JUDGMENT Straight, Offg. C.J.

1. It has been found as a fact by both the lower <ORG>, and the appellant's pleader admits it to have been so found, that the plaintiff took his mortgage of the 20th June 1883, with notice of the defendant's possessory mortgage of the 17th January 1881. Both these instruments were for sums of money below Rs. 100, and both were optionally registrable, that of the 20th June 1883, being, in fact, registered, and that of the 17th January 1881, being unregistered.

2. The question then arises, whether the plaintiff, having taken his document of the later date with knowledge of the prior title of the defendant and of his possession, in virtue of it, of the land to which the suit relates, is entitled to enforce the provisions of Section 50 of the Registration Act, 1877? In support of the contention that he is, his pleader referred to <CITATION> . 5 Mad. 73; <CITATION> . 6 Mad. 88 and <NAME> v. Ali Beg Sahib I.L.R. 6 Mad. 174. On the other side our attention was called to <NAME> v. <NAME> I.L.R. 5 Cal. 336; <CITATION> . 7 Cal. 753; <NAME> v. <NAME> 8 Cal. 597 and <NAME> v. <NAME> 10 Cal. 1073 and <NAME> v. <NAME> 11 Cal. 667. Putting aside any question of equitable estoppel, such; as is so forcibly described by Lord <NAME> in the Agra Bank v. Barry L.R. 7 H.L. 135 it seems to me that where one person takes a possessory mortgage of property with full knowledge and notice that another is already in possession of such property under an earlier instrument of a similar kind, he cannot be said to be acting in good faith (see Story's Equity by Grigsby, Section 397, and 2 White and Tudor, pp. 45, 46), and that the principle enunciated in Section 53 of the Transfer of Property Act is applicable to such a transaction. In other words, in such a condition of circumstances, the condition of things is that qua the prior title, though created by an unregistered instrument, the status of the second mortgagee under his registered document is affected by his own mala fides; and as, on the one hand, the first mortgagee might avoid it on the ground that it was executed in fraud of him, so, on the other, the second mortgagee cannot, on the strength of his own fraud, pray in aid the provisions of the Registration Law, to give preference to an instrument which records a transaction that in its inception, being fraudulent, was a nudum pactum. In this respect of the matter such document would not be a " document "in the sense of Section 50 of the Registration Act, which term, as therein used, I understand to mean a document legally enforcible, and I am confirmed in this opinion by the remarks of Sir <NAME>, C.J., in <CITATION> 1 B.L.R.F.B. 82. This being the view I take of the question raised by the second plea in appeal, the <ORG> below were, in my opinion, right in giving effect to the defendant's deed, and I dismiss this appeal with costs.

Mahmood, J.

3. I concur.


PETITIONER: PREM CHAND GARG Vs. RESPONDENT: EXCISE COMMISSIONER, U. P., ALLAHABAD DATE OF JUDGMENT: 06/11/1962 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1963 AIR 996 1963 SCR Supl. (1) 885 CITATOR INFO : D 1967 SC 1 (49,50,51,81,100) R 1967 SC 847 (5) RF 1968 SC 888 (12) E 1972 SC 963 (35) RF 1976 SC1750 (3) R 1978 SC 68 (89) E 1980 SC 808 (4) D 1988 SC1531 (184) D 1991 SC2176 (51) O 1992 SC 248 (40,41,42,43) ACT: <ORG>-Writ Petition Security for costs of res- pondent-Rule, validity of-<ORG> Rules, O.XXXV, r.12- Constitution of India, Arts. 32 and 145. HEADNOTE: Rule 12 of O.XXXV <ORG> Rules empowers the <ORG> in writ petitions under Art. 32 to require the petitioner to furnish security for the costs of the respondent. The petitioner contended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Art. 32 , to move the <ORG> for the enforcement of fundamental rights. Held, (per <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, <NAME>., <NAME>, J., contra), that r. 12 of O.XXXV <ORG> Rules is invalid in so far as it relates to the furnishing of security. The right to move the <ORG> under Art. 32 is an absolute right and the content of this right cannot be circumscribed or impaired on any ground. An order for furnishing security for the respondent's costs retards the assertion or vindication of the fundamental right under Art. 32 and contravenes the said right. The fact that the rule is discretionary does not alter the position. Though Art. 142(1) empowers the <ORG> to pass any order to do complete justice between the parties, the <ORG> cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution. No question of inconsistency between Art. 142.(1) and Art. 32 arises as Art. 142(1) does not confer any power on the <ORG> to contravene the provisions of Art. 32. Nor does Art. 145 which confers power, upon the <ORG> to make rules, empower it to contravene the provisions of Art. 32. Ramesh Thapper v. State of.Madras, [19501 S. C. R. 394, <CITATION> ,  S. C. R. 597 and <CITATION> .,  1 S. C. R. 574, relied on, 886 <CITATION>  Supp. 2 S. C. R. 316, explained. <CITATION> ,  Supp. 1 S.C.R. 806, <CITATION> ,  1 S. C. R. 497, distinguished. <NAME>,J.-The impugned rules is not void. The rule does not directly place any restriction upon the right of a litigant to move the <ORG>. It merely recognises the jurisdiction of the <ORG>, in appropriate cases, to make an order demanding security. It is not, in substance, a rule relating to practice and procedure but it deals primarily with the jurisdiction of the <ORG>, which has its source in Art. 142 of the Constitution, No question of conflict arises between the rule which merely declares the jurisdiction of the <ORG> defined by Art. 142 and the right guaranteed under Art. 32. The provisions of Art. 142 and Art. 32(1) must be read harmoniously. Both being provisions in the Constitution, one cannot prevail over the other. Pandit <NAME> v. Shri sri Krihhna <NAME>,  Supp. 1 S. C. R. 806, relied on. JUDGMENT:

ORIGINAL JURISDICTION : Petition No. 52 of 1962. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights.

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

<NAME> and <NAME>, for the respondents Nos. 1 & 2. <NAME>, Solicitor-General of India, <NAME> and <NAME>, for respondent No. 3. 1962. November, 6. The Judgment of <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, <NAME>., was delivered by <NAME>, <NAME>, J., delivered a separate judgment. <NAME>, J.-This is a petition under Art. 32 and it raises an interesting and important question about the validity of one of the Rules made by this <ORG> in exercise of its powers under Art. 145 of the Constitution. The impugned Rule is Rule 12 in Order XXXV. It provides that the <ORG> may, in the proceedings to which the said Order applies, impose such terms as to costs and as to the giving of security as it thinks fit. One of the proceedings covered by Order XXXV is a petition under Art.

32. The petitioners <NAME>, 8 Anr., partners of <ORG>, Ghaziabad, have filed under Art. 32 petition No. 348 of 1961 impeaching the validity of the order passed by the Excise Commissioner refusing permission to the <ORG> to supply power alcohol to the petitioners. This petition was admitted on December 12, 1961 and a Rule was ordered to be issued to the respondents, the Excise Commissioner of U.P., Allahabad, and the State of U. P. At the time when the rule was thus issued, this <ORG> directed under the impugned Rule that the petitioners should deposit a security of Rs. 2,500/- in cash within six weeks. According to the practice of this <ORG> prevailing since 1959, this order is treated as a condition precedent for issuing rule <NAME> to the impleaded respon- dents. The petitioners found it difficult to raise this amount and so, on January 24, 1962, they moved this <ORG> for a modification of the said order as to security. This application was dismissed, but the petitioners were given further time to deposit the said amount by March 26, 1962. This order was passed on March 15, 1962. The petitioners then tried to collect the requisite fund, but failed in their efforts, and that has led to the present petition filed on March 24, 1962. By this petition, the petitioners contend that the impugned Rule, in so far as it relates to the giving of security, is ultra vires, because it contravenes the fundamental right guranteed to the petitioners under Art. 32 of the Constitution. That is how the question about the validity of the said Rule falls to be determined on the present application,  Article 32 (1) provides that the. right to move the Supreme <ORG> by the appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed, and sub- Art. (4) lays down that this right shall not be suspended except as otherwise provided for by this Constitution. There is no doubt that the right to move this <ORG> conferred on the citizens of this country by Art. 32 is itself a guaranteed right-and it holds the same place of pride in the Constitution as do the other provisions in respect of the citizens' fundamental rights. The fundamental rights guaranteed by Part III which have been made justiciable, form the most outstanding and distinguishing feature of the Indian Constitution. It is true that the said rights arc not absolute and they have to be adjusted in relation to the interests of the general public. But as the scheme of Art. 19 illustrates the difficult task of determining the propriety or the validity of adjustments made either legislatively or by executive action between the fundamental rights and the demands of socioeconomic welfare has been ultimately left in charge of the High <ORG>s and the Supreme <ORG> by the Constitution. It is in the light of this position that the Constitution- makers thought it advisable to treat the citizens' right to move this <ORG> for the enforcement of their fundamental rights as being a fundamental right by itself. The fundamental right to move this <ORG> can, therefore be appropriately described as the comer-stone of the democratic edifice raised by the Constitution. That is why it is natural that this <ORG> should, in the words of <NAME>, J., regard itself "as the protector and guarantor of fundamental rights, "and should declare that "it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights" (Vide Ramesh Tlappar Y. The State of Madras). (1) In discharging the duties assigned to it, this <ORG> has to play (1)  S.C.R. 594, 597.

