Benarasi Das Modi and Others vs State of Pepsu and Others

Gurnam Singh, J.—The above noted writ petitions under Art. 226 Of the Constitution of India and references made by the subordinate Courts under Art. 228 of the Constitution involve the determination of the same question as to the interpretation of the Constitution and vires of the Pepsu Court of Wards Act, 2008 Bk. (Act No. 1 of 2008 Bk.). They will, therefore, be disposed of by one judgment.

(1) Shri Benarsi Das Modi v. the State of Pepsu and Ors.

On 22-3-1955 following notification was issued from the office of the Financial Commissioner (Court of Wards) Patiala:

It is notified for the information of all concerned that the property of Seth Benarsi Dass s/o Seth Agna Mal Modi of Patiala has been assumed under the superintendence of the Court of Wards u/s 5(2), Pepsu Court of Wards Act, 2008. The Deputy Commissioner, Patiala, will be incharge of the estate on behalf of the Court of Wards.

This order purports to be of His Highness the Raj-pramukh but is signed by the Financial Commissioner (Court of1 Wards). The Government''s notification was sent to the Deputy Commissioner, Patiala directing him to take immediate steps to take over the possession of the property.

On 30-5-1955, Benarsi Das Modi submitted the present petition under Article 226 of the Constitution of India challenging the order of the Financial Commissioner as well as vires of Act No. l of 2008. He has submitted a long petition. He submits that he is an industrialist and businessman, owning mills, house property, and factories and also carrying on business in grain. His main occupation was trade. He also owns some land out of which he gets insignificant profits.

In the course of his business he sustained some losses and by disposing of some property he paid off his debts. He was managing his business well. He further submits that he was neither a minor nor did he suffer from any physical or mental defect or infirmity nor had he ever been convicted of a non-bailable offence. He was capable of managing his affairs. His allegations are that all his business undertakings were taken over by the State and his business was at a stand-still. As a consequence of this he was suffering great loss.

The main questions raised in the petition and which were also argued before us at the hearing were that Section 5(2)(d) of the Act is unconstitutional provision of law as it infringes Article 19(l)(f) and (g). The restrictions imposed by the impugned legislation are not reasonable within the meaning of Article 19(5) of the Constitution. The legislation was excessive in nature and war arbitrary.

The petition further says that no machinery is provided for regulating the execution of the provisions of the Act. The Court of Wards Act hereinafter to be referred as the Act provides for making rules but no rules are made under it by the Government. It is also mentioned in the petition that the assumption of the possession of property of the Petitioner was left to the subjective determination of the authority and that there was no public purpose behind the action taken.

It is also stated that the Act was opposed to natural justice and was penal in nature inasmuch as the Petitioner is disqualified to hold his property and enjoy its fruits. Certain allegations regarding mala fides were also made in the petition but it is unnecessary to mention them as they were not pressed in the course of arguments.

The learned Deputy Advocate General made a reply on behalf of the Respondents. Like the petition the reply also was supported by an affidavit. In reply the Respondents controvert the allegations of the Petitioner on facts as well as on law. It is stated that the Petitioner belongs to a family of social importance and the Government was satisfied that it was desirable on grounds of public policy and general interest to assume his property as he had entered upon the course of wasteful extravagance.

It is further submitted that the Petitioner cannot take advantage of both Arts. 19(1)(f) and 31 of the Constitution. There was no question of deprivation and the possession of the Petitioner''s property had been taken in accordance with law. It is specilcally(SIC) submitted in the petition that Article 31 has no application as the Act docs not deal with acquisition or requisition. The Act is in the interest of general public and is not penal. The provisions of the Act are valid and intra vires.

It is further submitted that justification of the Government to direct assumption of the superintendence of the property by the Court of Wards is executive and in any case, it is final and not justiciable. Hence the objections taken in the petition in regard to the discretion of the Government or the reasons for the assumption in the exercise of power under the Court of Wards Act cannot be legally gone into as the High Court does not constitute a Court of appeal over the Government.

(2) Kuldip Singh v. The State of Pepsu and Ors.

On 24-3-1953 the following notification was issued in the name of the President of India and was signed by the Deputy Secretary to Government:

It is notified for the information of all concerned that the property of S. Kuldip Singh Arora s/o Section Albel Singh, of Patiala, has been assumed under the superintendence of Court of Wards u/s 5(2), Pepsu Court of Wards Act, 2008.

The Deputy Commissioner, Patiala, was directed to take immediate steps to take over possession of the property. On 8-4-1953 Kuldip Singh Petitioner submitted the present petition under Article 226 of the Constitution of India for issue of a writ of mandamus directing Respondent 1 to cancel the order dated 24-3-1953 placing the property of the Petitioner under the superintendence of the Court of Wards and restraining Respondent 2 from further taking possession of the property of the Petitioner end directing him to restore possession of the property which was already taken. It was further prayed that any other order or direction which the Court may, in the circumstances of the case, deem fit be issued.

The Petitioner alleges that he is a landholder owning 17000 beghas of land in District Patiala, Patehgarh Sahib and Sangrur. It is further alleged that the Court of Wards has taken possession of some of the property of the Petitioner and is taking steps to have possession of the remaining property also. It is submitted that the order of the Respondent taking over the property is illegal, ultra vires and mala fide for the following reasons:

(1) That the Pepsu Court of Wards Act, 2008 is void inasmuch as its provisions contravene Arts. 14 and 19 of the Constitution of India.

