civil appellate jurisdiction civil appeal number. 1594-
1595 0f 1986.
from the judgment and order dated 23.8.1985 of the
delhi high companyrt in s.a.o. number 185 and i84 of 1983.
avadh behari rohtagi m.s. maan and b.s. maan for the
appellant. harish n. salve s.k. mehta vijay makhija r. jaganath
goulay s.a. sarin and aman vachhar for the respondents. the judgment of the companyrt was delivered by
natarajan j. both the appeals by special leave have
been filed by the same appellant and are directed against a
common judgment delivered by the high companyrt of delhi in two
connected second appeals dismissing the execution
applications filed by the appellant against the respondents
in the two appeals under section 21 of the delhi rent
control act  for sho-rt the act hereinafter . the
execution applications were dismissed by the rent companytroller
but on appeal by the appellant herein they were allowed and
the tenant respondent in each of the applications was
directed to surrender possession in a months time. the high
court however reversed the order of the rent companytrol
tribunal in the second appeals preferred by the respondents
a dismissed the execution applications. the aggrieved
appellant has preferred these appeals. it was the appellants case that she had obtained the
sanction of the additional rent companytroller new delhi on
26/27.2.76 and there-after leased out specified portions in
her property bearing number n-57 panchseel park new delhi to
the respondents under separate leases of a limited period of
two years companymencing from 1.3.76. according to here the rear
portion in the ground floor companysisting of a drawing-cum-
dining hall a bed room a bath room and other facilities
were leased out to the tenant maj. r.c. chhiba  respondent
in ca number 1594 of 1986 and the first and second floors
comprising of four bed rooms with attached bath rooms and
other facilities were leased out to the tenant tewari
 respondent in ca 1595 of 1986  and each of the tenants was
to pay a sum of rs.50 per month for the respective portion
pg number245
leased out to them. on the ground the two respondents failed
to vacate the portions leased out to them at the end of the
two years period the appellant filed execution applications
under section 21 of the act to seek an order from- the rent
controller for delivery of possession of the leased
portions
the companymon defence put forth by the two respondents was
that there was a single tenancy and number two tenancies and
they were jointly inducted into possession of the entire
leased portion even in the month of december 1975 under an
oral lease and as such their tenancy was number referable to
the sanction given by the rent companytroller on 26/27.2.76. to
substantiate their companytentions the respondents placed
reliance on the payment of a sum of rs.1700 by them on
10.12.1975 as security deposit and the payment of a sum of
rs.5100 by means of cheque on 29.12.1975 towards advance
payment of rent for three months. they alleged that inspite
of their having been inducted into possession in december
1975 itself the respondent mislead them by saying that the
oral tenancy required formal sanction by the rent companytroller
and hence they should appear before the rent companytroller and
have their statements recorded by him. it ws only after
giving their statements before the rent companytroller they
suspected the motives of the appellant and hence they
refused to execute lease deeds in the month of march 1976 as
desired by the appellant. the rent companytroller. after a detailed companysideration of
the evidence adduced by the parties accepted the case of the
respondents and held that an oral tenancy had been created
in favour of the respondents even in the month of december
1975 and as such their tenancy rights were number governed by
the sanction given by the rent companytroller under section 21
of the act and further more the sanction of the rent
controller was vitiated by fraud in that it was obtained by
suppressing the true facts from the numberice of the rent
controller. it was further held that the order of sanction
of the rent companytroller suffered from an infirmity due to the
appellant failing to glove the reasons for her wanting to
let out the property for a limited period. we need number
however companycern ourselves about that aspect of the matter. the rent companytrol tribunal in the appeals preferred to
it however differed from the rent companytroller and held that
even if he respondents had been inducted into possession in
december 1975 under an oral tenancy they must be deemed to
have impliedly surrendered their earlier tenancy and
consented to acquire fresh tenancy under the sanction
granted by the rent companytroller on 26/27.2.76. on the
pg number246
question whether the sanction of the rent companytroller was
vitiated by fraud the appellate tribunal held that the
respondents ought to have brought to the numberice of the rent
controller without delay the fraud practised by the
appellant and since they had failed to act promptly they
were number entitled to seek nullification of the
sanction of the rent companytroller on the ground of fraud. in
accordance with its companyclusions the tribunal allowed the
appeals preferred by the appellant and held that the
execution applications were maintainable and directed the
respondents to deliver possession to the appellant of the
leased portions in a months time. it was then the turn of the respondents file second
appeals to the high companyrt against the order of the rent
control tribunal. the high companyrt allowed the appeals holding
that since the respondents were already given tenancy rights
they would number be governed by the sanction given by the rent
controller on 26/27.2.76 and furthermore the sanction order
itself was unenforceable as it was vitiated by fraud. the
high companyrt also held that numberquestion of implied surrender
of the earlier tenancy would arise when the rent companytroller
gave sanction for limited tenancy rights being given to the
respondents in as much as the purported new lease was void
in law and incapable of affording scope for any surrender of
a pre-existing lease. companysequently the high companyrt allowed
the second appeals and restored the order of the rent
controller dismissing the execution applications. mr. rohtagi learned companynsel for the appellant
formulated his propositions as under to companytend that the
high companyrt had erred in allowing the appeals and dismissing
the execution applications

the sanction given by the rent companytroller on
26/27.2.76 to the appellant permitting her to grant limited
tenancy rights to the respondents was fully in accordance
with section 21 of the act and it did number suffer from any
defect or infirmity. the order of sanction was number vitiated by fraud as
the respondents were fully in the knumber of things and were
aware of the nature and purpose of the application made
before the rent companytroller and had willingly appeared before
the rent companytroller and solemnly declared before him that
they were willing to take the premises on lease for a
limited period of two years companymencing from 1.3.1976.

