judgement:
ivil Appeal Nos. 815 and 1284 of 1978 Appeals by special Leave from the Judgment and order dated 20 12 1977 of the Delhi High Court in Civil Writ No. 616176.
Soli J. Sorabjee, A. C. Gulati, A. K. Ganguli, G. section Chatterjee and B. B. Swahney for the Appellant in CA No. 815/78.
Lal Narain Sinha, Att.
Miss A. Subhashini and Girish Chandra for the Appellant in CA No. 1284 and Respondent No. 1 in CA No. 815178.
The Judgment of the Court was delivered by SEN, J.
These appeals by special leave against a judgment of the Delhi High Court turn on the construction of certain provisions of the .
The appeals raise a question of far reaching importance namely, whether a raising contractor of a coal mine is an owner within the meaning of sub section
(1) of section 4 of the (hereinafter referred to as the Nationalisation Act), and if so, whether the fixed assets like machinery, plants, equipment and other properties installed or brought in by such a raising contractor vest in the Central Government.
They also give rise to a subsidiary question, namely, whether subsidy receivable from the erstwhile Coal Board established under section 4 of the upto the specified date, from a fund known as Conservation and Safety Fund, by such raising contractor prior to the appointed day, can be realised by the Central Government by virtue of their powers under sub section
(3) of section 22 of the Nationalisation Act, to the exclusion of all other persons including such contractor and applied under sub section
(4) of section 22 towards the discharge of the liabilities of the coking coal mine, which could not be discharged by the appointed day.
To make the points intelligible, it is necessary to state a few facts.
By an agreement dated February 7, 1969 made between Messrs Balihari Colliery Co. Pvt.
Ltd. (hereinafter referred to as the 'owner ' of the one part and Messrs Industrial Supplies Pvt.
Ltd. (hereinafter referred to as 'the petitioners ') of the other part, it was recited as follows: "WHEREAS the owners are the owners of a Working Colliery comprising an area of 800 Bighas more or less and known 379 as Balihari Colliery particularly described in the first Schedule A hereunder written held under the lease and subleases mentioned in the said Schedule and in connection therewith have built various structures, dhewrahs coolie lines (hereinafter referred to as the said buildings) and also installed and put up various machinery, plants, tools, implements and utensils (hereinafter referred to as the said machinery therein; AND WHEREAS the owners have appointed INDUSTRIAL SUPPLIES PRIVATE LIMITED as Managing Contractor of their said colliery and the said Managing Contractor has agreed to act as such Managing Contractor for the period and upon the terms and conditions herein contained:" Under the said agreement the petitioners were appointed to be the Managing Contractors of Kutchi Balihari Colliery for a period of 20 years.
Under cl. 7(a) the petitioners were required at their own cost to install fixed assets like equipment, machinery and plants and also invest in the form of current assets like stores in the said colliery and to work the same as raising contractors.
By cl.
7(b) the additional machinery so installed and the chattels and utensils so brought in by the petitioners were to remain the property of the petitioners absolutely and on the determination of the agreement they were entitled subject to the provisions of cl. 9, to remove such additional fixed assets and current assets.
Clause 9 gave an option to the owners to purchase the additional machinery, chattels and utensils referred to in cl. 7.
Clause 25 of the agreement is material for our purposes and it reads: "25.
That in case the said colliery is nationalised these presents shall stand determined and all moneys then due and owing by the owners to the Managing Contractor or by the Managing Contractor to the owners under the provisions hereof shall at once become due and payable by the owners to the Managing Contractor or by the Managing Contractor to the owners as the case may be.
If as result of such nationalisation the machinery, chattels and utensils installed at and/or brought into the said colliery by the Managing Contractor under the provisions of clause 7 of these presents or any one or more of them or the buildings and structures created by it at the said colliery under the provisions of clause 8 of these presents are taken over by the authorities concerned then and in such event the Managing Contractor shall be entitled to compensation payable for or attributable to the said machinery, chattels and utensils and the buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery.
" 380 Under the said agreement, the petitioners installed from time to.
time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said colliery and brought in various current assets and movables for the efficient working of the said mine.
The petitioners were also raising contractors in respect of another coking coal mine known as 'Khas Dharmaband Colliery ' owned by Messrs Khas Dharmaband Colliery Co. Pvt. Ltd., subsequently known as 'New Dharmaband Colliery '.
They had similarly brought over various assets including stores which were being used in the said colliery.
Under an agreement of October 1969, the New Dharmaband Colliery was brought over by Messrs Sethia Mining & Mfg. Corporation Ltd. An inventory was prepared of the assets like plants, machinery and stores belonging to the petitioners which were lying in the colliery, the value of which was approximately Rs. 1,21,000, On October 171 1971, the resident promulgated the Coking Coal Mines (Emergency provisions) ordinance 1971 to provide for .
the taking over by the Central Government, in the public interest of the management of 214 coking coal mines and 12 coke oven plants, including the coal mines in question, pending nationalisation of such mines.
The ordinance was replaced by the .
Thereafter, Parliament enacted the to complete the process of nationalisation of the coking coal mines and coke oven plants.
It was entitled as 'An Act to provide for the acquisition and transfer of the right, title and interest of the owners of the coking coal mines specified in the First Schedule and the right, title and interest of the owners of such coke oven plants as are in or about the said coking coal mines with a view to reorganising and reconstructing such mines and plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the iron and steel industry and for matters connected therewith or incidental thereto ', "Appointed day" under section 2(a) of the was October 17, 1971, while that under section 3(a) of the , is May 1, 1972.
According to the petitioners, the total value of the fixed and current assets and movables of Kutchi Balihari Colliery taken over by the Central Government on October 17, 1971 was to the tune of Rs. 11,85,591.00.
As regards New Dharmaband Colliery they allege that between October 1969 and October 17, 1971, Messrs Sethia Mining 381 & Mfg. Corporation Ltd., had utilised some of the stores lying in the colliery to the extent of Rs. 50,000.00 and the balance of the stores lying in the colliery as on October 17, 1971 was approximately Rs. 72,000.00.
Since April 1969 when the petitioners became raising contractors of Kutchi Balihari Colliery and until October 17, 1971 when the management of the said colliery was taken over by the Central Government, the petitioners allege that they had undertaken, at their cost, operations for sand stowing and hard mining and had accordingly submitted bills to the Coal Board established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952 for subsidy through the owners from time to time.
As on October 17, 1971 the amount of subsidy payable to them was about Rs. 4,50,000.
On May 5, 1976 the petitioners filed a Writ petition in the Delhi High Court seeking a declaration that sub section
(1) of section 4 does not provide for the acquisition of the right, title and interest of the petitioners inasmuch as being raising contractors they were not an owner within the meaning of section 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants and equipment installed in the two mines and also to remove the movables and current assets thereof like furniture, stores, etc.
and were further entitled to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board.
They, accordingly, sought a writ or direction in the nature of mandamus requiring the Central Government to return the assets like machinery, plants, equipment and other assets and movables and all amounts collected by way of subsidy or other dues, or in any event pay Rs. 16,35,591 with interest thereon from May 1, 1972 till the date of payment.
The High Court substantially disallowed the claim of the petitioners, holding that they fall within the meaning of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the and that as such the various machinery, plants, equipment and other filled assets, current assets and movables belonging to them lying in the two coal mines were included in the expression "mine" as defined in section 3(i) of the Nationalisation Act, and therefore, the right, title and interest of the petitioners therein stood vested in the Central Government under sub section
(1) of section 4 free from all incumbrances.
It, however, held that the amount of subsidy of Rs. 4,50,000 receivable from the Coal Board by way of reimbursement towards cost of sand stowing and hard mining operations carried on by the petitioners, could not be treated to be as an "amount due to the coking coal mine" within sub section
(3) of section 22 and, therefore, could not be 382 utilised by the Central Government under sub section
(4) of section 22 for discharge of the liabilities of the coking coal mine.
