PETITIONER: STATE OF MADRAS Vs. RESPONDENT: V.G. ROW.UNION OF INDIA & STATE IntervenersOF TRAVANCORE DATE OF JUDGMENT: 31/03/1952 BENCH: <NAME>, M. PATANJALI (CJ) BENCH: <NAME>, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA CITATION: 1952 AIR 196 1952 SCR 597 CITATOR INFO : RF 1954 SC 92 (35) RF 1954 SC 229 (28) RF 1956 SC 479 (19) R 1956 SC 559 (4,8,9) E&R 1957 SC 896 (10) E 1958 SC 578 (169) F 1958 SC 731 (21) F 1959 SC 300 (5) R 1960 SC 468 (6) R 1960 SC1080 (40) R 1960 SC1124 (25,42,64) R 1961 SC 448 (7) R 1961 SC 705 (5,11,20) R 1961 SC 884 (24) R 1962 SC 123 (15) R 1962 SC 263 (25) R 1962 SC 305 (29) A 1962 SC 316 (35,36) R 1962 SC1371 (34,64,65,66) R 1963 SC 996 (2) R 1964 SC 416 (11) RF 1967 SC 829 (6,7) R 1968 SC 445 (14) RF 1970 SC 898 (58) R 1970 SC1157 (12) R 1970 SC1453 (15) R 1971 SC 530 (259) R 1971 SC 966 (7) R 1971 SC1667 (10,25,27) RF 1973 SC 947 (8) RF 1973 SC1461 (594,1547) F 1975 SC 550 (8) RF 1976 SC1207 (300) RF 1977 SC1825 (29) R 1978 SC 597 (132) F 1978 SC 771 (15,22) R 1978 SC1457 (62) R 1979 SC 25 (31) R 1980 SC 898 (70) RF 1980 SC1992 (12) R 1981 SC 873 (19,23) RF 1981 SC1030 (16) MV 1982 SC1325 (32) R 1984 SC 882 (3) R 1984 SC1213 (8) RF 1985 SC 551 (35) R 1986 SC 515 (80) R 1986 SC1205 (17) ACT: Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2)(b), 16--Law empowering <ORG> to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bear- ers--Validity of law--Unreasonable restriction on right to form associations--Constitution of India, art. 19 (1) (c ), (4). HEADNOTE: Section 15 (2) (b) of the Indian Criminal Law Amendment Act , 1908, as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an "unlawful association" an association "which has been de- clared by the <ORG> by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association (i) constitutes a danger to the public peace, or (ii)has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object." Section 16 of the Act as amended provided that a notification under s. 15 (2) (b) shall (i) specify the ground on which it is issued and such other particulars, if any, as may have a bearing on the 598 necessity therefor and (ii) fix a reasonable period for any officebearer or member of the association or any other person interested to make a representation to the <ORG> <ORG> in respect of the issue of the notification. Under s. 16 A the <ORG> was required after the expiry of the time fixed in the notification for making representa- tion to place the matter before <ORG> and to cancel the notification if the <ORG> finds that' there was no sufficient cause for the issue of such notification. There was however no provision for adequate communication of the notification to the association and its members or office bearers. It was conceded that the test under s. 15(2)(b) as amended was, as it was under s. 16 as it stood before the amendment, a subjective one and the factual existence or otherwise of the grounds was not a justiciable issue and the question was whether s. 15(2)(b) was unconsti- tutional and void: Held, (for reasons stated below) that s. 15 (2)(b) imposed restrictions on the fundamental right to form asso- ciations guaranteed by art. 19 (1) (c ), which were not reasonable within the meaning of art. 19 (4) and was there- fore unconstitutional and void. The fundamental right to form associations or unions guaranteed by art. 19 (1) (c) of the Constitution has such a wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fiel this, that the vesting of the authority in the executive <ORG> to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which should be taken into account in judging the reasonableness of restrictions im- posed on the fundamental right under art. 19(1)(c). The absence of a provision for adequate communication of the <ORG>'s notification under s. 15(2)(b) . by personal service or service by affixture to the association and its members and office-bearers was also a serious defect. The formula of subjective satisfaction of the <ORG> or of its officers with an advisory <ORG> to review the materi- als on which the <ORG> seeks to override a basic free- dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the nar- rowest limits. In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all 599 enter into the judicial verdict. In evaluating such elu- sive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. <CITATION> ( S.C.R. 88) and Dr. <NAME> v. The <ORG> of Punjab ( S.C.R. 519) distin- guished. JUDGMENT:

<NAME>, Setalvad, Attorney-General for India, (<NAME> and <NAME>, with him) for the appel- lant (State of Madras).

<NAME> for the respondent.

<NAME>, Attorney-General for India (<NAME>. with him) for <ORG>.

<NAME>, (Advocate-General Travancore- Cochin (<NAME>, with him) for the State of Travancore-Cochin.

1952. March 31. The Judgment of the Court was delivered by <NAME> is an appeal from an order of <ORG> at Madras adjudging section 15 (2)(b) of the Indian Criminal Law Amendment Act , 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, <ORG>, dated 10th March, 1950, whereby <ORG> de- clared a Society called <ORG> an unlawful association.

The respondent, who was the general secretary of the <ORG>, which was registered under the Societies' Registra- tion Act, 1860, applied to <ORG> on 78 10th April, 1950, under article 226 of the Constitution complaining that the impugned Act and the Order dated 10th March, 1950, purporting to be issued there-under infringed the fundamental right conferred on him by article 19 (1)

(c) of the Constitution to form associations or unions and seeking appropriate reliefs.<ORG> by a full bench of three Judges (<NAME>, <NAME> and <NAME>) allowed the application on 14th September, 1950, and granted a certificate under article

132. The State of Madras has brought this appeal. The Government Order referred to above runs as follows:-- "WHEREAS in the opinion of <ORG>, the Association known as <ORG>, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and consti- tutes a danger to the public peace;

NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act XIV of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act. No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act. The declared objects of the <ORG> as set out in the affidavit of the respondent are:

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;

(b) to encourage, promote, diffuse and popularise polit- ical education among people;

(c) to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms; and

(d) to promote, encourage and popularise art, literature and drama.

It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Govern- ment, <ORG>, that, according to information received by the Government, the <ORG> was actively helping <ORG> in Madras which had been declared unlaw- ful in August 1949 by utilising its funds through its Secre- tary for carrying on propaganda on behalf of the <ORG>, and that the declared objects of the <ORG> were intended to camouflage its real activities.

As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the peti- tion, which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions. Before amendment by the Madras Act, the material provisions were as follows:-"15. In this Part-

(1) "association" means any combination or body of persons whether the same be known by any distinctive name or not; and (2) "unlawful association" means an association(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or

(b) which has been declared to be unlawful by the Pro- vincial Government under the powers hereby conferred.

16. If <ORG> is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, <ORG> may by notification in the official <ORG> declare such association to be unlawful."

The amending Act substituted for clause (b) in Section 15(2) the following clause :--

"(b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association--

(iii) has interfered or interferes with the administra- tion of the law, or has such interference for its object". For the old section 16 , sections 16 and 16 A were substi- tuted as follows:

"16. (1) A notification issued under clause (b) of sub- section (2) of section 15 in respect of any association shall-

(a) specify the ground on which it is issued, the rea- sons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor; and

(b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to <ORG> in respect of the issue of the notification.

(2) Nothing in sub-section ( 1 ) shall require <ORG> to disclose any facts which it considers to be against the public interest to disclose.

Under section 16 A the <ORG> is required, after the expiry of the time fixed in the notification for making representations, to place before <ORG> consti- tuted by it a copy of the notification and of the represen- tations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State <ORG> or from any office-bearer or member of the association concerned or any other person, and submit its report to the <ORG>. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association concerned, the <ORG> is required to cancel the notifi- cation.