in any event the respondents are dis-entitled under
law to set up a plea of fraud to seek nullification of the
pg number247
sanction granted by the rent companytroller because the
respondents had number only failed to bring forthwith to the
numberice of the rent companytroller the fraud companymitted by the
appellant but on the other hand they had availed of the
benefit of the permission given by the rent companytroller for
the full period of two years and thereby they had lost their
power of avoidance of the transaction. even if the order of sanction was vitiated by
fraud the tenancy created thereunder was only a voidable
transaction and number a void one and as such by reason of
the respondents having failed to avoid the companytract and
instead having availed the benefit of it for the full period
of two years they were number entitled to refute the validity
or the binding nature of the sanction granted by the rent
controller for creation of limited tenancy rights in their
favour. even if it were to be held that the respondents had
already been inducted into possession of the leased premises
on an oral tenancy in the month of december 1975 itself
they must be deemed to have impliedly surrendered their
tenancy rights under the oral lease when they agreed to
accept the limited tenancy rights given to them in pursuance
of the sanction of the rent companytroller. before we examine the companytentions of mr. rohtagi we
may appositely advert to certain facts emerging from the
evidence and the inferences resulting therefrom. the
relevant factors requiring mention are as follows. the two respondents are number stranger but are brothers
and they have been inducted into possession on one and the
same day i.e. on 10th december 1975. though the appellant
would say that different portions of the house were leased
out to them under separate tenancies the fact remains that
a sum of rs.1700 had been paid by them towards security
deposit on 10.12.1975. the appellant has numberdoubt
acknumberledged the payment under two receipts but both the
receipts have been typed on the same paper. the receipts
would read as if a sum of rs.850 had been received
separately from each one of them but the recital is of no
consequence because the respondents have paid the appellant
a sum of rs.5100 by means of a single cheque towards
advance rent for a period of three months at the rate of
rs.17 0 per month. the appellant has tried to explain away
the payment by saying that the payment represented a sum of
pg number248
rs.2550 given by each of the respondents for meeting the
expenses of white-washing companyour washing and for effecting
repairs to the premises. it has how-ever been found that
numbersuch works were carried out. there is the further fact
that while the ground floor portion leased out companysisted of
only a drawing-cum-dining hall one bed room and one
bathroom the first and second floors companysisted of four bed
rooms together with bathrooms etc. it is inconceivable that
irrespective of the difference in the size and nature of the
two portions the respondents would have companysented to pay the
same rate of rent to the appellant for the portions alleged
to have been leased out to them. it is also worthy of numbere
that the tenancies said to have been granted to the two
respondents are for the same period i.e. from 1.3.76 to
28.2.78. if all these factors are taken numbere of the only
conclusion that can be reached is that only a single tenancy
in favour of both the respondents should have been created
for the entire portion leased out and number two tenancies
viz. one for the ground floor and the other for the first
and second floors and that the story of two tenancies put
forward by the appellant is a make-believe affair it is in
this background the appellants companytentions have to be
examined. it is true that the appellant as well as the
respondents appeared before the rent companytroller on
26/27.2.76 and gave statements to the effect that the
appellant did number require the use of the leased premises for
a period of two years companymencing from 1.3.76 and that the
respondents were willing to take the respective portions
marked in the plan ex. a- i produced by the appellant for a
limited period but even so the question would arise whether
the order passed by the rent companytroller can be deemed a
valid and legal sanction given under section 21. the answer
has to be clearly in the negative because the appellant had
already let out the premises to the respondents and as such
there was numberquestion of the appellant number being in need of
the leased portion for a period of two years from 1.3.76.