the role "'of a sentinel on the qui vive" ( <CITATION> ) (1), and it must always regard it as its solemn duty to protect the said fundamental rights zealously and vigilantly (<NAME> v. The State of U. P.) (2). Mr. <NAME> for the petitioners contends that the right guaranteed under Art. 32 (1) is not subject to any exceptions as are the rights guaranteed by Art. 19. The right to move this <ORG> is an absolute right and the content of this right cannot be circumscribed or impaired on any ground, such as the interests of the general public. It is in this connection that Mr. <NAME> preferred to describe the guaranteed right under Art. 32 as "absolutely absolute". The key role assigned to the right guaranteed by Art. 32 and the width of its content are writ large on the face of its provisions, and so, it is, in our opinion unnecessary and even inappropriate to employ hyperboles or use superlatives to emphasise its significance or importance. Mr. <NAME> however, conceded that the right to move this <ORG> can be validly regulated by rules of procedure and regulations made with a view to aid the assertion and vindication of the right and to provide for a fair trial of the points raised by the petitioners. For instance, he agrees that a rule can be made that the petition proposed to be filed under Art. 32 should be legibly written, or typed, before it is filed, or that the relevant paper book should be prepared in the prescribed manner in order to facilitate the reference in <ORG>, or that a notice should be issued to the respondent, or for the making of the affidavit in the prescribed manner. These rules, he argues, can be legitimately made because they serve to aid and facilitate a fair disposal of the petition made by the petitioner on the merits. If, however, a rule is made which retards or obstructs the petitioner's .attempt to assert his fundamental right under Art. 32 , that rule must be struck down as being violative of Art. 32. His argument is that the impugned rule imposes upon the petitioners an obligation to deposit (1)  S.C.R.597,605. (2)  1 S.C.R. 574, 582.

a certain amount in <ORG> as security for the respondents costs, and far from siding or assisting the petitioners' assertion of fundamental right, it has the effect of retarding or obstructing the same. If, as in this case the petitioners are unable to deposit the security, their petition is liable to be dismissed for non-prosecution. That clearly illustrates the hardship that the rule will work, and thus brings out how it contravenes Art. 32. On the other hand, the learned Solicitor-General who has appeared for the Registrar of this <ORG>, has argued that the rule cannot be said to contravene Art. 32 because it is a discretionary rule and it vests discretion in this <ORG> either to make an order as to the giving of the security or not to make it, as it may deem fit according to the circumstances of each case. He conceded that for some time past., it has been the practice of this <ORG> generally to make ,in order as to security in Art. 32 petitions, though in some cases, on the motion of the petitioner, the amount of security has been reduced and sometimes security has even been dispensed with. But he argues that if the prevailing practice is found to be unsatisfactory or inconsistent with the spirit of the rule itself, the remedy is to change the practice; there is, however, no vice in the rule. In a proper case, security can be demanded from the petitioner because that is the normal rule of procedure recognised by the Civil Procedure Code. In this connection' he relied on the provisions of 0.25 r. 1 & 2 and 0.41 r. 10. Like all judicial trials, even in respect of the trial of the petition filed under Art. 32 , the <ORG> must act fairly by both the parties, and so, if it appears to the <ORG> that it is in the interest of justice that the costs of the respondent should be secured, it would be open to the <ORG> to make an order of security in that behalf and a rule which permits such an order to be made in a proper case, cannot be said to be inconsistent with Art. 32. In support of this argument, the Solicitor-General relied upon the provisions of Art. 145(1)(f) and more particularly on the wide power conferred on this <ORG> under Art. 142(1) of the Constitution. He also suggested that in determining the effect of the wide provisions of Art. 142 , we ought to adopt the rule of harmonious construction so as to reconcile the said powers with Art. 32.

If the present dispute had been confined to the narrow question about the construction of the impugned rule and the propriety or otherwise of the prevailing practice, it would have become necessary for us to consider whether the rule can be said to be valid and the practice prevailing irregular inasmuch as in some cases security may perhaps have been demanded from the petitioner without full examina- tion as to the special features of the case. In that case, it would have become necessary also to consider whether the rule cannot be sustained in so far as it vests the discretion in the highest <ORG> of this country and can be used only in cases where for reasons like those contemplated by Order 25 r. 1 & 2 and 0.41 r. 10 an order of security is made. In this connection, two rival contentions have been urged before us. Mr. <NAME> argues that the rule is very wide and would justify the making of an order for security even in cases which do not satisfy the tests laid down, for instance, by 0.25 r. 1 and 0.41 r. 10 of the Code and he argues that in such a case, the rule must be struck down as a whole. In support of his contention Mr. <NAME> has relied on the decision of this <ORG> in <CITATION> (1), <CITATION> () , and <CITATION> (3). On the other hand, the Solicitor-General contends that the rule should be so construed as to enable this <ORG> to make orders of security only in proper cases and on that narrow construction its validity should be upheld. if, in some cases, orders have been passe without a full examination of the merits of the question, that (1)  S.C.R. 594, 597. (2)  S.C.R. 759. (3)  Supp. 3 S.C.R. 369.

may only mean that the said orders may not have been properly passed under the rule. The exercise 'of the power conferred on the <ORG> in such cases will not, however, invalidate the rule itself. In support of this argument, reliance has been placed on the decisions of this <ORG> in the cases of )?. <CITATION> (1) and <CITATION> (2). As we have just indicated, it would have become necessary for us to examine these contentions if the power to make an order for security in appropriate cases had been conceded by the petitioners. But since the existence of the power is disputed, we have to decide the larger issue raised by Mr. <NAME>. Mr. <NAME> argues that even in cases to which the relevant provisions of 0.25 and 0.41 may ordinarily apply, this <ORG> has no power to make an order of' security in a petition under Art. 32. The only test, says Mr. <NAME>, which can be legitimately applied in dealing with the matter is : does the rule aid or assist the assertion or vindication of the fundamental right, or does it retard or obstruct it ? If the answer to the question is that the rule retards or obstructs the assertion or vindication of the fundamental right by imposing a pecuniary obligation on the petitioner, the rule is bad and there is no authority in this <ORG> to make such a rule under Art. 145 and there is no jurisdiction in the <ORG> to make such an order under Art. 142. It is this larger question which calls for our decision in the present petition.

In support of his argument that this <ORG> has no power to make such a rule, Mr. <NAME> has relied on the decision of this <ORG> in the Cape of Kavalappara <NAME> The State of Madras(3). In that case, <NAME>, C.J has examined the scope and effect of the provisions of Art. 32 and has observed that an application made under Art. 32 cannot be rejected on the simple ground that the peti- tioner has an alternative remedy open to him., Then (1)  S.C.R. 930. (2)  Supp.2 S.C.R. 769, (3)  2 S.C,R. 316, 335.

the learned <NAME> addressed himself to the question as to whether such an application could be dismissed on the ground that it involves the determination of disputed questions of fact, and in answering this question in the negative, he has stated his conclusion in these words : 'But we do not countenance the proposition that, on an application under Art. 32 , this <ORG> may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground." It is on the last clause of the sentence that Mr. <NAME> relics. He contends that the statement of the learned C. J., is categorical that a petition under Art. 32 cannot be dismissed on the ground that it involves the decision of disputed questions of fact or on any other ground, and that excludes the ground of nonpayment of security. We do not think that this argument is well-founded. The words "or on any other ground" on which the argument rests, cannot be torn from their context. The context shows that "any other ground', which the learned C. J., had in mind must be similar to the ground which he had enumerated before using the said clause. Take, for instance, the case of a petition which is barred by res judicata. This <ORG> has held that the principles of res judicata apply to petitions under Art. 32 (<NAME> v. The State of U. P.) (1). Take also the case where a petition under Art. 32 would be liable to be dismissed on the preliminary ground that it purports to challenge an order of assessment made by an authority under a taxing statute which is intra vires, on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder, <CITATION> (2). If the words "or on any other ground" used by <NAME>, C. J., are literally construed, they would have to be treated as inconsistent with these subs- equent decisions. That, however, is plainly not the true position and so, the argument based on the said words used by <NAME>, C. J., cannot, in our opinion, be (1)  1 S.C.R. 574,582.

