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Ramabai Balkrishna Nene and ors. Vs. the Secretary, Urban Development Public Health and Housing Department and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1087 of 1971
Judge
Reported inAIR1977Bom367; (1978)80BOMLR108
ActsBombay Town Planning Act, 1954 - Sections 3, 4, 4(1), 7, 8, 9, 10, 10(1), 10(2) and 491(1); Constitution of India - Articles 14, 19, 21, 22, 32, 32(1), 226, 226(1), 352 and 359(1); Presidential Order - Order 19, Rules 22 and 23; Maharashtra Regional and Town Planning Act, 1966 - Sections 126(2); Land Acquisition Act - Sections 9(4); Maintenance of Internal Security Act
AppellantRamabai Balkrishna Nene and ors.
RespondentThe Secretary, Urban Development Public Health and Housing Department and ors.
Appellant AdvocateM.V. Paranjape and P.M. Pradhan, Advs. for ;V.N. Ganpule, Adv.
Respondent AdvocateC.J. Sawant, Addl. Govt. Pleader, A.M. Salik, Asstt. Govt. Pleader and N.B. Shetye, Adv. for ;Y.S. Chitale, Adv.
Excerpt:
constitution of india, articles 14, 19, 226, 227 and 359 - presidential orders issued under article 359(1) dated june 27, 1975 and january 8, 1976--proceedings pending in the high court for enforcement of fundamental rights guaranteed under articles 14 and 19 on the date of the order of the president made under article 359(1)--whether, having regard to the order of the president under article 359(1), the high court can proceed to make any enquiry or suspend the stay order granted in a writ petition challenging vires of statute for alleged violation of fundamental rights guaranteed under articles 14 and 19--precedents--guidelines for interpreting and understanding judgments of the supreme court.;it is settled law that so far as the first part of the order of the president is concerned, as.....naik, j.1. the petitioners have filed this petition under articles 226 and 227 of the constitution of india, for quashing the notification issued by the government on 7th july 1966 and 26th november 1970 under section 10 of the bombay town planning act, 1954 modifying the development plan which was proposed by the poona municipal corporation.2. the petitioners are owners of old city survey no. 906/1 situate in poona, which is to the north of laxmi road, it appears that on 28th nov. 1958, the municipal corporation of poona made a declaration of its intention of making a development plan under section 4 (1) of the bombay town planning act, 1954 and the plan was actually published as required by section 8 (1) of that act in the bombay government gazette dated 26th feb. 1959. on 30th sept......
Judgment:

Naik, J.

1. The petitioners have filed this petition under Articles 226 and 227 of the Constitution of India, for quashing the notification issued by the Government on 7th July 1966 and 26th November 1970 under Section 10 of the Bombay Town Planning Act, 1954 modifying the development plan which was proposed by the Poona Municipal Corporation.

2. The petitioners are owners of old city survey No. 906/1 situate in Poona, which is to the north of Laxmi Road, It appears that on 28th Nov. 1958, the Municipal Corporation of Poona made a declaration of its intention of making a development plan under Section 4 (1) of the Bombay Town Planning Act, 1954 and the plan was actually published as required by Section 8 (1) of that Act in the Bombay Government Gazette dated 26th Feb. 1959. On 30th Sept. 1964, the Corporation submitted a modified plan to the Government after following the requisite procedure. In the modified plan the Corporation had reserved the property comprised in city survey No. 437/C which is to the north of the petitioner's city survey No, 906, for the purpose of a play-ground. But then the Government modified that plan by its order dated 7th July 1966 whereby the Government directed that the city survey No. 437 which is to the north of petitioners' city survey No. 906 should be used as a car parking space instead of a play ground. It was further provided that with a view to have access to that car parking space from Laxmi road which goes from cast to west, the petitioner's property should be reserved as access to that parking space. This modified plan as modified by the Government under Section 10 of the Act, was in fact published in the Government Gazette on 8th July 1966.

3. On 11th Jan, 1967, the Maharashtra Regional and Town Planning Act, 1966 came into force. The Standing Committee of the Poona Municipal Corporation, therefore, passed a resolution dated 22nd Feb. 1969 for acquisition of the petitioners' land as provided by the sanctioned modified plan. The said proposal was sent to the Commissioner of Poona Division on 28th Mar. 1969. The Commissioner, therefore, issued a notification under Section 126 (2) of the Maharashtra Regional and Town Planning Act, 1966 on 26th Nov. 1970 wherein the petitioners' property which was proposed to be acquired was described as city survey No, 906 admeasuring 145.5 sq. metres. That notification was published ia the Maharashtra Government Gazette on 17th Dec. 1970.

4. The 2nd respondent who is a Land Acquisition Officer thereafter issued a notice to the petitioners under Section 9(4) of the Land Acquisition Act, on 23rd Dec. 1970. The petitioners statement was recorded on 11th Jan. 1971 and the petitioners pointed Out that their property was not properly described and that the area described was also incorrect, That is why a corrigendum dated 5th Feb. 1971 was published in the Maharashtra Government Gazette describing the petitioners' property as city survey No. 906/1 of Sadashiv Peth, admeasuring 352.8 sq. metres and city survey No. 906/2 admeasuring 556.9 sq. metres. This notification was published in the Maharashtra Government Gazette on 20th Feb. 1971.

5. The petitioners therefore approached this Court on 3rd May 1971 challenging the order of the Government passed under Section 10 of the Bombay Town Planning Act on 7th July 1966 and published in the Government Gazette on 8th July 1966. The vires of the Bombay Town Planning Act is challenged on the ground that it does not provide for individual notices and therefore it being an unreasonable restriction on the petitioners' right to own property, it is void under Article 19 of the Constitution of India. The vires of Section 10 of the Town Planning Act is also challenged on the ground that the Government is authorised to make a modification of the plan without giving any opportunity to the concerned holders to make a representation against the proposed modification. There is also an allegation that there is discrimination practised against the petitioners in singling out their property for reservation and that amounts to violation of the petitioners' fundamental rights under Article 14 of the Constitution. There is also another allegation that since permission was given by the Corporation from time to time to carry on construction on the rear portion of their property after the declaration of the intention under Section 4, the Corporation is estopped from acquiring the property. Lastly, it is alleged that the reservation and acquisition is mala fide.

6. As often happens, immediately after filing the petition, the petitioners moved for interim stay in terms of prayer (d) of the petition and the same was granted while issuing the rule.

7. Both the State and the Corporation have filed their returns and it is enough to state that both of them have contended that the petition is liable to be dismissed in limine because of the inordinate delay in moving the Court.

8. When the petition was called on for hearing, evidently having realised the force of the respondents' contention that the petition is liable to be dismissed on the ground of inordinate delay, Mr. Paranjpe, learned counsel for the petitioners after stating the facts submitted that since among other contentions, the petition raises the question of the infringement of the fundamental rights under articles 14 and 19 of the Constitution, having regard to the order of the President dated 26th' June 1975 under Clause (1) of Article 859 and the subsequent order dated 8th Jan. 1976, the entire proceeding being suspended the Court cannot proceed with the matter nor suspend the stay order and it should be left as it is, during the period provided in the orders of the President. In support of his submission that the Court cannot proceed to make any enquiry in the matter or suspend the stay order, Mr. Paranjpe relied upon certain passages in the judgment of the Supreme Court reported in Makhan Singh v. State of Punjab, : 1964CriLJ217 and in particular he strongly relied upon a judgment of the learned single Judge of this Court to which we will have occasion to refer in the course of this judgment.