it has been held in inder mohan lal v. ramesh khanna l
l987 iv scc 1 at page 9 that in order to attract section 21
four companyditions must be fulfilled. the relevant portion
reads as follows
therefore the first companydition must be that the
landlord must number require the premises either in whole or
part of any premises for a particular period. secondly the
landlord must obtain the permission of the companytroller
in the prescribed manner. thirdly letting of the whole or
part of the premises must be for residence. fourthly such
letting out must be for such period as may be agreed in
writing. pg number249
applying the above tests it may be seen that in this
case the very first companydition has number been fulfilled. when
the appellant had already parted with her possession of the
leased portions by inducting the respondents into possession
in december 1975 itself the statement of the appellant
before the rent companytroller on 26/27.2.76 made as if she was
in possession of the house and she would number be needing the
house for her occupation for a period of two years from 1.3. 976  was a meaningless statement besides being a subversive
statement as well. as pointed out in s.b. numberonah v. prem
kumari 1980 l scr 281 section 2 i has been provided in
the act to offer a pragmatic companypromise formula to satisfy
the ever increasing demand of rental accommodation by number-
owners of houses on the one hand and the reluctance of the
owners of houses due to genuine apprehension entertained by
them on the other in letting out their houses in whole or in
part even when they were number in need of the house or portion
of it lest the tenants should set up statutory tenancy
rights and refuse to vacate the premises at the end of the
lease period. what the section envisages is the creation of
tenancy rights after getting the sanction of the rent
controller. such being the case the landlord should make
knumbern to the rent companytroller if there is already a tenant
in occupation of the premises the factum of his possession
and the terms of the tenancy and satisfy the rent
controller that numberwithstanding a tenant being in
occupation of the premises under an earlier tenancy he
should be granted sanction under section i to companyfer
limited tenancy rights in favour of the existing tenant
himself or in favour of .i new tenant. section i was number
intended to obtain post-facto sanction of a tenancy that had
already been created by suppressing relevant information
from the rent companytroller so as to enable the landlord to
straightaway recover possession of the leased property by
filling an application under section 2l of the act after
the expiry of the period for which permission to lease had
been granted by the rent companytroller. such being the case
when the appellant had already put the respondents in
possession of the property in december 1975 she companyld number
have bona fide made a statement before the rent companytroller
that she would number be requiring the premises for her own
occupation from l.3.1976  onwards for a period of two years. he fact that the respondents also appeared before the rent
controller and gave statements in tune with the statement
made by the appellant cannumber improve the situation in any
manner because a statement made in companytravention of
facts. whether made by one or both the companytracting parties
cannumber alter the truth of the situation or cure the lacuna
of withholding of relevant information from the rent
pg number250
controller. we cannumber therefore accept the companytention of the
appellants companynsel that the order passed by the rent
controller on 26/27.2.76 granting sanction to the appellant
to companyfer limited tenancy rights on the respondents did number
suffer from any defect or infirmity. as regards the next companytention of mr. rohtagi that the
appellant had number companymitted any fraud when she sought for
and obtained sanction from the rent companytroller to grant
limited tenancy rights to the respondents and that in any
event the respondents were fully in the knumber of things and
were therefore estopped from raising a plea of
fraud to resist the execution applications the argument is
based on a misconception of the real perspective from which
the matter should be viewed. what is of relevance is number
whether the appellant had companymitted any fraud upon the
respondents but whether the appellant had fraudulently
suppressed relevant materials from the numberice of the rent
controller and had thereby obtained an order of sanction
from the rent companytroller to lease out the property for a
period of two years from 1.3.1976. there is numberdenying the
fact that the appellant had failed to disclose to the rent
controller that she had already inducted the respondents
into possession and inspite of it she was seeking permission
under section 21 in order to restrict the tenancy rights of
the respondents to a period of two years with effect from
1.3.1976. had she disclosed the real state of affairs it is
doubtful whether the rent companytroller would have given his
approval to the appellant to restrict the tenancy rights of
the respondents who were already in possession to a period
of two years in substitution of the rights available to
them as statutory tenants under the act. we do number however
rule out the possibility of a rent companytroller granting
sanction under section 21 to a landlord to let out his
premises in whole or in part for a limited period to a
tenant even if the tenant had already been inducted into
possession but such sanction has to be obtained after a full
an-i frank disclosure of all factors including the
circumstances under which the tenant had been put in
possession even before the rent companytrollers sanction was
obtained and before an agreement in writing was entered into
between the parties in terms of the sanction. it companyld be
that the tenant may have been in urgent need of the premises
and companyld number afford to wait to take possession of the house
till the legal and procedural formalities were gone through
on account of some exigency such as immediate requirement of
the house to celebrate a wedding or for a family member to
undergo treatment or for the companyfinement of a daughter or
daughter-in-law etc. but in all such cases the parties must
place all the materials before the rent companytroller while
pg number251
seeking his sanction under section 21. the fact that the
respondents had also appeared before the rent companytroller and
agreed to take the property on lease for a limited period of
two years without demur cannumber obliterate or nullify the
fraud companymitted on the statute. this position has been
succinctly pointed out in s.b. numberonah v. prema kumari
 supra  at page 287 in the following words
the fact that a landlord and a potential tenant together
apply setting out the formal ingredients of section 21
does number relieve the companytroller from being vigilant to
inquire and satisfy himself about the requisites of the
landlords number-requirement for a particular period and the
letting itself being as a residence
therefore besides what the parties say the rent
controller has to apply his mind before granting sanction
under section 21 because the order passed by him has legal
consequences and will govern the rights of the parties to
the tenancy that is to follow in terms of the sanction. this
is the proper perspective from which the matter should be
viewed. forgetting this position mr. rohtagi based his
arguments on the footing that what has been held against the
appellant was her perpetration of a fraud on the respondents
and the respondents being the sufferers thereby. it was
proceeding on those lines mr. rohtagi argued that the
respondents were number illiterate but highly educated persons
that they were fully aware of the nature of the transaction
and that they had willingly companysented to the creation of
limited tenancy rights in their favour and it was only after
deriving full benefit under the tenancy rights given to them
for two years they were brazenly setting forth a plea of
fraud and refusing to deliver possession of the leased
premises. the argument does number merit companysideration because
we have already pointed out that the relevant factor for
consideration is number whether the respondent were victims of
a fraud but whether the appellant by herself or in companylusion
with the respondents had fraudulently suppressed the truth
from the rent companytroller and induced him to give his
sanction under section 21 so as to restrict the tenancy
rights already companyferred upon the respondents to a period of
two years and to enable the appellant to initiate execution
proceedings straightaway against the respondents at the
expiry of the lease period and have them evicted through
process of companyrt from the leased premises. what is number left is the further companytention of the
appellants companynsel regarding the failure of the respondents
to have speedily brought to the numberice of the rent
controller the fraud companymitted by the appellant and to have
pg number252
sought for an annulment of the permission granted under
section 21. the appellants companynsel placed reliance on the
observations of this companyrt in three cases viz. j.r. vohra v.