(2) [1963] 1 S.C.R. 778, accepted. It would, we think, be unfair to assume that in using the words "or on any other ground" this <ORG> wanted to imply, as Mr. <NAME> seems to assume, that once a petition is made under Art. 32 , there is no alternative but to consider its merits apart from considerations Like res judicata or the competence of the petition itself. Therefore, the argument that the rule is inconsistent with the decision in <NAME> case must be rejected.

The next question to consider is whether an order for security can be said to retard or obstruct the assertion or vindication of a fundamental right under Art. 32. For anology, we may refer to 0. 25 r. 1 and 0. 41 r. 10. These rules give us an idea as to the circumstances in which orders of security are made under the Code of Civil Procedure. 0, 25 r. 1 provides, inter alia, that if the plaintiffs reside out of India and do not possess any sufficient immovable property within India other than the property in suit, the <ORG> may, on its own motion or on the application of any defendant, order security to be deposited by them. A similar order can be passed where any party to the suit leaves India under circumstances which would show that in all probability he will not be forthcoming to pay the costs of his opponent when called upon to do so. Such an order can also be passed if the plaintiff happens to be a woman and the <ORG> is satisfied that she does not possess sufficient immovable property within India. 0.41 r. 10 confers on the appellate <ORG> discretion to demand from the appellant security for the costs of the appeal or of the original suit or of both in somewhat similar circumstances. Now if an order is made calling upon the petitioner to furnish security in cases similar to those covered by 0. 25 r. 1 and 0. 41 r. 10, would it not be reasonable to say that the order of security would retard the assertion or vindication of the fundamental right ? The order imposes on the petitioner a financial obligation and if he is not able to comply (1)  2 S.C.R. 316, 335, with the order, his petition would fail. In our opinion there is no doubt that an order of security for the respondent's costs would, in some cases effectively bar' and in all cases amount to a hindrance in, the further progress of the petition. It cannot be said that the said order aids a fair hearing of the petition like the order prescribing the manner in which the paper books have to be prepared, or other steps in connection with the petition have to be taken. It. may be conceded that the order is intended to protect the interest of the respondent and in that sense, may be treated as fair; but the fairness of the order or of the object intended to be achieved by it will not disguise the fact that its effect is not to aid the petition but to retard it to some extent. In considering the constitutionality of the order or the rule which permits the order to be made, the fact that the object intended to be achieved is good, just or unexceptionable would be immaterial, vide the <CITATION> (1), and <CITATION> (2). Therefore, we do not see how it is possible to escape the conclusion that the order for security retards the assertion or vindication of the fundamental right under Art. 32 and in that sense, must be held to contravene the said right. It is true that the statistics of the Art. 32 petitions filed in this <ORG> during the last decade may show that the majority of the petitions are filed by citizens who complain about the contravention of their fundamental right under Art. 19(1)(f) and (g) and in that sense, the validity of the impact of the welfare policies of the <ORG> or <ORG> on the property rights of the citizens has more frequently fallen to be considered by this <ORG>. Contravention of fundamental rights in respect of the freedom of speech and expression, and the freedom to form assemblies, associations or <ORG>, which some jurists describe as "preferred freedoms"

(1) [1955) 1 S.C.R. 568, 583, (2) (1946) L.R. 73 I.A. 59, 7-, has not given rise to as many petitions as the contravention of property rights has, and in that sense; it may be permissible to assume that the petitioners who complain against the infringement of their property rights may be able to comply with the orders of security passed by the <ORG> under the impugned rule; but that, in our opinion, is hardly relevant. If the right under Art. 32 is circumscribed or impaired by such in order, the fact that the petitioner may be able to comply with the order would not help to make the order or the rule valid. Therefore, the practical considerations to which reference was made during the course of the arguments have no material bearing in deciding the validity or the constitutionality of the rule or the existence of the relevant power in this <ORG> under Art. 142.

It is, however, urged by the learned Solicitor-General that the powers of this <ORG> under Art. 142 are very wide and cannot be controlled by Art. 32. He has put his argument in two ways. He urges that the words used in Art. 142 are very wide and since they constitute the constitutional charter of this <ORG>'s powers, theyu must be very liberally construed. This contention is undoubtedly well founded. Article 142(1) provides that in exercise of its jurisdiction, this <ORG> may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it; and it adds that a decree or order so made shall be enforceable throughout the territory of India in the manner prescribed by any law made by <ORG> and, until provision in that behalf is so made, in such manner as the President may by order prescribe. The Solicitor-General wants us to compare Art. 142(1) with Art. 194(3) and he suggests that just as the powers, privileges and immunities specified by the latter Article are not subject to the provisions in respect of fundamental rights, so is the power specified by Art. 142 (1) not subject to the said rights In support of this argument, <NAME> has relied on the decision of this <ORG> in the case of <CITATION> (1). It may be recalled that Art. 194 deals with the powers, privileges and immunities of State <ORG>s and their members and Art. 194(3) provides that in other respects, the powers, privileges and immunities shall be such as may from time to time be defined by the <ORG> by law, and until so defined shall' be those of <ORG> of the <ORG> of the United Kingdom, and of its members and committees, at the commencement of this Constitution. The effect of this provision is that until law is made in that behalf, the powers enjoyed by the members of <ORG> and its Committees at the commencement of this Constitution shall continue to be enjoyed by the members of the State <ORG>s and their committees. One of the points which fell to be considered by this <ORG> in the case of <NAME> was whether the rights, powers and privileges of the members of <ORG> which could be claimed by the members of the State <ORG>s had to stand the scrutiny of the test prescribed by Art. 19. In other words, if it appears that the said rights were inconsistent with the provisions of Art. 19(1 ), had the said rights to yield before the fundamental rights guaranteed by Art.19(1); and this <ORG> held that Art. 19(1)(a) and Art. 194(3) have to be reconciled and the only way of reconciling the same is to read Art. 19(1)(a) as subject to the latter part of Art. 194(3) just as Art. 31 has been read as subject to Art. 265 in the earlier decisions of this <ORG>. In other words, the effect of this decision is that if there is a conflict between the rights claimed under the latter part of Art. 194(3) and the fundamental rights of citizens under Art. 19 , the validity of the said rights cannot be impeached on the ground that they are inconsistent with the provisions of Art. 19(1)(a).

(1) [1959] 1 S.C.R. 806, Basing himself on this decision, the SolicitorGeneral argues that the power conferred on this <ORG> under Art. .142(1) is comparable to the privileges claimed by the members of <ORG>s under the latter part of Art. 194(3 ), and so, there can be no question of striking down an order passed by this <ORG> under Art. 142(1) on the ground that it is inconsistent with Art. 32. It would be noticed that this argument proceeds on the basis that the order for security infringes the fundamental right guaranteed by Art. 32 and it suggests that under Art. 142(1) this <ORG> has jurisdiction to pass such an order. In our opinion, the argument thus presented is misconceived. In this connection, it is necessary to appreciate the actual decision in the case of <NAME> and its effect. The actual decision was that the rights claimable under the latter part of Art. 194(3) were not subject to Art. 19(1)(a ), because the said rights had been expressly provided for by a Constitutional provision, viz., Art. 194(3 ), and it would be impossible to hold that one part of the Constitution is inconsistent with another part. The position would, however, be entirely different if <ORG> was to pass a law in regard to the privileges of its members. Such a law would obviously have to be consistent with Art. 19(1)(a). If any of the provisions of such a law were to contravene any of the fundamental rights guaranteed by Part III, they would be struck down as being unconstitutional. Similarly, there can be no doubt that if in respect of petitions under Art. 32 a law is made by <ORG> as contemplated by Art. 145(1 ), and such a law, in substance, corresponds to the provisions of 0.25 r. 1 or 0.41 r. 10, it would be struck down on the ground that it purports to restrict the fundamental right guaranteed by Art. 32. The position of an order made either under the rules framed by this <ORG> or under the jurisdiction of this <ORG> under Art. 142(1) can be no different. If this aspect of the matter is borne in mind,, there would be no difficulty in rejecting (1)  1 S.C.R. 806,859-860.

the Solicitor-General's argument based on Art. 142(1). The powers of this <ORG> are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this <ORG> which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this <ORG> can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. Therefore, we do not think it would be possible to hold that Art. 142(1) confers upon this <ORG> powers which can contravene the provisions of Article 32.