There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for member- ship or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof. Section 17 A, which confers power on the <ORG> to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where such power was exer- cised, by way of application, within thirty days of the notification in the official <ORG>, to the Chief Judge of <ORG> or the District Judge according as the place notified is situated in the Presidency Town or out- side, for "a declaration that the place has not been used for the purposes of any unlawful association". If such declaration is made, the <ORG> is to cancel the notifi- cation in respect of the place. Section 17B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property" is, or may be used for the purposes of the unlaw- ful association" after following the procedure indicated. Section 17E similarly empowers the <ORG> to forfeit funds of an unlawful association "if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association". The procedure to be followed in such cases is also prescribed. By section 17F jurisdiction of civil courts, save as expressly provided, is barred in respect of proceedings taken under sections 17 A to 17E. By section 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued as required in section 16 (1)( a) and (b) as amended and thereafter the procedure provided by the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be con- sidered in the light of the provisions of the amended Act when the petition came up for hearing in <ORG> on 21st August, 1950.

It will be seen that while old section 16 expressly conferred on <ORG> power to declare associations unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15(2)(b) as amended, and the reference to the "opinion" of the <ORG> is dropped. This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justiciable issues. if the factual existence of those grounds could be made the subject of inquiry in a court of law, the restrictions sought to be imposed on the right of association would not be open to exception, but then the <ORG> would apparently have no use for section 15 (2)

(b). For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Govenment the test of unlawfulness, rendered the insertion of the words "in its opinion" unnecessary and, indeed, inappropri- ate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16 ; more especially as the "opinion" or the "satisfaction" of the <ORG> or of its officers is still the determining factor in notifying a place under section 17 A (1) and in forfeiting the movables found there- in under section 17B (1) or the funds of an unlawful associ- ation under section 17E (1). The provision for an inquiry as to the existence or otherwise of such grounds before <ORG> and for cancellation of the notification in case the <ORG> found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not without force, and the position was not contested for the respondent. It may, accordingly, be taken that the test under section 15 (2) (b) is, as it was under the old section 16 , a subjective one and the factual existence or otherwise of the grounds is not a justiciable issue. It is on this basis, then, that the question has to be determined as to whether section 15 (2)(b)as amended falls within the limits of constitutionally permissible legisla- tive abridgement of the fundamental right conferred on the citizen by article 19 (1) (c). Those limits are defined in clause (4) of the same article.

"(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right con- ferred by the said sub-clause."

It was not disputed that the restrictions in question were imposed "in the interests of public order". But, are they "reasonable" restrictions within the meaning of article 19 (4)?

Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where <ORG> has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental rights ", as to which this <ORG> has been assigned the role of a sentinel on the qui vive. While the <ORG> naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.

The learned Judges of <ORG> unanimously held that the restrictions under section 15 (2) (b) were not reasonable on the ground of-(1)the inadequacy of the publi- cation of the notification, (2) the omission to fix a time- limit for the Government sending the papers to <ORG> or for the latter to make its report, no safeguards being provided against the Government enforcing the penal- ties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before <ORG> to make good his representation. In addition to these grounds one of the learned Judges (<NAME>) held that the impugned Act offended against article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment be- tween the two classes of unlawful associations mentioned in section 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. <NAME> further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

This <ORG> had occasion in Dr. <NAME>'s ease (1) to define the scope of the judicial review under clause (5) of article 19 where the phrase "imposing reasonable restric- tions on the exercise of the right" also occurs, and four out of the five Judges participating in the decision ex- pressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive (1)  S.C.R. 519, law should be examined from the point of view of reasonable- ness; that is to say, the <ORG> should consider not only factors such as the duration and the extent of the re- strictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard. or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judg- ment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflec- tion that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authoris- ing the imposition of' the restrictions, considered them to be reasonable.

Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2)

(b) cannot be upheld as falling within the limits of autho- rised restrictions on the right conferred by article 19 (1)

(c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtail- ment is fraught with such potential reactions in the reli- gious political and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposi- tion, both in their factual and legal aspects, to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of the fundamental right under article 19 (1) (c); for, no summary and what is bound to be a largely one-sided review by <ORG>, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the <ORG> or of its officers, with <ORG> thrown in to review the materials on which the <ORG> seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this <ORG> upheld in <NAME>'s case(1) deprivation of personal liberty by such means, but that was because the Constitution itself sanc- tions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by <NAME> at page 121, quoting Lord <NAME> in <NAME> v. Halliday(2), "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based".

The Attorney-General placed strong reliance on the decision in Dr. <NAME>'s ease(3) where the subjective satis- faction of the <ORG> regarding the necessity for the externment of a person, coupled with a reference of the matter to <ORG> whose opinion, however, had no binding force, was considered by a majority to be "reasona- ble" procedure for restricting the right to move freely conferred by article 19 (1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present ease, as the impugned Act provided that <ORG> report was binding on the <ORG>. We cannot agree. We consider that that ease (1)  S.C.R. 88. (2)  A.C. 260, 269. (3)  S.C.R. 519, is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, section 4 (1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. <NAME>'s case(1), authorised both preventive detention and externment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc." Besides, both involve an element of emer- gency requiring prompt steps to be taken to prevent appre- hended danger to public tranquillity, and authority has to be vested in the <ORG> and its officers to take appro- priate action on their own responsibility. These features are however, absent in the grounds on which the <ORG> is authorised,under section 15 (2) (b), to declare associa- tions unlawful. These grounds, taken by themselves, are factualand not anticipatory or based on suspicion. An asso- ciation is allowed to be declared unlawful because it "constitutes" a danger or "has interfered or interferes" with the maintenance of public order or "has such interfer- ence for its object" etc. The factual existence of these grounds is amenable to objective determination by the court, quite as much as the grounds mentioned in clause (a) of sub-section (2) of section 15 , as to which the Attorney- General conceded that it would be incumbent on the Govern- ment to establish, as a fact, that the association, which it alleged to be unlawful, "encouraged" or "aided" persons to commit acts of violence, etc. We are unable to discover any reasonableness in the claim of the <ORG> in seek- ing, by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in force only for a year, and any order made there-under was to expire at the termination of the Act. What may be regarded as a reasonable restriction (1)  S.C.R. 519.

imposed under such a statute will not necessarily be consid- ered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the <ORG> should think fit to cancel it. Thirdly, while, no doubt, the <ORG> procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the <ORG>, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the <ORG>'s notification under section 15 (2) (b) to the association and its members or office-bearers. The <ORG> has to fix a reasonable period in the notification for the aggrieved person to make a representation to the <ORG>. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by affixture at the office, if any, of such association is prescribed. Nor is any other mode of proclamation of the notification at the place where such association carries on its activities provided for Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration their right of making a representation, which is the only opportunity of presenting their case, would be 1oat. Yet, the consequences to the members which the notification involves are most serious, for, their very membership there- after is made an offence under section 17 .

There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provi- sion is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in Dr. <NAME>'s case(1) is distinguisha- ble and cannot rule the present case as claimed by the learned AttorneyGeneral. Indeed, as we have observed earli- er, a decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumula- tive effect of the varying facts and circumstances of each case.

Having given the case our best and most anxious consid- eration, we have arrived at the conclusion, in agreement with the learned Judges of <ORG>, that, having regard to the peculiar features to which reference has been made, section 15 (2)(b) of the Criminal Law Amendment Act , 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside the scope of authorised restrictions under clause (4) of article 19 and is, therefore, unconsti- tutional and void.

The appeal fails and is accordingly dismissed with costs.

Appeal dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>. Agent for <ORG> and the State of Travan- core-Cochin: <NAME>.