9. Mr. Sawant, Counsel for the State submitted that notwithstanding the orders of the President dated 27th June 1975 and 8th Jan. 1976, the Court can proceed to enquire into the matter and find out whether in fact there is a violation of any of the fundamental rights mentioned in the orders of the President. It is only if it is found that there is such an infringement, submitted Mr. Sawant, that the Court may keep the matter pending during the period provided for in the order of the President but in that event the interim stay also shall have to be suspended. In support of his submission, Mr. Sawant has relied upon a Division Bench decision of this Court in Special Civil Application No. 650 of 1971, decided by Chandurkar and Lentin JJ. on 26th Mar. 1976 : (reported in AIR 1977 Born 335).

10. At the outset we may mention that the petition on the face of it is hopelessly delayed and no attempt is made to give any reasonable explanation for the inordinate delay of nearly five years. It is alleged in para 39 of the petition that the notification under Section 10 of the Bombay Town Planning Act was published on 8th July 1966 and that the petitioners in the absence of any individual notices to them were not aware that their property was being acquired for the purpose of parking space in the Development plan. It is further alleged that the petitioners came to know about acquisition of their property only when the Land Acquisition Officer issued notice under Section 9 of the Land Acquisition Act to the petitioners by which the petitioners were called upon to file their objections on 11th Jan. 1971. It is further alleged that the said notice did not give correct area of the petitioners' property, and that it is only after the statement of the petitioners was recorded that the Government by notification dated 15th Feb. 1971 carried out the necessary corrections in the area of the petitioners' property which was sought to be acquired and after the necessary corrections were made, the petitionershave been called upon to submit their objections. Therefore, conclude the petitioners that there is no delay or laches on the part of the petitioners to approach this Hon'ble Court.

11. Now the averments in this para, themselves make it clear that there is no dispute that the notifications under Section 10 of the Bombay Town Planning Act was in fact published in the Government Gazette on 8th July 1966.

12. Section 10 (1) of the Bombay Town Planning Act, 1954 reads as under:--

'The State Government may, after consulting the Consulting Surveyor, by notification in the Official Gazette sanction the development plan submitted to it for the whole of the area, or sanction it separately in parts, either without modification Or subject to such modification as it considers expedient within the time prescribed where the development plan is sanctioned separately in parts, then each part so sanctioned shall be deemed to be the final development plan for the purposes of the succeeding provisions of this Act, and those provisions shall apply in relation to such part as they apply in relation to a development plan relating to the whole of the area.'

13. Sub-section (2) of Section 10 provides: 'The -State Government shall fix in such notification a date not earlier than one month after the publication of such notification on which the final development plan shall come into force.'

14. It would, therefore, appear that when the State Government sanctions the development plan submitted to it under Section 9, all that is required to be done is to publish the same by a notification in the official Gazette.

15. Section 4 of the Bombay Town Planning Act 1954 provides that the local authority has to make a declaration of its intention to prepare a development plan and despatch a copy thereof to the State Government for publication in the official Gazette and shall publish it in the prescribed manner for inviting suggestions from the public within a period of two months-

16. The development plan is to be prepared under Section 3 and published in the prescribed manner and must be submitted to the State Government for sanction.

17. Section 7 lays down the contents of the development plan.

18. Section 8 provides the particulars to be published and submitted to the State Government along with the development plan.

19. Under Section 9, if within two months from the date of publication of the development plan any member of the public communicates it writing to the local authority any suggestion relating to such plan, the local authority shall consider such suggestion and may, at any time before submitting the development plan to the Slate Government, modify such plan as it thinks fit.

20. When the development plan thus goes to the Stale Government for its consideration and sanction, under Section 10, the State Government has the power to sanction the same with or without modification and all that is required to be done, to give effect to it is to publish the same by a notification in the official Gazette. There is, therefore, no provision in Section 10 of the Act for giving individual notices to the owners of the property who may be affected by this modified' plan. In fact it is too late in the day to challenge the vires of the Bombay Town Planning Act inasmuch as the validity of the same has been upheld by the Supreme Court in Maneklal Chhotalal v. M.G. Makwana, : [1967]3SCR65 and K.L. Gupta v. Municipal Corporation of Greater Bombay, : [1968]1SCR274 .

21. After all the publication of a notification in the official Gazette is the only mode provided. The notification which is challenged included the plan and schedule annexed to it That plan which could have been available for inspection only if the petitioners had bothered to do so, would have clearly shown to them that their property was included in the modified plan for the purpose of access to the car park which is to the rear side of their property which abuts on the Laxmi Road. What is, however, argued by Mr. Paranjpe is that publication in the official Gazette cannot be equated with knowledge. In support of his submission reliance was placed on the case reported in Cresta Holding Ltd. v. Karlin (1959) 3 All EP 656.

22. That was a case where the plaintiff had sued twelve defendants alleging fraud against the first two named defendants, whereby the plaintiffs had been defrauded of a sum of 300,000. The eleventh defendants were banters against whom the plaintiffs alleged in the statement of claim that as a result of the fraud the bankers received a cheque and the proceeds thereof and 'did not receive the same as purchasers for value without notice' viz. without notice that that property had been dealt with as previously alleged without the authority of file plaintiffs. On the application of the bankers particulars of this allegation concerning notice wereordered to be given alter discovery. On appeal by the plaintiffs held--

'(i) 'notice' was not a synonym for 'knowledge' and the allegation was not an allegation of a condition of maidwithin R. S. C., Order 19, Rule 22, which accordingly

had no application.

(ii) the bankers were entitled to particulars after discovery showing how they were alleged to have received notice that the cheque or proceeds thereof had been dealt with without the plaintiffs' authority, since the present case was one where 'the form or the precise terms of such notice, or the circumstances from which such notice was to be inferred', were material within R. S. C., Order 19, Rule 23.'

23. This authority therefore has absolutely no application to the facts of our case. As we have pointed out it is alleged in Para 39 of the petition that a modified plan was in fact published in the Gazette on the 8th July 1966. which was the only mode of publication which is provided by the Act in respect of plans which are sanctioned by the Government with or without modification. Clearly, therefore, this petition which was filed in 1971 is hopelessly delayed and since no reason or explanation is offered, having regard to the preliminary objection raised by the respondents, it has got to be dismissed in limine on that ground alone without going into the merits of the petition, unless as contended by Mr. Paranjpe we cannot proceed with the matter in view of the Presidential Orders dated the 27th June 1975 and 8th January 1976, issued under Article 359(1) of the Constitution. It is, therefore, necessary to consider the submissions made in that connection?

24. Article 359(1) of the Constitution provides:--

'359 (1): Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court fqr the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.'