indian export house pvt. limited 1985 i scc 712 at 723
inder mohan lalscase  supra  para 28 page 17 and joginder
kumar butani v. r.p. oberai 1987 iv scc 20 at 29 which
are all to the effect that the delay on the part of the
tenant to impugn the permission granted under section 21 by
the rent companytroller on the ground of fraud is a relevant
factor to be taken into companysideration by the companyrt while
determining the question whether a tenant should number be
summarily evicted under section 21. the observations in
those cases cannumber be of any assistance to the appellant for
in numbere of those cases was it found that the sanction
granted by the rent companytroller under section 21 was vitiated
by fraud and was therefore a nullity. numbere of the decisions
lay down that where a sanction granted by the rent
controller under section 21 is rendered void by reason of a
fraud practised upon the statute the delay on the part of
the tenant in seeking annulment of the order of sanction
will cure the order of its voidness. turning number to the last of the companytentions of the
appellants companynsel viz. that by reason of the respondents
having agreed to take limited tenancy rights under the order
of the rent companytroller for a period of two years companymencing
from 1.3.1976 they must be deemed to have impliedly
surrendered their earlier tenancy rights as envisaged under
clause  f  of section 111 of the transfer of property act
it has numbermerit in it because the high companyrt has rightly
pointed out after referring to does d. earl of egrement v.
courtenay 1843-60 all.


original jurisdiction writ petition number 91 of 1964.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights and civil appeal number 358
of 1966.
appeal by special leave from the judgment and order dated
september 9 1963 of the allahabad high companyrt in civil writ
petition number 1885 of 1962.

p. goyal and raghunath singh for the petitioner  in

p. number 91 of 1964 . k. sen j. p. goyal and raghunath singh for the appel-
lants  in c.a. number 358/66 . sen and s. p. nayar for respondent number 1  in w.p. number
91 of 1964  and respondents number. 3 and 4  in c.a. number 358 of
1966 . n. sharma for respondent number 2  in w.p. number 91/64  and
respondents number. 16 and 17-  in c.a. number 358/66 . the judgment of the companyrt was delivered by
bbargava j.-this writ petition and the appeal challenge the
validity of the hindi sahitya sammelan act number 13 of 1962
 hereinafter referred to as the act . the facts leading
up to the passing of this enactment are that in the year
1910 some eminent educationists assembled at banaras and
founded an association for the development of hindi and its
propagation throughout the companyntry. this association was
named as the hindi sahitya sammelan. on the 8th january
1914 it was registered as a society under the societies
registration act number 21 of 1860 with head office at
allahabad under the name of hindi sahitya sammelan. the
rules and bye-laws of the society laid down the objects of
this association and the manner of its working. it had
three classes of members viz. special members  vishisht
sadasya  permanent members  sthayi sadasya  and ordinary
members  sadharan sadasya . under the bye-laws apart from
the original members companystituting the society further mem-
bers companyld be admitted under these three classifications on
being elected by the working companymittee of the society. under the rules and bye-laws of the society other bodies
could be companystituted for carrying on activities of the
society. these included a governing body a working
committee a hindi university companyncil literary companyncil
 sahitya samiti  library companymittee parchar samiti and
rashtriaya bhasha prachar samiti. through the agencies of
these various companymittees the society carried on the work of
development and propagation of hindi of spreading the use
of devnagri scrip of holding examinations and of companyfer-
ring degrees for proficiency in hindi. the society owned
landed properties and buildings at allahabad as well as at
some other places such as warding and was holding
considerable funds for carrying on its activities. the
society worked very successfully for a number of years. it
appears that in the year 1950 some differences arose
between the members of the society and attempt was made to
alter the companystitution of the society. while one section
wanted the alterations anumberher section was opposed to it. this resulted in litigation. three different suits were
instituted in the civil companyrts at allahabad in this
connection and injunctions were sought by one party against
the other. ultimately the companyrt appointed a receiver. in view of- these circumstances the u.p. legislature passed
an act knumbern as the u.p. hindi sahitya sammelan act number 36
of 1956 under which a statutory body was created under the
name of hindi sahitya sammelan and the word sammelan was
defined as referring to the hindi sahitya sammelan companystitu-
ted under the act. under that act. under that act the
mana-
gement and properties of the original hindi sahitya
sammelan which was a registered society were to be taken
over by the new statutory sammelan. that act was however
declared void by the allahabad high companyrt on the ground
that act had made the original sammelan cease to exist and
provided for the companystitution of a new sammelan under its
terms in which the members of the original sammelan had no
say so that act infringed the right of the members of the
original sammelan of forming an association guaranteed by
art. 19  1   c  of the companystitution. it was further held
that act was number saved under art. 19 4  of the companystitution. thereafter the present act number challenged in this writ
petition and the appeal was passed by parliament under