(1) [1950] S.C.R. 519,


PETITIONER: COMMISSIONER OF INCOME-TAX, <NAME> Vs. RESPONDENT: <NAME>. WAKFMANAGER P. P. AYESHA BI BI DATE OF JUDGMENT: 14/08/1961 BENCH: <NAME>, K. BENCH: <NAME>, K. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. CITATION: 1962 AIR 163 1962 SCR (3) 137 CITATOR INFO : R 1971 SC2463 (12) ACT: Income Tax-Wakf-Assessment-If must be in the status of individual or as association of persons-<NAME>, if a trustee- Indian Income-tax Act , 1922, s. 41(1) , First proviso- Mussalman Wakf Validating Act , 1913 , ss.3,4. HEADNOTE: The question for determination in the appeal was whether the wakf in question should be assessed to tax under s.41 (1) of the Indian Income-tax Act . 1922, through the manager as individual or as an association of persons at the maximum rate under the first proviso to that section on the ground that the individual shares of the beneficiaries were indeterminate and unknown. The wakf deed directed the mutawalli to do acts necessary for charitable purposes and to meet the maintenance expenses of the <ORG>'s children, grand-children, the female children born in the future and the male children born to the said female children and after payment of taxes and meeting of expenses for repairs,and maintenance of properties, to utilise the balance of the income for daily necessary expenses of the house and for- food for purchasing dresses and other necessities for the and female members of the <ORG>. for conducting specified ceremonies, for feeding the poor and for. meeting such. other then necessary expenses and thereafter to utilise the balance, if any, in acquiring properties yielding good income. 138 Held that under the terms of the wakf deed the individual shares of the beneficiaries were indeterminate within the meaning of the first proviso to s.41 (1) of the Indian Income-tax Act , 1922, and as such the assessee was liable to pay income-tax thereunder at the maximum rate. It was not correct in view of ss.3 and 4 of the Mussalman Wakf Validating Act , 1913, to say that under the wakf deed the property vested in the Almighty and the <NAME> did not therefore, receive the income on behalf of any person within the meaning of s.41 (1) of the Indian Income-Tax Act and as such the proviso could not come into operation. Under the <ORG> law wakf property vests in the Almighty only in an ideal sense and the <NAME>, acting in his name, utilises the income for the advantage of the beneficiaries. The words "on behalf of any person" in s.41 of' the Act, therefore, could only mean on behalf of the beneficiaries and not on behalf of the Almighty. <NAME> v. <NAME>, (1 841) 2 M.I. A. 390, referred to. Held, further, that there was no scope for importing the <ORG> Law of wakf in s.41 of the Act since that section in express terms treated the <NAME> as a trustee though he is not one in the technical sense under the Mohamedan Law. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 397 of 1960. Appeal from the judgment and order dated.' November 24, 1958, of <ORG> ill I. T. R. No. 23 of 1957.

<NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for the respondent.

1961. August 14. The Judgment of the Court was delivered by <NAME> J.-This appeal by certificate' granted by <ORG> raises the question of the application of a. 41(1) of the Indian Income-tax Act (hereinafter called.the Act) to the fact of the case.

One P. B. Umbichi and his wife executed a deed dated December 20 191.5 creating thereunder a wakf of their properties. It was provided therein., inter alia that the income from the properties mentioned therein should be utilised for the maintenance of their two daughters and their children on the female side. For 40 years upto and inclusive of the assessment year 1954-55, the income-tax assessments were made on the wakf through its manager under s. 41 of the Act in the status of an individual. But, for the assessment year 1955-56, the Income-tax Officer treated the assessee as an association of persons, and, on the ground that the shares of the beneficiaries are indeterminate, levied tax at the maximum rate under the first proviso to s. 41 of the Act. On appeal, the Appellate Assistant Commissioner of Income-tax held that the Income- tax Officer was not right in holding that the members of the family were indeterminate, but he confirmed the assessment for the reason that, the shares were not specified among the individual members of the family and also between the members of the family on the one hand and the charitable and religious purposes on the other, the first proviso to s. 41- would be applicable to the assessee. On further appeal, <ORG> took the View that the proprietary rights in the property in question vested in the Almighty and that the <NAME> was only to look after ant administer the properties as a manager and, therefore, the proper person in whose hands the income from the properties should be assessed was the <NAME> in his status as an "individual" at the rates applicable to an individual. ID that, view, the appeal was allowed. At the instance of the Commissioner of Income-tax, <ORG> referred to <ORG> the following question for its determination :

"Whether in the facts and circumstances of the case, the first proviso to section 41 is applicable".