25. On June 27, 1975, the President of India passed the following order:--

'In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rightsconferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamations of emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December 1971 and on the 25th June, 1975 are both in force.

This order shall extent to the whole of the territory of India except the State of Jammu and Kashmir.

This order shall be in addition to and not in derogation of any order made before the date of this order under Clause (1) of Article 359 of the Constitution.

26. On 8th Jan, 1976, the President of India issued another notification which is to this effect:--

'In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any 'person to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclarations of emergency made under Clause (1) of Article 352 of the Constitution on the 3rd Dec, 1971 and on the 25th June, 1975 are both in force, This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.'

27. It would appear that both Article 359(1) and the above mentioned two orders of the President are in two parts. The first part provides that the right of any person to move any Court for the enforcement of any of the rights conferred by Articles 14, 21 and 92 or 19 as the case may be shall remain suspended, for the period during which the proclamation of emergency made under Clause (1) of Article 352 of the Constitution on the 3rd Dec. 1971 and 25th June 1975 are both in force. The second part of the order provides that all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Article 352 of the Constitution on the 3rd Dec. 1971 and on the 25th June 1975 are both in force,

28. The first part of Article 359(1) and the orders of the President of India dated 3rd Nov. 1962 which dealt only with the first part of Article 359(1). came to be considered by the Supreme Court in the case of Mohan Choudhary v. Chief Comuir., Union Territory of Tripura : 1964CriLJ132 . The SupremeCourt held that by reason of that order the petitioners had no locus standi to enforce their right under Articles 21 and 22. It was observed by the Supreme Court at the end of Para- 7 of the judgment as under:

'Unquestionably, the Court's power to issue a writ in the nature of Habeas Corpus has not been touched by the President's Order, but the petitioner's right to move this Court for a writ of that kind has been suspended by the order of the President passed under Article 359(1), The President's Order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of Articles 21 and 22. Thus, as a result of the President's Order aforesaid, the petitioner's right to move this Court, but 'not this Court's power under Article 32, has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, during the Emergency.'

29. Once again in the case of Makhan Singh v. State of Punjab, : 1964CriLJ217 , the Supreme Court was concerned only with the interpretation of an order covering the first part suspending the right to move any Court for the enforcement of the fundamental rights mentioned in that order. Evidently following its earlier decision in Mohan Choudhary's case, : 1964CriLJ132 the Supreme Court held that the petitioners had no right to move the Court during the period the order of the President was in force.

30. In the course of this judgment however, certain observations were made by Gajendragadkar J. in Paras. 13 and 19 of the judgment on which considerable reliance is placed by both the sides. In Para. 13, it is observed as under:--

'Since the object of Article 359(1) is to suspend the rights of the citizens to move any Court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the order has been issued, because the Order takes away the right to move any Court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order. If a fresh proceeding falling within the mischief of Article 359(1) and the Presidential Order issued under it is instituted after the Order has been issued, it will have to be dismissed as beingincompetent. In other words, Article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order.'

31. Para 19 of this judgment on which also reliance is placed is as under:--.

'The next question to consider is, what is the nature of the proceedings which are barred by the Presidential Order issued under Article 359(1)? They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any Court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights, that is a proceeding which facts under Article 359(1) and would, therefore, be hit by the Presidential Order issued under the said article. The sweep of Article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance seeking to enforce any of the said specified fundamental rights. We have already seen that the operation of Article 359(1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force, or for such shorter period as may be specified in the Order. That being so, we feel no difficulty in holding that proceedings taken by a citizen either under Article 32(1) or under Article 226(1) are hit by Article 359(1) and the Presidential Order issued under it. In this connection it would be legitimate to add that the contention of the appellants which seeks to confine the operation of Article 359(1) only to the right to move the Supreme Court, would make the said provision almost meaningless, There would be no point in preventing the citizen from moving this Court, while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal, if necessary.'

32. Again certain observations in Para. 30 which were relied upon are to this effect:--

'In our opinion, therefore, once it is shown that the proceedings under Section 491 (1) (b) cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights, it must follow that the bar created by the Presidential Order operates against them as much as it operates against proceedings taken under Article 226(1) or Article 32(1), Thus, the true legal position, in substance, is that the clause 'the right to move any Court' used in Article 359(1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced, and it covers all relevant categories of jurisdictions of competent courts under which the said actions would otherwise normally nave been entertained and tried.'

33. Thereafter very recently also in the Habeas Corpus case reported in Additional District Magistrate, Jabalpur v. Shivakant Shukla, : 1976CriLJ945 , while considering the first part of the Presidential Order, which provides that the right to move the Court for the enforcement of the fundamental rights mentioned therein shall remain suspended, the Supreme Court by majority judgment of 4 to 1 has interpreted it to mean, that the petitioner has no locus standi to move the Court for enforcement of the fundamental rights mentioned in the Order of the President, approving the view of the Supreme Court about the interpretation of that Clause in Mohan Choudhary's case : 1964CriLJ132 and also in Makhan Singh's case : 1964CriLJ217 . It is therefore settled law that so far as the first part of the order of the President is concerned, as interpreted by the Supreme Court, no person has a locus standi to move the Court for enforcement of the fundamental rights mentioned in the President's Order.

34. In fact the final order of the Court in Para. 574, of the judgment is to this effect:--

'In view of the Presidential Order dated 17th June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual, or legal or is based on extraneous considerations.'

35. Therefore, what is held by the Supreme Court in Mohan Choudhary's case : 1964CriLJ132 and Makhan Singh's case : 1964CriLJ217 and also in the latest Habeas Corpus case is that having regard to the first part of the order of the President issued under Article 359(1), no person has any locus standi to move the Court for the enforcement of the rights conferred by Articles 14, 21, 22 or 19 as the case may be, In none of these cases which went up to the Supreme Court, the question as to what is to be done in respect of the proceedings pending in any Court for the enforcement of the above mentioned rights on the date of the order of the President made under Article 359(1) had directly come up for decision so far as we are aware. It is, therefore, necessary to consider the effect of the second part of the order of the President which provides: 'The President hereby declares that all proceedings pending in any Court for the enforcement of the above mentioned fundamental rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Article 352 of the Constitution on the 3rd Dec. 1971 and on the 25th June 1975 are both in force.'

36. What is argued by Mr, Paranjpe before us by laying emphasis on certain observations in Paras 13 and 30 of the judgment in Makhan Singh's case : 1964CriLJ217 is that the moment there is a mention in a petition of the infringement of any of the fundamental rights mentioned in Articles 14, 21, 22 or 19 in a proceeding which was pending when the order of the President under Article 359(1) was passed, notwithstanding the fact whether an injunction or stay has been issued' against the State, the matter remainssuspended and the Court has no jurisdiction to look into it and it must necessarily send such proceedings to the record room till the expiry of the period mentioned in the order of the President without disturbing the interlocutory orders of stay or injunction.

37. As against that it is contended by Mr. Sawant, Counsel for the State that that interpretation which is sought to be put by Mr. Paranjpe is not correct and there is nothing in the order of the President to prevent the State from showing that the petition is liable to be dismissed in limine without even considering the question of the fundamental rights involved, say on the ground of inordinate delay as in the instant case. He further submits that even in proceedings which remain suspended the interlocutory order or injunction must also remain suspended.