entry 63 of list i of the seventh schedule to the
constitution. the act itself in section 2 companytained the
necessary declaration to give legislative companypetence to
parliament under that entry. the act first companytained in section 2 a declaration in the
following words -
whereas the objects of the institution knumbern
as the hindi sahitya sammelan which has its
head office at allahabad are such as to make
the instituation one of national importance
it is hereby declared that the institution
knumbern as the hindi sahitya sammelan is an
institution of national importance. having declared this institution as an institution of
national importance th.- act proceeded to define
sammelan as meaning the institution knumbern as the hindi
sahitya sammelan incorporated under this act while the word
society was defined to mean the hindi sahitya sammelan
which has its head office at allahabad and is registered
under the societies registration act 1860. under section
4 1  of the act the sannnelan was companystituted which was to
consist of the first members of the sammelan and all persons
who may hereafter become members thereof in accordance with
the rules made in that behalf. this statutory sammelan was
constituted as a body companyporate by the name of the hindi
sahitya sammelan and under sub-section  2  of section 4 it
was to have perpetual succession and a companymon seal with
power subject to the provision of the. act to acquire
hold and dispose of property and to companytract and to sue and
be sued by that name. the head office of the sammelan was
to be at allahabad. under subs.  4  of section the first
members of the sammelan were to companysist of persons who
immediately before the appointed day.-
 a  were special members  vishisht sadasya
of the society
8 45
 b   were. life members  sthayi sadasya  of
the society.  c  had been presidents of the society or
 d  were awarded the mangla prasad
paritoshik by the society. this sub-s.  4  of section 4 was amended retrospectively
with effect from the date that the act came into force by
the hindi sahitya sammelan  amendment  act number 1 of 1963
and the first members of the sammelan were under this
amendment declared to be-
 a  all persons who immediately before the
appointed day were members of the society
 b  all persons who before that day had
been presidents of the society and
 c  all persons who before that day were
awarded the mangla prasad paritoshik by the
society. it is number necessary to give in detail the other provisions
of the act except that it may be mentioned that the act
provided for vesting of all property movable or immovable
or belonging to the society in the sammelan transferring
all rights and liabilities of the society to the sammelan
converting reference to the society in any law to the
sammelan and other similar necessary provisions. the act
itself did number make any provision for the future membership
of the sammelan but under section 12 1   a  the first
governing body of the sammelan was directed to make rules in
respect of matters relating to membership including
qualifications and disqualifications for membership of the
sammelan. the first governing body was to be companystituted
under section 8 and was to companysist of a chairman a
secretary and 13 other members. this governing body was to
be companystituted by a numberification in the official gazette by
the central government. the thirteen members were to be
chosen as follows -

one member to represent the ministry of
the central government dealing with
education

one member to represent the ministry of
the central government dealing with finance

number more than three members from among
the former presidents of the society and

the remaining number from among persons
who are in the opinion of the central govern-
ment eminent in the field of hindi language
or hindi literature. it was this first governing body which was to make rules on
all matters relating to membership of the sammelan under
section 12  1   a  of the act. these rules were number have
effect until they were approved by the central. government
and were published by the first governing body in such
manner as the central government may by order direct. a
copy of the rules was also to be laid before each house of
parliament. companynsel for respondent number 1 placed before us a
copy of the rules which according to him have been made by
the first governing body with the approval of the government
and have been published as required. the rules companye into
force on 1st of february 1971. the petition under art. 32
and the petition under art. 226 out of which the civil
appeal arises were both moved much earlier and long before
these rules were framed. these petitions challenged the
validity of the act without taking into account the actual
rules framed mainly on the ground that he act had
interfered with the right of the petitioners to form
association linder art. 19 1  c  of the companystitution and was
number protected by art. 19 4 . in the petition before the
allahabad high companyrt the companyrt held that since all the
members of the society had also become members of the
sammelan under the act there was numberinfringement of the
right to form association so that the act companyld number be
declared invalid on that ground. the writ petition in this
court has been filed by only one member of the society
while the petition in the high companyrt and the appeal against
the judgment of the high companyrt which is before us were
filed by the original hindi sahitya sammelan as one party
and 72 members of that sammelan joining as other petitioning
parties. in the civil appeal thus the grievance that the
act ha infringed the fundamental right has been put forward
both by the society itself as well as by 72 of its members
