PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT15/10/1987 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) SEN, A.P. (J) CITATION: 1987 AIR 2386 1988 SCR (1) 512 1987 SCC (4) 611 JT 1987 (4) 93 1987 SCALE (2)773 CITATOR INFO : R 1988 SC1099 (6) D 1991 SC1617 (10,26,33,34) R 1992 SC 188 (5) R 1992 SC 417 (5) ACT: Army Act , 1950/Army Rules, 1954: Sections 41 and 130 /Rules 106-133-<ORG> Martial-When proceedings vitiated- Participation of officer who has punished accused-Whether amounts to bias-Soldier-Refusing to eat food-Whether amounts to disobedience of lawful command. Constitution of India, 1950: Articles 32, 136 and 226- Judicial Review-Irrationality and perversity-Extentof. Administrative Law: Natural Justice-Fair Trial-Judgment only after due observance of Judicial Process-Quantum of punishment disproportionate to offence Whether conclusive evidence of bias. Interpretation of Statutes: Procedural safeguards- Statutory Provisions-How to be construed. HEADNOTE: % The appellant, a Signal Man in <ORG> of <ORG>, while serving out a sentence of 28 days' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command given by his superior officer. A sentence of rigorous imprisonment for one year was imposed by a Summary <ORG> Martial consisting of respondent No. 4 and others. He was removed to the civil prison and he served out the sentence. The appellant's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985. The appellant's writ petition challenging proceedings of the Summary <ORG>-Martial was dismissed in limine by <ORG>. 513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the <ORG>- Martial were vitiated (i) by a non-affording of an opportunity to challenge the constitution of the Summary <ORG>-Martial under section 130(1) ; (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving-out an earlier sentence he could not be need to be in active- service so as to be amenable to disciplinary jurisdiction and that the appellant's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41 , of any lawful command of a Superior officer. Allowing the appeal, ^ HELD: 1.1 The Indian Army Act , 1950 constitutes a special law in force conferring a special jurisdiction on. the <ORG>-Martial prescribing a special procedure for the trial of the offences under the Act. The Act and Rules constitute a self-contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the <ORG>-Martial. [518G-H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the <ORG>- Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. [519B-C I 1.3 Non-compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings. [519F] <CITATION> , AIR 1982 SC 1413 relied on. Vitarelli v. <NAME>, 359 U.S. 535 referred to. 514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the <ORG> or <ORG> passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons. acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. [520D-E] <NAME> v. <NAME>, AIR 1945 PC 38 referred to. 2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased"? but to look at the mind of the party before him. [520F] Allinson v. <ORG>,  1 Q.B. 750 at 758; <ORG> v. <NAME>,  1. Q.B. 577 d 599; <ORG> of the District of Columbia v. <NAME>, 343 US 451 at 466 and <NAME> v. Liverpool City Justices, Ex-parte Topping,  1 WLR 119 referred to. Having regard to the antecedent events, the participation of respondent No. 4 in the <ORG>s-Martial rendered the proceedings Coram non judice. [522B] 3. The mere circumstance'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service', the difference being in the lesser punishment contemplated. [522C-D] 4. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter-productive and even by itself be subversive of discipline. [522E-F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. [522G] 5. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the <ORG>-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the <ORG>-Martial, if the decision of the <ORG> even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. All powers have legal limits. [522G-H; 523A-C] Council of Civil Service Unions v. Minister for <ORG>,  3 Weekly Law Reports 1174 HL and <NAME> v. State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to. In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference. [523G] The <ORG> order set aside. The writ petition in <ORG> allowed, and the impugned proceedings of Summary <ORG>-Martial and the consequent order and sentence quashed. Appellant entitled to be reinstated with all monetary and service benefits. [523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88). JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2630 of 1987.

From the Judgment and order dated 3.?.1986 of <ORG> in C.W.J.C. No. 2823 of 1986.

<NAME>, <NAME> and <NAME> for the Appellant.

<NAME>, Additional Solicitor General, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, preferred against the order dated July 3, 1986, of <ORG> of <ORG> in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe-guards in Section 130 of the Indian Army Act, 1950 ('Act') in the conduct of the Courts- Martial.

<ORG> dismissed, in limine, the appellant's writ petition, under Article 226 , challenging the proceedings dated March 30, 1985, of the Summary Court- Martial imposing the punishment of dismissal from service and a sentence of an year's rigorous imprisonment on the appellant.

2. Appellant, <NAME>, joined <ORG> on September 7, 1972, and was, at the relevant time, a Signal Man in "<ORG>." Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant is stated to have sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment.

3. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4. The nature of this offence had better be excerpted from the charge-sheet itself:

"The accused No. 1429055 M Signalman <NAME> of <ORG> is charged with- Army Act Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs. On 29.5.1985 when ordered by <ORG> 10625 lP <NAME>, the orderly officer of the same Regiment to eat his food, did not do so."

To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985. Respondent 4 and 2 others were on the Court-Martial. Some witnesses were examined. Appellant is stated to have pleaded guilty. A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence. Appellant has served out the sentence. He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment. The representation of the appellant to the confirming-authority under Section 164 of the Act was rejected by General of ficer Commanding on 24.5.1985.

<ORG>, however, persuaded itself to dismiss, in limine, appellant's writ petition challenging the proceedings of the Summary Court Martial.

4. We have heard learned counsel on both sides. The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities. Apparently, nothing came out of it. F The submissions of <NAME>, in support of the appeal, admit of being formulated thus:

(a) (i) The proceedings of the Court-Martial are vitiated by non-compliance with the mandate of Section 130(1) of the Act in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section;

(ii) The proceedings of the Court-Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H

(b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in "active service" and that no question of disobeying any lawful command could at all arise;

(c) Appellant's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41 , of any lawful command of a superior officer in such manner as to show a wilful defiance of authority;

(d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness.

5. Re: contention (a):

The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the Act was complied with. Section 130 provides:

"130(1) At all trials by general district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.

(2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection."

The proceedings do not indicate-this was not disputed at the hearing-that appellant was asked whether he objects to be tried by any officer, sitting at the Court-Martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial.

The "Act" constitutes a special law in force conferring a special jurisdiction on the Court-Martial prescribing a special procedure for the trial of the offences under the 'Act'. Chapter VI of the 'Act' comprising of sections 34 to 68 specify and define the various offences under the 'Act'. Sections 7 ] to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court- Martial. The Act and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts-Martial.

The procedural safe-guards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safe-guards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft-quoted words of <NAME>, <NAME> in <NAME> v. <NAME>, 359 U.S.535 are again worth re-calling;

"... if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ..............................................

This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. E "The history of liberty" said the same learned Judge "has largely been the history of observance of procedural safeguards." (318 US 332).

We are afraid, the non-compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. lndeed it has been so held by this Court in <CITATION> , AIR 1982 SC 1413 where <NAME>, J referring to the purpose of section 130 observed:

"...... .Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection .........