38. Now it is important to bear in mind that what stands suspended is a pending proceeding for the enforcement of the fundamental rights mentioned in the Presidential Order. The question of enforcement of the relevant fundamental rights would only arise if in fact it is established that there is a violation of any of the said fundamental rights,

39. In this connection it is worthwhile to note that under Article 226 of the Constitution, notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within these territories directions, orders or writs including writs in the nature of hebeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.

40. This Article provides that the High Court has power to issue writs for the enforcement of all the rights conferred by Part III and for any other purpose. It is needless to say this power of the High Court to issue the Writs is nowhere sought to be taken away by the order of the President, What is taken away by the first part of the order as has been held by the Supreme Court is the locus standi of a person to move the Court for enforcement of his fundamental rights mentioned in the order of the President. So also pending proceedings which are sought to be suspended are the proceedings for the enforcement of the fundamental rights mentioned in the order of the President. In other words, what is suspended is the enforcement of the fundamental rights mentioned in the order even in respect Of the pending proceedings. The stage of enforcement would only arise if after an inquiry it is found out that the petitioner has in fact proved the violation of his fundamental right, and it may be said at that stage only that having regard to the fact that the proceeding is for the enforcement of the fundamental right which stands suspended the court could not issue a writ which it could have otherwise issued.

41. Now, while interpreting the order of the President one should not ignore the object with which the order is passed. Article 352 provides that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance, he may by Proclamation, make a declaration to that effect,

42. Article 359 provides for the suspension of the enforcement of the rights conferred by Part III during emergencies, as the marginal note shows.

43. The first part of the article and the order of the President which is drafted ia terms of this Article, declares that no person shall have a right to move any Court for the enforcement of the fundamental rights mentioned in the order. The object evidently is that having regard to the grave emergency which threatens the security of India or any part thereof, it was thought necessary that the State should be free to carry on its activities without the impediment of the citizens enforcing their fundamental rights by approaching the High Court under Article 226 or the Supreme Court under Article 32 of the Constitution, Surely the Constituent Assembly could not have been unaware of the fact that when the emergency is proclaimed and the President issues an order in exercise of the power's mentioned in Article 359(1), several writ petitions would be pending in the High Courts and the Supreme Court and interim stay orders and injunctions would have been issued in most of these cases. It is not unlikely that as a result of the stay orders and injunctions issued in those pending proceedings, many important projects like the construction of roads, railways or bridges which are so essential for the safety and security of the nation or the nation-building projects like construction of dams and canals and town planning etc. have been held up. Could it have been the intention of Constituent Assembly that while pending the emergency nobody should have a right to move the Court for the enforcement of the fundamental rights mentioned in the order of the President but during that very emergency theState should be helpless to proceed with the projects of national importance involving national safety and progress because of the injunctions and stay orders which might have been issued in the proceedings which were already pending when the order of the President was passed? After all we have to consider the provisions of a Constitution. This is not a document which could be interpreted tike a text book with the help of a dictionary. It is always essential to bear in mind the object with which the Constituent Assembly enacted the provisions of Article 359(1) and the President issued the orders acting under the said Article, If the interpretation which is sought to be put by Mr. Paranjpe on pending proceedings is to be accepted it would make the very purpose of Article 359(1) nugatory.

44. Again we are also unable to agree that merely because there is an allegation in the petition about the infringement of any of the fundamental rights mentioned in the Presidential Order, the Court has to accept that ipse dixit as an automaton arid stay its hands. It would be too much to hold that the Constituent Assembly intended that notwithstanding the fact that the allegation may be frivolous, or that the petition in liable to be dismissed in limine on the ground of laches as being hopelessly barred by time with no reasonable explanation for the delay, or on the ground of suggestio falsi and suppressio veri or on the ground of res judicata, if should be kept pending with the interim orders of stays and injunctions granted therein, with full force dining the period mentioned in the President's order. It therefore appears to us that what shall remain suspended is the pending proceeding which in truth and substance is for the enforcement of the rights mentioned in the Presidential Order and not the enquiry about the existence or otherwise of such rights. It further appears to us that it could never have been intended that the proceedings which are liable to be dismissed in limine on one or the other grounds just mentioned by us or as may be urged by the State should also be kept pending during the period mentioned in the Presidential Order.

45. Now there are two likely interpretations of the Presidential Order as far as pending proceedings are concerned. One interpretation is that the moment there is a mention of a breach of fundamental right mentioned in the Presidential Order, the petition must be kept pending untouched, and the stay and interim orders which might have been passed must remain in force, as is contended by Mr. Paranjpe, There is no doubt in our mind that the Parliament could never have intended that even while the pending proceeding is kept suspended, the interim orders and stays secured by the petitioners in the said proceedings should remain alive and in full force.

46. The other possible interpretation of the order in our opinion and a better interpretation would be that what was intended to be suspended was not the inquiry into or adjudication of the alleged infringement of the fundamental rights mentioned in the President's order but the actual enforcement of that right by issuing a writ. This interpretation which we are trying to put would not cause any hardship either to the citizen or to the State. For instance, once it is held as we do, that what is barred is the order enforcing the fundamental right but not the adjudication, it should be easy to see that the Court can proceed to hear the petition on merits and find out if in truth and substance it is a proceeding for enforcement of a fundamental right. If as happens in many cases, the petitioner has a good case even otherwise than on his claim based on the violation of fundamental right, he may as well give up his contention founded on fundamental right and prosecute that application to a conclusion, Similarly it should be equally possible for the respondents as we have pointed out earlier, to show that in fact the petition is liable to be dismissed in limine either on the ground of laches or res judicata or on the ground of suggestio falsi and suppressio veri or on any other ground, The State may also prove that the so-called infringement of a fundamental right is only a frivolous allegation a'd that in fact there is no such violation. In such a case no injustice would be done if the petition is disposed of and the rule is discharged.

47. We may take up another instance where the petitioner in Fact at the time of the enquiry proves that there is an infringement of a fundamental right and that he, cannot hope to get the rule made absolute except on that ground alone. In our opinion it is only such proceedings which are intended to be attracted by the second part of the Presidential Order suspending the pending proceedings.

48. When we mentioned this approach of ours to the interpretation of the Presidential order concerning the pending proceedings and invited Mr. Paranjpe to point out the drawbacks in the view we are taking he submitted firstly that the view we are taking would be inconsistent with the observations of the Supreme Court in paragh. 13 of Makhan Singh's case, : 1964CriLJ217 that the consequences of the Presidential order may be that any proceedings which may be pending at the date of the order remain suspended during the time the order is in force and may be reviewed when the order ceases to be operative. He also submitted that our view would be inconsistent with the observations in paragraph 30 of Makhan Singh's case to the effect 'It covers all relevant categories of jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried.' He also submitted that the expression 'enforcement' which occurs both in the first part and in the second part of Article 359(1) must receive the same meaning. He also drew our attention to the following observations in para 257 at page 1285 of his Lordship Beg J. in the Habeas Corpus case, : 1976CriLJ945 to the effect: 'Indeed, the- clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right' He further submitted that the view we are taking might affect the right of a petitioner to appeal to the Supreme Court.