including members of the working companymittee and the governing
body of the society. they have all companye up to this companyrt
against the decision of the high companyrt in this appeal by
special leave. in the companynter-affidavits filed on behalf of the respondents
in the writ petition before the high companyrt as well as in the
writ petition in this companyrt the position taken up was that
the act in fact does number deprive the society and its
members of any rights which they had under the companystitution
of the society and did number interfere with their right of
association inasmuch as all the members of the society have
been included as members of the sammelan under the act. the
high companyrt in fact dismissed the writ petition on
accepting this submission put forward on behalf of the
respondents. in the arguments before us learned companynsel
for
respondent number 1 however took up a different position and
urged that the act keeps the society in-tact as it was
where a new sammelan is companystituted under the act for the
purpose of managing the institution which has been declared
as an institution of national importance. he put this
aspect of the case in the forefront but in the
alternative he also argued the case on the basis of the
position taken up in the companynter-affidavits in the high
court and in this companyrt as mentioned above. we companysider it
convenient to first deal with the case as was specifically
put forward in the companynter-affidavits. in these companynter-
affidavits the position taken up is that having declared
the old hindi sahitya sammelan which was a society
registered under the societies registration act 1860 as an insti
tution of national importance parliament has
proceeded to legislate in respect of it under entry 63 of
list i of the seventh schedule in order that its
administration may number suffer as a result of the quarrels
that were going on inter-se between the members of the
society. it was for this purpose that a first governing
body was companystituted to take over the management
temporarily. the act was designed to reconstitute the
sammelan in such manner that it companyld work successfully and
without difficulties and in making provision for this
purpose all members of the old society were included as
members of the sammelan so that their right of forming
association may number be taken away from them. the society
was never dissolved instead of the society remaining a body
registered under the societies registration act it was
converted into a statutory sammelan under the act. it however appears on examination of the provisions of the
act that the sammelan under the act is companyposed number only of
persons who were members of the society but of others who
have been given the right to be members of the sammelan
without the companysent of the preexisting members. under
section 4 4  itself as retrospectively amended in 1963
apart from persons who were members of the society others
who have been made members of the sammelan are all persons
who before that day had been presidents of the society and
all persons who before that day were awarded the mangla
prasad paritoshik by the society. these members have been
added without any option being available to the existing
members of the society to elect or refuse to elect them as
members which was the right they possessed under the
constitution of the society itself. further under section
12  1   a  very wide powers were given to the first
governumber body to make rules in respect of matters relating
to membership including qualifications and
disqualifications for membership of the sammelan. under
this power the rules framed companyld make
10-l1100 supci71
provision for admission of persons as members whom the
original members of the society may never have liked to
admit in their society. the number of such new members
could even be so large as to leave the original members in a
small minumberity with the result that those members companyld
become totally ineffective in the society. even in the
rules actually framed there is provision for admission of
members under various classes. in addition to the persons
mentioned in section 4 4  of the act rule 6 provides for
membership of persons who may become sabhapatis of the
sammelan for any annual session subsequent to the act companying
into force and persons who may be awarded mangala prasad
paritoshik subsequent to the act companying into force. under
rules 7 8 and 9 new vishisht sadasyas sthayi sadasyas
and sadharan sadasyas can be admitted to the membership of
the sammelan on payment of rs. 1000/- or rs. 300/- as the
case may be. this admission to membership according to
the rules will be made by the new karya samiti to be
elected under the rules and number by the working companymittee of
the original members of the association. further under
section 7 2  of the act the governing body of the new
sammelan is to companysist of such number of persons number
exceeding 55 as the central government may from time to
time determine and out of these a number number exceeding 7
are to be numberinated by the central government from among
educations of repute and eminent hindi scholars. these 7
numberinees are to be chosen by the central government and on
becoming members of the governing body under rule. 11 they
become members of the sammelan. under rule 10 educational
institutions can also be admitted as sanstha sadasyas of the
sammelan by the new karya samiti and thereupon a
representative of each of such institution has right to
participate in proceedings of the sammelan exercising all
the rights of a member. it will thus be seen that the
sammelan which has companye into existence under the act is
number identical with the sammelan which was registered as a
society under the societies registration act. 1860.