In this connection, it may be pertinent to point out that the wide powers which are given to this <ORG> for doing complete justice between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time. It is plain that in exercising these and similar other powers, this <ORG> would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties. That takes us to the second argument urged by the Solicitor- General that Art. 142 and Art. 32 should be reconciled by the adoption of the rule of harmonious construction. In this connection, we ought to bear in mind that though the powers conferred on this <ORG> by Art. 142(1) are very wide, and the same can be exercised for doing complete justice in any case, as we have already observed, this <ORG> cannot even under Art. 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less, inconsistent with any Constitutional provisions. There can, therefore, be no conflict between Art. 142(1) and Art. 32. In the case of <CITATION> (1) on which the Solicitor-General relies, it was conceded, and rightly, that under Art. 142(1) this <ORG> had the power to grant bail in cases brought before it, and so, there was obviously a conflict between the power vested in this <ORG> under the said Article and that vested in the Governor of the State under Art. 161. The possibility of a conflict between these powers necessitated the application of the rule of harmonious construction. The said rule can have no application to the present case, because on a fair construction of Art. 142(1). This <ORG> has no power to circumscribe the fundamental right guaranteed under Art. 32. The existence of the said power is itself in dispute, and so, the present case is clearly distinguishable from the case of <NAME>). Let us now consider whether a rule can be made under Art. 145(1) providing for the making of an order for furnishing security in cases of petitions under Art. 32 where the <ORG> is satisfied that in case the petition fails, the petitioner may not be able to pay the costs of the respondent. The impugned rule is presumably based upon the provisions of Art. 145(1) (f). It may be assumed that the expression "costs of and incidental to any proceedings in the <ORG>" used in clause (f) may cover in order of security ; but if an order for security amounts to a contravention of Art. 32 , there would be no power to make such a rule under Art. 145(1)(f). After all, rules framed under Art. 145 are in exercise of the delegated power of legislation, and the said power cannot be exercised so as to affect the fundamental rights. If the wide words used in Art. 142 cannot justify an order of security, in an Art. 32 petition, it follows that a rule made under Art. 145 cannot authorise the making of such an order. We ought to add that cases of frivolous petitions filed (1)  1 S.C.R. 497.

<NAME>

under Art. 32 can be eliminated at the preliminary hearing of such petitions. Since 1959, petitions filed under Art. 32 are set down for a preliminary hearing and it is only after the <ORG> is satisfied that a prima facie case has been made out by the petitioner that a rule <ORG> is ordered to be issued against the respondent. In order to decide this question, sometimes notice is issued to the respondent even at the preliminary hearing and it is after hearing the respondent that a rule is issued on the petition. It may be that in some cases, the respondent may not be able to re- cover its costs from the petitioner even if the petition is dismissed on the merits. But that, in our opinion, cannot justify the making of an order for security, because even impecunious citizens, or citizens living abroad, must be entitled to move this <ORG> if they feel that their fundamental rights have been contravened. Similarly, women who own no property would be entitled to move this <ORG> in case their fundamental rights are contravened, and following the anology of 0.25 r. 1(3), no order for security can be made against them, because that would make their right illusory. That obviously is the content of the fundamental right guaranteed under Art. 32 , and since the impugned rule, in so far as it relates to security for costs, impairs the content of that right, it must be struck down as being unconstitutional. Rules framed under Art. 145 which govern the practice and procedure in respect of the petitions under Art. 32 with the object of aiding and facilitating the orderly course of their presentation and further progress until their decision, cannot be said to contravene Art. 32. All proceedings in <ORG> must be orderly and must follow the well recognised pattern usually adopted for a fair and satisfactory hearing; petitions under Art. 32 are no exception in that behalf. Besides, orders can be passed on the merits of the petitions either at an interlocutory stage or after their final decision., and no objection can be taken against such orders on the ground that they contravene Art. 32. In a proper case, proceedings threatened against the petitioners' may be stayed unconditionally or on condition or may not be stayed, or a Receiver may be appointed in respect of the property in dispute, or at the end of the final hearing if the petition fails, the petitioner may be ordered to pay the costs of the respondent. All these are matters whose validity cannot be challenged on the ground that they contravene Art. 32. But if a rule or an order imposes a financial liability on the petitioner at the thresh-hold of his petition and that too for the benefit of the respondent, and non-compliance with the said rule or order brings to an end the career of the said petition, that must be held to constitute an infringement of the fundamental right guaranteed to the citizens to move this <ORG> under Art. 32. That is why we think Rule 12 in respect of the imposing of security is invalid.

There is another aspect of the matter to which reference must incidentally be made. The rule is obviously intended to secure the costs of the respondent in a proper case. Let us see how this rule will work if it is interpreted and acted upon in the manner suggested by the learned Solicitor- General. In practice, at present, an order of security is normally made unless a request is made by the petitioner either for the reduction of the amount or for dispensing with the security altogether. If the petitioner is not impecunious, an order for security will not serve any essential purpose, because if the costs are awarded against him after the final hearing, the respondent may be able to secure his costs. If, however, the petitioner is impecunious, the <ORG> may not, after granting a rule on the petition, in its discretion, pass an order of security and in that sense, the very object of securing the respondent's costs would not be served. It is true that if the discretion is exercised by the <ORG> in favour of impecunious petitioners and orders for security are not passed in their cases, no hardship will be caused to them. But it seems to us that what would be left to the discretion of the <ORG> on this construction of the rule, is really a matter of the right of impecunious petitioners under Art. 32. That is why we think that the impugned rule in so far as it relates to the giving of security cannot be sustained. In the result, the petition is allowed and the order passed against the petitioners on December 12, 1961, calling upon them to furnish security of Rs. 2,500/- is set aside. There would be no order as to costs.

<NAME>, J.-The petitioner filed petition No. 348 of 1961 invoking jurisdiction of this <ORG> to issue a writ under Art. 32 of the Constitution on the plea that certain orders passed by the Excise Commissioner, U.P. were invalid. The petitioner was directed on December 12, 1961 when rule was ordered to issue to the respondents-Excise Commissioner, U.P. Allahabad, and the State of Uttar Pradesh to "furnish security in the sum of Rs. 2,500/- in cash within six weeks for the costs of the respondents". The petitioner failed to comply with the order, and moved this <ORG> for modification thereof. This application was dismissed, but at the request of the petitioner time for furnishing security was extended till March 26, 1962. Stating that his efforts to collect the requisite amount were unsuccessful, the petitioner presented this petition and prayed that the order requiring him to furnish security in the sum of Rs. 2,500/- be vacated because R. 12 0. XXXV of the Supreme <ORG> Rules under which presumably the order was made, contravened the fundamental right guranteed by Art. 32(1) of the Constitution. The petitioner contends that the rule infringes the fundamental right to move this <ORG> guaranteed by Art. 32 (1) of the Constitution. Prima facie, by the rule no restriction is placed directly upon the right of a litigant to move this <ORG> for relief against infringement of fundamental rights. The rule merely envisages exercise of jurisdiction of this <ORG> in appropriate cases to impose upon a party under an order- final or interlocutory-such terms as to costs, and to security for costs or for other purposes, as the <ORG> thinks fit. Undoubtedly an order directing the petitioner to furnish security for the costs of the respondent raises some obstacle to the prosecution of a petition for relief against infringement of fundamental rights claimed by the petitioner. Are the order, and the authority in exercise of which the order is made on that account void ? Article 32 substantially makes two provisions. By the first clause it guarantees the right to move the Supreme <ORG> by appropriate proceedings. As a corollary thereof by cl. (4) it is provided that the guarantee under cl. (1) shall not be suspended except as provided by the Constitution. Clause (2) declares the jurisdiction of the <ORG> to issue directions, orders or writs including certain specified writs for enforcement of any of the rights conferred by Part