It was contended by the petitioners that they were neither the owners nor immediate occupiers or managing contractors of the coal mines in question, but were merely raising contractors thereof and, therefore, they did not come within the purview of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the .
It was, therefore, said that the plants, equipment and machinery and other assets, and current assets and movables belonging to them as on October 17, 1971 could not, and did not, vest in the Central Government under sub section (1) of section 4 of the Nationalisation Act.
It was urged that the High Court was in error in construing the definition of the term 'owner ' as defined in section 2(1) of the so as to include a raising contractor, by laying emphasis on the words 'as if he were ' in the last sentence of the definition, and particularly so, because the Act itself, separately and/or clearly distinguishes between an 'owner ' and a 'contractor '.
It was further contended that due to the absence of the word 'includes ' in the last sentence, in the definition of 'owner ' in section 2(1) of the , a 'contractor ' cannot be treated to be an 'owner '.
It was said that the object of the fiction in section 2(1) of the was for the limited purpose of making such a raising contractor responsible for the due observance of the provisions of that Act and such a deeming provision could not be invoked for construing the purpose and object of the Nationalisation Act which were different, i.e., for the purpose of acquiring machinery, plants and equipment and other assets belonging to such raising contractor, lying within the mine, under sub section
(1) of section 4 of the Act.
We are afraid, we cannot accept these contentions.
The construction that is sought to be placed on the definition of 'owner ' in section 3(n) of the Nationalisation Act read with section 2(1) of the , upon the basis of which the argument proceeds would, if accepted, frustrate the very object of the legislation.
The Nationalisation Act provides by sub section
(1) of section 4 that the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule, on the appointed day, i.e., on October 17, 1971 shall stand transferred to and shall vest absolutely in the Central Government free from all incumbrances.
In the Nationalisation Act, 'owner ' is defined in section 3(n) thus: "3(n) "owner", (i) when used in relation to a mine, has the meaning assigned to it in the ; 383 (ii) when used in relation to a coke oven plant, means any person who is the immediate proprietor or lessee or occupier of the coke oven plant or any part thereof or is a contractor for the working of the coke oven plant or any part thereof ;" Section 2(1) of the reads as follows: "(1) "owner", when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver and in the case of a mine owned by a company, the business whereof is being carried on by a managing agent, such managing agent; but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine; but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability;" In support of the contention that the petitioners could not be regarded as occupiers and, therefore, do not come within the definition of 'owner ' under section 3(n) of the Nationalisation Act, reliance was placed on the decision in The Chief Inspector of Mines & Anr.
vs Lala Karamchand Thapar etc.
While a raising contract may not be a lease and, therefore the contractor not a lessee, we find no reason why he should not be treated to be an occupier within the meaning of section 3(n).
Under the terms of the agreement dated February 7, 1969, the petitioners acquired complete dominion and control over the colliery in question for a period of 20 years.
It is common ground that the said agreement was by a registered instrument and even though this perhaps may not amount to a leases there can be no doubt that it was a licence coupled with a grant.
The petitioners were by virtue of cl. 7(a} of the agreement entitled to install at their own cost such additional machinery, tramways, ropeways etc.
, in connection with the transport of coal raised and to bring in chattels for the purpose of discovery and removal of coal.
They were entitled under cl 7(b} to remove such additional machinery that may be installed and such chattels and utensils as may be brought in by them to the said collieries unless of course, the owners exercised their option to purchase the same under cl. 9.
In view of these terms, it is futile to contend that the petitioners were not occupiers of the mines.
They had the actual use and occupation of the coal mine in question.
384 We have carefully gone through the judgment in Lala Karamchand Thapar 's case and, if we may say so, the decision is distinguishable on facts.
There the question was whether the managing agent of a company owning a colliery was an occupier of the colliery, and the Court negatived this observing: "From the very collocation of the words "immediate proprietor, or lessee or occupier of the mine", it is abundantly clear that only a person whose occupation is of the same character, that is, occupation by a proprietor or a lessee by way of possession on his behalf and not on behalf of somebody else is meant by the word "occupier" in the definition.
Thus, a trespasser in wrongful possession to the exclusion of the rightful owner would be an occupier of the mine, and so be an "owner" for the purpose of the Act.
" The Court further observed: "That must be because possession on behalf of somebody else was not in the contemplation of the legislature such "occupation" as to make the person in possession an "occupier" within the meaning of section 2(1)." These observations, if we may say so, with great respect, are rather widely stated.
They are indeed susceptible of a construction that a raising contractor being in possession on behalf of a proprietor or the lessee of a mine in possession is not an 'occupier ' within the meaning of section 3(n) of the Nationalisation Act read with section 2(1) of the .
We are quite sure that was not the intention of the Legislature.
There is no reason why the word 'occupier ' should not be understood to have been used in its usual sense, according to its plain meaning.
In common parlance, an 'occupier ' is one who 'takes ' or (more usually) 'holds ' possession: Shorter oxford Dictionary, 3rd edn., vol. 2, p. 1433.
In the legal sense, an occupier is a person in actual occupation.
The petitioners being raising contractors were, under the terms of the agreement dated February 7, 1969 entitled to, and in fact in actual physical possession and enjoyment of the colliery and were, therefore, an occupier thereof.
That being so, the petitioners being in possession, in their own right, by virtue of the substantial rights acquired by them under the agreement, were not in possession on behalf of somebody else and, therefore, the decision in Lala Karamchand Thapar 's case cannot apply.
It is next urged that the Nationalisation Act itself makes a distinction between an 'owner ' and a 'managing contractor ', there being separate provisions made with regard to both.
It is said that in view of this.
there is no legal justification to read the word 'contractor ' 385 for the word 'owner ' in sub section
(1) of section 4.
The contention is wholly misconceived and cannot be accepted.
The Nationalisation Act no doubt separately defines 'owner ' and 'managing contractor '.
The definition of managing contractor in section 3(i) reads: "3(i) "managing contractor" means the person, or body of persons, who, with the previous consent in writing of the State Government has entered into an arrangement, contract or under standing, with the owner of a coking coal mine or coke oven plant under which the operations of the coking coal mine or coke oven plant are substantially controlled by such person or body of persons ," The words and expressions used and defined in the Act have the meaning, respectively, assigned to them 'unless the context otherwise requires '.
The expression 'managing contractor ' finds place in Chapter VI, which deals with the power, functions and duties of the Commissioner of Payments appointed under sub section
(I) of section 20, for the purpose of disbursing the amounts payable to the owner of each coking coal mine or coke oven plant.
It appears in sub section
(2) of section 26, which provides: "(2) In relation to a coking coal mine or coke oven plant, the operations of which were, immediately before the 17th day of October, 1971 under the control of a managing contractor, the amount specified in the First Schedule against such coking coal mine or in the Second Schedule against such coke oven plant shall be apportioned between the owner of the coking coal mine or coke oven plant and such managing contractor in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, by such proportions as may be determined by the Court.
" Under cl. 25 of the agreement, it was agreed upon between the parties that (i) in the event the colliery was nationalised, the agreement shall stand determine and all moneys then due and owing by the owners to the petitioners and vice versa shall at once become due and payable, and (ii) in the event of such nationalisation, if the machinery, .
chattels and utensils installed at and/or brought into the colliery by the petitioners or the buildings and structures erected by them are taken over by the authorities, they shall become entitled to compensation payable for or attributable to the said machinery, chattels and utensils and buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery.
The expression 'managing contractor ' as defined in section 3(i) of the Nationalisation Act comes into play only 386 for the purpose of appointment of compensation under sub section
(2) of section 26.
The submission that the term 'owner ' used in sub section
(1) of section 4 of the Nationalisation Act excludes a 'managing contractor ' is against the scheme of the Act.