<ORG> held that the said proviso was not applicable, as under the wakf deed the beneficiaries and their shares were ascertainable. Aggrieved by the said order, the Commissioner of Income-tax has preferred the present appeal.

Mr. <NAME>, learned counsel for the Commissioner of Income-tax, contended that on a fair reading of the terms of the wakf deed it would be clear that the <NAME> was only directed to maintain the members of the family, that none of the members of the family had any ascertainable &hare in the income, and that, therefore, the case squarely fell within the first proviso to s. 41 of the Act. Mr. <NAME>, learned counsel. for the respondent, in addition to his attempt to sustain the construction put upon the wakf deed by <ORG>, contended that the instant case fell outside the scope of s. 41(1) of the Act, as the <NAME> was only receiving the income, on behalf of the Almighty, that the Almighty was not a "Person", and that, therefore, as the main, section (lid not apply, the proviso also would not be attracted, with the result that the <NAME> award would have to be assessed as an "individual"..

As the argument turns upon the construction of s. 41 of the Act, it will be convenient at"the outset to read the relevant parts thereof.

" Section 41 : (1) In the case of income, profits or gains chargeable under this Act which...... any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise, including the trustee or trustees under any <ORG> deed which is valid. under the Mussalman <ORG> Validating Act 1913, are entitled to receive on: behalf of any person, the 'tax shall be levied upon and recoverable from such...... trustee trustees, in the like manner and to the same amount as it would be leviable upon and recoverable from the pers on on whose behalf such income.

profits-or gains are receivable, and all the provisions-of this Act shall apply accordingly-:

Provided that where any such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of- the persons on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate, but, where such persons have no other personal income chargeable under this Act and none of them is an artificial juridical person, as if such income, profits or gains or such part thereof were the, total income of an association of persons."

This section in term s applies to a trustee under a <ORG> deed which is valid under the Mussalman <ORG> Validating Act ,, 1913. Under the substantive part of. the section, tax is leviable on the trustee of the <ORG> in the like manner and to the same amount as it would be leviable upon and recoverable from the beneficiary,that is,the assessment would be at the-individual rates of tax applicable to the beneficiary. But, under the first proviso to that section, there are two exceptions to the general rule, viz., (1) where the income is not specifically receivable on behalf of anyone person; and (ii) where the individual shares of- the persons on whose behalf the income is receivable are indeterminate or unknown. In those two circumstances tax shall be levied and recoverable at the maximum rate. It is agreed that the first exception does not apply to the instant case. But the question that falls to be decided is whether the individual shares of the persons on whose behalf the income is receivable are indeterminate or unknown. The answer to the question depends upon the construction of the provisions of the <ORG> deed. The <ORG> deed was executed on December 20, 1950 by <NAME> and his wife dedicating their entire property, moveable and immoveable, of total value of rupees one lakh for the objects mentioned therein. The <NAME> appointed thereunder was directed to manage the properties in such a way as "to do acts necessary for charitable purposes and, to meet the maintenance expenses of their children and grand-children and the female children that might be born to them in future, and to the male children born to the said female children". The document proceeded to give further specific directions in the management of the properties. After payment of taxes and meeting the expenses incurred for repairs and maintenance of the properties, the balance of the income should be utilised for the "daily necessary expenses of the house and food expenses as we are doing now", and for purchasing "dresses and other necessities for the then male and female members of the tarwad" and for conducting "nerchas (ceremonies) ,such as <ORG>, <ORG>, etc., charitable ceremonies for feeding the poor and such other necessary expenses , and out of the balance, if any, the <NAME> was directed to acquire properties yielding good income. The rest of the recitals in the document are not relevant for the present purpose..