111. A truly democratic Constitution recognizes not only certain important natural rights which are the attributes of a free citizen, but also sets up adequate machinery for protection against invasion of those rights. Our Constitution has in Ch. III enumerated certain fundamental rights such as equality before the law, with the concomitant guarantee against discrimination, right of freedom of speech, assembly, association, movement and residence, right to acquire, hold and dispose of property and to practice any profession or to carry on occupation, trade or business, freedom of conscience and the right to practice and propagate religion, freedom to manage religious affairs and cultural and educational 'rights. After enunci- ating the rights some in terms positive, some in negative, exercisable absolutely or subject to reasonable restrictions the Constitution has rendered all laws inconsistent therewith if preexisting, or made in con- travention, thereof if enacted after the commencement of the Constitution, void to the extent of the inconsistency or contravention. For relief against infringement of these rights by action legislative or executive by the <ORG>, recourse may undoubtedly be had to the ordinary <ORG> by institution of civil proceedings for appropriate relief. But the Constitution has conferred upon the High <ORG> and <ORG> power to issue writs for the protection of those fundamental rights, and the Constitution has guaranteed by Art. 32(1) the right to move this <ORG> for enforcement of those rights. The right to move this <ORG> for enforcement of the fundamental rights is therefore itself made a fundamental right. Law which is repugnant to the effective exercise of the right to move this <ORG> in enforcement of the rights described in Ch. III therefore to the extent of inconsistency or contravention would be void. Is it that the exercise of the right is to be so unfettered, that any law which imposes any restriction in any form whatever against the exercise of that right direct or indirect must be regarded as void ? Counsel for the petitioner using the language of hyperbole submitted that the right was "absolutely absolute", and even a law which by itself does not place any restriction upon the exercise of the right but which contemplates the exercise of the jurisdiction of this <ORG> to impose restriction upon the exercise of the right, must be regarded. as void. But the right guaranteed is not wholly unfettered or unrestricted as claimed. Art. 32(1) guarantees a right to move by "'appropriate proceedings" : there is therefore in the Article itself limitation upon the exercise of the right. Appropriate proceedings would include the procedure relating to form, conditions of lodgement of petitions, and compliance with a reasonable directions imposed which would conduce to the smooth conduct of proceeding in this <ORG>, Power to make rules for practice and procedure of this <ORG> read with the guarantee under Art. 32(1) to move by appropriate proceedings implies the power to impose procedural restrictions conducive to the orderly progress of the petition for relief for breach of a fundamental right. The argument of counsel of the petitioner that the right to move this <ORG> for enforcement of a fundamental right is absolute, may involve the plea that rules of the <ORG> which require a petition to be filed, legibly written, typewritten or lithographed, submission of translation of documents not in the English language, presentation of affidavits, payment of court-fee on the petition and process fee for service of notice upon the parties concerned and similar rules would be invalid, for all these rules in a sense obstruct, the exercise of the right, and impose financial obligations which are not insignificant. But this rather extravagant view of the absolute character of the right to move this <ORG> was very properly not attempted to be sustained. It was conceded that the right conferred by- Art. 32(1) to move this <ORG> may be regulated by all such directions general or ad hoc which serve to aid and facilitate a fair disposal of the case, according to an orderly procedure. What the Constitution has guaranteed is the right to move this <ORG> i.e. the right to claim redress against an alleged infringement of a fundamental right. This <ORG> is doubtless made the custodian of the fundamental rights guaranteed by the Constitution and we would be failing in our duty if we were to refuse to entertain a petition for enforcement of a fundamental right or to decline to adjudicate upon the same. We cannot direct, the litigant to seek relief by recourse to a Civil <ORG> or other remedy where prima .,facie an infringement of the fundamental right is made out, but that is not to say that, after the petition is entertained the <ORG>, is not bound to hold the scales even between the litigating parties. The party complaining of infringement of a fundamental right has undoubtedly the right to demand that his petition shall be entertained and heard and disposed of according to. law, but in the investigation of the claim to relief the petitioner is not entitled to any higher privileges than any other litigant would be entitled to in respect of a lis which is brought up for adjudicating before this <ORG>. The claim of the parties must be supported by evidence, witnesses in support must be brought before the <ORG> or examined on commission; if the party dies or ceases legally, to exist representative of the party should be brought on record, if the pleadings arc not proper they. may be struck off or amended and if the claim sought to be litigated has been previously adjudicated upon the rule of res judicata would apply. The procedure for trial and adjudication of a claim which does not involve enforcement of a fundamental right is in substance the same as in the case of a petition for enforcement of a right under Ch. III. An order for security for costs of the respondent or for other purposes is a procedural order, and unless imposition of an order for furnishing security may be regarded as amounting substantially to a denial of the right to move, this <ORG>, the insistence of a special rule warranting an exception in proceedings for enforcement of fundamental rights cannot be appreciated. It may be observed that the impugned rule does not contemplate that the order is to be made as a matter of course. It merely recognises the jurisdiction of the <ORG> in appropriate cases to demand security; it does not prescribe or even indicate the stage at which this order has to be made. The jurisdiction of the <ORG> is declared in the most general terms and is to be exercised only when the <ORG> thinks it necessary in order to do justice in the proceeding.

Undoubtedly a practice has grown up lately that when rule is issued in petition for enforcement of a fundamental right, the <ORG> is requested to consider whether the petitioner should furnish security for the costs of the respondent. The matter is then judicially considered and an order requiring the petitioner to furnish security if the <ORG> is satisfied about the necessity of passing such an order is made. But even orders so passed are often recalled and modified having regard to the justice of the case. The practice of considering the question at the initial stage-of issuing the rule may require to be altered, but there is nothing in the rule which requires that practice to be followed. In an appropriate case the <ORG> may make an order suo motu at the threshold of the proceeding, or at any time in another, on the request made by the respondent. All such orders are in the exercise of the jurisdiction of the <ORG>, having regard to the circumstances and for doing complete justice between the parties.

In considering the nature of the jurisdiction exercise by the <ORG> reference must be made to Art. 142 of the Constitution which in so far as it is material in this case provides by the first clause that "the Supreme <ORG> in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it x x x x x x ". The jurisdiction of the <ORG> so described undoubtedly embraces power to make an order requiring security in appropriate cases, and the impugned rule does no more than enunciate a facet of the jurisdiction of this <ORG> which is conferred by Art. 142. The expression "as it thinks fit' must in the context in which it occurs mean that where the <ORG> deems it necessary for doing complete justice in the cause or matter pending before it, the <ORG> may make the order as to giving of security.

It is not necessary to consider whether in exercise of the delegated power of legislation conferred by Art. 145 (1) it is open to this <ORG> to make a rule requiring security for costs from a litigating party which may apparently place a restriction upon 'the exercise of the fundamental right under Art. 32. The impugned rule is not in substance a rule relating to practice and procedure, but deals primarily with the jurisdiction of the <ORG>, which has its source in Art. 142.

Can the petitioner claim immunity from an order for furnishing security for costs or for other purposes merely because he has commenced a proceeding tinder Art. 32 (1) of the Constitution, even if the <ORG> is of the opinion that it is necessary in doing complete justice to make the order? The impugned rule does not contemplate that the order is to be made as a matter of course. It merely recognises the jurisdiction of the <ORG> in appropriate cases to make. an order demanding security. It also does not prescribe the stage at which the order is to be made.

Assuming that an order made in a given case may be erroneous the jurisdiction of the <ORG> conferred by the Constitution under Art. 142 to make such orders as may be necessary for doing complete justice is not on that account affected. I am unable to countenance the proposition that in dealing with a claim for relief for infringement of a fundamental right in a petition under Art. 32 the power which is inherent in its constitution to demand security for costs of the respondent cannot be exercised, even if the <ORG> is satisfied that such an order is preeminently called for. It frequently happens that mixed up with pleas of constitutional invalidity of statutes or executive acts having an impact upon fundamental rights, allegations of bad faith, arbitrariness, exercise of power for ulterior purposes and similar allegations are made by litigants resorting to this <ORG>, and there is no recognised procedure by which investigation of such allegations of improper conduct may be disentangled from those to be dealt with on a strictly interpretational plane. The <ORG> has, therefore, to hear the entire case dealing both with the validity of the statutes or executive acts and the allegations of improper- conduct before it can finally, adjudicate upon the claim made by the petitioner. If because of the nature of the proceeding brought before it, the <ORG> is precluded from ordering even in appropriate cases an applicant for redress to furnish security before exercising his privilege of prosecuting his claim, the <ORG> would be acting not as a <ORG> of justice but as an instrument of oppression. The impugned rule being merely declaratory of the jurisdiction which is defined by Art. 142 of the Constitution no question of conflict between law made by the <ORG>, and the guarantee of right to move this <ORG> under Art. 32(1) by appropriate proceedings for enforcement of fundamental rights arises. The provisions of the Constitution contained in Art. 142 and Art. 32(1) must be read harmoniously. On the one hand there is the guaranteed right in favour of the litigant by an appropriate proceeding to move this <ORG> for enforcement of a fundamental right, on the other there is the jurisdiction vested in this <ORG> to pass all such orders as may be necessary in the interests of justice such orders including inappropriate cases an order for payment of costs by the petitioner. There is no warrant for assuming that the exercise of this jurisdiction has to be subordinated to the exercise of the right to move this <ORG>. Article 32(1) is included in Ch. III and the right to move this <ORG> is itself made a fundamental right, whereas Art. 142 falls in Part V dealing with <ORG>. But these being parts of a Constitutional document no special sanctity attaches to the provisions contained in Ch. III so as to prevail over the other provisions. <CITATION> this <ORG> had to consider whether Art. 194 dealing with the powers, privileges and immunities of (1)  1 S.C.R. 806.