49. We are not impressed by any of these submissions. The observations in Makhan' Singh's case, : 1964CriLJ217 must be read in the context in which they were made, and in particular they must be read in the light of the observations in Para 19 of that very judgment. There is no doubt that the expression 'enforcement' which occurs twice in Art, 359 (1) must receive the same meaning. But it is significant to note that by the first part it is clear that the right of a citizen to move any court for the enforcement of his right itself is suspended. Therefore his right to approach the Court with a grievance of the infringement of the fundamental lights is barred at the threshold and there is no need to consider whether the allegation is frivolous or otherwise. As we shall presently show it is not the jurisdiction of the Court to entertain such a petition which is barred but it is the right of a citizen to make a grievance about the infringement of the fundamental rights which is barred at the threshold, and it is that locus standi itself which is taken away. As against that in a pending proceeding what is suspended is the enforcement of that right, and that stage would only come when it is found on enquiry that in truth and substance there is an infringement of that right. See the observations in Makhan Singh's case in para 19. If there is no infringement of the right the question of enforcement does not arise-Therefore, as we stated earlier, out of the two possible interpretations about the suspension of the pending proceedings, we are of the view that the second view to which we have given expression appears to be the better view.

50. Having expressed our views, we now proceed to consider the decisions of this Court on which reliance is placed by the parties. On behalf of the State, reliance is placed on the judgment of a Division Bench of this Court consisting of Chandurkar and Lentin JJ. in Special Civil Application No. 650 of 1971, decided on 26th Mar, 1976 : (reported in : AIR1977Bom355 ). That was a petition where land acquisition proceedings in connection with resettlement of the persons likely to be affected by the Krishna Dhom Project were challenged. In that case also it was urged on behalf, of the petitioners that having regard to the order of the President, the Court could not enquire into the matter nor suspend the interim stay orders. On the other hand, it was urged on behalf of the State that the Court has certainly the right to look into the matter to find out whether there is an infringement of a fundamental right. The Division Bench after considering Article 359(1) and the proclamation issued by the President of India on, 27th June 1975 and in particular after considering the observations of the Supreme Court in Makhan Singh's case, : 1964CriLJ217 contained in paraghs. 13, 19 and 30 observed as under:--

'There can be no doubt that the effect of the Presidential Proclamation is that in a pending proceeding the Court will not be able to make any order or issue any writ in order to enforce a fundamental right referred to in the Presidential Proclamation. That appears to us to be the object of a suspension of these proceedings contemplated by the Presidential Proclamation. But it cannot be the object of the Presidential Proclamation that where a pending proceeding can be terminated without giving a relief amounting to enforcement of a fundamental right, the proceeding must still stand suspended.....'

'The above quoted observations of the Supreme Court are, in our view, a complete answer to the contention raised on behalf of the petitioners that the moment the petition is framed as one to enforce the right under Article 14 of the Constitution, it must be deemed to be covered by the Presidential Proclamation and the proceedings must be stayed. As pointed out by the Supreme Court, if is the substance of the matter which must be ascertained and the ascertainment of the substance of the matter will necessarily involve some argument and some discussion. This would mean that the proceedings cannot he mechanically stayed of suspended because they merely refer to a violation of Article 14 of the Constitution. It is important to note that the observations of the Supreme Court indicate that a proceeding will fall within the sweep of Article 359(1) 'when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights.'

It appears to us that the use of the words 'cannot be effectively adjudicated upon' is of some significance. It appears to us that effective adjudication would mean that a decision in favour of the petitioner was necessary which would have the effect of enforcement of the fundamental right claimed by the petitioner. The word 'enforce' means, as per the Random House Dictionary, amongst other things, 'compel obedience to.' Thus the word 'enforcement' used in Article 359(1) or in Article 226 of the Constitution contemplates an order or a proceeding which compels obedience in accordance with the constitutional imperative in Article 14 so far as that Article is concerned. The effect of the Presidential Proclamation under Article 359(1) is that the Court cannot compel the State to give effect to the mandate contained in Article 14. If that was the object of the Proclamation and the provisions of Article 359(1), we fail to see how that object would in any way be frustrated in a given case, it is found on facts that the petitioner has not made out any case of violation of Article 14. The dismissal of a petition consequent on a finding that no breach or violation of the fundamental right under Article 14 has been proved will not amount to any breach of [he terms of the Presidential Proclamation- On the other hand, if an enquiry is made to find out whether a breach has been established and the Court stays its hands in a case where the petitioner has been able to establish its breach and further to deal with the proceedings, it will then amount to suspension of the proceedings in compliance with the Presidential Proclamation. The meaning of the word 'suspend' as given in the Random House Dictionary is 'to hold or keep undetermined; refrain from forming or coil' eluding definitely.' The state of the proceeding when the Court refuges to go ahead and issue a mandamus or a direction enforcing the fundamental right under Article 14 evenafter it is found that the petitioner has made out a case in his favour for enforcement of that right will still be a state of suspension inasmuch as the proceedings have not concluded definitely. We are, therefore, unable to accept the contention of the learned Counsel for the petitioners as also of Mr. Rane that merely because averments alleging a breach of Article 14 of the Constitution are made in the petition, we must adjourn the proceedings sine the and allow the proceedings to pend indefinitely without even ascertaining as to whether the petitioner is able to make out a case of the violation of the provisions of Article 14 of the Constitution.'

51. With respect, we agree with, the above observations of the Division Bench.

52. It also appears that a similar question was raised before Deshmukh J., in Misc.Petition No. 344 of 1974, Messrs. BharatBarrel & Drum Mfg, Co. Pvt. Ltd. v. The Stateof Maharashtra, decided on 25-2-1976 (Bom).There also a notification of acquisition waschallenged on the ground of violation ofArticle 14 of the Constitution and it was contended that the proceedings could not beproceeded with in view of the PresidentialProclamation of 27th June 1975 and of 8thJan. 1976, suspending the right to approacha Court for enforcement of fundamentalrights under the Constitution, The learnedJudge having heard the parties came to theconclusion that the petitioners' alleged challenge was no challenge at all, but that theapplication was a frivolous one merely toprolong the acquisition by the State for thepurpose of the Municipal Corporation, andon merits the learned Judge took the viewthat the petitioners in that case had no validright at alt to oppose the acquisition and anattempt to resort to provisions of Article 14 ofthe Constitution was a mere pretext to somehow gain time and put off the evil day ofacquisition. '

53. The latest case which is decided by the Court on the point and is relied upon by Mr. Paranjpe is the decision o.f Rege J., in Misc. Petition No. 501 of 1975, Metro Theatre Bombay Ltd, v- State of Maharashtra, decided on 13-8-1976 (Bom). That was a petition under Article 226 of the Constitution seeking for a writ of mandamus against the respondents directing them to withdraw certain notices issued to the petitioners and to give sanction to the grant of a licence to the 1st petitioners for the sale of mild liquor at their restaurant in Metro Cinema, Bombay, and further directing the 2nd respondent to withdraw or cancel the said notice and to grant to the 1st petitioners a licence for thesale of mild liquor. Therefore, that was a petition which in terms sought to enforce fundamental rights guaranteed by Article 14 of the Constitution.

