the right of the members of the original Sammelan of forming an association guaranteed by article 19 (1) (c) of the Constitution.
It was further held that Act was not saved under article 19(4) of the Constitution.
Thereafter, the present Act, now challenged in this writ petition and the appeal, was passed by Parliament under Entry 63 of List I of the Seventh Schedule to the Constitution.
The Act itself, in section 2, contained the necessary declaration to give legislative competence to Parliament under that Entry.
The Act first contained in section 2 a declaration in the following words : "Whereas the objects of the institution known as the Hindi Sahitya Sammelan which has its head office at Allahabad are such as to make the instituation one of national importance, it is hereby declared that the institution known as the Hindi Sahitya Sammelan is an institution of national importance.
" Having declared this institution as an institution of national importance, th. , Act proceeded to define "Sammelan" as meaning the institution known as the Hindi Sahitya Sammelan incorporated under this Act, while the word "Society" was defined to mean "the Hindi Sahitya Sammelan which has its head office at Allahabad and is registered under the ." Under section 4(1) of the Act, the Sannnelan was constituted which was to consist of the first members of the Sammelan and all persons who may hereafter become members thereof in accordance with the rules made in that behalf.
This statutory Sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan, and under sub section (2) of section 4, it was to have perpetual succession and a common seal with power, subject to the provision of the.
Act, to acquire, hold and dispose of property and to contract and to sue and be sued by that name.
The Head Office of the Sammelan was to be at Allahabad.
Under subs.(4) of section the first members of the Sammelan were to consist of persons who, immediately before the appointed day. (a) were special members (Vishisht Sadasya) of the Society; 8 45 (b) (were.
life members (Sthayi Sadasya) of the Society.
(c) had been Presidents of the Society; or (d) were awarded the Mangla Prasad Paritoshik by the Society.
This sub section
(4) of section 4 was amended retrospectively with effect from the date that the Act came into force by the Hindi Sahitya Sammelan (Amendment) Act No. 1 of 1963, and the first members of the Sammelan were, under this amendment, declared to be (a) all persons who, immediately before the appointed day, were members of the Society; (b) all persons who, before that day, had been Presidents of the Society; and (c) all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society.
It is not necessary to give in detail the other provisions of the Act, except that it may be mentioned that the Act provided for vesting of all property, movable or immovable, or, belonging to the Society in the Sammelan, transferring all rights and Liabilities of the Society to the Sammelan, converting reference to the Society in any law to the Sammelan, and other similar necessary provisions.
The Act itself did not make any provision for the future membership of the Sammelan; but, under section 12(1) (a), the first Governing Body of the Sammelan was directed to make rules in respect of matters relating to membership, including qualifications and disqualifications For membership of the Sammelan.
The first Governing Body was to be constituted under section 8 and was to consist of a Chairman, a Secretary and 13 other members.
This Governing Body was to be constituted by a notification in the Official Gazette by the Central Government.
The thirteen members were to be chosen as follows : (i) one member to represent the Ministry of the Central Government dealing with education; (ii)one member to represent the Ministry of the Central Government dealing with finance; (iii)not more than three members from among the former Presidents of the Society; and (iv)the remaining number from among persons who are, in the opinion of the Central Govern 846 ment, eminent in the field of Hindi language or Hindi literature.
It was this first Governing Body which was to make rules on all matters relating to membership of the Sammelan under section 12 (1 )(a) of the Act.
These rules were not have effect until they were approved by the Central.
Government and were published by the first Governing Body in such manner as the Central Government may, by order, direct.
A copy of the rules was also to be laid before each House of Parliament.
Counsel for respondent No. 1 placed before us a copy of the rules which, according to him, have been made by the first Governing Body with the approval of the Government and have been published as required.
The Rules come into force on 1st of February, 1971.
The petition under article 32, and the petition under article 226, out of which the civil appeal arises, were both moved much earlier and long before these Rules were framed.
These petitions challenged the validity of the Act, without taking into account the actual Rules framed, mainly on the ground that he Act had interfered with the right of the petitioners to form association Linder article 19(1)(c) of the Constitution and was not protected by article 19(4).