........ This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. H ....... The provision conferring a right on the accused to object to a member of <ORG> sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing <ORG>. This is pre eminently a rational provision which goes a long way to ensure a fair trial."

What emerges, therefore, is that in the present case there is a non-compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a).

6. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way.

It is the essence of a judgment that it is made after due observance of the judicial process; that the <ORG> or <ORG> passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice". (See <NAME> v. <ORG> PC 38).

7. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly. "Am I biased? "but to look at the mind of the party before him.

Lord <NAME> in Allinson v. <ORG>, l 1894] 1 Q.B. 750 at 758 said:

"The question is not, whether in fact he was or was not biased. The Court cannot inquire into that .......... ............. In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased."

In <ORG> v. <NAME>, [1969] 1 Q.B. 577, at 599, Lord Denning M.R. Observed: B ". .. in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be never- theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit ....... ". <NAME> in <ORG> v. <NAME> (343 US 451 at 466) said:

"The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves. They do not sit in judgment .. ". Referring to the proper test, <ORG> in <NAME> v.

Liverpool City Justices, Ex-parte Topping [1983] I WLR 119 said: H "Assuming therefore, that the justices had applied the test advised by Mr. <NAME>-Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow." Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts-Martial rendered the proceedings coram non-judice.

7. Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service' does not detract from the fact that he was still "a person subject to this Act." This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service'. The difference is in the lesser punishment contemplated. We are, therefore, unable to appreciate the appositeness of this contention of Shri <NAME>.

8. Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in <ORG>. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that, a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere in-action need not always necessarily be neutral. Serious acts of calumny could be done in silence. A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority. But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter-productive and even by itself be subversive of discipline. Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers. However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions.

9. Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of <ORG>. But the sentence has to suit the offence and the offender. It should not be A vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the <ORG>- Martial, if the decision of the <ORG> even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In <ORG> v. Minister for <ORG>, [1984] 3 Weekly Law Reports 1174 (HL) Lord <NAME> said:

"... <ORG> has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of <ORG> ............................ E In <NAME> v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held:

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.

The point to note, and emphasise is that all powers have legal limits.

In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.

10. In the result, for the foregoing reasons, the appeal is allowed, the order of <ORG> set aside, the writ petition preferred in <ORG> allowed and the impugned proceedings of the Summary Court-Martial dated March 30, 1985, and the consequent order and sentence are quashed. The appellant is entitled to and shall be reinstated with all monetary and service benefits. There will, however, be no order as to costs.

N.P.V. Appeal allowed.


PETITIONER: SAMPAT PRAKASH Vs. RESPONDENT: STATE OF JAMMU & KASHMIR & ANR. DATE OF JUDGMENT: 10/10/1968 BENCH: <NAME>, VISHISHTHA BENCH: <NAME>, VISHISHTHA HIDAYATULLAH, M. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM, C.A. CITATION: 1970 AIR 1118 1970 SCR (2) 365 1969 SCC (1) 562 CITATOR INFO : RF 1972 SC 963 (24) ACT: Constitution of India, 1950 (as applied to Jammu and Kashmir) Arts. 35(c) and 370--Jammu and Kashmir Preventive Detention Act J & K 13 of 1964) s. 13A--Validity of detention under without reference to <ORG>--Scope of Art. 370-- Power of President to extend period of immunity of <ORG> laws even if fundamental rights are infringed. HEADNOTE: After the accession of the <ORG> of Jammu and Kashmir to India. in Art. 35 of the Constitution of India, in its application to the <ORG>, el. (c) was introduced in 1954 providing protection to any law relating to preventive detention in the <ORG> against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution. The protection was limited to a period of five years.in 1956, ,<ORG> completed its work by :'raining a Constitution for the <ORG> and it came into force on 26th January 1956. In 1959 the period of 5 years in Art. 35(c) was extended to 10 and in 1964, it was further extended to 15 years by Orders passed by the President of India under Art. 370(1). On 18th March 1968, the petitioner was detained by the District Magistrate under the Jammu and Kashmir Preventive Detention Act, 1964. The <ORG> Government acting under s. 13A of the Act continued the detention without making any reference to the <ORG>. In a petition under Art. 32 challenging his detention the petitioner contended that, the Orders making the modifications in 1959 and 1964 could not be validly passed by the President, because. (1) the Article contained only temporary provisions which ceased to effective after <ORG> had completed its work by framing a Constitution for the <ORG>; (2) Under Art. 370(2) the power of the President, depending on the concurrence of the <ORG> Government, must be exercised before the dissolution of <ORG>; (3) Under Art. 370(1 ), at the time of applying any provision of the Constitution to the <ORG>, the President was competent to make modification and exceptions, but after a provision of the Constitution had been applied the power under the Article ceased; (4) Since Art. 368 relating to amendment of the Constitution with proviso added to it is 'applied to the <ORG> Art. 370 was no longer applicable for .amending or modifying the provisions of the Constitution applied to the <ORG>; (5) The power of making modifications under the Article should be limited to making minor alterations and not to abrogate an Article applied to the <ORG>; and (6) The modifications made by the Presidential orders under Art. 370 had the effect of abridging the fundamental rights of citizens of 366 Kashmir under Art. 22 and other Articles of Part III, after they had been applied to the <ORG> and so were void under Art. 13 of the Constitution. HELD: (1) The-political situation that existed when Art, 370 was incorporated in the Constitution had not materially altered either in 1959 or 1964 and the purpose of introducing it was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged. Article 370(3) envisages that the Article will continue to be operative until and can cease to be operative only if. on the recommendation of <ORG> <ORG>, the President makes a direction to that effect. No such recommendation was made nor was any order made by the President. On the contrary <ORG> made a recommendation that the Article should be operative with a modified Explanation. Therefore the Article did not cease to be operative. [372 C--D; 373 A--B] (2) Article 370(2) only refers to the concurrence given by the Government of the <ORG> before <ORG> was convened. and makes no mention at all of the completion of the work of <ORG> or its dissolution. (3) The power under the Article is to be exercised from time to time and includes within it the power to add, amend, vary or rescind. Article 367 lays down that, unless the context otherwise requires, the General Clauses Act , 1897, shall .apply for the interpretation of the Constitution. Therefore s. 21 of the General Clauses Act, under which a power to issue a notification or order includes a power to add. amend, vary or rescind it, is applicable to the power of the President under Art. 370: If it were held that s. 21 of the General Clauses Act is not to be applied to the interpretation of the Constitution, it will lead to the anomaly that when once rules are made under the rule making powers- under various Articles such as Arts. 77(3), 166(3) and 309, they would be inflexible. Further the legislative history of the Article shows that it was envisaged that the President would have to take into account the situation existing in the <ORG> when applying a provision of the Constitution and that such situations arise from time to time: There was the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferring on the President the power of making Orders from time to time under Art. 370. [375 E--H] (4) The proviso to Art. 368 , serves the purpose that amendments to the Constitution should be made applicable to the <ORG> only with the concurrence of the <ORG> Government and that after such concurrence available the amendments should take effect when an order is made under Art. 370 of the Constitution. Therefore, the powers of the President under Art. 370 have to be exercised and the applicability of Art. 368 to the '<ORG> does not curtail the President's power under Art. 370. [376 D--F] (5) There is-no reason to limit the word 'modification' in Art. 370(1) only to such modification as do not make any 'radical transformation'. [377 <CITATION> ,  1 S.C.R. 688, 692, followed. 367 (6) Under Art. 35(c) as originally enacted, the applicability of the provisions of Part III for the purpose of judging the validity of a law relating to preventive detention made by the <ORG> 'Legislature was postponed for a period of five years. The object of the subsequent Orders of 1959 and 1964 was to extend the period of protection. The result of the. extension is that a detenu cannot, during the period of protection challenge the law on the ground of its being inconsistent with Art 22, and not to infringe or abridge fundamental rights. [378 E, H] JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 11 of 1968. Petition under Art. 32 of the Constitution of India for the enforcement of the fundamental rights.

