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Janab Tozammal Khundel Sahaji Vs. Joint Secretary to the Government of West Bengal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 1348, 1349, 1450 and 1451 of 1950
Judge
Reported inAIR1951Cal322
ActsConstitution of India - Article 19(1); ;West Bengal Security Act, 1950 - Sections 2(9), 21 and 22
AppellantJanab Tozammal Khundel Sahaji
RespondentJoint Secretary to the Government of West Bengal
Appellant AdvocateNalin Chandra Banerjee and ;Prasun Chandra Ghose, Advs.
Respondent AdvocateChandra Sekhar Sen and ;Smriti Kumar Roy Choudhury, Advs.
Cases ReferredEmperor v. Jeshingbhai Ishwarlal
Excerpt:
- .....of india and are directed against notices issued by the government under section 21 (1) (a), west bengal security act (xix [19] of 1960) against the petitioner restraining him from entering or remaining within the district of 24-parganas.2. on 28-4-1950 a notice was issued by the district magistrate of 24-parganas externing the petitioner from the said district for a period of three months. this period was subsequently extended on 7-8-1950 by a further period of another three months. the petitioner moved this court and on 23-8-1950 obtained a rule (civil rule 1179 of 1950) asking the opposite party to show cause why the order extending the period of externment should not be cancelled. this rule was made returnable on 5th september following. on 4-9-1950 an order dated 2nd september.....
Judgment:
ORDER

1. These two Rules were issued under Article 226 of the Constitution of India and are directed against notices issued by the Government under Section 21 (1) (a), West Bengal Security Act (XIX [19] of 1960) against the petitioner restraining him from entering or remaining within the district of 24-Parganas.

2. On 28-4-1950 a notice was issued by the District Magistrate of 24-Parganas externing the petitioner from the said district for a period of three months. This period was subsequently extended on 7-8-1950 by a further period of another three months. The petitioner moved this Court and on 23-8-1950 obtained a rule (civil Rule 1179 of 1950) asking the opposite party to show cause why the order extending the period of externment should not be cancelled. This rule was made returnable on 5th September following. On 4-9-1950 an order dated 2nd September issued by the Joint Secretary in the Home Department of the Government was served on the petitioner, rescindirg the earlier order dated 7-8-1960 against which the High Court had already issued a Rule. A fresh order was also issued by the Joint Secretary, Home Department externing the petitioner from the District of 24-Parganas for an unlimited period. On 5th September civil Rule No. 1179 of 1950 came up for hearing. On the facts stated above being brought to the notice of the Court an order was recorded that the rule had become in fructuous but that the question of costs would be considered if the petitioner took any step against the fresh order for externment as issued by the Joint Secretary Home Department.

3. The petitioner on the next date, 6th September, filed a petition in this Court and obtained a rule (civil Rule 1348 of 1950) questioning the validity of the order dated 2nd September restricting his movement for an unlimited period. This rule was made returnable on 18th September. On 15th September the Joint Secretary Home Department issued another order rescinding the earlier order dated 2nd September which was the subject-matter of the rule pending in this Court. Simultaneously, a fresh order was issued by the Joint Secretary, Home Department, externing the petitioner from the District of 24-Parganas for a period of three months from that date. On 19th September the petitioner filed still another application questioning the validity of the order dated 15-9-1950. Another rule was issued (C. R. 1415/50) thereafter.

4. Civil Rules 1348 and 1450 of 1950 in respect of the two orders issued by the Joint Secretary, Home Department have now been set down for hearing.

5. Mr. Sen appearing for the State points out that C. E. 1348 of 1950 has now become infructuous as the order complained of has already been rescinded by Government. On behalf of the petitioner it is contended that considering the way in which this matter has been dealt with by the opposite party the petitioner ought to be allowed costs of this rule. We shall consider the question of costs after we have dealt with the merits of the other rule viz. C. R. 1450 of 1950.