54. The Court had issued a rule nisi on 10th Apr. 1975. The Court had also at the time of admission granted an injunction against the respondents restraining them from taking any action in furtherance of the notice, and, what is more, the Court had also granted a mandatory injunction directing the respondents to issue a temporary licence to the petitioners. Thus the petition was in fact pending when the President passed the order under Article 359 of the Constitution. It appears from the judgment that after reading the petition, the learned Judge thought that having regard to the Presidential Order, the petition ought to stand suspended. But this proposal of the learned Judge, it appears was opposed by the respondents who relied heavily on the Division Bench decision of this Court in Special Civil Application No. 850 of 1971 viz. Chandurkar and Lentin JJ., dated 26th Mar. 1976 (reported in : AIR1977Bom355 ) to which attention has already been drawn.

55. The learned Judge posed the question as to what is the ambit of the court's power or jurisdiction under the said order directing the suspension of the pending proceedings. Referring to the Division Bench decision, the learned Judge observed:

'It is true that the Division Bench of this Court in its aforesaid decision relying on the prior decision of the Supreme Court in Makhan Singh's case reported in : 1964CriLJ217 , has come to the conclusion as pointed out by the learned Counsel for the Respondents. With great respect to the learned Judges, I have not been able to agree with the said decision. However, before I state my reason for the same, I may first state my views on the said question,'

56. Proceeding thus the learned Judge observed, 'in my view the said order has the effect of barring the jurisdiction of the court to entertain or deal with any proceedings wherein any of the fundamental rights mentioned in the order are sought to be enforced.'

57. In support of his view that the court has no jurisdiction to enquire into the merits of the pending proceedings, the learned Judge relied firstly on the very paragraphs 13 and 19 of the judgment of Gajendragadkar J., in Makhan Singh's case (AIR 1961 SC 381) which were relied upon by the Division Bench for the view it had taken and observed. 'In my view with great respect to the learned Judges the said ratio drawn from Makhan Singh's case, on which the ultimate conclusion of their decision is based, do no appear to be justified.'

58. Having made these observations the learned single judge says that in spite of his disagreement with the views of the Division Bench, if that decision had stood by itself, he would have been bound to follow the same. However the learned single Judge observed, that having regard to certain observations of the Supreme Court in the recent Habeas Corpus case, he was fortified in his view that the Court's jurisdiction in the matter of pending proceedings involving enforcement of fundamental rights mentioned in the Presidential Order is barred and the court should not even undertake an enquiry into the violation of such alleged fundamental right. He further observed that since the judgment of the Supreme Court in the Hebeas Corpus case, taking a contrary view was not available to the Division Bench of this Court, the said decision of the Division Bench cannot be considered to be good law.

59. We have already indicated how we prefer the view of the Division Bench, therefore, in so far as the observations of the learned single Judge based on the interpretation of Makhan Singh's case, : 1964CriLJ217 are concerned, it is unnecessary to repeat our views once again. It will be therefore necessary to examine whether the learned Judge was right in relying upon the judgment of the Supreme Court in the Habeas Corpus case for coming to the conclusion that the Court has no jurisdiction to deal with the matter, and that the Court should not even undertake an enquiry into the violation of alleged fundamental rights.

60. It is true that in support of his view the learned Judge has relied upon the observations of His Lordship the Chief Justice in the Habeas Corpus case. The observations relied upon are to this effect: (para 44 p. 1227).

'If Courts will in spite of the Presidential order entertain such applications, and allow the detenus to enforce to start or continue proceedings or enforce fundamental lights. Article 359(1) will be nullified and rendered otiose.'

61. The next observations which are relied upon are that of Beg J., in para 345 at page 1308 and they are to this effect;

'This further clarifies and emphasizes that the intention behind the Presidential Order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending. The inference fromthis feature also is that all similar proceedings in future will, similarly, be affected.

62. The last observations which are re-lied upon are also of Beg J., in para 257 at page 1285 which are to this effect:--

'Article 359 is very dear on the point. There remains no right, for the time being to an enquiry info conditions which may enable a party to secure release in assertion of rights guaranteed either by Article 21 or by other articles whose 'enforcement' is suspended. Indeed, the clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right.'

63. By relying on these observations the learned Single Judge came to the conclusion that the court's jurisdiction in the matter of pending proceedings involving enforcement of fundamental rights mentioned in the Presidential Order is barred and the Court should not even undertake an enquiry into the violation of such alleged fundamental right. In other words it would appear that the 'earned Judge relied upon certain observations in Makhan Singh's case : 1964CriLJ217 and on the above observations of their Lordships of the Supreme Court for taking the view he did. But then a perusal of the judgments in Makhan Singh's case and the Habeas Corpus ease would show that the inference is not correct. In the first place what was involved in Makhan Singh's case was the right to move the Court for enforcement of the fundamental rights. Earlier also a similar question was involved before the Supreme Court in Mohan Chondhury's case, : 1964CriLJ132 and the Court had held that a person has no locus standi to move the Court and the Supreme Court had in terms held that by the Presidential Order it is the petitioner's right to move the Court but not the Court's power or jurisdiction under Article 32 which had been suspended during the operation of the emergency, with the result that the petitioner had no locus standi to enforce his right if any, during the emergency.

64. Adverting to the decision of the Supreme Court in the Habeas Corpus case, : 1976CriLJ945 that was also a case in which the first part of the order viz, the right to move the Court for enforcement of the fundamental rights was involved. His Lordship Ray C. J., has observed as under in para 34 at page 1224:--

'It is incorrect to say that the jurisdiction and powers of this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential Orderwithout any amendment, of the Constitution. No amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential Order takes away the locus standi of the detenus to move any Court for the enforcement of fundamental, rights for the time being, the jurisdiction and powers of this Court and of the High Courts remain unaltered, Article 359(1) is not directed against any court It is directed against an individual and deprives him of his locus standi.'

65. Again, Chandrachud J,, in para 434 at page 1329 has observed as under:--

'It is also not correct to say that any particular interpretation of Article 359(1) will mean the abolition of the jurisdiction and power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution. The true implication of the Presidential Order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the Order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential Order merely takes away the locus standi of a person to move these Courts for the enforcement of certain fundamental rights during the operation of the Proclamation of Emergency.'

66. It may be mentioned that in support of that view, reference was made to the decision of the Supreme Court in Mohan Choudluuy's case, : 1964CriLJ132 also.

67. Bhagawati J., has observed as under in para 556 at page 1383:--

my mind, it is clear that if a petition or other proceeding in Court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential Order ...... Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before the Court, it must be rejected straightway without even looking at the averments made in it. The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose, the Court would have to see whether the order of detention is one made by an authority empowered to pass such an order under the Act; if is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21.'