In the petition before the Allahabad High Court, the Court held that, since all the members of the Society had also become members of the Sammelan under the Act, there was no infringement of the right to form association, so that the Act could not be declared invalid on that ground.
The writ petition in this Court has been filed by only one member of the Society, while the petition in the High Court and the appeal against the judgment of the High Court, which is before us, were filed by the original Hindi Sahitya Sammelan as one party and 72 members of that Sammelan joining as other petitioning parties. 'In the civil appeal, thus, the grievance that the Act ha$ infringed the fundamental right has been put forward both by the Society itself as well as by 72 of its members, including members of the Working Committee and the Governing Body of the society.
They have all come up to this Court against the decision of the High Court in this appeal by special leave.
In the counter affidavits filed on behalf of the respondents in the writ petition before the High Court as well as in the writ petition in this Court, the position taken up was that the Act, in fact, does not deprive the Society and its members of any rights which they had under the constitution of the Society and did not interfere with their right of association inasmuch as all the members of the Society have been included as members of the Sammelan under the Act.
The High Court, in fact, dismissed the writ petition on accepting this submission put forward on behalf of the respondents.
In the arguments before us, learned counsel for 847 respondent No. 1, however, took UP a different position and urged that the Act keeps the Society in tact as it was, where a new Sammelan is constituted under the Act for the purpose of managing the institution which has been declared as an institution of national importance.
He put this aspect of the case in the forefront, but, in the alternative, he also argued the case on the basis of the position taken up in the counter affidavits in the High Court and in this Court as mentioned above.
We consider it convenient to first deal with the case as was specifically put forward in the counter affidavits.
In these counter affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the , as an insti tution of national importance, Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter se between the members of the Society.
It was for this purpose that a first Governing Body was constituted to take over the management temporarily.
The Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them.
The Society was never dissolved; instead of the Society remaining a body registered under the , it was converted into a statutory Sammelan under the Act.
It, however, appears on examination of the provisions of the Act that the Sammelan under the Act is composed not only of persons, who were members of the Society, but of others who have been given the right to be members of the Sammelan without the consent of the preexisting members.
Under section 4(4) itself, as retrospectively amended in 1963, apart from persons, who were members of the Society, others, who have been made members of the Sammelan, are all persons who, before that day, had been Presidents of the Society and all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society.
These members have been added without any option being available to the existing members of the Society to elect or refuse to elect them as members which was the right they possessed under the constitution of the Society itself.
Further, under section 12 (1) (a), very wide powers were given to the first Governor Body to make rules in respect of matters relating to membership, including qualifications and disqualifications for membership of the Sammelan.
Under this power, the rules framed could make 10 L1100 SupCI71 848 provision for admission of persons as members whom the original members of the Society may never have liked to admit in their Society.
The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the Society.
Even in the Rules actually framed, there is provision for admission of members under various classes.
In addition to the persons mentioned in section 4(4) of the Act, Rule 6 proVides for membership of persons who may become Sabhapatis of the Sammelan for any annual session subsequent to the Act coming into force, and persons who may be awarded Mangala Prasad Paritoshik subsequent to the Act coming into force.
Under Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to the membership of the Sammelan on payment of Rs. 1,000/ or Rs. 300/ , as the case may be.
This admission to membership, according to the Rules, will be made by the new Karya Samiti to be elected under the Rules and not by the Working Committee of the original members of the Association.
Further, under section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceeding 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the, Central Government from among educations of repute and eminent Hindi scholars.
These 7 nominees are to be chosen by the Central Government and on becoming, members of the Governing Body, under Rule.
11 they become members of the Sammelan.
Under Rule 10, educational institutions can also be admitted as Sanstha Sadasyas of the Sammelan by the new Karya Samiti and, thereupon, a representative of each of such institution has right to participate in ' proceedings of the Sammelan, exercising all the rights of a member.
It will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under% the .
Certain persons have been added as members by the Act and by the Rules.
Admission of future members is no longer at the choice of the original members who ' had formed the Asso ciation,Persons, in whose admission as members the members of the, Society, had no hand, can become members and get the right of associating with them in the Sammelan, without the original members having any right to obecti.
this is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their Working Committee.