The term 'owner ' in sub section
(1) of section 4 of the Act must bear the meaning given in the definition contained in section 3(n).
It was asserted that the petitioners were really not the managing contractors but wrongly described as such in the agreement.
A bare perusal of the agreement would, however, be destructive of the argument.
It is a document drawn consisting of 46 clauses defining the mutual rights and obligations of the parties.
, The petitioners were conferred all the rights to work the mine for winning, getting and raising coal.
The so called 'remuneration ' payable to them was virtually the price of coal supplied leaving to the owners a margin of profit.
Even the liability for payment of rent, royalty, taxes etc.
, in relation to the mine was saddled on the petitioners.
In view of these terms, they cannot be heard to say that they were not the managing contractors though they have been so described in the preamble to the agreement and in each and every clause thereof.
It is, however, asserted that the functions of a managing contractor.
namely, appointment of managers, were not entrusted to the petitioners but were actually assigned to Messrs Madhusudan & Co. under a separate agreement.
The submission is spelled out from the terms of cl. 11 relating to employment of workers of the colliery.
All that was done was that the erstwhile owners had by this clause reserved to them selves the power to appoint managers.
Such reservation does not take the petitioners out of the definition of managing contractor under 6.
3(i) of the Nationalisation Act, as they still had substantial control over the mine.
The plea that not they but someone else was the managing contractor is only an after thought.
The petitioners having bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub section
(1) of section 4.
as they come within the purview of the definition of 'owner ' in section 3(n) of the Nationalisation Act.
It is then argued, in the alternative.
that the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with s: 2(1) of the does not in any event, include a raising contractor.
It is not suggested that a raising contractor does not come within the description of a contractor in section 2(1), but it is urged that the word 'includes ' is not there.
There was no need for Parliament to insert the word 'includes ' because of the words 'as if he were '.
Although the term 'owner ' in common parlance, in its usual sense, connotes ownership of a mine.
the term has to be understood in the legal sense, as defined.
387 Parliament, with due deliberation, in section 3(n) adopted by incorporation the enlarged definition of owner in section 2(1) of the to make the Nationalisation Act all embracing and fully effective.
The definition is wide enough to include three categories of persons: (i) in relation to a mine, the person who is the immediate proprietor or a assesses or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent.
such managing agent.
Each is a separate and distinct category of persons and the concept of ownership does not come in.
Then come the crucial last words: "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability".
The insertion of this clause is to make both the owner as well as the contractor equally liable for the due observance of the Act.
It is needless to stress that the contains various provisions for the safety of the mines and the persons employed therein.
In the case of a mine, the working whereof is being carried on by a raising contractor, he is primarily responsible to comply with the provisions of the Act.
Though a contractor for the working of a mine or any part thereof is not an owner, he shall be subject to the provisions of the Act, in the like manner 'as if he were an owner ' but not so AS to exempt the owner from any liability.
It is now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created.
After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction.
The legal effect of the words "as if he were" in the definition of owner in section 3(n} of the Nationalisation Act read with section 2(1) of the is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so.
The oft quoted passage in the judgment of Lord Asquith in East End Dwelling Co. Ltd. Fine bury Borough Council brings out the legal effect of a legal fiction in these words: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have 388 flowed from or accompanied it.
The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
" The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein.
It provides by sub section
(1) of section 4 that on the appointed day, the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all incumbrances.
Now unless the term 'owner ' in sub section
(1) of section 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated.
It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, i.e., by employment of raising contractors.
Any other construction would lead to a manifest absurdity and attribute to Parliament a result which it never intended.
It would result in the contractors escaping from the consequences of vesting under sub section
(1) of section 4 of the Act and permit them to dismantle and remove the additional machinery, plants and equipment which were being utilised for the working of mines.
This brings us to the next question, namely whether the amount of Rs. 4,50,000 receivable by the petitioners from the erstwhile Coal Board, was an amount impressed with a trust, being advanced for a specific purpose, i.e., for the purpose of stowing and other safety operations and conservation of coal mines, and could not be regarded as "any money due to the coking coal mines" within sub section
(3) of section 22 of the Act and the Central Government, therefore, could not appropriate the amount of subsidy and utilize it under sub section
(4) thereof for meeting the liabilities of the coking coal mines.
The conclusion of the High Court upon this point is contained in the following passage: "The amount of subsidy due could not be current assets of the coking coal mine because it had to be utilised for a certain definite specified purpose.
In the instant case cost of stowing and other safety operations had already been incurred and the subsidy was by way of reimbursement.
The amount was already identified as belonging to the petitioner and is on the analogy or in the nature of trust money impressed with a specific purpose." 389 In reaching that conclusion, it relied upon the decisions in Barclays Bank Ltd. vs Quistclose Investments Ltd. and Coal Products Private Ltd. vs I.T.O., which are both distinguishable.
They enunciate the principle that when property is entrusted for specific purpose, it is clothed with a trust.
It seems somewhat illogical that the equitable doctrine of resulting trust should be brought into play in the construction of the provisions of a legislation dealing with nationalisation like the .
In Barclays Bank Ltd. vs Quistclose Investments Ltd., the House of Lords dealt with a question as to rights of set off following the liquidation of a company.
The principle was applied to a sum of money lent to a company (later wound up) for a specific purpose, viz., payment of dividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender.
In Coal Products Private Ltd. vs I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income tax Department by way of garnishee proceedings under section 226(3)(i) of the Income tax Act, 1961.
There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952.
There were conditions attached to the grant under r. 54.
There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine.
The High Court quashed the garnishee notice on the ground that the Income tax Department was not entitled to any part of the money for the payment of income tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety operations and conservation of coal mines.
F Two questions arise, both of which must be answered in favour of the Union of India.
The first is whether the payment of Rs. 4,50,000 was advanced for a special purpose, i.e., as 'assistance ' under r. 49 and not 'by way of reimbursement '.
The second is whether, in that event, the money having been advanced for a special purpose, and that being so clothed with a specific trust, it could not be adjusted by the Central Government under sub section
(4) of section 22 of the Nationalisation Act towards the liabilities of the coking coal mines.
It is not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board.
On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H 390 cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out.
If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub section
(3) of section 22.
The payment in question was not by way of 'assistance ' receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines.
In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement.
The payment of Rs. 4,50,000 was, therefore, one to reimburse for the expenditure already undertaken.
Indubitably, the amount in dispute was payable 'by way of reimbursement '.
The petitioners were, therefore, free to utilise the money in any manner they liked.
In other words, the grant was not impressed with any particular purpose or purposes.
Even if the subsidy receivable from the erstwhile Coal Board was by way of 'assistance ', the amount of Rs. 4,50,000 was recoverable by the Central Government in whom the coking coal mines have vested under sub section
(1) of section 4 of the Nationalisation Act and not by the petitioners.
It is, however, needless to stress that if the grant were by way of 'assistance ' under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event.
be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.
For these reasons, the judgment of the High Court partly allowing the claim of the petitioners with regard to the subsidy amount of Rs. 4.50,000 is set aside, and the writ petition is dismissed: Accordingly, the appeal of the Union of India is allowed and that of the Industrial Supplies Pvt. Ltd., is dismissed with costs throughout.
Civil Appeal No. 815/78 dismissed, and Civil Appeal No. 1284/78 S.R. allowed.

summary/full:
The appellants by virtue of two agreements with M/s. Balihari Colliery Co. Pvt. Ltd. and with New Dharamband Colliery Ltd. became the managing contractor for a period of 20 years of the former and the raising contractor of the latter.
In terms of the said agreements, they installed from time to time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said collieries.
These two collieries were taken over by the Central Government under its management with effect from October 17, 1971, by virtue of the powers vested in it under the .