<NAME>, <NAME>, <NAME> and <NAME>, for the petitioner.

<NAME>, Attorney-General, <NAME> <NAME>, for the respondents.

<NAME>, for intervener No. 1.

<NAME>, for intervener No. 2.

The Judgment of the Court was delivered by Bhargava, J. This petition under Article 32 of the Constitution of India (hereinafter referred to as "the Constitution") has been presented by <NAME> who was the General Secretary of <ORG>. On October 25, 1967, Government employees and teachers of the Jammu Province held a mass meeting making a demand that dearness allowance at Central rates should be paid to them. They further resolved that, if the Government did not accept this demand, the employees and the teachers would go on 'Dharna' on 5th November 1967. The Revenue Minister of the Jammu & Kashmir State promised dearness allowance at half the rates applicable to <ORG> servants. No dharna was started on 5th November 1967, but, on 17th November, 1967, a notice was given on behalf of the employees to the Government that there would be a hunger strike on 18th November, 1967. On that day, the employees went on a hunger strike for one day outside the residence of the Chief Minister. Then, there was a mass meeting on 27th November 1967, in which it was announced that, if their demands were not met, the employees would go on a pen-down strike on 2nd December, 1967. The Government failed to comply with this demand. Then, between 4th and 10th December, 1967, the employees went on a strike--first a pendown strike and, later, a general strike. Between this period, on 5th December, 1967, there was another mass meeting which was addressed by the petitioner. On 11th December, 1967, even the workers of the various industries in the State went on a general strike in sympathy with the Government employees. On that day, the petitioner was dismissed from government service and on 12th December, 1967, he addressed another mass meeting. In view of these activities of the petitioner and the continuance of such a situation, the District Magistrate of Jammu, on 16th March, 1968, made an order of detention of the petitioner under section 3 of the Jammu & Kashmir Preventive Detention Act No. 13 of 1964 (hereinafter referred to as "the Act") and, on 18th March, 1968, the petitioner was actually placed under detention. The grounds of detention were served on the petitioner on the 26th March, 1968 and the State Government granted approval to the order of detention on 8th April, 1968. The detention of the petitioner was continued without making a reference to <ORG>, as the State Government purported to act under s. 13A of the Act. The present petition was flied by the petitioner on 3rd May, 1968.

During the preliminary .hearing of this petition, Mr. <NAME>, representing the petitioner, raised a ground that s. 13A of the Act was ultra vires the Constitution as contravening the provisions of Art. 22 of the Constitution. That question was referred by the Constitution Bench of the Court to a larger Bench and came before <ORG>. On this occasion, the Court held. that, in view of clause (c) of Art. 35 of the Constitution introduced in the Constitution in its application to the State of Jammu & Kashmir, the point that had been raised stood answered by the addition of this clause and, unless the clause itself was challenged, the point raised on behalf of the detenu did not arise. In this view, that reference was dissolved and the case has been heard by the Constitution Bench.

On the return of the reference, the main point which has been argued on behalf of the petitioner is based on the fact that Art.35(c) of the Constitution, as initially introduced by the Constitution (Application to Jammu & Kashmir) Order, 1954 (C.O. 48),had given protection to any law relating to preventive detention in Jammu & Kashmir against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution for a limited period of five years only. This clause, as introduced in 1954, read as follows :--

"No law with respect to preventive detention, made by <ORG>, whether before or after the commencement of the Constitution (Application to Jammu & Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but :any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof."

It was urged that the five years mentioned in this clause expired in 1959, and, consequently, the Act, which was passed in 1964, did not get immunity from being declared void on the ground of inconsistency with Art. 22 of the Constitution. It, however, appears that for the words "five years" in Art. 35(c ), the words "ten years" were substituted by the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1959 (C.O. 59), which was passed before the expiry of those five years and, subsequently, for the words "ten years" so introduced, the words "fifteen years" were substituted by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C.O. 69). This modification was also made before the expiry of the period of ten years from the date on'which the Constitution (Application to Jammu and Kashmir) Order, 1954 was passed. On these facts, the point raised on behalf of the detenu was that these two modifications in 1959 and 1964, substituting "ten years" for "five years", and "fifteen years" for "ten years", were themselves void on the ground that orders making such modifications could not be validly passed by the President under Art. 370(1) of the Constitution in the years 1959 and 1964.

Article 370 of the Constitution is as follows .--

"370. (1) Notwithstanding anything in this Constitution,-

(a) the provisions of article 238 shall not apply in relation to the State of Jammu & Kashmir;

(b) the power of <ORG> to make laws for the said State shall be limited to-

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which <ORG> may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation. For the purposes of this article, <ORG> means the person for the time being recognised by the President as the Maharaja of Jammu & Kashmir acting on the advice of <ORG> for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;

(c) the provisions of article (1) and of this article shall apply in relation to that State;

(d) of that clause be given before the Constituent shall apply in relation to that State subject to such exceptions and modifications as the President may be order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State;

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of <ORG> referred to in paragraph (ii) of sub-clause (b) of clause (1 ) or in the second proviso to sub-clause (d) of that clause be given before <ORG> for the purpose of framing the Constitution of the State is convened, it shall be placed before such <ORG> for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be .operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of <ORG> referred to in clause (2) shall be necessary before the President issues such a notification."