Tuesday, October 12, 1976,

68. Thus it will be seen that as just pointed out while Their Lordships the Chief Justice, Chandrachud J. and Bhagwati J.,have in terms held relying on the decisions in Mohan Choudhury case, : 1964CriLJ132 and Makhan Singh's case : 1964CriLJ217 that it is the locus standi of the petitioner to move the Court for habeas corpus which is suspended and not the jurisdiction of the Court as such, His Lordship Beg J.. however, while agreeing with the majority view of the other learned Judges that the Presidential Proclamation takes away the locus standi of a petitioner to move the Court for a habeas corpus has observed in para 316, at page 1299 as under:--

is true that the Presidential Order of 1975, like the Presidential Order of 1962, does not suspend the general power of this Court under Article 32 or the general powers of High Courts under Article 226, but the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential Order. Courts, even in Habeas Corpus proceedings, do not grant relief independently of rights of the person deprived of liberty.'

69. What is more, His Lordship Beg J., even in respect of the matters covered by the first part of the Order suspending the right to move the Court for enforcement of the fundamental rights mentioned in the Presidential Order has stated that the Court shall have to make some enquiry inasmuch as His Lordship has observed in para 400 at page 1320 as under:--

'A prima facie valid detention order, that is to a say, one duly, authenticated and passed by an officer authorised to make it, recording a purported satisfaction to detain the petitioner under the Maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a Writ of Habeas Corpus. Once such an order is shown to exist in response to a notice for a Writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides- of any kind or of non-compliance with any provision, of the Maintenance of Internal Security Act in Habeas Corpus proceedings.'

70. We may also observe in this connection that other learned Judges who have definitely held that the jurisdiction of the court is not barred by the Presidential Order issued under Article 359(1), have also taken the view that the Court has power to make an enquiry into the matter and not to dismiss the petition merely because it happens to be a petition for enforcing the writ of habeas corpus.

71. Chandrachud J., in para 477 at page 1343 has observed as under:--

'So long as the statutory prescription can be seen on the face of the order to have been complied with, no further inquiry is permissible as to whether the order is vitiated by legal mala fides.'

72. Bhagwati J., has observed in para 556 at page 1383 as under:--

'Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before the Court, it must be rejected straightway without even looking at the averments made in it. The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose the Court would have to see whether the order of detention is one made by an authority empowered to pass such an order under the Act; if it is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21. .....'

73. ' It would thus appear from a scrutiny of the judgment of the Supreme Court in the Habeas Corpus case that Their Lordships have approved the decision in Mohan Choudhury's case, : 1964CriLJ132 and Makhan Singh's case, : 1964CriLJ217 that what is barred by the Presidential Order is not the jurisdiction of the Court but the locus standi of the petitioner to move the court for enforcement of the fundamental rights mentioned in the order of the President. It is further held as we have pointed out that to the extent indicated by. Their Lordships an enquiry is certainly possible and ought to be made to decide the question as to whether in fact the petition raises a question of the infringement of the fundamental rights mentioned in the Presidential Order.

74. In this connection it is important to bear in mind that a judgment of the Supreme Court or of any Court as a matter of that is not to be read as if it is a statute In making that observation we are only quoting the observations qf His Lordship Chandrachud J., in paragraph 471 of the judgment in the Habeas Corpus case. Again, while dealing with certain observations made by the Supreme Court in Makhan Singh's case, : 1964CriLJ217 about the possible pleas available to a detenue, which were pressed before Their Lordships in the Habeas Corpus case, : 1976CriLJ945 Bhagwati J, in para 546, page 1377 has observed as under:--

'Now, at first blush, these observations do seem to support the, contention of the detenus. But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us. In the first place, the question as to what were the other pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential Order dated 3rd Nov. 1962, was Dot in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were., therefore, clearly obiter. These observations would undoubtedly be entitled to great weight, but, as pointed out by this Court in Madhav Rao Jiwaji Rao Scindia v. Union of India, : [1971]3SCR9 'an obiter cannot take the place of the ratio. Judges are not oracles.' These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point.'

75. We are aware that these observations were made by Their Lordships of the Supreme Court while dealing with the earlier judgments of the Supreme Court and that those observations have no application so far, as the binding nature of the obiter observations of the Supreme Court on the High Courts and other Courts is concerned. But then what is observed by His Lordship thereafter is of significance to us as laying down the guidelines for interpreting any judgment which may be cited before a Court, His Lordship has observed as under;--

'Moreover, it must be remembered that when we are considering the observations of a High Judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clean that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection or expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand... It was pointed out by the House of Lords as far back as 1901 in Queen Leatham 1901 AC 495 'Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts in which such expressions are to be found.' This Court had also occasion to point out in the State of Orissa v. Sudhansu Sekhar Misra : (1970)ILLJ662SC that the observations in a judgment must be 'only in the context of the question that arose for decision.' It would not be right, as observed by this Court in Madhav Rao V. Union of India, : [1971]3SCR9 'to regard a word, a clause or a sentence occurring in a judgment of this court, divorced from its context as containing a full exposition of the law on a question' particularly ''when the question did not even fall to be answered in that judgment.'

76. Having regard to the above guidelines laid down by His Lordship for interpreting and understanding the judgments of the Supreme Court, it would be always essential to consider as to what exactly was the point which Their Lordships were called upon to decide and what their decision thereon is. Judged 'in that light all that has been held either in Mohan Choudhury's case, (AIR 1973 SC 173) or in Makhan Singh's case, : 1964CriLJ217 and in the recent Habeas Corpus case is that a person has no locus standi to move the Court for a writ of habeas corpus during the period the order of the President is in force. It is nowhere held in any of these cases that the Court has no jurisdiction to deal with the matter. If at all, it has been in terms held that the jurisdiction of the Court to issue writs is not taken away. Again, in none of these cases decided by the Supreme Court so far, the question of interpretation of the second part of the Ordinance about pending matters with which we are concerned in this petition was required to be considered and decided upon. Having regard to that position with great respect we are unable to agree with the learned Single Judge (Rege J.) when he took the view that in the view he was taking that the court has no jurisdiction to inquire into a petition pending on the date of the order of the President he is fortified either by the decision of the Supreme Court in Makhan Singh's case Qr by the observations of Ray C. J. and Reg J., in the Habeas Corpus case on which he has placed reliance. That being so the learned Judge was also not right in coming to the decision that the view of the Supreme Court is contrary to the view taken by the Division Bench consisting of Chandurkar and Lentin JJ. in Special Civil Application No 650 of 1971 decided on 26th Mar. 1976 = (reported in : AIR1977Bom355 ) and that the said decision of the Division Bench cannot be considered to be good law. Differing therefore from the learnedSingle Judge, we hold that the view taken by the Division Bench in Special Civil Application No. 650 of 1971 is not inconsistent with the decision of the Supreme Court either in Makhan Singh's case or in the Habeas Corpus case : 1976CriLJ945 . In our view, therefore, the decision of the Division Bench is still good law, but we would however like to add, as pointed out by us earlier, that the scope of the enquiry which is permissible under the second part of the order of the President in respect of pending matters is still wider in the sense that that provision would not affect the jurisdiction of the Court to dismiss a pending petition if on a perusal of the petition and the return filed by the respondents, it appears that the petitioner has moved the Court after an inordinate delay for which he has no reasonable explanation or that the petition is frivolous on the face of it ov that it suffers from suggestio falsi and suppressio veri or raises a question of fundamental right hy attacking the provisions of a section or statute the validity of which has been already pronounced by the Supreme Court or on the ground of res judicata.