The appellants aggrieved by the said taking over filed a writ petition in the Delhi High Court seeking a declaration that subs.
(I) of section 4 of the Nationalisation Act does not provide for the acquisition of the right, title and interest inasmuch as being raising contractors they were not covered by the term 'owner ' within the meaning of section 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants etc.
They also sought to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board.
The High Court substantially disallowed the claim of the appellants holding that they fall within the meaning of term 'owner '.
It, however, held that the amount of subsidy of Rs. 4,50,000 receivable from the Coal Board by way of reimbursement towards the cost of sand stowing and hard mining operations carried on by them could not be treated to be as an amount due to the coking coal mine within the meaning of sub section
(3) of section 22 and, therefore, could not be utilised by the Central Government under sub section
4 of section 22 for discharge of the liabilities of the coking coal mine.
Hence, the two appeals one by the appellants and the other by the Union of India.
Allowing the Union of India 's appeal only and dismissing the Company 's appeal, the Court 376 ^ HELD: (I) The appellants do fall under the purview of the term "owner" in section 3(n) of the Nationalisation Act read with section 2 of the and any other construction as sought to be placed on the definition would frustrate the very object of the legislation and the intention of the Legislature.[387 F] Parliament, with due deliberation.
in section 3(n) adopted by incorporation the enlarged definition of the "owner" in section 2(1) of the to make the Nationalisation Act all embracing and fully effective.
The definition is wide enough to include three categories of persons (i) in relation to a mine.
the person who is the immediate proprietor or a lessee or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent, such managing agent.
Each is a separate and distinct category of persons and the concept of ownership docs not come in.
The insertion of the clause "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability" is to make both the owner as well as the contractor equally liable for the due observance of the Act Tn the case of a mine the working whereof is being carried on by a raising contractor he is primarily responsible to comply with the provisions of the .
Though a contractor for the working of a mine or any part thereof, is not an owner he shall be subject to the provisions of the in the like manner "as if he were a owner" but not so as to exempt the owner from any liability.
[387 A D] The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein.
The term 'owner ' in sub section
(l) of section 4 is to be given an extended meaning so as to include a contractor for the working of a mine or any part thereof.
It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, that is, by employment of raising contractors.
Any other consumption would lead to a manifest absurdity and attribute to Parliament a result which it never intended.
It would result in the contractors escaping from the consequences of vesting under sub section
(I) of section 4 of the Act and permit them to dismantle and remove the additional machinery, plants and equipment which are being utilised for the working of mines.
[388 B D] (2) The word 'occupier ' in 5. 3(n) of the Nationalisation Act should be understood to have been used in the usual sense according to its plain meaning.
In the legal sense an occupier is a person in actual occupation.
The appellants being "raising contractors" were under the terms of the agreement dated February 7, 1969 entitled to and were in fact in actual possession and enjoyment of the colliery and were, therefore, an occupier thereof.
That being so, the appellants in possession in their own right by virtue of their substantial right acquired by them under the agreement were not in possession on behalf of somebody else.
[384F G] The Chief Inspector of Mines and Anr.
vs Lala Katarnchand Thaper etc.
; , distinguished.
(3) The Nationalisation Act, no doubt, separately defines 'owner ' and 'managing contractor '.
The words and expressions used and defined in the Act have the meaning respectively assigned to them "unless the context otherwise requires".
Therefore, the expression 'managing contractor ' as defined in section 3(1) of the Nationalisation Act comes into play only for the purpose of apportionment 377 of compensation under sub section
(2) of section 26.
To exclude a "managing contractor" from term 'owner ' used in sub section
(I) of section 4 of the Nationalisation Act would be against the scheme of the Act.
The term 'owner ' in sub section
(I) of section 4 of the Act must bear the meaning given in the definition contained in section 3(n).
Any reservation under any process of any agreement between the parties to reserve the power to appoint managers, does not take the appellants out of the definition of 'managing contractor ' under section 3(1) of the Nationalisation Act since they still had substantial control over the mine.
The plea that not they but someone else was the managing contractor is only an after thought.
The appellants who have bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub section
(I) of section 4 of the Act, as they come within the purview of the definition of 'owner ' in section 3(n) of the Nationalisation Act.
[384 H, 385 C, 385 H 386 A; 386 E F] (4) When a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created.
After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction.
The legal effect of the words "as if he were" in the definition of owner in section 3(n) of the Nationalisation Act read with section 2(1) of the is that although the petitioners were not the owners, they being the contractors for the working of the mines in question, were to be treated as such though, in fact, they were not so.
[388 E G] East End Dwelling Co. Ltd. vs Finebury Borough Council, L.R. [1952].A.C. 109, p. 132; quoted with approval.
(5) The bills for the subsidy were for the cost of stowing and connected safety operation and all hard mining operations which the appellants had already prior to October 17, 1971 at their own cost, carried out.
If that be so, the amount of subsidy in question was like any other amount due to the coking coal mines prior to the appointed day and, therefore, did not fall outside the purview of sub section
(3) of section 22.
[389 H 390 A] The payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out the stowing and other safety operations and conservation of the coal mines.
The payment of Rs. 4,50,000 claimed by the appellants was, therefore, one to reimburse for the expenditure already undertaken.
Indubitably, the amount in dispute was payable 'by way of reimbursement".
The appellants were, therefore, free to utilise their money in any manner they liked.
In other words, the grant was not impressed with any particular purpose or purposes.
[390 B C] (6) Even if the subsidy receivable from the erstwhile Coal Board was by way of 'assistance ' the amount of Rs. 4,50,000 was recoverable by the Central 6 Government in whom the coking coal mines have vested under sub section
(1) of section 4 of the Nationalisation Act and not by tho appellants.
If the grant were by way of assistance under rule 49 of the Coal Mines (Conservation and Safety) Rules 1952, the grant being conditional, the Central Government would in that event, be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted namely, for the purposes of stowing or other safety operations and conservation of coal mines.
[390 D E] H Barclays Bank Ltd. vs Quistclose Investments Ltd., L.R. [1970] A.C. 567, Coal Products Private Ltd. vs Income Tax Officer explained and distinguished.


judgement:
Petition Nos. 841 and 728/1980.
(Under Article 32 of the Constitution.) R. section Sharma and section M. Ashri for the Petitioner in WP Nos. 841 and 728/80.
K. Parasaran, So].
B. P. Maheshwari and Suresh Seth for the RR in WP Nos. 841 and 728.
The Judgment of the Court was delivered by KRISHNA IYER, J.
We have disposed of today applications from cycle rickshaw pliers of Amritsar Municipality where a scheme has been worked out to help them become owners of cycle rickshaws.
A 374 similar scheme, says the Solicitor General appearing for the Delhi Administration, will be extended to the Delhi territory.
We, therefore, annex a copy of the judgment in Writ Petitions Nos.
839 of 1979 and 563 of 1979 Azad Rickshaw Pullers Union, Amritsar and others vs State of Punjab & others and Nanak Chand and others vs State of Punjab and others, respectively to this judgment.
There is another problem which arises in these two cases and that is that the Delhi Administration has put a ceiling on the total number of cycle rickshaws permissible to be plied within its territory perhaps we do not know for certain this number may not accommodate all the applicants for cycle rickshaws applying licencees.
We are told that apart from the applicants in this Court under Article 32 of the Constitution, there are numerous petitioners who have approached the High Court of Delhi under Article 226 of the Constitution and yet others who have filed suits in civil courts for the same relief.
All that we can do is to accept the suggestion made by the learned Solicitor General that the Delhi Administration will effectively publicize and notify applications for licencees for plying of cycle rickshaws and all those who apply will be considered on their merits including length of service as cycle rickshaw pliers.
The criteria that the Delhi Administration will adopt must be reasonable and relevant; otherwise it will be open to the aggrieved parties to challenge the selection.