The first argument was that this article contained temporary provisions which ceased to be effective after <ORG> convened for the purpose of framing the Constitution the Jammu & Kashmir State had completed its task by flaming the Constitution for that State. Reliance was placed on the historical background in which this Art. 370 was included in the Constitution to urge that the powers under this article were intended to be conferred only for the limited period until the Constitution of the State was framed, and the President could not resort to them after <ORG> had completed its work framing the Constitution of the State. The back ground or the legislative history,which reference was made was brought to our notice by learned counsel by drawing our was brought to our notice by e attention to the speech of the Minister,<NAME> when he moved in <ORG> clause 306A of the Bill, which now corresponds 'with Article 370 of the Constitution. It was stated by him that conditions in Kashmir were special and required special treatment. The special circumstances, to which reference was made by him were :--

(1) that there had been a war going on within the limits of Jammu & Kashmir State;

(2) that there was a cease-fire agreed to at the beginning of the year and that cease-fire was still on;

(3) that the conditions in the State were still unusual and abnormal and had not settled down;

(4) that part of the <ORG> was still in the hands of rebels and enemies;

(5) that our country was entangled with <ORG> in regard to Jammu & Kashmir and it was not possible to say when we would be free from this entanglement;

(6) that <ORG> had committed themselves to the people of Kashmir in certain respects which commitments included an undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and (7) that the will of the people expressed through the Instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of Union Jurisdiction over the State.

Learned counsel urged that, in this background, Art. 370 of the Constitution could only have been intended to remain effective until the Constitution of the State was framed and the will of the people of Jammu & Kashmir had been expressed and, there after, this article must be held to have become ineffective, so that the modifications made by the President in exercise of the powers under this article, subsequent to the enforcement of the Constitution of the State, would be without any authority of law. The Constitution of the State came into force on 26th January, 1956 and, therefore, the two Orders of 1959 and 1964 passed by the President in purported exercise of the power under Art. 370 were void. It was also urged that the provisions of clause (2) of Art. 370 support this view, because it directs that, if the concurrence of <ORG> is given under para (ii) of sub-clause (b) of clause ( 1 ) or under the second proviso to sub-clause (d) of that clause before the. <ORG> for ,the purpose of flaming the Constitution of the State is convened, that concurrence has to be placed before such <ORG> for such decision as it may take thereon. From this, it was sought to be inferred that the power of the President, depending on the concurrence of <ORG>, must be exercised before the dissolution of the <ORG> of the State, sot hat the concurrence could be placed for its decision, and that. power must be held to cease to exist after the dissolution of the <ORG> when that course became impossible.

We are not impressed by either of these two arguments advanced by Mr. <NAME>. So far as the historical background is concerned, the Attorney-General appearing on behalf of the <ORG> also relied on it to urge that the provisions of Art. 370 should be held to be continuing in force, because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged. There is considerable force in this submission. The legislative history of this article cannot, in these circumstances, be of any assistance for holding that this article became ineffective after <ORG> had framed the Constitution for the State.

The second submission based on clause (2) of Art. 370 does not find support even from the language of that clause which only refers to the concurrence given by <ORG> before <ORG> was convened, and makes no mention at all of the completion of the work of .<ORG> or its dissolution. There are, however, much stronger reasons for holding that the provisions. of this article continued in force and remained effective even after <ORG> of the State had passed the Constitution of the State. The most important provision in this connection is that contained in clause (3) of the article which lays down that this article shall cease to be operative or .shall be operative only with such exceptions and modifications and from, such date as the President may specify by public notification, provided that the recommendation of <ORG> of the State referred to in clause (2) shall be necessary before the President issues such a notification. This clause clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of <ORG> of the State, the President makes a direction to that effect. In fact, no such recommendation was made by <ORG> of the State, nor was any Order made by the President declaring that the article shall cease to be operative. On the contrary, it appears that <ORG> of the State made a recommendation that the article should be operative with one modification to be incorporated in the Explanation to clause (1 ) of the article. This modification in the article was notified by the President by Ministry. of Law Order No. C.O. 44 dated 15th November, 1952, and laid down that, from the 17th November, 1952, the article was to be operative with substitution of the new Explanation for the old Explanation as it existed at that time. This makes it very clear that <ORG> of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only.

Further reference may also be made to the proviso added to Art. 368 of the Constitution in its application to the State of Jammu & Kashmir, under which an amendment to the Constitution made in accordance with Art. 368 is to have no effect in relation to the State of Jammu & Kashmir unless applied by Order of the President under clause (1 ) of Article 370. The proviso, thus, clearly requires that the powers of the President under Art. 370 must be exercised from time to time in order to bring into effect in Jammu & Kashmir amendments made by <ORG> in the Constitution in accordance with Art. 368. In view of these provisions, it must be held that Art. 370 of the Constitution has never ceased to be operative and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the. powers conferred by this Article. The next submission made for challenging the validity of the Orders of modification made in the years 1959 and 1964 was that, under sub-clause (d) of clause (1 ) of Art. 370 of the Constitution, the power that is conferred on the President is for the 'purpose of applying the provisions of the Constitution to Jammu & Kashmir and not for the purpose of making amendments in the Constitution as applied to that State. The interpretation sought to be placed was that, at the time of applying any provision of the Constitution to the State of Jammu & Kashmir, the President is competent to make modifications and exceptions therein; but once any provision of the Constitution has been applied, the power under Art. 370 would not cover any modification in the Constitution as applied. Reliance was thus placed on the nature of the power conferred on the President to urge that the President could not from time to time amend any of the provisions .of the Constitution as applied to the State of Jammu & Kashmir. It was further urged that the President's power under Art. 370 should not be interpreted by applying section 21 of the General Clauses Act, because a Constitutional power cannot be equated with a power conferred by an Act, rule, bye-law, etc.

The argument, in our opinion, proceeds on an entirely incorrect basis. Under Art. 370(1 )(d .), the power of the President is expressed by laying down that provisions of the Constitution, other than article (1 ) and article 370 which, under Art. 370(1) (c ), became applicable when the Constitution came into force, shall apply in relation to the State of Jammu & Kashmir subject to such exceptions and modifications as the President may by order specify. What the President is required to do is to specify the provisions of the Constitution which are to apply to the State of Jammu & Kashmir and, when making such specification, he is also empowered to specify exceptions and modifications to those provisions. As soon as the President makes such specification, the provisions become applicable to the State with the specified exceptions and modifications. The specification by the President has to be in consultation with <ORG> if those provisions relate to matters in the Union List and the Concurrent List specified in the Instrument of Accession governing the accession of the State to the Dominion of India as matters with respect to which <ORG> may make laws for that State. The specification in respect of all other provisions of the Constitution under sub-clause (d) of clause (1) of Art. 370 has to be with the concurrence of <ORG>. Any specification made after such consultation or concurrence has the effect that the provisions of the Constitution specified with the exceptions and modifications become applicable to the State of Jammu & Kashmir. It cannot be held that the nature of the power contained in this provision is such that section 21 the General Clauses Act must be held to be totally inapplicable.