We are unable to agree with the High Court that the new Sammelan, as constituted under the Act, 849 is identical with the Society and that all the rights of forming an association, which were being exercised by members of the Society, have been kept in tact under the Act.
It was argued that the right guaranteed by Article 19 (1 (c) is only to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right.
It is true that it has been held by this Court that, after an Association has been formed and the right under article 19 (1) (c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire.
Those cases are, however, inapplicable to the present case.
The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated above.
The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership, they had no say.
Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders.
The right to form an association, in our opinion, necessarily, implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily, admit in the Associate on.
Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which.
takes away the membership of those who have voluntarily Joined it, will be a law violating the right to form an association.
If we were to accept the submission that the right guaranteed by article 19 ( 1 ) (c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership, either chosen by the founders or regulated by rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition.
, so that the Association formed may not be able to function at all.
The right can be effective only if it is held to include within it the right to continue the, Association with its composition as voluntarily agreed upon by the persons forming the Association.
This aspect was recognised by this Court though not in plain words, in the case of O. K. Ghosh and Another vs E. X. Joseph(").
The Court, in that case. was considering the validity of Rule 4 (B) of the Central Civil Service,,, (Conduct) Rules, 1955, which laid down that: (1)[1963] Supp 3 S.C.R. 789. 850 "No Government servant shall join or continue to be a member of any Service Association of Government servants (a)which has not, within a period of six months from its formation, obtained the recognition of the Government under the Rules prescribed in that behalf; or (b)recognition in respect of which has been refused or withdrawn by the Government under the said Rules.
" This Court held: "It is not disputed that the fundamental rights guaranteed by article 19 can be claimed by Government servants.
article 33 which confers power on the Parliament to modify the rights in their application to the Armed Forces, clearly brings out the fact that all citizens including Government servants, are entitled to Claim the rights guaranteed by article 19.
Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co employees are entitled to form Associations or Unions.
It is clear that Rule 4 B imposes a restriction on this right.
It virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said citation is withdrawn or if, after the Association is formed, no recognition is Aaccorded to it within six months.
In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Government.
If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association.
That is the plain effect of the impugned rule.
" The Court in the above passage, thus, accepted the principle that the Government servants, who may have formed an Association.
could not, be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under article 19 (1) (c).
The Court, of course, in that case, further proceeded 'to examine whether such a restriction on the right could be justified under 851 article 19(4) or not.
That case, thus, supports our view that the right to form an Association includes the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association.
This Court had also proceeded on the same basis in the case of State of Madras vs V. G. Row(1).
Though this aspect was not clearly brought out in the judgment, the point, which came up for consideration, was decided on the basis that persons forming, an Association had a right under article 19 (1) (c) to see that the composition of the Association continues as voluntarily agreed to by them.
That decision was given in an appeal from a judgment of the High Court of Madras reported in V. G. Row,v.
The State of Madras(2).
In the High Court, this principle was clearly formulated by Rajamannar, C.J., in the following words : "The word "form" therefore, must refer not only to the initial commencement of the association, but also to the continuance of the association as such.
" The Act, insofar as it interferes with the composition of them Society in constituting the Sammelan, therefore, violates the right of the original members of the Society to form an association guaranteed under article 19(1) (c).
Article 19(4), on the face of it, cannot be called in aid to claim validity for the Act.
Under article 19(4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality.
It has not been contended on behalf of the respondent, nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Act was.
in the interests of the sovereignty and integrity of India, or in, the interests of public order or morality.
Not being protected under article 19(4), if must be held that the provision contained, in the Act for reconstituting the Society into the Sammelan is, void.
Once that section is declared void, the whole Act becomes.
ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the Act.
In view of this position emerging in the course of argu ments, Mr. B. Sen put forward an entirely different and alter native case before us which we have mentioned earlier.
position he took up was that the Act nowhere specifically lays.
down that the Society small stand dissolved, while it does constitute a new Sammelan.
According to him, therefore, it should (1) ; (2) A.I.R. 1951 Mad.
852 be inferred that, while the Society still continues to exist in its original form, the law has brought into existence a new Sammelan to which all the functions, properties, etc.
of the Society have passed under the Act.