Likewise we do not want to fetter the rights of parties aggrieved if the ceiling upon the total number of rickshaws permissible within the Delhi territory is arbitrary.
On the basis of reasonable criteria the Delhi Administration will direct the concerned Municipal authorities to grant licences for plying rickshaws and if the applicants so chosen are not owners themselves all the facilities we have indicated in the Amritsar order will be extended to such cycle rickshaw pliers fixing reasonable time limits.
With these directions we dispose of the applications.
Until fresh licences are issued by the Delhi Administration and the Municipal authorities the present petitioners will be allowed to ply their cycle rickshaws.

dataset_name: IN-Abs

summary/full:
The Delhi Municipal Corporation Which framed the Cycle Rickshaw Bye Law of 1960 under section 481 of the Delhi Municipal Corporation Act, 1957 amended Bye law 3 in 1976 to provide that 'no person shall keep or ply for hire a cycle rickshaw in Delhi unless he himself is the owner thereof and holds a licence granted in that behalf '.
In writ petitions challenging the provision: ^ HELD: In Azad Rickshaw Pullers Union Amritsar & others vs State of Punjab & others, [1981] I SCR 366 a scheme had been worked out to help the rickshaw pliers of Amritsar Municipality to become owners of cycle rickshaws.
[374 A B] 2.
The Delhi Administration will effectively publicize and notify applications for licences for plying of cycle rickshaws and all those who apply will be considered on their merits including length of service as cycle rickshaw pliers.
The criteria that the Delhi Administration will adopt must be reasonable and relevant.
[374 D] 3.
On the basis of reasonable criteria the Delhi Administration will direct the concerned Municipal authorities to grant licences for plying rickshaws and the applicants so chosen are not owners themselves all the facilities indicated in the Amritsar order will be extended to such cycle rickshaw pliers fixing reasonable time limits.
[374F]


judgement:
ition No. 449 of 1980.
(Under Article 32 of the Constitution) Soli J. Sorabjee, M.G. Karmali, Vineet Kumar and Mukul Mudgal for the Petitioner.
J.L. Nain and M.N. Shroff for the Respondent.
The Judgment of the Court Was delivered by, SARKARIA, J.
This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus.
On January, 31, 1980, an order of detention, dated January 30, 1980 under Section 3 (1) of the (for short, called the COFEPOSA), issued by the second respondent, Shri P.M. Shah, Deputy Secretary to the Government of Gujarat, Home Department, was served on Lallu Jogi Patel (hereinafter referred to as the 'detenu ').
The Order was expressed in the name of the Governor of Gujarat.
On the same date (January 31, 1980), the grounds of detention were served on the detenu.
356 The grounds of detention served on the detenu are very elaborate and detailed.
They also contain the introductory background including the history of the detenu.
It is stated herein that the detenu was previously detained by an order, dated September 1974 of the Government of India, under Section 3 of the Maintenance of Internal Security Act (MISA).
On the repeal of MISA and the commencement of COFEPOSA, a fresh order, dated December 19, 1974, under the COFEPOSA, was served on the detenu.
The detenu 's writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6, 1976 in view of the Presidential Order, dated June 27, 1975, made under Article 359(1) of the Constitution which had suspended the rights under Articles 14, 21 and 22 of the Constitution.
The detenu was, however, released on March 21, 1977.
As stated in the 'grounds ', his activities were kept under surveillance by the Customs Department.
In or about July 1979, the detenu attempted to smuggle gold, but he was not successful.
Calls booked by the detenu to various telephone numbers of other suspected smugglers were, however, detected.
On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist watches and silver out of the country to Dubai: In pursuance of that conspiracy, on October 9, 1979, the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel "Saraswati Prasad" registered in the name of Ravia Kalan of Daman.
On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692.527 kgs.
valued at Rs. 15,65,111, were seized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara.
The occupants of the motor truck disclosed their identities as (1) Kailashchandra Shantilal Jain.
(2) Mohmed Hussain Hanif Mohmed Pathan, the driver and (3) Babukhan Istiyarkhan Ahmed Pathan, the cleaner.
all of Udaipur.
The statements of these persons recorded under Section 108 of the Customs Act and the other circumstantial evidence collected, revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy with Umar Bakshi and others.
In para 35 of the 'grounds ', it is mentioned: "The detaining authority, viz., the State Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3. 4. 6 and 30 and 357 further considered it against public interest to disclose further facts contained in various intelligence reports referred to in the aforesaid paragraphs 3, 4, 6 and 30.
" On February 15, 1980, the detenu sent a letter.
through the Superintendent Jail, requesting for the supply of copies of statements and documents relied upon in the grounds of detention.
According to the counter filed by Shri Shah, Deputy Secretary to Government of Gujarat, this letter was received by the State Government on February 18, 1980.
The State Government then on February 22, addressed a letter to the Sponsoring Authority (Collector of Customs.
Ahmedabad, enquiring whether furnishing copies of documents would not prejudice public interest.
On February 25, 1980, the Collector wrote back to the State Government that it was not necessary to supply the copies of the statements and documents asked for by the detenu, "as the grounds of detention served on him were quite elaborate to enable the detenu to make effective representation".
The Collector sent copies of the required statements to the State Government and the latter received the same on February 29, 1980.
On March 4, 1980, the second respondent (Deputy Secretary, Home Department) arranged personal discussion with the Collector to solicit his considered view.
As a result, on March 5, 1980, the Collector sent a letter to the State Government, stating that he had no objection to furnish the detenu with relevant documents.
As per letter, dated March 7, 1980, the Section Officer of the Home Department sent the relevant documents running into 461 pages, to the detenu through the Superintendent, District Prison, Rajkot, by registered acknowledgement due.
The said documents were received by the detenu on March 11, 1980 at Rajkot.
Thus, after excluding the time taken in transit, there was a delay of 17 days in furnishing copies to the detenu.
Earlier, on February 1, 1980, Shri P.K. Nair, Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation.
On February 12, 1980, the Secretary to Chief Minister wrote in reply to the Advocate, that his request for having an interview with the detenu was being looked into by Government with the Home Department.
This letter of the Advocate, according to the counter affidavit filed by Shri Shah, was received by him on February 30, 1980 through the Chief Minister 's 358 Secretariat.
On February 20, 1980, the State Government informed the Advocate that his request for interview with the detenu had been granted.
Mr. Soli Sorabji, appearing for the petitioner, challenges the validity of the detention of these grounds: (1) There has been impermissible delay in furnishing copies of the documents and statements relied upon in the grounds of detention.
(2) There was unreasonable delay of about 20 days in granting interview to the detenu with his lawyer, as a result of which the statutory right of the detenu under rule 14 (xii) of the Gujarat Condition of Detention (COFEPOSA) Order 1975 has been rendered meaningless.
The combined effect of these undue delays (Nos. 1 and 2) is that the detenu has been denied his constitutional right to be afforded the earliest opportunity of making an effective representation against his detention, and thus there has been a violation of Articles 21 and 22 (5) of the Constitution.
In support of Nos.
(1) and (2), the learned counsel has referred to Khudi Ram Das; Jayanarayan Sukul vs State of West Bengal; Madhav Hayawadanrao Hoskot vs State of Maharashtra and Ramchandra A. Kamat vs Union of India & Ors.
(3) The counter affidavit filed in response to the rule nisi issued by this Court, has not been affirmed by the detaining authority, but by another officer, on the basis of information derived from the record, only.
(4) Irrelevant matter has been taken into consideration.
In reply to these contentions, Mr. Nain, appearing for the respondent State has urged these points: (a) (i) The 'grounds of detention ' which were served on the detenu simultaneously with the order of detention, were elaborate and full and had apprised the detenu of all the information necessary for making an effective representation against his detention. "Grounds of detention", as held by this Court in State of Bombay vs Atma Ram Sridhar Vaidya, in Article 22 (5) means only 'conclusions of facts ' and not all the evidence or factual details considered by the 359 detaining authority in passing the impugned order.