In this connection, it may be noted that Art. 367 of the Constitution lays down that, unless the context otherwise requires, the General Clauses Act , 1897, shall, subject to any adaptations and modifications that may be made therein under article 372 , apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of Dominion of India. This provision made by the Constitution itself in Art. 367 , thus, specifically applied the provisions of the General Clauses Act to the interpretation of all the articles of the Constitution which include Art. 370.  Section 21 of the General Clauses Act is as follows :-

"Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to any Central Act or Regulation. On the face of it, the submission that s. 21 cannot be applied to the interpretation of the Constitution will lead to anomalies which can only be avoided by holding that the rule laid down in this section is fully applicable to all the provisions of the Constitution. As an example, under Art. 77(3 ), the President, and, under Art. 166(3 ), the Governor of a State are empowered to make rules for the more convenient transaction of the business of <ORG> or the Government of the State, as the case may be, and for the allocation among Ministers of the said business. If, for the interpretation of these provisions, section 21 of the General Clauses Act is not applied, the result would be that the rules once made by the President or a Governor would become inflexible and the allocation of the business among the Ministers would for ever remain as laid down in the first rules. Clearly, the power of amending these rules from time to time to suit changing situations must be held to exist and that power can only be found in these articles by applying section 21 of the General Clauses Act. There are other similar rule-making powers, such as the power of making service rules under Art. 309 of the Constitution. That power must also be exercisable from time to time and must include within it the power to add to, amend, vary or rescind any of those rules. The submission that s. 21 of the General Clauses Act cannot be held to be applicable for interpretation of the Constitution must, therefore, be rejected. It appears to us that there is nothing in Art. 370 which would exclude the applicability of this section when interpreting the power granted by that article.

The legislative history of this article will also fully support this view. It was because of the special situation existing in Jammu & Kashmir that <ORG> framing the Constitution decided that the Constitution should not become applicable to Jammu & Kashmir under Art. 394 , under which it came into effect in the rest of India, and preferred to confer on the President the power to apply the various provisions of the Constitution with exceptions and modifications. It was envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions.

This could only be brought about by conferring on the President the power of making orders from time to time under Art. 370 and this power must, therefore, be held to have been conferred on him by applying the provisions of s. 21 of the General Clauses Act for the interpretation of the Constitution.

The next point urged was that Art. 368 of the Constitution having been applied to Jammu & Kashmir with a proviso added to it, there now exists a provision relating to amendment of the Constitution as applied to Jammu & Kashmir under tiffs article and, consequently, while such special provision for this purpose exists, we should interpret Art. 370 as being no longer applicable for amending or modifying the provisions of the Constitution applied to that State. This argument, in our opinion, is based on a wrong premise. Art. 368 has been applied to Jammu & Kashmir primarily with the object that amendments made by the <ORG> in the Constitution of India as applicable in the whole of the country should also take effect in the State of Jammu & Kashmir. The proviso, when applying this article, serves the purpose that those amendments made should be made applicable to the State of Jammu & Kashmir only with the concurrence of the State Government and, after such concurrence is available, these amendments should take effect when an order is made under Art. 370 of the Constitution. Thus, Art. 368 is not primarily intended for amending the Constitution as applicable in Jammu & Kashmir, but is for the purpose of carrying the amendments made in the Constitution for the rest of India into the Constitution as applied in the State of Jammu & Kashmir. Even, in this process, the powers of the President under Art. 370 have to be exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Art. 370.

It was also urged that the power of making modifications and exceptions in the orders made under Art. 370(1)(d) should at least be limited to making minor alterations and should not cover the 'power to practically abrogate an article of the Constitution applied in that State. That submission is clearly without force. The challenge to the validity of Art. 35(c) introduced in the Constitution as applied to Jammu & Kashmir on this ground was repelled by this <ORG> in <CITATION> (1). Subsequently, the scope of the powers of making exceptions 'and modifications was examined in greater details by this <ORG> in <CITATION> (2). Dealing with the scope of the word "modification" as used in Art. 370(1 ), the <ORG> held :--

"But, in the present case, we have to find out the meaning of the word "modification" used in Art. 370 (1) [1955] 2 S.C.R. 1101. (2)  S.C.R. 688, 692.

(1) in the context of the Constitution. As we have said already, the object behind enacting Art. 370(1) was to recognise the special position of the State of Jammu & Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu & Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu & Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in Art. 370( 1 ), the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir."

Proceeding further, and 'after discussing the meaning of the word "modify", the <ORG> held :--

"Thus, in law, the word "modify" may just mean "vary", i.e., amend, and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, 'of opinion that in the context of the Constitution we must give the widest e ffect to the meaning of the word "modification" used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation".

This decision being binding on us, it is not possible to accept the submission urged by counsel.

Sup. C169--7 Lastly, it was argued that the modifications made in Art. 35(c) by the Constitution (Application to Jammu & Kashmir) Orders of 1959 and 1964 had the effect of abridging the fundamental right of the citizens of Kashmir under Art. 22 and other article contained in Part III after they had already been applied to the State of Jammu & Kashmir, and an order of the President under Art. 370 being in the nature of law, it would be void under Art. 13 of the Constitution. Article 35(c) as originally introduced in the Constitution as applied to Jammu & Kashmir laid down that no law with respect to preventive detention made by <ORG> State could be declared void on the ground of inconsistency with any of the provisions of Part II1, with the qualification that such a law to the extent of the inconsistency was to cease to have effect after a period of five years. This means that, under clause (c) of Article 35 , immunity was granted to the preventive laws made by <ORG> completely, though the life of the inconsistent provisions was limited to a period of five years. The extension of that life from five to ten years and ten to fifteen years cannot, in these circumstances, be held to be an abridgement of any fundamental right, as the fundamental rights were already made inapplicable to the preventive detention law. On the other hand, if the substance of this provision is examined, the proper interpretation would be to hold that, as a result of Art. 35(c ), the applicability of the provisions of Part III for the purpose of judging the validity of a law relating to preventive detention made by <ORG> was postponed for a period of five years, during which the law could not be declared void. As already stated, Art. 370(1)(d ), in terms, provides for the application of the provisions of the Constitution other than Articles 1 and 370 in relation to Jammu & Kashmir with such exceptions and modifications as the President may by order specify. It was not disputed that the President's Order of 1954, by which immunity for a period of five years was given to the State's preventive detention law from challenge on the ground of its being inconsistent with Part III of the Constitution. was validly made under ,and in conformity with clause (d) of Art. 370(1). We have already held that the power to modify in clause (d) also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in section 21 of the General Clauses Act. If the Order of 1954 is not invalid on the ground of infringement or abridgement of fundamental rights under Part III, it is difficult to appreciate how extension of period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or 'abridgement of any of the provisions of Part IT. The object of the subsequent Orders of 1959 and 1964 was to extend the period of protection to the preventive detention law and not to infringe or abridge the funda-

mental rights, though the result of the extension is that a detenu cannot, during the period of protection, challenge the law on the ground of its being inconsistent with Art.

22. Such extension is justified prima facie by the exceptional state of affairs which continue to exist as before.

The provision made in Art. 35(c) has the effect that the validity of the Act cannot be challenged on the ground that any of the provisions of the Act are inconsistent with Art. 22 of the Constitution.

As a result the grounds taken to challenge the validity of the Act fail and are rejected. The petition will now be set down for hearing arguments, if any, on the facts of the case.

R.K.P.S. Petition set down for hearing on merits.