<ORG> and of their members was subordinate to fundamental right of speech under Art. 19(1)(a) of the Constitution. The petitioner in that case urged that rights, powers and privileges of the members of <ORG> in England which could be claimed by the members of <ORG> by virtue of Art. 194 had still to stand the test of reasonableness prescribed by Art. 19(2 ), and to the extent of inconsistency the right had to yield before the fundamental right guaranteed by Art. 19(1). It was held by the <ORG> that Art. 19(1)(a) and Art. 194 have to be harmoniously interpreted and the only method of reconciling the two is to read the general provision of Art. 19(1)(a) as subject to Art. 194 just as Art. 31 is read as subject to Art. 265. Generality of the provision is not however the sole criterion. Clause (1) and (2) of Art. 13 render laws either preexisting or enacted since the Constitution, void if they are inconsistent with or take away or abridge any fundamental rights. Exercise of legislative authority under powers derived from the Constitution is undoubtedly hit by Art. 13(2). But one part of the Constitution cannot render nugatory another part : the two must be read together and harmonized. So read, the gurantee of the right to move this <ORG> by appropriate proceedings, for enforcement of fundamental rights cannot be permitted to encroach upon the jurisdiction of the <ORG>, where exercise thereof is necessary for doing complete justice. Therefore even in a proceeding under Art. 32(1 ), this <ORG> is competent to make all such orders as it deems proper including an order for security for costs of the respondent.

The impugned rule which enunciates the jurisdiction of the <ORG> to impose terms as to giving of-' security is not therefore void.

By COURT : In accordance with the opinion of the majority the writ petition is allowed and the order calling upon the petitioners to furnish security of Rs. 2,500/- is set aside. There will be no order as to costs.


JUDGMENT <NAME>, J.

1. This Second Appeal by the plaintiff raises the question of jurisdiction of the civil Court to decide whether the land of which possession is sought to be recovered in the suit, is ryoti in character. It is not in dispute that the village of Kaduveli in which the suit land is situate, is a post-1936 estate and that it has been notified in 1950 under the provisions of the Madras Estates Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947). The plaintiff claimed that he had purchased the land on 25th September, 1945, and that it had since been in his pannai cultivation along with his other lands. He set up an agreement, dated 17th July, 1955, under which he sold to the defendant for a certain sum the plantain crops he had raised, and averred that the defendant, contrary to the terms of the agreement, defaulted to surrender possession of the land after removing the standing crops and continued to be in unlawful possession setting up title in himself. On the other hand, the defendant pleaded that the land is not private land but ryoti in character, that the plaintiff and his predecessor-in-title had only the melwaram right therein, that the defendant's brother was in possession and enjoyment of the property as ryoti land, and that he having died in 1953, leaving a widow, he (defendant) was admitted to possession in December, 1953. The defendant denied the agreement set up by the plaintiff and maintained that he had permanent occupancy rights in the land. He also contended that in view of the Madras Amending Act XXIX of 1956, the civil Court had no jurisdiction to try the issue as to whether the land was ryoti in character.

2. It appears that by agreement between the parties, the question of jurisdiction was tried as a preliminary issue. Both the <ORG>s below have come to the conclusion that Madras Act (XXIX of 1956), barred the jurisdiction of the civil <ORG> to decide the character of the land and have, in that view, dismissed the suit and the appeal arising therefrom. Hence this Second Appeal.

3. In order to decide the question of jurisdiction, it is necessary, first of all, to notice the salient provisions of the Madras Estates Land (Reduction of Rent) Act, 1947. That is an Act to provide for the reduction of rents payable by ryots on lands in estates governed by the Madras Estates Land Act, 1908, approximately to the level of the assessments levied on similar lands in ryotwari areas in the neighbourhood and for the collection of such rents exclusively by the State <ORG>. The Act applies to all estates as defined in Section 3, Clause (2) of the Madras Estates Land Act, 1908. Section 2 of the Act provides for the .appointment of a Special Officer and determination by him, in respect of each village in an estate, the average rate of cash rent per acre prevailing at the commencement of the Act, for each class of ryoti land in the principal village selected for the purpose of comparison and the average rate of assessment per acre prevailing at such commencement in respect of each of the said classes of land in the nearest ryotwari area, in which conditions are generally similar to those obtaining in the principal village taken for purposes of comparison. The same section lays down the procedure for comparison of the two average rates and fixation of the extent to which the rates of rent payable for each class of ryoti land in the village taken up for comparison should be reduced and the rates of rent payable for each such class of land after such reduction. Section 3 lays down that after considering the recommendations ,of the Special Officer, the State <ORG> shall, by order published in <ORG>, fix the rates of rent payable in respect of each class of ryoti land in each village in the estate. The other provisions of Section 3 direct that after the order of the <ORG> has taken effect, the rents from the village in the estate shall be collected by the <ORG> in the manner and subject to the conditions provided therein. After the order, the landholder shall not be entitled to collect the rents. Section 7 provides for power to make rules to carry out the purposes of the Act. Rule 3 framed under that section enables the Collector to fix the rent payable for each holding with reference to the notified rate applicable to a particular class of land in the village. Where the character of the land as to whether it is ryoti or not, is raised, neither Madras Act (XXX of 1947) nor the rules framed thereunder authorised the Collector or any other officer to decide that question. It was evidently to provide for filling up the lacuna that the Madras Estates Land (Reduction of Rent) Amendment Act, 1956 (Madras Act XXIX of 1956) was enacted. Section 3A introduced by the Amendment Act , provides for a special forum, the procedure and the time-limit for applications for determination of the question whether any land in a village is or is not ryoti land. Sub-section (1) of Section 3A reads:

Notwithstanding anything contained in the Madras Estates Land Act, 1908 (Madras Act I of 1908), or any other law for the time being in force, if any question arises whether any land in a village is or is not ryoti land it shall be determined by the Collector.

Clause (a) of Sub-section (2) states that any person denying that any land in a village in respect of which an order under Sub-section (2) of Section 3 of the, main Act has been published is ryoti land, may file an application before the Collector within whose, jurisdiction the land is situate for his decision thereon. Clause (b) of Sub-section (2) prescribes a time-limit for making such an, application. Sub-section (3) lays down the procedure to be observed by the Collector in dealing with such an application and Sub-section (4), Clause (a) gives a right of appeal to a <ORG> against the order of the Collector in the application. Clause (b) of Sub-section (4) says that the decision of the <ORG> on appeal, shall be final and shall not be liable to be questioned in any Court of law. Section 3C deals with the disposal of pending applications and suits under the Madras Estates Land Act, 1908. The section states that applications pending under Section 183 of that Act on the date on which the Amending Act came into operation, other than Sections 4 and 7 thereof shall be deemed to be applications filed under Section 3A of the Act and be disposed of accordingly. It is also provided by the same section that suits instituted under the Proviso to Section 179 of the Madras Estates Land Act, 1908, pending on the date on which the provisions of the Amending Act , except Sections 4 and 7 , came into force, should also stand transferred to the <ORG> constituted under the Act and be dealt with by it as if they were appeals preferred under the Act. Then comes Section 3D which lays down a rule of presumption, namely, that any land in respect of which an application has not been filed within the time prescribed under Clause (b) of Sub-section (2) of Section 3A or in respect of which an application is not admitted under the Proviso to that clause, shall be deemed to be ryoti land. Section 4A , introduced by the Amending Act provides:

No person in an estate cultivating any land, which is not ryoti land or which has not been decided to be private land under some prior proceedings or under the Madras Estates Land (Reduction of Rent) Act, 1947, as amended by the Madras Estates Land (Reduction of Rent) Amendment Act, 1956, shall be bound to pay a rent in respect of that land at a rate exceeding that payable in respect of similar land which is ryoti land in the neighbourhood.

4. The question for determination is, whether the provisions of the Amending Act above referred to oust the jurisdiction of the civil <ORG> to determine the character of the land as ryoti or otherwise in a suit praying for recovery of possession. The suit is not for a declaration that the land is private land. But the question whether it is ryoti arises incidentally to the determination whether the plaintiff is entitled to recovery of possession. It is manifest that the prayer in the suit for recovery of possession is exclusively within the jurisdiction of the civil <ORG> to grant. Whether there is anything in the provisions of Madras Act (XXIX of 1956), which in any way affects that jurisdiction, because in granting a prayer for possession, the civil <ORG> has incidentally and necessarily to go into the quest ion as to the character of the land, has to be decided.