What Article 22 (5) obligates is that the 'grounds of detention ' should be communicated to the detenu at the earliest.
This constitutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts, were served on the detenu.
(ii) In these circumstances, the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed.
Reference has also been made to Vakil Singh vs State of Jammu & Kashmir.
(b) The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way, having international ramifications.
Investigations were going on to unravel the entire gang of international smugglers in league with the detenu.
The detaining authority had, therefore, to consider as to whether the disclosure of this information asked for by the detenu, at that stage, would not be detrimental to public interest, and if so, whether it would be in the public interest to invoke Article 22 (6) of the Constitution to withhold the copies asked for by the detenu, for some time.
For this important purpose consultation with the Collector who was supervising the investigations, was necessary.
The documents of which the copies were asked for, also run into several hundred pages.
If these inter departmental consultations, preparation and despatch of the copies took 17 days, in a case where the detenu has been indulging in smuggling activity of this magnitude, the delay in supplying the copies was neither inordinate, nor unreasonable.
Reference has been made to the counter affidavit filed on behalf of respondents 1 and 2.
(c) The period of delay in allowing the detenu to interview his lawyer, was of no consequence.
First, Article 22 in terms, denies to the detenu the right to consult a lawyer or to be defended by a counsel of his choice.
This concession, has, however, been conceded by the State Government under rule 14 (xii), and there also, it is not an indefeasible right as it is contingent upon the grant of permission by the State Government.
There is a distinction between a constitutional right and a defeasible statutory right.
Delay in grant of the interview with the lawyer in no way affects the constitutional right of the detenu to make a representation.
Secondly, no written request for supply of copies of the documents, prior to February 18, 1980 had been received from the detenu and the lawyer 's request for interview with the detenu was granted on 360 February 20, 1980.
The time taken for considering the lawyer 's request for interview cannot be combined with or added to the period taken for supply of the copies.
(d) Lastly, the delay in supply of copies or in granting the interview with the lawyer did not in any way prejudice the detenu.
The copies were demanded and the interview with the lawyer were sought, professing that these were required for the purpose of making an effective representation.
But this professed purpose was merely a pretence because the copies were neither necessary, nor intended to be used for any such purpose.
Despite the grant of these twin requests and the despatch of the copies on March 7 and their receipt on March 17, the detenu never filed any representation, although the Advisory Board was to meet shortly thereafter on March 24, 1980.
Instead, he rushed to this Court and filed the writ petition on March 17, 1980.
This conduct of the detenu is not making any representation, despite opportunity, shows that no prejudice has been caused to him merely by the fact that the copies were despatched to him after 17 days of receiving his request.
(e) Under the statute even "grounds" of detention can be communicated to the detenu, in exceptional cases within 15 days of the detention.
If the "grounds" communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the "grounds" in exceptional cases.
cannot be said to be unreasonably belated.
Contentions 3 and 4 canvassed by Shri Sorabji need not detain us.
Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister.
It was authenticated and issued under the Rules of Business by Shri P.M. Shah, Deputy Secretary.
Home Department (Special) who has sworn the counter affidavit in this case.
No personal mala fides are alleged against the Minister.
It was, therefore.
not necessary for the Minister to file the counter himself.
Contention 3 is, therefore, overruled.
What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case.
We, therefore, negative contention 4, also.
Indeed, the main arguments of the learned counsel are Nos.
(1) and (2) that there has been unreasonable delay in supplying the 361 copies of the material documents and statements relied upon or referred to in the grounds of detention.
To appreciate these contentions, it is necessary to have a clear idea of the import and scope of the expression 'grounds ' used in the context of 'detention ' in Article 22 (5) of the Constitution and in sub section (3) of Section 3 of COFEPOSA.
A democratic constitution is not to be interpreted merely from a lexicographer 's angle but with the realisation that it is an embodiment of the living thoughts and aspirations of a free people.
"A constitution" said Benjamin Cardozo, "states or ought to state not rules for the passing hour, but principles for an expanding future".
The concept of "grounds", therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of liberty and fundamental freedom guaranteed in Articles 19 (1), 21 and 22 of the Constitution.
It is not necessary to notice all the numerous cases in which this expression in the context of Article 22 (5) has come up for consideration.
It will suffice to make a brief reference to a few of them which are in point.
In Golam vs The State of West Bengal, this Court held that in the context of Article 22 (5) 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact.
It means something more.
That 'something ' is the factual constituent of the 'grounds ' on which the subjective satisfaction of the authority is based.
This decision was approved by a larger Bench in Khudaram Das vs West Bengal, ibid, wherein Bhagwati, J. speaking for the Court, said: "The constitutional imperatives enacted in Article 22 (5) are two fold: (i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; and (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order.
These are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person".
It was explained that 'grounds ' under Article 22 (S) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu.
It was further clarified that such "basic facts and materials" would be different from "other particulars" spoken of in sub section (3) of Section 3 of M.I.S.A. 362 Earlier, in Prabhu Dayal Deorah etc.
vs District Magistrate, Kamrup & Ors., Mathew, J., speaking for the majority, elucidated the position, thus: "The detenu has a right under Article 22 (5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention.
That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order.
" From these decisions it is clear that while the expression "grounds" in Article 22 (IS), and for that matter, in Section 3 (3) of the COFEPOSA, includes not only conclusions of fact but also all tho 'basic facts ' on which those conclusions are founded, they are different from subsidiary facts or further particulars of the basic facts.
The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.
While the "basic facts" being integral part of the "grounds" must, according to Section 3 (3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22 (S) in Khudi Ram 's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition.
It follows, that if in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 3 (3), the omission will be fatal to the validity of the detention.
however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.
What is ' 'reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case.
In the circumstances of a given case, if the time taken for supply of suck additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds 363 it may still be regarded "reasonable".
while in the Pacts of another A case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case (Supra).
In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein.
There was thus no breach of the first constitutional imperative embodied in Article 22 (5).
The short question, therefore, for consideration is: Was the period of 17 days (exclusive of the time taken for communication in transit) for the supply of the further, particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay".
Firstly, this is a case in which the detenu was, according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way.
This silver which was the subject of this illegal activity, was of huge value.
The smuggling activity attributed to the detenu had international ramifications.
The Collector of Customs was supervising the investigations that were going on at several places, in several countries, to unearth and detect all the persons who were involved in this large scale organised smuggling of international dimensions.
It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on.
Such a query from or consultations with the Collector was necessary, to enable the detaining authority to make up its mind as to whether or not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu or any part thereof under Article 22 (6).
Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants.
The Government, therefore, summoned the Collector and discussed the matter at a high level meeting and then directed the Collector to supply the copies.
Secondly, the documents or statements of which copies were sought covered more than 461 pages.
Preparation of such a bulky record could be time consuming, if the aid of some appliance like the ZEROX machine were not available to prepare the copies by mechanical process.
364 The third reason for delay which is in the nature of and explanation given by the respondent is that it has not caused any prejudice to the right of the detenu 'to make an effective representation, since the grounds of detention communicated to him were elaborate and full.
Indeed, in the counter affidavit an alter native stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate.
Shri Nain has also tried to support this reasoning.
In view of the law enunciated in Khudi Ram 's case, ibid, this stand taken by the respondent is utterly unsustainable.
Be that as it may, in the totality of the circumstances of this present case we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation.
In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant.
The copies were despatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot.
The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980.
The detenu was also allowed by an order, dated February 20, 1980, to be interviewed by his lawyer.
Although the Government took more than two weeks to consider the lawyer 's request to interview the detenu, the fact remains that this permission was granted only two days after the despatch of the detenu 's application for obtaining copies of the additional documents or materials.