Can it be said that, under the document, the individual shares of the beneficiaries are specified ? The document does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication. Indeed,' the individual shares of the beneficiaries Are not germane to the objects of the document. The <NAME> was directed to bear, out of the income the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies. The distribution of the family income and: family expenses was left to the discretion of the <NAME>, the document also further contemplated that the <NAME> by his prudent and efficient management would save sufficient amounts for purchasing properties. The 'directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the benefit series, and their right was nothing more, than to be maintained having regard to their reasonable requirements which were left to the discretion of <NAME>. While it is true that the number of beneficiaries would be ascertainable at any given point of time, it is not possible , to hold, as <ORG> held, that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income, but only had the right to be, maintained. The construction put upon the document by <ORG> cannot, therefore, be sustained on the plain wording of the document. 'We, therefore bold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to s. 41(1) of the 'Act. If so, under the said proviso, the assessee is ,liable to pay income-tax, at the maximum rate. The alternative contention of learned counsel 'for the respondent remains to be considered. The argument is that 'under the <ORG> deed the properties vest in the Almighty and, therefore, the <NAME> receives the income 'only on behalf of the Almighty and not on behalf of any person within the' meaning of s. 41(1) of the Act, with the result that s. 41(1) is not applicable to the assessment in question. The argument is rather subtle, but it has no force. There are three effective answers to this contention Firstly, it was not raised before <ORG>-the only question argued before <ORG> was whether the beneficiaries of the trust and their individual shares of the income of the trust were ascertainable.

Secondly, though under the Mahomedan Law the properties dedicated under a <ORG> deed belong to the Almighty, it is only in the ideal sense, for the <ORG> in the name of the Almighty utilises the income for the purposes and for the benefit of the beneficiaries mentioned therein. Under the Mahomedan Law, the moment a <ORG> is created all rights of property pass out of the <ORG> and vest in the Almighty. 'The property does not vest,in the, <ORG>, for he is merely a manager and not a trustee in the technical sense. 'Though <ORG> property belongs to the Almighty, the practical significance of that concept is explained ill <NAME> v. Shah Kubeer-ood-deen (1) thus :

"................... Wakf signifies the appropriation of a particular article in. such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures ."

That is, though in an ideal sense the property yet in the Almighty, the property is held for the benefit of His creatures, that is, the beneflciaries. 'Though at one time it was considered that to constitute a valid <ORG> there must be dedication of property solely to tbe Worship of God or for regious or charitable, purposes, the <ORG> Validating ,Act, 1913, discarded that view and enacted by s. 3 that a <NAME> can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants,provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by the <NAME> law as a religious, pious or charitable purpose of a permanent character. Section 4 of the said Act, goes further and says that a wakf shall not be invalid by the mere' circumstance that tile benefit (1) (1840)2. M.I.A. 390, 421.

reserved for the poor or for religious purposes is postponed until the extinction of the family It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty, but the <NAME>, acting in' His name, utilises the income for the advantage of the beneficiaries. Therefore, the words ,,on behalf of any person" in s. 41 of the Act , can only mean on behalf of the beneficiaries and not on behalf of the Almighty. The third and more effective answer to the argument is that s. 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax' from a trustee in respect of income of the' beneficiarios. In express terms it equates the <NAME> of a <ORG> to a trustee. For the purpose of S. 41 the <NAME> is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf in s. 41 when the section in express terms treats the <NAME> as a trustee, though he is not one in the technical sense 'under the Mahome'dan Law. If the argument of learned counsel for the respondent be accepted, it would make s. 41 of the Act otiose so far as <ORG>s are concerned, for in every case of <ORG> the property I would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative.

In the result, we set aside the order of <ORG> and hold that the, respondent was rightly assessed by the Income-tax Officer at the maximum rate. The appeal is allowed with costs.

Appeal Allowed.