5. Sri <NAME>, the learned Counsel for the appellant, contends that the jurisdiction vested in the Collector by Section 3A introduced by the Amending Act XXIX of 1956, to decide whether any land in a village is or is not a ryoti land, is a special jurisdiction created for the purpose of the main Act, namely, the reduction and fixation of rents for individual holdings in a village in an estate, and that it is not intended by the Amending Act to totally exclude the jurisdiction of <ORG> to determine the question as to the character of the land when it has got to be dealt with and decided incidentally for the purpose of granting a prayer within its purview. Considering the purpose and scope of the Amending Act , I am inclined to accept this contention. It is no doubt true that if any question arises whether a land in a village is or is not ryoti land, the Collector is vested with the jurisdiction to decide it. But it must be remembered that the object of the Amending Act is to assist the proper working of Madras Act (XXX of 1947). As already stated, that Act contained no provision authorising the Collector to determine the character of the land, as to whether it is ryoti or not, while fixing the liability to pay rent for the land in a particular holding. The object of the Amending Act was to rectify this defect and to vest the Collector with the necessary jurisdiction. If a question arises in connection with the fixation of rent for a particular holding in an estate, whether the holding constitutes ryoti land, that of course will be exclusively within the purview of the Collector, and <ORG> will have no jurisdiction to entertain and decide a suit solely for a declaration that the land is ryoti. But the suit out of which this Second Appeal arises, is not of that character but is one for recovery of possession. It seems to me that where only <ORG> has jurisdiction to grant the main prayer, like the recovery of possession, and in order to decide whether that prayer can be granted, it is necessary to decide incidentally the character of the land, <ORG> will not cease to have jurisdiction to decide that question, because the Collector under Madras Act (XXIX of 1956), has been entrusted with the jurisdiction for the purpose of Madras Act (XXX of 1947). There is nothing in the Amending Act to exclude the jurisdiction of <ORG> to decide matters incidental to the grant of the relief which is wholly and exclusively within its jurisdiction.

6. In fact, if the <ORG> intended to oust the jurisdiction of the civil <ORG> to decide matters even incidentally, it has expressly provided for it. For instance, Section 10 of Madras Act (XXX of 1956), has expressly barred the jurisdiction of the civil <ORG> to entertain or adjudicate upon any question whether any non-ryotwari area is or is not an estate or part of an estate as defined by the Madras Estates Land Act or whether it is or is not an inam estate as defined by the Abolition Act, or in respect of any matter which the <ORG> or the Special Appellate <ORG>' constituted under that Act is empowered to determine. Section 11 of that Act requires that all suits, appeals or other proceedings pending at the commencement of the Act before any <ORG> or <ORG> or Settlement Officer in which any question was in issue, whether a particular area is or was an estate as defined in Section 3 ,. Clause (2) of the Estates Land Act, or is or was an inam estate as defined in Section 2 , Clause (7) of the Abolition Act, shall stand transferred to the appropriate <ORG> constituted under that Act for the determination of that question. Having regard to the fact that Madras Act (XXX of 1956), created an exclusive jurisdiction in the special forum created thereunder to decide the particular questions and expressly excluded the jurisdiction of the civil <ORG> from entertaining and adjudicating upon such questions, this <ORG> in <CITATION> , held that the civil <ORG> had no jurisdiction to try the issue for the decision of which special forums have been created under that Act. The learned Judges in that case, after referring to Sections 10 and 11 in Act XXX of 1956, observed:

It will be noted that express words are used to oust the jurisdiction of every Court other than the Tribunals constituted under Section 5 or <ORG> constituted under Section 7 , when these two questions arise for determination.

The two questions there referred to are whether the village is an estate or not, and whether it is an inam estate or not.

7. It is well-settled that ouster of jurisdiction of a civil <ORG> in regard to matters that are generally within its powers to entertain, cannot be readily inferred and that such jurisdiction could be ousted by express statutory provision in that behalf or it should follow as a necessary implication from the provisions of the Act. Where the civil <ORG> has jurisdiction to grant a particular prayer, which is not within the power of any other forum, the <ORG> will have a right to decide all questions incidental to the grant of such a prayer, although a different forum has been constituted, to decide such questions for certain purposes contemplated by the relevant statute. In <NAME> v. <NAME> (1959) 1 M.L.J. 195, in which the plea was that Section 56 of the Abolition Act was a bar to the jurisdiction of the civil <ORG> to determine matters mentioned therein, it was held by <NAME>, that a civil <ORG>'s jurisdiction to entertain a suit in regard to a matter within its purview cannot be taken away merely because in deciding such matters the <ORG> has to incidentally decide a matter which is within the jurisdiction of the <ORG> constituted under special Acts. The validity of this principle was recognised by a Division Bench of this. <ORG> in <NAME> v. <NAME> . My Lord the Chief Justice, delivering the judgment on behalf of the Bench in that case, observed:

The object of Section 56 being to enable an adjudication of a dispute for the purpose of the Act, exclusion of <ORG> jurisdiction cannot, by implication, be held to be more than what is necessary for working out the rights created by the statute. We are in entire agreement with this decision of <NAME>, J., we agree that:

If the relief claimed in a civil <ORG> is not what is created or granted by the Act, e.g., the right to obtain patta but a civil right the jurisdiction of the civil <ORG> which always existed, cannot be held to be ousted as the statute does not either expressly or impliedly extinguish such rights.

8. <NAME>, the learned Counsel for the respondent, however, contends (1) that there is nothing in Madras Act (XXIX of 1956), to suggest that the jurisdiction vested in the Collector to determine whether a land is ryoti or not is only for the purpose of Madras Act (XXX of 1947) and (ii) that the scheme of the Amending Act showed that the jurisdiction of the Collector is exclusive and that the civil Court will have no jurisdiction even incidentally to decide that question. I cannot agree with either of the contentions. I have already referred to the object of the Amending Act , namely, to fill up the lacuna which was felt in administering the provisions of Madras Act (XXX of 1947). In that Act there was no provision enabling the Collector to decide the character of the land while applying notifications to particular holdings. It was to remove that defect, the Amending Act was enacted. The whole purpose of Madras Act (XXX of 1947), is to reduce the rents in estates to the comparative level of rents obtaining in ryotwari areas in the neighbourhood. It is in connection with the reduction and settlement of rent that the jurisdiction in the Collector to decide the character of the land, whether it is ryoti or not, has been vested. The fact that such a jurisdiction has been vested in the Collector does not mean that the civil Court, which is the forum to decide the grant or otherwise of a prayer for recovery of possession, has been deprived of the jurisdiction to decide incidentally at least a similar question. No doubt the Amending Act prescribes the procedure to be followed by the Collector in disposing of applications to determine the character of the land, prescribes also the limitation for such applications, transfer of certain suits and applications under Madras Act (I of 1908), appeals against the orders of the Collector and the finality of the orders passed by the <ORG> on appeal. But all this, in my opinion, does not detract from the jurisdiction of the civil Court to go into and decide incidental matters, such as whether the land is ryoti, in order to grant or refuse the prayer for recovery of possession of the land.

9. In my opinion, therefore, the <ORG> below were not right in their view that they had no jurisdiction to decide the incidental question whether the suit land is pannai or ryoti in character. The <ORG> is allowed. The judgments and decrees of both the <ORG> below are set aside. The suit is remanded to the trial <ORG> for disposal on the other issues in the light of the observations in this judgment. The cost of both the parties throughout will abide and follow the result of the suit. The <ORG>-fee paid on the memorandum of <ORG> will be refunded.

10. Leave granted.


PETITIONER: <ORG>. Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX,WEST BENGAL. DATE OF JUDGMENT: 08/10/1953 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, <NAME>, <NAME>, VIVIAN HASAN, GHULAM CITATION: 1953 AIR 476 1954 SCR 195 ACT: Income-tax Act (XI of 1922). s. 10 (2) (xv)-Contribution to trust for payment of pension to employees-Whether business expenditure-Payment of pension and amount thereof left to discretion of employer-No obligation on trustees to pay pension-Validity of trust. (1) 18 I.T.R, 712; A.I.R 1950 Bom, 391. 196 HEADNOTE: A banking company executed a deed whereby it purported to create a trust for the payment of pensions to the retiring members of its staff. A certain sum of money was made over to three persons who were called trustees and the deed provided that the company may make further contributions to the fund. Under the terms of the deed, however, the company was not bound to pay any pension to any of the members of the staff, the payment itself and the amount payable being entirely at the discretion of the company, and the company had also the power to withdraw or modify any pension and to alter the rules relating to the granting of the pension at its will. In the accounting year the company paid a further contribution of Rs. 2 lacs to the fund and claimed deduction of this amount under s. 10 (2) (xv) of the Income-tax Act as expenditure laid out wholly and exclusively for the purposes of the business: Held, that, as the deed did not impose any obligation on the bank or the trustees to grant any pension to any employee, and the pension, even if granted, could be withdrawn and even the rules could be completely altered at will by the company, no valid trust was created even though moneys had been transferred to the trustees, and the sum in question could not be said to have been spent for the purposes of the business and allowed as a deduction under s. 10 (2) (xv). <NAME> v. <NAME> (32 E.R. 473) and <NAME> v. <NAME> (41 E.R. 299) distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 161 of 1952.