In spite of the grant of the detenu 's lawyer 's request for interview with his client and the supply of the copies, the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board.
This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenu 's right to make a speedy and effective representation.
According to the petitioner his lawyer by a letter, dated February 1, 1980, sought an interview to enable him to draft his representation.
But no application for obtaining copies of the material documents had been made by the detenu till February 15118, 1980, when it was put in a course of communication to the 365 Government, while permission for interview with the lawyer was granted on the 20th February.
In short, on a consideration of all the circumstance of this particulars case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22 (5) of the Constitution.
These, then, are the reasons in support of our order, dated May 9, 1980 by which we dismissed the writ petition.
S.R. Petition dismissed.

summary/full:
Lallu Jogi Patel was detained on January 31, 1980 by an order of detention dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat State under Section 3(1) of the and issued by the second respondent a Deputy Secretary of Government of Gujarat, Home Department.
The order was expressed in the name of the Governor of Gujarat.
On the same date, the grounds of detention were served on the detenu.
The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on February 15, 1980.
On February 1, 1980 the detenu 's Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation.
On February 20, 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted.
After consulting the Collector of Customs, the Home Department also, supplied to the detenu the documents running into 461 pages on March 7, 1980 which were actually received by the detenu on March 11, 1980.
that is after a delay of 17 days, excluding the time taken in transit etc.
Dismissing the petition, the Court ^ HELD: (1) In view of the fact that the original detention order was, in fact, passed by the Home Minister against whom no personal mala fides are alleged and the said order was authenticated and issued under the Rules of Business by the Deputy Secretary, Home Department (Special), the latter 's swearing the counter affidavit in the case is valid.
[360 F G] (2) The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the consideration of the detention order.
[360G H] (3) A democratic Constitution is not to be interpreted merely from a lexicographer 's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people.
The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub 354 section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions of liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of the Constitution.
[361 A C] (4) In Khudiram Das vs West Bengal the Supreme Court held that the constitutional imperatives enacted in Article 22(5) are two fold: (i) The detaining authority must, as soon as may be, that is, as soon as practicable after.
the detention, communicate to the detenu the grounds on which the order has been made; (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person; the grounds under Article 22(5) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue.
[361 D G] (5) While the expression "grounds" in Article 22(5), and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the "basic facts" on which those conclusions are founded, they are different from subsidiary facts or further particulars or the basic facts.
The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important.
While the "basic facts" being integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudi Ram 's case, are required to be communicated to the detenu.
as soon as may be practicable, with reasonable expedition.
It follows, that it in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenue within the period specified in Section 3(3), the omission will be fatal to the validity of the detention.
If, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.
What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case.
In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the tacts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case.
[362 C H, 363 A] In the instant case there is no breach of the first constitutional imperative embodied in Article 22(5).
The grounds supplied to the detenu were elaborate and full and contained all the "basic facts" although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein.
[363 A B] 355 (6) In the totality of the circumstances of the present case, the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation and, therefore, infraction of the constitutional imperatives in Article 22(5) of the Constitution.
Firstly, the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs.
The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies.
Secondly, the documents and statements of which the copies were sought covered more than 461 pages.
Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process.
Thirdly, in spite of the grant of the request of the detenu 's lawyer to interview the former and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has, in fact, prejudiced the detenu 's right to make a speedy and effective representation.
[363 C E, H, 364 A D G] Khudi Ram vs State of West Bengal, ; , Golam vs The State of West Bengal, W.P. 270 of 1974 dated 12 9 74; Prabhu Dayal Deorah etc.
vs District Magistrate.
Kamrup & Ors., ; referred to.


judgement:
ition Nos. 839 and 563 / 79.
(Under Article 32 of the Constitution) V. M. Tarkunde and E. C. Agarwala for the Petitioner in W. P. No. 839/79.
R. section Sharma and section M. Ashri for the Petitioner in W.P. No. 563/ 79.
O. P. Sharma and R. C. Bhatia for the RR.
No. 1 in WP Nos. 839 and 563.
Naunit Lal for RR 2 in WP Nos. 839 and 563.
The following Judgments were delivered: KRISHNA IYER, J.
The challenge in these writ petitions compel s to remind ourselves that under our constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental right.
No higher duty or more solemn responsibility rests upon this court than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution.
We might have been called upon to examine from this angle of constitutionalised humanism, the vires of the Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975) (the Act for short), designed to deliver the tragic tribe of rickshaw pullers, whose lot is sweat, toil, blood and tears, from the exploitative clutches of cycle rickshaw owners by a statutory ban on non owner rickshaw drivers.
But negative bans, without supportive schemes, can be a remedy aggravating the malady.
For, the hungry human animal, euphemistically called rickshaw puller, loses, in the name of mercy, even the opportunity to slave and live.
So, the success of such well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and 368 self ownership substituted.
Judicial engineering towards this goal is better social justice than dehumanised adjudication on the vires of legislation.
Court and counsel agreed on this constructive approach and strove through several adjournments, to mould a scheme of acquisition of cycle rickshaws by licensed rickshaw pullers without financial hurdles, suretyship problems and, more than all, that heartless enemy, at the implementation level of all progressive projects best left unmentioned.
Several adjournments, several formulae and several modi fictions resulted in reaching a hopefully workable proposal.
In fairness to the State, we must mention that when the impugned legislation was enacted Government had such a supportive financial arrangement and many rickshaw pullers had been baled out of their economic bondage.
Some hitch somewhere prevented several desperate rickshaw drivers getting the benefit, which drove them to this Court.
Anyway, all is well that ends well and judicial activism gets its highest bonus when its order wipes some tears from some eyes.
Here, the bench and the bar have that reward.
These prefatory observations explain why a pronouncement of the validity of the Act is not called for, although prima facie, we see no constitutional sin in the statute as now framed.
We now proceed to set out in our judgment the terms and conditions which will carry with them the implications and obligations of undertakings to the court so far as the parties to the case are concerned.
Counsel for the Slate assures us that the Credit Guarantee Corporation of India (Small Loans) will also abide by the court 's direction although not a party formally.
So also, the Punjab National Bank which is the financing agency parties have agreed upon.
There is no dispute.
that the purpose of the statute is obviously benign as is manifest from the Statement of objects and Reason which runs thus: In order to eliminate the exploitation of rickshaw pullers by the middlemen and for giving a fillip to the scheme of the State Government for arranging interest free loans for the actual pullers to enable them to purchase their own rickshaws, it is considered necessary to regulate the issue of licences in favour of the actual drivers of cycle rickshaws, plying within the municipal areas of the State.
Section 3 which clamps down the impugned ban read thus: 3(1) Notwithstanding anything contained to the contrary in the Punjab Municipal Act, 1911, or any rule or order or bye law made thereunder or any other law for the time being in force, no 369 Owner of a cycle rickshaw shall be granted any licence in respect of his cycle rickshaw nor his licence shall be renewed by any municipal authority after the commencement of this Act unless the cycle rickshaw is to be plied by such owner himself; (2) Every licence in respect of a cycle rickshaw granted or renewed prior to the commencement of this Act shall stand revoked, on the expiry of a period of thirty days after such commencement if it does not conform to the provisions of this Act.
The State was alive to the need for positive rescue measures beyond blanket ban on licensing and so decided to provide interest free loans to actual rickshaw pliers so that they could acquire their own rickshaws and free themselves from the coils of middlemen who preyed upon the little earnings from the toils of the pullers.
Luckily, the nationalised banks collaborated in this socially oriented Scheme called the Credit Guarantee Corporation of India (Small Loans) Guarantee Scheme, 1971.
And the Credit Corporation agreed to stand surety for the amounts to be advanced by banks to rickshaw pliers.