certain persons have been added as members by the act and by
the rules. admission of future members is numberlonger at the
choice of the original members who had formed the asso-
ciationpersons in whose admission as members the members
of the society had numberhand can become members and get the
right of associating with them in the sammelan without the
original members having any right to obecti. this is clear
interference with the right to form an association which
had been exercised by the members of the society by forming
the society with its companystitution under which they were
members and future members companyld only companye in as a result of
their choice by being elected by their working companymittee. we are unable to agree with the high companyrt that the new
sammelan as companystituted under the act
is identical with the society and that all the rights of
forming an association which were being exercised by
members of the society have been kept in-tact under the
act. it was argued that the right guaranteed by article 19  1  c
is only to form an association and companysequently any
regulation of the affairs of the association after it has
been formed will number amount to a breach of that right. it
is true that it has been held by this companyrt that after an
association has been formed and the right under art. 19  1
 c  has been exercised by the members forming it they have
numberright to claim that its activities must also be permitted
to be carried on in- the manner they desire. those cases
are however inapplicable to the present case. the act
does number merely regulate the administration of the affairs
of the society what it does is to alter the companyposition of
the society itself as we have indicated above. the result
of this change in companyposition is that the members who
voluntarily formed the association are number companypelled to act
in that association with other members who have been imposed
as members by the act and in whose admission to membership
they had numbersay. such alteration in the companyposition of the
association itself clearly interferes with the right to
continue to function as members of the association which was
voluntarily formed by the original founders. the right to
form an association in our opinion necessarily implies
that the persons forming the association have also the right
to companytinue to be associated with only those whom they
voluntarily admit in the associate on. any law by which
members are introduced in the voluntary association without
any option being given to the members to keep them out or
any law which. takes away the membership of those who have
voluntarily joined it will be a law violating the right to
form an association. if we were to accept the submission
that the right guaranteed by art. 19   1    c  is companyfined
to the initial stage of forming an association and does number
protect the right to companytinue the association with the
membership either chosen by the founders or regulated by
rules made by the association itself the right would be
meaningless because as soon as an association is formed a
law may be passed interfering with its companyposition. so that
the association formed may number be able to function at all. the right can be effective only if it is held to include
within it the right to companytinue the association with its
composition as voluntarily agreed upon by the persons
forming the association. this aspect was recognised by this
court though number in plain words in the case of o. k. ghosh
and anumberher v. e. x. joseph  . the companyrt in that case
was companysidering the validity of rule 4  b  of the central
civil service  companyduct  rules 1955 which laid down
that
 1 1963 supp 3 s.c.r. 789.
numbergovernment servant shall join or companytinue
to be a member of any service association of
government servants
 a which has number within a period of six
months from its formation obtained the
recognition of the government under the rules
prescribed in that behalf or
 b recognition in respect of which has been
refused or withdrawn by the government under
the said rules. this companyrt held-
it is number disputed that the fundamental
rights guaranteed by art. 19 can be claimed by
government servants. art. 33 which companyfers
power on the parliament to modify the rights
in their application to the armed forces
clearly brings out the fact that all citizens
including government servants are entitled to
claim the rights guaranteed by art. 19. thus
the validity of the impugned rule has to be
judged on the basis that the respondent and
his companyemployees are entitled to form
associations or unions. it is clear that rule
4-b imposes a restriction on this right. it
virtually companypels a government servant to
withdraw his membership of the service
association of government servants as
soon as
recognition accorded to the said citation is
withdrawn or if after the association is
formed numberrecognition is aaccorded to it
within six months. in other words the right
to form an association is companyditioned by the
existence of the recognition of the said
association by the government. if the
association obtains the recognition and
continues to enjoy it government servants can
become members of the said association if the
association does number secure recognition from
the government or recognition granted to it is
withdrawn government servants must cease to
be the members of the said association. that
is the plain effect of the impugned rule. the companyrt in the above passage thus accepted the principle
that the government servants who may have formed an
association. companyld number be companypelled to resign from it by
imposition of a companydition of recognition of this association
by the government and that if the government servants are
required to cease to be members that would be a violation of
the right under art. 19  1   c . the companyrt of companyrse in
that case further proceeded to examine whether such a
restriction on the right companyld be justified under
art. 19 4  or number. that case thus supports our view that
the right to form an association includes the right to its
continuance and any law altering the companyposition of the
association companypulsorily will be a breach of the right to
form the association. this companyrt had also proceeded on the same basis in the case
of state of madras v. v. g. row 1 . though this aspect was
number clearly brought out in the judgment the point which
came up for companysideration was decided on the basis that
persons forming an association had a right under art. 19
 1   c  to see that the companyposition of the association
continues as voluntarily agreed to by them. that decision
was given in an appeal from a judgment of the high companyrt of
madras reported in v. g. rowv. the state of madras 2 . in
the high companyrt this principle was clearly formulated by
rajamannar c.j. in the following words -
the word form therefore must refer number
only to the initial companymencement of the
association but also to the companytinuance of
the association as such. the act insofar as it interferes with the companyposition of
them society in companystituting the sammelan therefore
violates the right of the original members of the society to
form an association guaranteed under art. 19 1   c . article 19 4  on-the face of it cannumber be called in aid to
claim validity for the act. under art. 19 4  reasonable
restrictions can be imposed only in the interests of the
sovereignty and integrity of india or in the interests of
public order or morality. it has number been companytended on
behalf of the respondent number companyld it be companytended that
this alteration of the companystitution of the society in the
manner laid down by the act was. in the interests of the
sovereignty and integrity of india or in the interests of
public order or morality. number being protected under art. 19 4  if must be held that the provision companytained in the
act for reconstituting the society into the sammelan is
void. once that section is declared void the whole act
becomes. ineffective inasmuch as the formation of the new
sammelan is the very basis for all the other provisions
contained in the act. in view of this position emerging in the companyrse of argu-
ments mr. b. sen put forward an entirely different and
alter-native case before us which we have mentioned earlier. the. position he took up was that the act numberhere
specifically lays. down that the society small stand
dissolved while it does companystitute a new sammelan. according to him therefore it should
 1  1952 s.c.r. 597.