JUDGMENT <NAME>, J.

1. This is a plaintiff's appeal from an order of the Civil Judge, <NAME>,. reversing an order of the <NAME> of Kasganj by which a final decree under Order 84, Rule 5, Civil P.C., was directed to be prepared. The facts necessary for the purposes of this appeal may be stated as follows : On 2lst November 1936 a preliminary decree in a suit brought on the basis of a mortgage was passed in the following terms:

It is ordered that the claim of the plaintiff for the recovery of Rs. 2140 with pendente lite and future interest at the rate of Rs. 3/4/- per cent, per annum, be decreed. The parties will receive from and pay to each other costs in proportion to their success and failure. Let a mortgage-decree for sale (digrikefalati) be prepared. The defendant shall pay the decretal amount by half yearly instalments of Rs. 310 each. The first instalment will fall due on 15th December 1936, the second instalment on 15th June 1937 and in future the defendant shall continue to pay accordingly. In case of non-payment of any three instalments, the entire unpaid decretal amount shall be payable in a lump sum ba surat adam aday kisi teen eqsat ke baqiya kul motaleba digri ek musht wajib-ul-ada hoga.

2. On 13th January 1941 the plaintiff filed an application for preparation of a final decree under Order 34, Rule 5, Civil P.O. This application was opposed by the defendant on the ground of limitation. Thereupon the plaintiff filed another application praying that in case the Court was of opinion that the application in respect of the entire decretal amount was barred by time, a final decree in respect of instalments which were within time might be prepared. The learned <NAME> before whom the applications came on for hearing reached the conclusion that the application for preparation of the final decree was within time so far as the instalments which fell due v within three years prior to the date of the presentation of the application were concerned, and he ordered preparation of the final decree accordingly. From this order, the defendant went up in appeal and the learned Civil Judge, as stated above, reversed the order of the learned <NAME>. The learned Civil Judge came to the conclusion that under the terms of the decree no option was conferred upon the plaintiff and consequently the entire decretal amount fell due on 16th December 1937 on which date the right to make an application for preparation of the final decree accrued to the plaintiff. He further held that the application for preparation of the final decree, having been brought more than three years after that date, was barred by time. From this decision the plaintiff has brought the present appeal. In our judgment, the order passed by the learned Civil Judge is correct. It is a matter of agreement that Article 181 , Limitation Act , applies to applications of final decrees. Under that Article the limitation provided is three years from the date when the right to apply accrues. There can be no doubt that, according to the terms of the preliminary decree, on default of payment of the first three instalments, the plaintiff acquired a right to make an application for the preparation of a final decree, and, if limitation is computed from the date upon which the third instalment fell due, the application which has given rise to the present appeal would be beyond time. In the decree, we have no words like "the creditor would be entitled to" or "the creditor would have the power to recover," and the expression "that the entire decretal amount shall be payable in a lump sum" is imperative and is inconsistent with any option having been given to the plaintiff.

3. There is a current of authority in support of the view that the expression "when the right to apply accrues" means "when the, right to apply first accrues" and this view is reinforced by the observations of their Lordships of <ORG> made in <NAME> v. <NAME> ('32) 19 A.I.R. 1932 P.C. 207 at p. 919, where their Lordships remarked that:

If in the Indian cases the question were 'when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit - their Lordships think that there might be much to be said in support of the Allahabad decisions.

4. If the terminus a quo be the date when the cause of action arises, there is no doubt that it will be the date on which the plaintiff would first become entitled to sue. As was observed by Sir <NAME> in <CITATION> ('34) 21 A.I.R. 1934 All. 534 at p. 777.

the expression 'the right to apply accrued' is more emphatic than the expression 'the cause of action arises'.

and if the date when the cause of action arises is to be considered the first date when one becomes entitled to sue for the relief claimed by him, then the date when he becomes entitled to apply is certainly the date when the right to apply by way of enforcing the default clause accrued to the mortgagee when on the first occasion there was a default....

5. It may be that in a particular case the plaintiff may not make an application on the first occasion that he became entitled to make one, but that would not prevent the limitation running against him, which depends upon the time of accrual of the right to make an application. The limitation does not depend upon the forbearance on the part of the plaintiff to exercise his right but upon the date of the accrual of that right and, therefore, it cannot remain suspended by reason of any omission or forbearance on the part of the plaintiff. Reference may be made to the case in <CITATION> ('15) 2 A.I.R. 1915 All. 336, where in the case of an application for preparation of a final decree, a Bench of this Court consisting of Sir <NAME> and <NAME> held that limitation should be computed from the time when the right to apply first accrued. This case was followed by a Bench of <ORG> in <NAME> v. <NAME> ('30) 17 A.I.R. 1930 Cal. 329, in which the learned Judge observed that it is settled that in a case to which Article 181 ,. Limitation Act , is applicable, the time runs from the date the right to apply first accrues.

6. Reference may also be made to the case in <NAME> v. <NAME> ('28) 15 A.I.R. 1928 Cal. 646 where <NAME> in discussing the principles on which Article 181 is based made the following observations:

In Article 181 the <ORG> makes provision not for one definite type of cases but for an unknown number of oases of all kinds. The provision which it makes is specific as regards the period of limitation, but as regards the terminus a quo it is content to state in general language and quite simply the fundamental principle that for the purposes of any particular application time is to run from the moment at which the applicant first had the right to make it.

7. Learned Counsel for the appellant placed strong reliance on the <ORG> case in <CITATION> ('27) 14 A.I.R. 1927 P.C. 146. In our judgment, the decision of their Lordships turned upon the nature of the decree in question in that case. Their Lordships did not lay down any general principles. So far as the application for recovery of instalments was concerned, Article 182(7 ), Limitation Act , was applied, a provision with which we are not concerned in the present case. So far as the claim for delivery of property was concerned, the decision turned upon the construction of the decree itself. No reference was made to Article 181 , Limitation Act , and we do not feel oppressed by that decision and are of opinion that it has no application to the facts of the present case. Reliance was also placed on behalf of the appellant on the case in <NAME> v. <NAME> ('38) 25 A.I.R. 1938 Oudh 112. That case is distinguishable upon the ground that there the preliminary decree conferred an option on the decree-holder to obtain a final decree on default of any one instalment when the entire amount unpaid became payable. The learned Judges of <ORG> observed that the ultimate question in the case before them was really one of the construction of the decree and they felt bound to apply the principle of the ruling in <CITATION> ('27) 14 A.I.R. 1927 P.C. 146 to the facts of the ease before them. If there is anything in the judgment of <ORG> which may be said to be in conflict with the view that the expression "when the right to apply accrued" means "when the right to apply first accrues," we dissent from that decision. The case in <CITATION> ('32) 19 A.I.R. 1932 P.C. 207 as has been observed by Sir <NAME> in In the Goods of Punchard (1872) L.R. 2 P. 369 does not lay down any general principle. The decision in that case turned upon Article 132 , Limitation Act , and on the peculiar relationship between the mortgagor and the mortgagee. The Full Bench case in <CITATION> . ('28) 15 A.I.R. 1928 All. 629 was not a case of an application for preparation of a final decree and the terms of the decree in that case were essentially different from the terms of the decree in the case before us. That ruling does not affect the question before us, viz., whether in a case where there is no option contained in the decree, the limitation under Article 181 for an application for preparation of a final decree runs from the date when the plaintiff becomes first entitled to make an application.