77. That leads us to the next important point which is urged before us viz. what is to be clone about the interlocutory stay orders or injunctions which have been issued prior to the proclamation of the Order of the President under Article 359 in respect of cases where on an enquiry it is found that there is a breach of one or the other of the fundamental rights referred to in the two Presidential Orders issued under Article 359 oi the Constitution. Since such a proceeding to enforce the fundamental right by the issue of an appropriate writ has to be kept suspended till the expiry of the period mentioned in the Presidential Order, it would automatically follow that the interlocutory orders which might have been issued in such petitions though issued prior to the date of the Presidential Order have got to be evidently suspended as otherwise the very object of suspending such proceedings would be frustrated. Evidently the intention of the Parliament was that during the period of emergency the State must be free to carry on its activities in the larger interests of the nation without any fetters or impediments by the citizens getting the State's proposed activities stayed by the Court either by stay orders or injunctions. It is inconceivable that when the main proceeding for enforcement of the fundamental rights mentioned in the Presidential Order is itself kept suspended any interlocutory order issued in that proceeding could still continue to be operative.

That would make the very object of the proclamation of the President and the provisions under Article 359 of the Constitution nugatory.

78. In this connection we agree with respect, with the decision of the Division Bench of the Patna High Court in Kailash Pati Singh v. State of Bihar, : AIR1976Pat248 . The learned Judges in para 6 of the Judgment have observed as under:--

'The word 'suspended' used in Article 359(1) cannot be interpreted to mean only staying the proceedings. There is difference between the effect of an order suspending a proceeding and the effect of an order of merely staying the proceedings. In Article 359(1), instead of the word 'suspended' if the word 'stayed' had been used, then any such proceeding where such right is enforced had to be stayed. However, if the proceedings pending before this Court, where such right is enforced, is to remain suspended due to the Presidential Order, then even the order of slay which is only ad interim in nature and is to continue during the pendency of the proceeding will also be deemed to be suspended. The matter may be different, if sonic final judicial order had been passed. It is well known that any order of stay which is to continue during the pendency of a proceeding before the High Court cannot be considered to be a final order.'

79. It is true that the learned single Judge (Rege J.) expressed his inability to agree with that decision and on the other hand he preferred to follow the decision of a single Judge in Jagadish v. Union of India : AIR1976Cal17 . The learned single Judge whose view has prevailed with Rege J., has observed as under:--

'In view of the aforesaid proclamation it was contended that inasmuch as in this case the enforcement of the right conferred under Article 14 of the Constitution was involved the proceeding should remain suspended and in the premises the interim order must necessarily continue. The position seems to be rather unfortunate because in this case there was an interim order and the effect would be that the interim order would continue so long as the emergency continues or until the proclamation is revoked, though the examination of the question which was possible because the matter is ready for hearing, might have revealed that the proceedings under the notice were valid. la numerous cases (sic) under Article 14 are involved and while new applications or cases where Article 14 is resorted to are no longer possible during the continuance of the emergency, the persons who have obtainedRules or orders of injunction prior to the 27th of June, 1975 would continue to enjoy those injunctions without the Court's having the opportunity to examine, the validity or the propriety of the said orders simply because the questions under Article 14 are involved in those applications.....'

80. Furtheron in the next para the learned single Judge of the Calcutta High Court has observed:--

'In order to facilitate the disposal of these orders of injunctions obtained against the fiscal authorities, the authorities should consider whether it is desirable that Article 359(1) of the Constitution should be amended. The result of the proclamation made under Article 359 of the Constitution and the order issued by the President seem to be that the orders of injunction would continue until the emergency is revoked. That might not be what was desired.'

81. With great respect, in spite of the view that the result contemplated by the learned Judge was not desired, the learned Judge has taken the view which lie has and it is this view which has prevailed with the learned single Judge of this Court. It may be mentioned that there is no discussion in the judgment of the learned single Judge of the Calcutta High Court for taking the view he has done. On the other hand, the Division Bench of the Patna High Court in Kailash Pati Singh's case : AIR1976Pat248 has come to its decision referred to above, after detailed discussion of the observations of the Supreme Court in paragraph 13 of Makhan Singh's case, : 1964CriLJ217 . In fact the Judgment of the learned single Judge of the Calcutta High Court in Jagadish's case : AIR1976Cal17 was also relied upon before them on behalf of the petitioner. But the learned Judges for very good reasons refused to consider that decision as good law. In fact they expressed their surprise as to how if the proceeding pending before the Court is to remain in moratorium or under a blanket ban, the interim order passed in the same proceeding which is to continue during the pendency of the proceeding can remain in force.

82. We may also mention that the decision of the single Judge of the Calcutta High Court was also cited before the Division Bench of Chandurkar and Lentin JJ. which decided Special Civil Application No. 650 of 1971 = (reported in : AIR1977Bom355 ) and the learned Judges, in our opinion, rightly observed that they were unable to agree with the view taken by the learned single Judge of the Calcutta High Court With respect, even on that point we are in agreement with the decision of the Division Bench and also the decision of the Patna High Court. We cannot agree with the view of the learned single Judge of the Calcutta High Court on the point of the continuance of the stay or injunction orders even during the period when the main proceeding stands suspended in view of the Presidential Orders issued under Article 359(1) of the Constitution.

83. In the result, in our opinion, the learned single Judge of this Court (Rege J.) was not right in the view he has taken either about the scope of the enquiry to be made by the Court in pending proceedings or about the helplessness of the Court in the matter of injunctions or stay orders which were issued prior to the coming into force of the order of the President.

84. Our conclusions therefore are that the decision of the Division Bench of this Court consisting of Chandurkar and Lentin JJ. in Special. Civil Application No. 650 of 1971 = (reported in : AIR1977Bom355 ) is still good law in spite of the decision of the Supreme Court in the Habeas Corpus case, : 1976CriLJ945 and in respect of matters which were pending on the date of the order of die President involving the alleged infringement of the fundamental rights mentioned therein, an enquiry is certainly possible to the extent indicated by the Division Bench and also to the extent which is indicated by us. It is not every petition containing an allegation of a breach of a fundamental right mentioned in the order of the President which needs to be suspended without taking into consideration the allegations in the petition and the returns which are filed and to the extent indicated by us, the court has every jurisdiction to dispose of the writ petitions. With regard to stay orders or injunctions issued in the pending proceedings prior to the coming into force of the Presidential Order under Article 359(1), if it is found on enquiry on perusal of the case and the returns that the proceeding has to he kept suspended during the period mentioned in the order of the President, the stay orders or injunctions issued in the said petition shall have to be simultaneously suspended.

85. Since we have taken the view that this petition suffers from the vice of inordinate delay of about five years which has not been explained the petition is dismissed with costs and the rule is discharged.

86. Petition dismissed.


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