6. The order issued by the Joint Secretary to the Government of West Bengal in the Home Department dated 15-9-1950 was in the following terms :

'Government of West Bengal

Home Department

Special Section

Order No. 15664 H. S. Dated Calcutta,

15-9-1950.

Whereas Order No. 15251 H. S. dated 2-9-1950 made under the proviso to Section 22 read with Clause (a) Sub-section (1) of Section 21, West Bengal Security Act, 1950 (XIX (19) of 1950) against the person known as Janab Atar Ali Sahaji, son of Hakimulla of Narayanpur, P. S. Habra, district 24-Parganas, has been cancelled:

And whereas the Governor is satisfied that the said person is likely to do a subversive act, viz., act likely to endanger communal harmony e. g. instigating local Muslims to boycott the Hindus:

Now, therefore, with a view to preventing the said person from doing such act, the Governor after considering all the circumstances of the case, in exercise of the power conferred by the proviso to Section 22 read with Clause (a) of Sub-section (1) of Section 21, West Bengal Security Act, 1950 (XIX [19] of 1950) is pleased to make this order directing that except in so far as the said person may be permitted by the Governor the said person shall at any time after the service of this order be in any place within the district of 24-Parganas, for ft period of three months with effect from the date of this order.

By order of the Governor,

P. C. Acharji

Joint Secretary to the Government

of West Bengal.'

7. On behalf of the petitioner it is contended that this order is one under the proviso to Section 22, West Bengal Security Act 1950 and is accordingly to be deemed to be a renewal order and not an original order. The circumstances under which the last order was issued and the terms of that order leave no room for doubt that this was a renewal order and cannot be regarded as an original one.

8. It is contended in the first place that under Article 19(1)(d) of the Constitution of India every citizen has the fundamental right to move freely throughout the territory of India and under Sub-clause (e) to reside and settle in any part of the said territory.

9. Limitations may be imposed on the exercise of this fundamental right provided such restrictions are covered by the provisions contained in Clause 6 of Article 19 of the Constitution of India which is in the following terms:

'Nothing in Sub-clauses, (d), (e) and (f) of the said clause shall affect the operation of any existing law so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of general public or for the protection of the interest of any schedule tribe.'

10. It is urged that the West Bengal Security Act, 1950, which was passed by the West Bengal Legislature and after receiving the assent of the President was first published in the Calcutta Gazette on 31-3-1950, after the Constitution of India had come into force, imposes in Sections 21 and 22 of the said Act unreasonable restrictions on the exercise of the fundamental rights of a citizen conferred under Article 19 of the Constitution of India.

11. Sub-clause (d) of Clause (1) of Article 19 of the Constitution of India came up for consideration before the Supreme Court in Dr. N. B. Khare v. The State of Delhi, : [1950]1SCR519 . It is incontestable that the rights 'recognised in Sub-clause (d) of Clause (1) of Article 19 are subject to 'reasonable restrictions' in the interests of the general public. (Clause (5) of Article 19 of the Constitution of India). Whether a particular restriction imposed by the Legislature is reasonable or not in the interests of the general public has to be considered by the Court. The Court is not precluded from considering the reasonableness of the substantive as well as the procedural part of the law imposing the restrictions. Kania C. J. repelled the argument in support of a narrow construction sought to be put on the expressions as in' Clause (5) of Article 19 restricting the Court's power to consider only the substantive law on the point.

12. The Supreme Court (Mahajan and Mukherjea JJ, dissenting) came to the conclusion that the East Punjab Public Safety Act, 1949, so far as it gave authority to the executive to restrict the movement of a citizen was not an unreasonable restriction.