8. In our judgment, the order passed by the learned Civil Judge is correct and we, accordingly, dismiss this appeal with costs.


JUDGMENT <NAME>, J.

1. In this case the appellant <NAME> propounded a document as the will of her late husband <NAME>, who died on the 18th of March 1891. The District Judge of Nuddea admitted the document to probate. <ORG> on appeal reversed his decision and dismissed the appellant's petition with costs.

2. The sole question in issue before <ORG> was the testamentary capacity of the alleged testator.

3. After a very careful review of the evidence from which nothing is omitted, and in which nothing seems to have been unduly pressed, the learned Judges of <ORG> state the result of their opinion as follows: " We think that the evidence of Dr. <NAME> "---Dr. <NAME> was a duly qualified doctor who attended <NAME> during the latter part of his illness---" aided by the admissions of the plaintiff's witnesses, the history of the illness and the circumstances of suspicion which arise in the case, lead to the conclusion first that <NAME> is not shown to have had due testamentary capacity ; secondly, that the balance of evidence in this difficult case is on the whole to the effect that he had not testamentary capacity ; and that there is no adequate proof whatever that be knew or approved of the contents of the will."

4. Their Lordships agree so entirely with the conclusions at which the learned Judges have arrived and with their estimate of the evidence that it will not be necessary for them to go through the facts in any detail.

5. <NAME> died at the age of 29. Besides his widow he left an infant daughter and two uncles, the younger of whom <NAME>, the present respondent, opposed the grant of probate. <NAME> had a paralytic stroke on the 24th of January 1891. A native doctor named <NAME> was called in and attended him for about five or six days. Then he was treated by a kobiraj or native practitioner whose name does not appear. On the 2nd of March he had another seizure. Two doctors were then called in, Dr. <NAME> and a native practitioner called <NAME>. They attended him constantly until his death. It seems to have been determined rather against the advice of the doctors that if possible <NAME> should be moved to Calcutta on the 9th. However, as preparations were being made for his removal, and as he was being carried through the house he had another seizure, which after a few days proved fatal.

6. The story of the preparation of the will is told by <NAME>, a cousin of <NAME> and his manager and trusted adviser. He was the principal, if not the sole, actor in the drama.

7. It seems that Dr. <NAME>, either on the first day of his attendance or a day or two afterwards, said something about a will. It is not very clear what was said. <NAME> states that the doctor said that considering <NAME>'s state there should be a will made. Dr. <NAME> himself asserts that what he said was that " considering <NAME>'s condition they should be ready to get a will executed in case he became at all better." Whatever it was that Dr. <NAME> said <NAME> acted on the hint and set about getting a will made at once. He says he told the patient " <NAME> Babu is saying that you should make a will." . . . . . . <NAME> said : " Let a will be made and then I shall go to ' Calcutta.' "

... . I and <NAME> consulted together that night. I drew out a list of the properties which were to be included in the will. No one was present there at that time. Neither his wife nor his mother-in-law was asked at the time about it. I did not tell him to ask either his wife or mother-in-law about it., He did not forbid me to speak of it to any one except his uncle and his enemies. I did not speak of it to <NAME>'s sister, and one of his aunts. I did not also tell his wife. I did not speak of it to <NAME>'s wife and family or any one else, but <NAME> spoke of it to his sister and wife on the 24th and 25th Phalgoon (7th and 8th of March). There were five executors. I did not let them know before the will. I did not tell <NAME> or his sons. They do not speak to me. I made a draft from the note. This was on the 21st or 22nd (4th or 5th of March). I have a draft. I handed over the list to <NAME> to keep it with the miscellaneous papers. I made the draft sitting in a corner of the cutchery. <NAME> saw the draft on the morning of the 23rd (6th of March) after washing his mouth and his hands. No one was present at the time. The doctor went daily from the 20th to the 25th. <NAME> and <NAME> used not to go together. I did not tell <NAME> Babu because <NAME> forbade me. He forbade me from the 20tb. He forbade me saying ' Let no one know.'On one occasion he named the doctors and told me not to tell them. He said to me ' I do not know whether what you have done will be according to law, go and get it revised by the pleader of Meherpur.' I sent it on the 24th through <NAME> .... The draft came from Meherpur on the night of the 24th Phalgoon. It contained just an alteration here and there. What I wrote was there but two conditions were added. Besides <NAME> I tried to get a draft drawn up by <NAME> also, I tried to do so by means of a letter purporting to have been written by <NAME> Babu on the 21st or 22nd. In it I put down paragraphs of the will. <NAME>'s draft came by post a day or two after <NAME>'s will had been executed. It is with <NAME>. <NAME> sent a letter. It is in the serishta .... After <NAME> had determined who should be executors and said ' These persons are to be the executors' I did not say anything. He said that on the night of the 20th when we consulted together. <NAME> doctor came that day. I do not remember whether I or <NAME> spoke about the terms of the will. <NAME> spoke about the terms. I gave my opinion. I did not myself suggest any of the terms .... It took ten or twelve minutes to read <NAME>'s will. That was on the night of the 24th. He read it to himself. He read it in a low voice." The story told on behalf of the petitioner further was that <NAME>'s draft was sent to <NAME> the pleader at Meherpur on the morning of the 7th of March by the hand of <NAME>, a gomashta in <NAME>'s employ. <NAME> says that <NAME> gave him a letter along with it addressed to <NAME>. Then he adds " <NAME> said 'Take this letter and get the draft corrected by <NAME> and bring it back.' He said ' There are four executors and my wife will also be an executrix.' He further said 'Rs. 300 is set apart for my wife's pilgrimage, it has to be made Rs. 600.' He further told me to ask <NAME> to keep this secret that there may be no row."

8. Putting aside for the moment this alleged conversation with <NAME>, and <NAME>'s statement that <NAME> spoke of the will to his wife and sister on the 7th and 8th of March, it will be observed that up to this point no one was in the secret but <NAME>. Everything took place between <NAME> and <NAME> alone. Tt is not very clear whether <NAME> intended to represent that he had a conversation with <NAME> in person or whether he was only repeating what <NAME> told him. Either way the story is incredible. When <NAME> was sending written instructions to <NAME> why should he haye entrusted part of the testator's wishes verbally to a messenger ? If we are to take it that <NAME> had a conversation with <NAME> about the will in <NAME>'s presence how is it that <NAME> says nothing about it?