a.i.r. 1951 mad. 147.
be inferred that while the society still companytinues to exist
in its original form the law has brought into existence a
new sammelan to which all the functions properties etc. of
the society have passed under the act. there are three
reasons why this alternative submission cannumber be accepted
as ensuring the validity of the act. the first is that the
specific case taken by the respondents has been that the act
reconstitutes the society and does number create a separate and
indepedent body in the form of a new sammelan. secondly
even if it be accepted that a new sammelan has been
constituted by the act the question will arise of the
legislative companypetence of parliament to pass such a law. companystitution of societies is under list 11 of the seventh
schedule. parliament purported to exercise legislative
power under entry 63 of list i on the basis of a declaration
that the hindi sahitya sammelan allahabad was an
institution of national importance. the institution that
was declared was the society itself. it was number a case
where the society companyld be distinguished from some other
institution which might have been declared as an institution
of national importance there can of companyrse be cases where
a society may be running a companylege a school or some other
like institution in which case parliament may declare that
particular institution as of national importance without
declaring the society as such in the present case what
section 2 of the act did was to declare the society itself
as an institution of national importance and companysequently
parliament became companypetent to legislate in respect of the
society. on the interpretation number sought to be put
forward the act keeps that society in-tact but deprives it
of all its functions and properties and transfers them to a
newly companystituted body viz. the sammelan as defined under
the aet. this sammelan is itself a body companyporate and that
sammelan has never been declared as an institution of
national importance. the only institutaion that was
declared as of national importance was the society which of
course earlier carried the same name as the new sammelan. parliament was therefore number companypetent to legislate in
respect of this newly companystituted sammelan which at no
stage had been declared as an institution of national
importance. the third reason why this submission must be
rejected is that if we were to hold that parliament pased
this act so as to transfer all the properties and assets of
the society to the sammelan the act would companytravene art. 19 1  f  of the companystitution. on this interpretation what
the act purports to do is to take away all the properties of
the society leaving the society as an existing body and
give them to the new sammelan. this sammelan is a new
separate and distinct legal entity from the society. the
society is thus deprived of all its properties by the
act. such a law depriving the society of its properties al-
8 5 3
together cannumber be held to be a reasonable restriction in
the public interest on the right of the society to hold the
property. the property under section 5 of the societies
registration act 1860 vested in the governing body of the
society. the members of the governing body therefore had
the right to hold the property under art. 19 1  f  and they
having been deprived of that property have rightly
approached the companyrts for redress of their grievance. in this companynection companynsel for the respondents relied on
decision of this companyrt in the board of trustees ayurvedic
and unnanii tibia companylege delhi v. the state of delhi and
anumberher 1  where the board of trustees of the ayurvedic and
unani tibbit companylege delhi was dissolved by the tibbia
college act 1952 and the property which had vested in the
board of trustees passed to the newly companystituted board
under the impugned act. the companyrt held that there was no
violation of the fundamental rights guaranteed by art. 19 1  f  or art. 31 that decision however proceeded on the
basis that the property of the original society registered
under the societies registration act had vested in the board
of trustees which had been dissolved and the property
thereafter did number vest in the members of the society in
view of the provisions of the act of 1860. in these
circumstances it was held that numberone companyld companyplain that
his right to property under art. 31 or his right to hold the
property under art. 19  1   f  had been violated by the
impugned act. in the present case the applicability of
art. 19 1  f  is being companysidered by us on the assumption
that the old society still exists as it was and yet all its
properties have been transferred to the sammelan. if the
society still exists so does its governing body in whom-
the property of the society vested. the act thus
deprives the members of the governing body of the property
which still companytinued to vest in them in spite of the
passing of the act. this total deprivation of property
instead of regulating the management of the affairs of the
society or its properties cannumber clearly be justified as a
reasonable restriction in public interest. it is true that
at the time when the act was passed litigation was going
on between the members of the society and the affairs of
the society were probably in a mess. the remedy however
could number lie in depriving the society of its property
altogether. reasonable restrictions companyld have been imposed
so as to ensure the proper preservation of the property of
the society and its proper management. if the law is passed
number merely for ensuring proper management and
administration of the property but for totally depriving
the persons in whom the property vested of their
 1  1962 suppl. i s.c.r. 156.
right to hold the property the law cannumber be justified as a
reasonable restriction under art. 19 5 . companysequently even
on this alternative position taken up by companynsel for the
respondents the act cannumber be held to be valid.