13. The points which were taken questioning the reasonableness of the substantive and procedural provisions in the impugned Act (East Punjab Public Safety Act 1949) held that making the satisfaction of the Provincial Government or of the District Magistrate a final one was not unreasonable (sic). Further, restricting the movement of a person for three months, the externee having no remedy during that period, was also not unreasonable, as in comparison with the provisions contained in the Preventive Detention Act, 1950, where a similar period of three months is presumably under the Constitution itself as under Article 22(4) to (7) not unreasonable (sic). It was pointed out that the provisions of that Act could not be applied for the exclusion of the removal from a province of a person ordinarily residing in the said province or of a person ordinarily resident in a district from that particular district. This last provision was considered by the Court to be a real safeguard provided under the impugned Act protecting the rights of a person to reside in a particular locality where he normally resided and carried on his usual avocations of life.

14. The further argument that when the Provincial Government directed the renewal of the order of externment after the first period of three months no limit of time was prescribed by the Legislature for the duration of the said order that was unreasonable, it was pointed out that the whole Act is to remain in force only up to 14-8-1931.

15. The learned Chief Justice further observed :

'Moreover this whole argument is based on the assumption that the Provincial Government when mating the order will not perform its duty and may abuse the provisions of the section. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs but the validity of the law cannot be contested because of such an apprehension.'

16. One further argument was advanced in that case in the Supreme Court on behalf of the externee that there was no provision in that Act for furnishing grounds of externment to the person concerned. Reference, however, was made to the provisions contained in Section 4 (6), East Punjab Public Safety Act, 1949, which provided

'that when an externment order had been made its grounds may be indicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under Section 3 (4).'

While the word 'may' originally conveys the idea of a discretion and not compulsion, reading with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the externee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grounds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of Section 4 (6). That can be done only by reading the word 'may' for that purpose as having the meaning of 'shall.'

17. Although there was a provision for a reference to an Advisory Board there was no direct provision as to what the Advisory Board was required to do when it received a representation. It was observed that the absence of an express statement in the impugned Act did not in any way invalidate the Act, as a reference to the Advisory Board carried the necessary implication of a consideration of the case by such a Board.

18. The Supreme Court further proceeded to consider whether the grounds for the externment order as supplied to the externee were vague, insufficient and incomplete. The petition was rejected as all the contentions raised failed.

19. In the case now before us it is pointed out that the West. Bengal Security Act, 1950, does not contain any of the safeguards to which reference had been made in the East Punjab Public Safety Act for holding that the restrictions imposed were reasonable.

20. Legality of an externment order under the West Bengal Security Act, 1960 was considered by a Division Bench of this Court in Khagendranath De v. District Magistrate of West Dinajpur, civil Rule 910 of 1950, D/-6-9-1950: : AIR1951Cal3 . Neither on behalf of the State nor of the externee was any reference made to this decision. It is, however, necessary to consider the effect of that decision. In that case the order of externment simply stated that the person was doing a subversive act without indicating under which particular Sub-clauses of Section 2 (9) of the Act did that act fall. It was observed:

'The State Government, however, are on the horns of a dilemma. If they contend that Section 21 authorises this very vague form of order, which would give the person served no indication whatsoever as to why he was externed, then I would be bound to hold that Section 21 is procedurally unreasonable as pointed out by the learned Chief Justice of the Supreme Court in the Khare case : [1950]1SCR519 . On the other hand if the State Government take the view that the order should set out the nature of the subversive act then the order made by the learned District Magistrate in this case is on the face of it a bad order and cannot be regarded as an order made under the Act. In my view Section 21 contemplates that the order should contain a statement as to what the subversive act is and as the present order does not contain such a statement I hold that it is not an order made under the Act and therefore is not binding on the petitioner.'

21. Whether there being no provision in the Act requiring grounds for making the order to be stated would make the Act ultra vires the Constitution of India, the Court did not think it necessary finally to decide upon. There is a further observation that merely because there was no section in the impugned Act expressly allowing representation to be made, the Act cannot be held ultra vires. In view of the fact that the order of externment was found not to be an order under the Act the Court was not called upon to give a final decision as to whether Sections 21 and 22 of the Act were ultra vires. 22. In the present case, however, as we shall indicate hereafter the form of the order complained of is in terms of Sections 21 and 22 of the Act; we have, therefore, to arrive at a decision as to whether Sections 21 and 22 of the Act are ultra vires or not.