9. The will is said to have been executed on the following day, the 8th of March, between 4 and 5f. M. There seems to he no doubt that on that day there was an assemblage of persons hastily collected by <NAME>. All were servants of <NAME> except <NAME>, who was <NAME>'s brother-in-law, and <NAME>, the doctor who attended <NAME> on the first attack. A person was stationed at the door to keep out " enemies " or to give warning of their approach. <NAME> was propped up in bed. The will which had been copied out by one <NAME> was put into his left hand over which he still had some power. <NAME> signed for him. He touched the pen. Then <NAME> signed and read the will aloud. The other witnesses signed and the ceremony was over. <NAME> put the will in his own box. After <NAME>'s death " he made known the fact of the will having been made." He handed over the will to the appellant. The appellant and <NAME> applied jointly for probate. But <NAME> afterwards withdrew his application at the instance apparently of the appellant's maternal uncle. There were other reasons he said. He was forbidden to act by <NAME>, the respondent.

10. The will itself is fairly simple and not very long. The testator begins by stating that <NAME> and his son had not behaved well to him ; they were behaving so that if he did not appoint any executor in respect of his estate his family would suffer for want of food. Then he gives his wife permission to adopt. He appoints five executors, but no work was to be done otherwise than in accordance with the views of two of them. Then the testator directs that if a son is adopted his infant daughter and the adopted son should share his property between them, but until he or she came of age the estate was to remain in the hands of the executors. In default of an adoption the daughter was to take all. In the event of the daughter's death the entire estate was to go to the adopted son. In the absence of both adopted son and daughter the entire estate was to vest in his widow, and failing her in the testator's nephew or any full brothers that he might have. Then there were provisions for poor relatives of the testator and of his widow.

11. It is only fair to observe that under the will <NAME> took no benefit directly. He had no interest except as executor. What his motive was it is difficult to see unless he hoped to secure his position as manager of the estate by becoming an executor. And it may be that he was anxious to exclude <NAME> from all hope of succession. He and <NAME> seem to have been on much worse terms than <NAME> and <NAME>. <NAME> and his son did not even speak with <NAME>. <NAME> constantly visited <NAME> during his illness, and <NAME> according to <NAME> was very anxious that his visits should not be discontinued.

12. The oral evidence as to <NAME>'s testamentary capacity may be summed up shortly. Putting aside the statements of <NAME> and <NAME>, to which attention has already been called, the witnesses for the appellant state generally that the testator was in full possession of his senses. " That," as the learned Judges of <ORG> say, "is very unsatisfactory evidence of the patient's condition." " The question," they add, "is what mental state he was in in reference to the making of a will, his capacity for which is challenged by the defendant's evidence and is rendered at least a matter for careful inquiry from the facts of his illness in the plaintiff's evidence itself. Paralysis on 24th January, an increase of illness on 23rd February, another and severe fit on the 2nd March, indistinct speech as stated by all the witnesses, increased by the 8th March according to <NAME> so greatly that according to <NAME> he had to be asked two or three times before his words could be understood.....The evidence of some of the plaintiffs just 'referred to would if read by itself convey the impression that <NAME>'s mind was quite alert and his speech practically free, although a little indistinct, and although he was physically weak and paralysed. If anything approaching this was the truth some proof of this might have been adduced apart from the story common to all those witnesses in which almost the same things are represented as said about the execution and about going to Calcutta, and nothing else whatever. The obvious comment on it is that they did not venture to leave this common ground, because they were not stating what they remembered, but what it had been agreed should be said-a short story containing some easily remembered incident of a kind which, if not closely inquired into by the defendant, would lead to a belief on the part of the <ORG> trying the case in <NAME>'s capacity."

13. On the other hand, the witnesses on behalf of the respondent deposed clearly and positively to <NAME>'s incapacity. The most important witness of course is Dr. <NAME>. He seems to be a person of some position. <NAME> himself says " <NAME> is regarded as a good doctor." He is positive that at no time during his attendance could <NAME> have made a will. He says: " I used to go and visit him daily for 15 or 16 days. Before I went there <NAME> was under the treatment of a kobiraj of Mankar. I sometimes used to stop at <NAME>'s house for 24 hours. When I went on the first day <NAME> had but little consciousness. For the first day or two he replied to questions with great difficulty. After that he could not speak at all, but used to try and make sounds. He did not always try to do even this. After I had repeatedly shouted to him he used to try and make a sound. I saw <NAME> on the morning of the day before that on which it was proposed to take him to Calcutta. I went in the morning of the day before that on which it was proposed to take him to Calcutta. As regards <NAME>'s senses on that day I only say this that he could taste food and he used to weep and again to wipe the tears from his eyes as he looked at people. He could take down the first part of each spoonful, and the latter part of it had to be withdrawn. I did not hear him speak, and he did not speak to me. He used to be made to sit up in order to be fed. I came away at 10 or 11 that day. I was against his being taken to Calcutta. The reason was that the whole of the brain had become diseased, and if he received any shock the probability was that he would get apoplexy. The next day at 9 or 91/2 in the morning I found the patient almost in a moribund condition."

14. As regards the testamentary capacity of the alleged testator their Lordships agree with <ORG> in thinking that the oral evidence on behalf of the respondent outweighs the evidence on behalf of the appellant. And in this connection it must be borne in mind that <NAME> does not seem to have had any intention of making a will before his illness. It is not like a case in which a testator executes a disposition of his property for which instructions have been given or preparations made while the mind was in vigour.

15. Apart, however, from the oral evidence there are several matters which in their Lordships' opinion tell heavily against the appellant. What reason was there for keeping in the dark the two doctors who were in daily attendance on the patient? If it be true, as <NAME> says, that Dr. <NAME> suggested that a will should be made by <NAME> in the state in which he was when he paid his first visit, it would only have been natural that he should have been consulted. No doubt <NAME> says that <NAME> forbade him to tell the doctors. He looked upon them as people of the other party because they were friends with <NAME> and attended his family. But then <NAME> was on good terms with <NAME>, and yet <NAME> called him in to witness the will, and he was permitted to read it aloud. It is suggested that <NAME> was afraid that something would happen if <NAME> were told. But what is it that the testator is said to have been afraid of if <NAME> had known of the will?" Not that there would have been a row, as some of the witnesses said, but according to <NAME>'s evidence only this that <NAME> would discontinue his visits. Then again why were not the wife and sister called to speak to <NAME>'s mental condition at the time the will was made? <NAME> says that the testator himself told them about the will on the 7th and 8th of March. It is true that when the plaintiff's evidence was closed the District Judge was asked to let them be examined, but then it was too late. Lastly, it is a very important fact that <NAME> does not produce the draft which he says was sent to Abinash and returned by him, nor was Abinash himself called though he might have thrown some light upon the case.

16. On the whole, their Lordships are of opinion that <ORG> came to a right conclusion. The making of the will from first to last was <NAME>'s doing, and there is no satisfactory evidence to show that the alleged testator understood the business in which <NAME> engaged him. The burden of proof rests on the appellant and she has not discharged it.

16. Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed. The appellant will pay the costs of this appeal.