There are three reasons why this alternative submission cannot be accepted as ensuring the validity ,of the Act.
The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and indepedent body in the form of a new Sammelan.
Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will ,arise of the Legislative competence of Parliament to pass such :a law.
Constitution of Societies is under List 11 of the Seventh Schedule.
Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan, Allahabad was an institution of national importance.
The institution that was declared was the Society itself.
It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance There can, of course, be cases where a Society may be running a college, a school or some other like institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such In the present case, what section 2 of the Act did was to declare the Society itself as an institution of national importance, and, consequently, Parliament became competent to legislate in respect of the Society.
On the interpretation now sought to, be put forward, the Act keeps that Society in tact, but deprives it of all its functions and properties and transfers them to 'a newly constituted body, viz., the Sammelan, as defined under the Aet.
This Sammelan is itself a body corporate, and that Sammelan has never been declared as an institution of national importance.
The only institutaion that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan.
Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance.
The third reason why this submission must be rejected, is that, if we were to hold that Parliament pased this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene article 19(1)(f) of the Constitution.
On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them to the new Sammelan.
This Sammelan is a new, separate and distinct legal entity from the Society.
The Society is, thus ' deprived of all its properties by the Act.
Such a law depriving the Society of its properties al 8 5 3 together cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property.
The property, under section 5 of the , vested in the Governing Body of the Society.
The members of the Governing Body, therefore had the right to hold the property under article 19(1)(f) and they having been deprived of that property have rightly approached the Courts for redress of their grievance.
In this connection counsel for the respondents relied on decision of this Court in The Board of Trustees, Ayurvedic and Unnanii Tibia College, Delhi vs The State of Delhi and Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbit College, Delhi was dissolved by the Tibbia College Act, 1952, and the property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act.
The Court held that there was no violation of the fundamental rights guaranteed by article 19(1)(f) or article 31 That decision, however, proceeded on the basis that the property of the original Society registered under the had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of 1860.
In these circumstances, it was held that no one could complain that his right to property under article 31 or his right to hold the property under article 19 (1) (f) had been violated by the impugned Act.
In the present case, the applicability of article 19(1)(f) is being considered by us on the assumption that the old Society still exists as it was and, yet all its properties have been transferred to the Sammelan.
If the Society still exists, so does its Governing Body in whom the property of the Society vested.
The Act, thus, deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act.
This total deprivation of property, instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest.
It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess.
The remedy, however, could not lie in depriving the Society of its property altogether.
Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management.
If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their (1) [1962] Suppl.
I S.C.R. 156. 854 right to hold the property, the law cannot be justified as a reasonable restriction under article 19(5).
Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid.
As a result, the petition and the appeal are both allowed with costs.
The Act is declared to be invalid, so that there will be restraint on the concerned bodies, including the Union Government, from taking or continuing any action under the Act.
There will be one hearing fee.
R.K.P.S. Petition and Appeal allowed.

summary/full:
The Hindi Sahitya Sammelan (hereinafter referred to as the Society) was a registered society founded for the development and propagation of Hindi.
After a number of years of its successful working differences arose between its members and this resulted in litigation.
in 1956 the Uttar Pradesh legislature passed the U.P. Sahitya Sammelan Act, under which a statutory body was created under the name of Hindi Sahitya Sammelan.
This act was declared void by the Allahabad High Court as violating the freedom of association guaranteed under article 19(1)(c) of the Constitution.
Thereafter, Parliament enacted the Hindi Sahitya Sammelan Act, 1962legislating under entry 63, list I of the Seventh Schedule declaringthat "the institution known as the Hindi Sahitya Sammelan is an institution of national importance".
By the Act a statutory sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan.
Under section 4(1) of the Act the Sammelan was to consist of the first members of the Society and all persons who might become members thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification.
The Act provided, for vesting in the Sammelan of all property movable or immovable, of or belonging to the society.
Petitions under Article 226 in the High Court and under Article 32 in this Court were filed challenging the constitutionality of the Act mainly on the ground that the Act interfered with the right of the petitioners to form association under Article 19(1) (c) of the Constitution.