23. On an examination of the relevant provisions of the impugned Act it is patent that the Legislature has merely made provisions authorising certain officials to restrict the movement of the person concerned. There is no provision or indication as to how and if at all, the person affected may take necessary steps for having the order passed on him reviewed. The fact that an aggrieved person may move the Court under Article 226 of the Constitution will not in our opinion be sufficient to regard provisions restricting fundamental rights being reasonable. The restrictive provision itself should prima facie indicate whether such restriction is reasonable or not.

24. The absence of the particular provision or other may not be sufficient to declare whether a provision restricting the liberty of movement is reasonable or otherwise. We have to consider all the points taken together and assess the cumulative effect of all those particulars. We now proceed to consider the lacuna as indicated on behalf of the petitioner before us in support of the contention that the restriction imposed is an unreasonable one.

25. In the first place the provisions in the Bengal Act now under consideration under which the movement of a person can be restricted are applicable to all concerned and the externed person may be a resident of the place or of the district from which he is externed. The petitioner in the present case is a resident of the district of 24-Parganas. Dr. Khare was not a resident of the East Punjab or of the particular State from which he was externed. It is not suggested that provisions for externing a person from the place where he is usually residing will by themselves be unreasonable. There may be good and valid grounds for keeping a person out from his usual place of residence as he may be doing greater mischief at that place than elsewhere. But if such wide powers are given some procedure should be provided for the protection of the rights of such a person. But there is none so far as this Act is concerned.

26. Sections 21 and 22, West Bengal Security Act, 1950, make provisions for an extension of the period of externment without any provision for (1) intimation to the externee of the grounds of such detention, (2) a right of the externee to make a representation against the order of externment and (3) any procedure or tribunal for consideration of the representation that may be made for the review of the order of externment passed on the externee.

27. The right of hearing before condemnation is admitted to be a component of the rights which taken together constitute rights of natural justice, though that does not mean that an interim ex parte order cannot be passed restricting the movements of a person. But

unless he is given an opportunity of being heard by a properly constituted body even after such an interim order, the order restricting the fundamental rights must be declared to be unreasonable.

28. The period during which this Act will remain in force is no doubt a limited one but that by itself will not justify unrestricted authority being vested in certain persons for restricting the movement of a citizen without any safeguard whatsoever and without any provision about his getting a proper hearing even after the ex parte interim order for the initial period.

29. On behalf of the petitioner-externee a reference is made to the provisions contained in the Goonda Act (Bengal Act I [1] of 1923) which also gives authority to the Commissioner of Police, Calcutta, to extern a non-resident of Calcutta and the matter has to be considered by two advisory Judges. Even such provisions have not been made in the impugned Act now before us.

30. Reference was also made to Brajnandan Sharma v. State of Bihar, : AIR1950Pat322 (F. B.), Emperor v. Jeshingbhai Ishwarlal, : AIR1950Bom363 (F. B.). The test applied by a Special Bench of this Court in In the matter of Pachim Bengala Patritca, decided on 21-11-1949 was also relied upon.

31. On a careful examination of the provisions contained in Sections 21 and 22, West Bengal Security Act, 1950, there is no escape from the conclusion that the restrictions imposed on the free movement of a citizen are not reasonable. We cannot in this connection overlook the provisions contained in Section 38 of the same Act, under which the State Government was entitled to 'direct that any power or duty which is conferred or imposed by any provision of this Act upon the State Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged also by any officer or authority subordinate to the State Government.' This section has already been declared to be ultra vires by this Court in Khagendranath De's case ( : AIR1951Cal3 (supra).

32. The fundamental rights assured under Article 19(1)(d) and (e) of the Constitution of India can only be modified or restricted if such restrictions are reasonable ones necessary in the interests of the general public.