Certainly, the Union of Rickshaw Pliers the petitioner readily accepted the conditions designed for their deliverance since they had nothing to lose except their chains.
Thus, we have all the factors ready to cooperate in effectuating the purpose of saving the rickshaw pullers and making them owners.
All that we have to do is to set out a self working, specific scheme which makes the statutory ban not a negative, self defeating interdict, but a positive economic manumission.
All the counsel have played a role in the dynamic process which has resulted in the judicial project we are giving effect to.
Every rickshaw plier, including every petitioner, who has been a licensee in the Amritsar or other municipality within one year of the coming into force of the Act will be entitled to apply to the Municipal Commissioner within one month from today for a certificate or other document to the effect that he has been a licensee for rickshaw pulling within the aforesaid period.
The Municipal Commissioner will verify the records on receipt of such application and will grant the necessary certificate or other document within one month from the date of application.
He shall not delay the issuance of the certificate.
He shall not be over strict, but shall be liberal in the exercise of the certificate issuing power.
(Punctiliousness, especially with the weaker sections, is the path to harassment, corruption, dilatoriness and exasperation.
Welfare measures often breed de moralisation through heartless legalism and this very case is, to some extent, an illustration).
On receipt of the municipal certificate, the rickshaw puller concerned 370 will apply to the Credit Guarantee Corporation of India (Small Loans), under the Guarantee Scheme of 1971, praying to the said Corporation that it stand guarantee to the Punjab National Bank (or other schedule bank mutually agreed upon) for advance of a loan upto Rs. 900 (and in special cases for a larger sum if satisfied that the price of a cycle rickshaw is more than Rs. 900).
The Punjab National Bank (or other scheduled bank mutually chosen) will receive a sum of Rs. SO by way of deposit towards the loan to be advanced to the applicant.
The rickshaw pliers shall make this initial deposit to be eligible for the bank loan.
The balance of the loan shall be guaranteed by the Credit Guarantee Corporation of India (Small Loans) whereupon the concerned bank will advance the sum needed for the purchase of a cycle rickshaw to the manufacturer or vendor indicated by the applicant.
Thereupon, the applicant (rickshaw puller) will take delivery of the cycle rickshaw and produce the voucher evidencing purchase and delivery of the rickshaw and, if needed, produce the rickshaw for physical verification by the bank 's officials within one week of taking such delivery.
and thereafter whenever directed.
He will also sign the necessary forms and undertakings required by the bank so as to hypothecate the cycle rickshaw in favour of the bank.
So far as the payment of interest to the bank is concerned, both sides agree that it will be governed by the Scheme for advance to the cycle rickshaw pullers framed by the State Government.
The bank shall advance 95% by way of loan towards the purchase of the cycle rickshaw.
The sum of Rs. 50 to be deposited initially by the rickshaw puller is expected to cover the remaining 5 % .
The loan amount shall be repaid by the rickshaw puller concerned in 15 monthly instalments or in weekly or daily instalments so that by the end of each month 1/15th of the amount is cleared).
If there are delayed payments of instalments of loans, higher rates of interest will be recoverable from the loanee (the rickshaw pliers) as per the 1971 scheme.
The amount of interest, in case instalments are paid duly, will be met by the Government as an act of relief for the rickshaw pliers.
The rickshaw pliers shall, or purchase, hypothecate the vehicles to the bank which advances the loan and this will be an undertaking to the court.
The petitioner union will be permitted by the Municipality to set up and run a workshop for repair and allied types of work and a service station for the cycle rickshaws.
Sufficient space will be allowed in suitable places for rickshaw stands and safe keeping of rickshaw within the limitations of availability and subject to moderate charges.
A realistic understanding of the life style of rickshaw pliers in Amritsar indicates that during the agricultural season many of them 371 go to work nominating other rickshaw pliers without employment to A ply the rickshaws during that season.
The Municipal Commissioner.
if satisfied that the nomination made is bona fide, will issue licences to such surrogates or nominees of the licensed rickshaw pliers for the agricultural season.
The bank which advances the loan and the Credit Guarantee Corporation which guarantees the repayment will.
at all reasonable times, be entitled to have physical verification of the vehicles.
without interference with the occupation of the rickshaw pliers.
If group insurance of rickshaws and of the life of the rickshaw pliers is feasible, the Municipal Commissioner will work out a scheme in this behalf in consultation with the unions in the field.
Likewise.
any project whereby cycle rickshaws can be replaced by scooters by stages, will also be considered so that the rickshaw pullers of today may become scooter drivers of tomorrow owning the vehicles themselves.
It is a notorious fact that rickshaw pullers have an occupational hazard and suffer from pulmonary tuberculosis and so, the State must be deeply concerned progressively to replace rickshaw pulling with mechanical propulsion.
It would appear that short of scooters there are mechanised cycle rickshaws which are fairly inexpensive and which are being experimented with.
Such vehicles may be a boot to the miserable who now torture themselves to keep body and soul together.
After all, the quality of life of the weakest in society is the true measure of social justice.
The conditions and directions we have incorporated in this judgment shall be implemented in its true spirit and import by the State, the Municipal Corporation, the Credit Guarantee Corporation, the nationalised banks and the Union and its members.
We are happy to record our appreciation of the role of counsel and of the parties in bringing about this solution.
The State by exercising its legislative power alone, could not produce justice until this formula was hammered out.
The Court with its process of justice alone could not produce a viable project.
But now, justice and power have come together and, hopefully.
we have fulfilled the words of Blaise Pascal, "Justice without power is inefficient; power without justice is tyranny.
Justice and power must, therefore, be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.
" 372 Until fresh licences are granted to the cycle rickshaw pliers under the scheme we have incorporated in the order the present petitioners will be allowed to ply their cycle rickshaws.
The writ petitions are disposed of on the above lines.
PATHAK, J. I agree with the entire scheme of directions framed by my learned brother for the purpose of enabling the rickshaw pliers to acquire and own cycle rickshaws including the financial arrangements envisaged in the scheme, and also the making of provision for the repairs and maintenance of the cycle rickshaws.
I need add nothing more.

summary/full:
The Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975), was designed to regulate the issue of licenses to actual drivers of cycle rickshaws, plying within the municipal areas of the State.
The petitioners in their Writ Petitions challenged the Act. ^ HELD: (Per Krishna Iyer & Chinnappa Reddy, JJ.
Pathak J. agreeing with the scheme of directions framed).
The Court framed the following scheme: (a) Every rickshaw puller including every petitioner, who has been a licensee within one year of the coming into force of the Act shall be entitled to apply to the Municipal Commissioner for a certificate or other document to the effect that he has been a licensee for rickshaw pulling.
[369 F] (b) The Municipal Commissioner will verify the records and will grant the necessary certificate or other document within one month from the date of the application.
[369 G] (c) on receipt of the municipal certificate the rickshaw puller will apply to the Credit Guarantee Corporation of India (Small Loans) under the Guarantee Scheme of 1971 for advance of a loan upto Rs. 900.
[369 H 370 A] (d) The loan amount shall be repaid by the rickshaw puller in 15 monthly instalments.
If there are delayed payments of instalments of loan, higher rate of interest will be recoverable.
[370 F] (e) When the rickshaw pullers during the agricultural season go to work in their fields, they shall nominate other rickshaw pullers without employment to ply the rickshaws during that season.
The Municipal Commissioner, if satisfied that the nomination made is bona fide will issue licence to such pullers or nominees of the licensed rickshaw pullers, in the agricultural season.
[370 H 371 A] B. (I) Under the Constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental rights.
[367 E] 367 (2) No higher duty or more solemn responsibility rests upon this Court A than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution.
[F] (3) The success of well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and self ownership substituted.
Judicial engineering to wards this goal is better social justice than dehumanised adjudication on the vires of legislation.
[H 368 A]