The High Court held that since all the members of the society had also become members of the Sammelan under the Act, there was no infringement of the right to form association.
In the appeal and in the petition under Article 32, the respondent contended that having declared the old Hindi Sabitya Sammelan, which was a society registered under the as an institution of national importance, Parliament has proceeded to legislate in respect of it under entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going inter be between the members of the society; it was for this purpose that a first Governing Body was constituted to take over the management temporarily; the Act was designed to reconstitute the Sammelan in such a manner that it could worm successfully and without difficulties; and in making provisions for this purpose all members of the old society were included as members of the Sammelan 8 4 1 so that their right to form association may not be taken away from them Alternatively the respondent took up the position that the Act no where specifically laid down that the society shall stand dissolved while it constituted a new Sammelan and therefore, it should be inferred that while the society still continued to exist in its original form the law has brought into existence a new Sammelan to which all the functions and the properties etc. of the society have been passed.
Allowing the petition and the appeal.
HELD : Under section 12(1) (a) very wide powers are given to the first governing body to make rules in respect of matters relating to membership including qualifications and disqualifications for membership of the Sammelan.
Under this power the rules framed could make provisions for admission of persons as members whom the original members of society may never have liked to admit in their Society.
The number of such new members could even be so large as to leave the original members in a small minority with the result that those members.
could become totally ineffective in the society.
Thus the Sammelan which has come into existence, is not identical with the Sammelan which was a registered society under the ., This is clear interference with the right to form a society which has been exercised by the members of the Society by forming the Society with its constitution under which they were members.
The Act does not merely regulate the admi nistration of the affairs of the Society; what it does is to alter the composition of the society itself.
The result of this change in composition is that the members, who voluntarily formed the society are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say.
The right to form association necessarily implies that the persons forming the society have also the right to continue to be associated with only those whom they voluntarily admit in the association.
Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out or any law which takes away the membership of those who have voluntarily joined.
it will be a law violating the right to form association.
[847 H; 849 C E] The right guaranteed by Article 19(1)(c) cannot be confined to the initial stage of forming an association.
if it were to be so confined, the right would be meaningless because as soon as an association is formed, a law may be passed interfering with its composition so that the association formed may not be able to function at all.
The right can be effective only if it is held to include within, it the right to continue the association with its composition as voluntarily agreed upon by the persons forming the association.
And, Article 19(4), on the face of it, cannot be called in aid to claim lidity for the Act.
Therefore the provisioncontained in the Act for reconstituting the society into the Sammelan is void.
The whole Act becomes ineffective in as much as the formation of the new Sammelan is the very basis for all the other provisions in the Act.
[849 F H; 851 E] O.K. Ghosh and Another vs E. X. Joseph, [1963] SUppl.
3 S.C.R. 789; State of Madras vs V. G. Row, ; and V. G. Row vs The State of Madras, A.I.R. 1951 Mad.
147, referred to.
The alternative submission cannot be accepted as ensuring the validity of the Act.
First, the specific case taken by the respondent has been, that the Actreconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan.
Secondly, even if it be acceptedthat a new Sammelan has been constituted, the question of 842 legislative competence of Parliament to pass such a law will arise.
The Sammelan is itself a body corporate and that Sammelan has never been declared as an institution of national importance.
The only institution that was so declared was the society which, of course, earlier carried the same name as the new Sammelan.
Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which at no stage has been declared as an institution of national importance.
Thirdly, if it were to be held that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19(1)(f) of the Constitution.
The Sammelan is a new, separate and distinct legal entity from the Society.
The Society is thus deprived of all its properties by the Act and such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the society to hold the property.
The applicability of Article 19(1(f) is on the assumption that the old Society still exists as it was and yet its properties have been transferred to the Sammelan.
If the Society still exists, so does its Governing Body in whom the property of the Society vested.
The Act thus deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act.
This total deprivation of property instead of regulating the management of the affairs of the Society of its property cannot clearly be justified as a reasonable restriction in public interest.
If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as reasonable restriction under Article 19(5).
[852 B H; 853 E 854 A] The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi vs The State of Delhi & Anr.
[1962] Suppl.
I S.C.R. 156; referred to.