33. As under the present provisions of the impugned Act the widest of powers are given to the State Government and such powers may be delegated to 'any officer or authority subordinate to the State Government' without making any provision for safeguarding the interest of the person aggrieved, if the officer making the order might have committed a mistake or might have made an improper order.

34. We must, therefore, hold that Sections 21 and 22, West Bengal Security Act, 1950, impose unreasonable restrictions on the exercise of the fundamental right of a citizen of India secured by Article 19(1)(d) and (e) of the Constitution of India. Those two sections of the said Act are ultra vires the Constitution of India. The orders of externment passed under the said sections are void and illegal. Sections 21 and 22, West Bengal Security Act, 1950, are clearly severable from the rest of the provisions of the said Act and our decision does not in any way affect or touch those other and separable provisions.

35. In view of this decision it is not necessary to deal with the other objections raised on behalf of the externees. But we shall proceed to indicate the other points argued and our decision on the same.

36. The petitioner further questioned the bona fides of the State in making the successive orders against the petitioner only for the purpose of avoiding a decision by the Court on the various points raised in the successive petitions. No doubt, the manner in which this particular petitioner has been dealt with by the Government, furnishes an opportunity to the petitioner to question at least the slipshod manner in which cases of this description are dealt with by the authorities. It is unquestionable that when orders under Sections 21 and 22, West Bengal Security Act, 1950, are passed by a competent authority, the extent of the power of the authority concerned and all the necessary materials and particulars concerning the case should be before the authority at the proper time. The earlier orders which were passed in this case on 28-4-1950 and 2-9-1950, were withdrawn, presumably because the authority concerned became cognisant of some defect or other in the orders passed as soon as the order in question was attacked before a Court as illegal or ultra uires. Rescinding an earlier order and imposing a new order is presumably under Section 22, West Bengal Security Act and that fact by itself would not be sufficient to impute mala fides to the Government.

37. We have already observed that the procedure followed in issuing successive orders which have to be rescinded one after another show that the authorities concerned are not wholly alive to the very great responsibility which lies on them and greater the responsibility more care should be taken when personal liberty is being restricted on delegated authority from the Legislature. We hold, therefore, the though the acts of the executive were not careful enough no question of mala fide can be raised based upon these facts alone.

38. Lastly it has been contended that the ground mentioned in the order complained of is not sufficiently clear to attract Sections 21 and 22, West Bengal Security Act. 'Subversive act' is defined in Section 2 (9) of the Act and means amongst others an act which is intended or is likely to endanger communal harmony. The Governor has recorded in the order in question his satisfaction that the person is likely to do a subversive act, that is an act likely to endanger communal harmony instigating local Muslims to boycott the Hindus and it cannot be deemed to be either indefinite or vague or outside the scope of the provisions of the Act. The locality referred to in the restriction order is presumably the Police Station Habra which is the place of residence of the person externed. No objection can, therefore, be raised on the grounds being either outside the scope of the Act or of being vague and indefinite.

39. Civil Rule 1450 of 1950 is accordingly made absolute and the order of externment issued against the petitioner is declared void and illegal and a writ in the nature of a mandamus will issue accordingly calling upon the Joint Secretary to the Government of West Bengal to give effect to the order complained of.

40. Civil Rule 1348 of 1950 has become infructuous on account of the withdrawal of the order complained of.

41. The petitioner is entitled to the costs in both the Rules. Hearing fee 2 G. Ms. in each case.

42 C. R. 1349 and 1451 of 1950. -- For the reasons given above civil Rule 1451 of 1950 is made absolute and the order of externment is declared to be void and illegal and a writ in the nature of a mandamus will issue accordingly as prayed for. Civil Rule 1349 of 1950 has become infructuous as the order complained of has after the issue of the Rule been withdrawn. The petitioner in these two Rules will be entitled to the costs of hearing 2 gold mohurs in each case.

43. A certificate under Article 132(l) of the Constitution of India is given in these case excepting C. R. 1348/50 and C. B. 1349/50 as they involve substantial questions of law as to the interpretation of the constitution.


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