Appeal from the Judgment and Order dated the 18th May, 1951, of <ORG> at Calcutta (<NAME> and <NAME>.) in its Special Jurisdiction of 1950.

<NAME> (<NAME>, with him) for the appellant.

<NAME>, Solicitor-General for India (<NAME>, with him) for the respondent.

1953. October 8. The Judgment of the Court was delivered by <NAME> is an appeal from the judgment and order of <ORG> at Calcutta on a reference made by <ORG> under Section 66(1) of the Indian Incometax Act (XI of 1922).

The appellant is a banking company -carrying on business at, among other places, Calcutta and Allahabad. On the 15th March, 1946, the appellant executed a deed by which it purported to create a trust for the payment of pensions to the members of its staff. The deed declared that a pension fund had been constituted and established. It then recited that a sum of Rs. 2,00,000 had already been made over to three persons who were referred to as the "present trustees" and proceeded to state that the fund would consist in the first instance of the said sum of Rs. 2,00,000, and that there would be added to it such further contributions that the bank might make from time to time, though it would not be bound to make such contributions. In the course of the accounting year 1946-47, the bank made a further payment of Rs. 2,00,000 to this fund.

In its assessment for the assessment year 1947-48 the appellant claimed deduction of that sum of Rs. 2,00,000 under section 10 (2) (xv) of the Act on the ground that it was an item of expenditure laid out or expended wholly and exclusively for the purposes of its business. The Income- tax Officer, the Appellate Assistant commissioner and <ORG> rejected this claim of the appellant and <ORG> at the instance of the appellant stated a case and referred for the consideration of <ORG> the following question :- "Whether in the facts and circumstances of this case, <ORG> was right in disallowing Rs. 2,00,000 as a deduction under section 10 (2) (xv) of the Indian Income-tax Act ."

<ORG> answered the question in the affirmative and hence this appeal.

Though several contentions were sought to be raised by the appellant as well as the Income-tax authorities before <ORG> as arising from the question, the only contention which was canvassed before <ORG> and was held to be determinative of the enquiry before it was whether the deed of trust dated  the 15th March, 1946, was valid. On the construction of the several provisions of the deed of trust <ORG> held :-

"I am of opinion that in view of these provisions of the trust deed coupled with the uncertainty as regards the beneficiaries and the absence of any obligation to grant any pension, no legal and effective trust was created, and the so-called trust must be held to be void,"

It further held that even if the ownership of the money had passed over to the trustees, still the further provision regarding the application of the money to the payment of pensions being entirely ineffective and void, the money cannot be said to have been expended for the purpose of the business, and that therefore was not an expenditure or an expenditure for the purposes of the business within the meaning of section 10(2)(xv) of the Act. This was also the only contention urged before us by Shri <NAME> appearing on behalf of the appellant.

Section 3 of the Indian Trusts Act (II of 1882) defines a trust as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The person for whose benefit the confidence is accepted is called the "beneficiary". Section 5 in so far as it is material for the purpose of this appeal says that no trust in relation to movable property is valid unless declared as aforesaid (i.e., by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee) or unless the ownership of the property is transferred to the trustee. Section 6 of the Act provides that subject to the provisions of section 5 , a trust is created when the author of the trust indicates with reasonable certainty by any words or acts.................. (c) the beneficiary............ The validity or otherwise of the trust in question has got to be determined with reference to the above sections of the Indian Trusts Act , The deed of trust provided in clause 5 that the income of the fund if sufficient and if the income of the fund shall not be sufficient then the capital of the fund shall be applied in paying or if insufficient in contributing towards the payment of such pensions and in such manner as the bank or such officers thereof as shall be duly authorised by the bank in that behalf shall direct to be paid out of the fund. Clause 7 stated that the fund was established for the benefit of retiring employees on the European and Indian staff of the bank to whom pensions shall have been granted by the bank. Clause 8 provided that any officer on the European staff of the bank who had been in the service of the bank for at least twenty-five years and any officer or other employee on the Indian staff of the bank who had been in the service of the bank for at least thirty years might apply to the bank for a pension, and that in special circumstances the bank might grant pensions to employees who had not completed the respective periods of service above mentioned. Clause 9 provided for the withdrawal, modification or determination by the bank of any pension payable thereunder when in its opinion the conduct of the recipient or the circumstances of the case justified it in so doing and the trustees were bound forthwith to act upon any directions of the bank or of any officers thereof duly authorised by the bank in that behalf. Clause 11 invested the bank with discretion in fixing the amount of each pension and in making any modification therein but without prejudice to such discretion declared what were the pensions which it was contemplating would be payable to recipients qualified under the provisions of clause 8 of the deed. Clause 18 authorised the bank from time to time by instrument in writing under its common seal with the assent in writing of the trustees to alter all or any of the regulations contained in the deed for the time being relating to the fund and make new regulations to the exclusion of or in addition to all or any of the regulations for the time being relating to the fund and for the purposes of that clause all the provisions contained in the deed were deemed to be the regulations in relation to the fund.' On a consideration of the provisions of the deed of trust above set out it is clear that the bank or its officers duly authorised in that behalf were constituted the sole authorities to determine what pensions and in what manner the same should be paid out of the income of the fund. The fund was declared to have been established for the benefit of the retiring employees to whom pensions shall have been granted by the bank. Officers of the staff who were qualified under clause 8 were declared entitled to apply to the bank for a pension. But there was nothing in the terms of the deed which imposed any obligation on the bank or its officers duly authorised in that behalf to grant any pension to any such applicant. The pension if granted could also be withdrawn, modified or determined under the directions of the bank or any officer of the bank duly authorised in that behalf and such directions were binding on the trustees. The regulations in relation to the fund could also be altered and new regulations could be made to the exclusion of or in addition to all or any of the regulations contained in the deed of trust. It was open under the above provisions for the bank or its officers duly authorised in that behalf to grant no pension at all to any officer of the staff who made an application to them for a pension and also to withdraw, modify or determine any pension payable to such officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries therefore could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been trans- ferred to the trustees.

<NAME> however urged that the power conferred upon the bank or its officers duly authorised in that behalf was a power in the nature of a trust, that there was a general intention in favour of a class and a particular intention in favour of individuals of a class to be selected by them and even though the particular intention failed from the selection not being made the court could carry into effect the general intention in favour of the class and that therefore the trust was valid. He relied in support of this contention on <NAME> v. Higgs(1) and <NAME> v. Philcox(2). The position in law as it emerges from these authorities is thus summarised by <NAME> on Trusts, Fifteenth fxEdition, page 324 :-

"Powers, in the sense in which the term is commonly used, may be distributed into mere powers, and powers in the nature of a trust. The former are powers in the proper sense of the word-that is not imperative, but purely discretionary; powers which the trustee cannot be compelled to execute, and which, on failure of the trustee, cannot be executed vicariously by the court. The latter, on the other hand, are not discretionary, but imperative, have all the nature and substance of a trust, and ought rather, as Lord <NAME> observed, to be designated by the name of trusts. 'It is perfectly clear,' said Lord <NAME>, 'that where there is a mere power, and that power is not executed, the court cannot execute it. It is equally clear, that wherever a trust is created, and the execution of the trust fails by the death of the trustee or by accident, this court will execute the trust. But there are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is intrusted with and required to execute; and with regard to that species of power, the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place'. Thus, if there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the court implies a trust for or gift to (1) 8 ves. Junior 561 ; 32 E.R. 473.

(2) 5 Mylne & Graig 72; 41 E.R. 299.

those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust."

This position however does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as there was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the court if the donee of the power for some reason or other did not exercise the same. It will be appropriate at this stage to consider whether any beneficiary claiming to be entitled to a pension under the terms of the deed could approach the court for the enforcement of any provision purporting to have been made for his benefit Even though he may be qualified under clause 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant. In our opinion therefore <ORG> was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of section 10 (2) (xv) of the Indian Income-tax Act .

In view of the above we do not think it necessary to into the interesting questions which were sought to toe raised by the appellant, viz., what was the scope of the reference, and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the deduction could still not be allowed in view of the provisions of section 10 (4) (c) of the Act. The result therefore is that the appeal fails and must be dismissed with costs.

Appeal dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.