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Sanghar Umar Ranmal and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ21
AppellantSanghar Umar Ranmal and anr.
RespondentState
Excerpt:
- - section 2 repeals all previous dharas and circulars pertaining to the matters dealt with by the act and further provides that the villages as well as the persons to whom the previous pass hajari dhara applied shall be governed by the act as shown in schedule a......persons to whom the previous pass hajari dhara applied shall be governed by the act as shown in schedule a. this schedule contains a list of the communities and individuals to whom the act applies. section 3 enacts that every male who has completed the age of 16 years shall, in the case of those villages and those persons to whom the act has been applied or may hereinafter be applied, be governed by it. section 4 requires every male above the age of 16 to attend upon the police officer in the village to mark his presence and in the absence of any such police officer he is required to attend the police patel. the attendance is to be marked in the morning and evening. by section 5 every person to whom the act applies is required to attend upon police officer at any time of the night if.....
Judgment:

Baxi, J.

1. These petitions have been preferred for a declaration that a certain Act of the former Navanagar State called the Pass Hajari Dhara dated 1.12.1911 was void and inconsistent with the provisions of the Articles 15 and 19 of the Constitution. The petitioners contended that the above Act was enacted for the Vaghers and Pindaras of Virpur under the Bhatia Mahal of the Nawanagar State and should not be applied to them. The learned Advocate General filed his rejoinder dated 6.1.51 in Miscellaneous Application No. 65 of 1950 wherein he stated that the above Act was subsequently applied to various other communities including the petitioner of that application by notifications published in the Gazette. He further contended that the impugned Act imposed reasonable restrictions in the general public interest and in the interest of the scheduled tribes. He also denied that the Act contravened provisions of Article 15 of the Constitution. The Court's attention was thereafter drawn to the Nawanagar State Pass Hajari Dhara of St. 2003 (1947 A.D.) repealing and consolidating the provisions of the previous laws on the subject. The petitioner's learned Advocate thereupon amended the petition and prayed that the Pass Hajari Dhara of St. 2003 should be declared void and inconsistent with the constitution.

2. Section 1 of the Pass Hajari Dhara of St. 2003, which will hereinafter be referred to as the Act, declares that it shall come into force on the date of its publication in the Gazette. Section 2 repeals all previous Dharas and circulars pertaining to the matters dealt with by the Act and further provides that the villages as well as the persons to whom the previous Pass Hajari Dhara applied shall be governed by the Act as shown in Schedule A. This Schedule contains a list of the communities and individuals to whom the Act applies. Section 3 enacts that every male who has completed the age of 16 years shall, in the case of those villages and those persons to whom the Act has been applied or may hereinafter be applied, be governed by it. Section 4 requires every male above the age of 16 to attend upon the Police Officer in the village to mark his presence and in the absence of any such Police Officer he is required to attend the Police Patel. The attendance is to be marked in the morning and evening. By Section 5 every person to whom the Act applies is required to attend upon Police Officer at any time of the night if called for marking his presence. Section 6 prohibits these persons from leaving their villages between 11 p.m. and 5 a.m. except for attending to work in the Sim of the village after obtaining previous permission of the Police Officers specified in the section. They are however prohibited from leaving their village and passing a night in another village without obtaining a permit from the Officer in Charge of the Police Station. By Section 10 it is provided that if a person to whom the Act applies leaves his village and settles in any village of the Mahal of the State he shall continue to be governed by the Act and shall be required to attend regularly upon the Police Officer. Under Section 11 a person of one of the communities mentioned in the Schedule residing in another village becomes subject to the restrictions of the Act on his settling in any of the villages in which the Act has been applied to his community; and finally Section 13 empowers the Police Commissioner to direct any person from time to time to sleep at the Police Station if it appears to him that such person is a habitual offender and it is necessary to keep him under restraint. He may be required to sleep at the Police Station so long as he does not improve his character. By Section 14 the person to whom the Act applies is required to inform the Police Officer of the arrival of a guest over the age of 16 years at his place. Section 15 prescribes punishment for contravention of the provisions of the Act and Section 16 gives Jurisdiction to the Magistrates of the Mahal for trying offenders under the Act.

3. The learned Advocate for the petitioners submitted that the Act discriminated against the persons mentioned in the Schedule on grounds only of race or caste and was therefore inconsistent with Article 15(1) of the Constitution. He also submitted that its provisions imposed unreasonable restrictions on their fundamental right of freedom of movement and freedom to reside and settle in any part of the territory of India guaranteed by Article 19(1) (d) and (e) of the Constitution. We agree with these contentions. The Act has been made applicable to certain communities of the villages mentioned in the Schedule. All male members of over 16 of these communities are subjected to the restrictions contained in the Act. The Act therefore discriminates against them on the ground of their caste or community only. The whole Act must therefore be declared as unconstitutional so far as it has been applied to the communities and castes mentioned in the Schedule. Furthermore the important restrictive provisions of the Act are Sections 4, 5, 6, 10, 11, 13, and 14. Under these sections persons to whom the Act applies have to attend the Police Officers in the morning and evening. They are prohibited from leaving their village during the night and if they have to visit another village, they are required to obtain a permit. The Police Commissioner has been empowered to direct any one of them to sleep at night at the Police Station. If any one of them goes out of the village and settles elsewhere the restrictions contained in the Act continue to dog his steps. Persons who are originally not subject to the Act become automatically subjected to it on their coming down to reside and settle in any of the villages specified in the Schedule if they happen to belong to one of the castes mentioned therein. The imposition of these restrictions does not depend upon the individual propensity of the persons to whom the Act has been applied. A person may not have committed a single offence and may have been living a pure life and yet legally he must subject himself to the restrictions contained in the Act.

No public interest can be served by subjecting persons to severe restrictions for life whether they are in fact proved to be deserving of them or not. We, therefore, hold that these sections are void and of no effect being in contravention of the provisions of Article 19(1)(d) and (e) of the Constitution. The rest of the sections are ancillary to the main section and cannot stand independently of them. Consequently no provisions of the Act can be sustained and the whole Act must be declared as void. The petitioner Sanghar Umar Ranmal (Cri. Misc. Application No. 65 of 1950) has been named in the Schedule of the Act. It is therefore difficult to hold that he has been discriminated against on the ground of his caste only, because we have no evidence that there are no other Sanghars in Salaya but the Act is certainly in contravention of his fundamental rights under Article 19(1)(d) and (e) of the Constitution and the Act must be declared as void in his case on that ground. The case of the petitioner Sanghar Ali Umar of Nana Ambala (Cri. Misc. Application No. 70 of 1950) is slightly different. He is not named in the Schedule but belongs to the caste of Sanghar of Nana Ambala to whom the Act has beep applied. The Act in his case therefore discriminates against him on the ground only of his caste. It also imposes unreasonable restrictions on his fundamental rights under Article 19(1)(d) and (e) of the Constitution. In his case therefore the Act must be declared unconstitutional on the ground that it contravenes both the Articles 15 and 19(1)(d) and (e) of the Constitution. The petitioners' applications are allowed and it is ordered that a writ as prayed shall issue. The opponent State shall pay the petitioners' costs of the petitions. There will be only one set of costs between them.

Shah C.J.

I agree.


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