(2) That the facts and circumstances do not warrant any such action on the part of the Government i.e. Respondent 1 because:

(a)neither the Petitioner belongs to a family of social and political importance;

(b) nor has he entered upon a course of wasteful extravagance likely to dissipate the property but on the contrary the few transactions of sales entered into by the Petitioner in respect of his land are, in the changed circumstances and on the eve of agrarian reforms, acts of husbandry and good management;

(c)that the order has not been made on grounds of public policy or general interest.

It is further submitted that the order of the Respondent is mala fide. The Government wanted the Petitioner to make a false statement against Chaudhri Ram Singh Ex. Revenue Minister and others failing which the Respondent threatened to take possession of the property under the Court of Warus(SIC). The Petitioner refused to do so and hence his property was taken under the Court of Wards. He also alleges that he requested the Government to cancel the unjust order but without any effect. He, therefore, prayed as mentioned above that writ of mandamus directing Respondent 1 to cancel the order dated 24.3.1953 and also restraining Respondent 2 from further taking possession of the property of the Petitioner and directing him to restore possession of the property already taken into possession be issued: The petition is supported by an affidavit.

Diwan Chetan Das, Deputy Advocate General submitted reply on behalf of the Respondents. He submitted that decision by the Government was taken on the basis of the material which established to its satisfaction that the Petitioner had enteed(SIC) upon a course of wasteful extravagance likely to dissipate his property.

In the view of the Government the petitioner belongs to a family of social importance and for the reason that the petitioner had recklessly made alienations of his property the Government was satisfied that it was desirable in general interest including that of the petitioner and his family members that his property be placed under the superintendence of the Court of Wards.

The order of the Government was legal, intra vires and made bona fide on the basis of the material which satisfied the Government as to the necessity of placing the property of the petitioner Under the control of the Court of Wards. It is further submitted that the Act does riot offend against the Constitution of India and the Government was the sole judge in view of the material in its possession to decide upon the matter. As the order was neither judicial nor quasi judicial it could not be a subject matter of writ petition.

The Petitioner belongs to a family of social importance and had entered upon a course of wasteful extravagance. The Petitioner was alienating property and also was in the habit of drinking heavily. The order was made with a view to preserve the property of the Petitioner in general interest including that of the Petitioner and his family members and the order was bona fide.

The writ of mandamus cannot be granted but the appropriate writ is certiorari. The latter writ cannot be issued as the order assuming the property is neither judicial nor quasi-judicial. The order is of executive nature. Such a decision of Government is final in the eye of law and cannot be questioned in the Court. It was, therefore, prayed that the petition be dismissed with costs. The reply of the Respondent is also supported by an affidavit.

In support of his allegation of mala fide the Petitioner had submitted a second affidavit on 11-8-1953 in which he gave definite particulars. Since the allegations were made against Section Gobinder Singh Deputy Commissioner we gave him an opportunity to file a counter affidavit if he so desired. Learned Counsel for the State submitted an affidavit on behalf of this officer controverting the affidavit of the Petitioner.

It may be mentioned here that property of Section Kuldip Singh was under the control of Court of Wards for several years before its assumption as mentioned in the present petition. It was re leased from the superintendence of the Court of Wards on 3-9-1952 and was again taken over on 24-3-1953.

It is agreed between the parties that after the control of the Court of Wards was removed the Petitioner alienated some property in favour of different persons. These alienations were questioned by the Government in the Civil Courts. As questions of interpretation of the Constitution were involved they were referred to this Court under Article 228 of the Constitution, in this connection Section 16(1) of the Act is relevant.

The two petitions and the references as made to this Court practically involve the same two questions. Section 5(2) of the Act reads as follows:

5(2) When it appears to the Government that any landholder is-

(a)by reason of being a female, or

(b) owing to any physical or mental defect or infirmity, or

(c)owing to his having been convicted of a non-bailable offence and to his vicious habits or bad character, or

(d) owing to his having entered upon a course of wasteful extravagance likely to dissipate his property, incapable of managing or unfitted to manage his affairs, the Government may make an order directing that the property of such land-holder be placed under the superintendence of the Court of Wards;

Provided that such an order shall not be made on the ground stated in Clause (c) or on the grounds stated in Clause (d) unless such land-holder belongs to a family of political or social importance and the Government is satisfied that it is desirable, on grounds of public policy or general interest, to make such order.

The competency of the legislature to enact this law is not denied by the parties. It was, however, urged before us by the counsel for the Petitioners that the Act did not provide any machinery for determining the, question whether any landholder had entered upon a course of wasteful extravagance likely to dissipate his property or that he belong to a family of political or social importance, and that the Government was satisfied that it was desirable on grounds of public policy or in general intrest to make such order.

The Act enables the Court of Wards to make provision for superintendence, supervision, periodical and. special auditing and management of legal affairs of the ward. Section 54 enables the Court of Wards to make rules, with the previous sanction of the Government, consistent with this Act relating to all or any of the following matters, namely:

(a) the management, of properties or of all or any property under the superintendence of the Court of Wards;

(b) the procedure to be observed and the powers to be exercised by all or any persons in all or any proceedings under this Act;

(c) all matters or things required or permitted by this Act to be prescribed; and

(d)generally for the purpose of giving effect to all or any of the provisions of this Act.

It is conceded by learned counsel for the State that no such rules have been made by the Government. It is clear that the assumption of the superintendence of land-holder''s property by the Government or by the Court of Wards entirely depends on the subjective determination of the authority. The exercise of their discretion cannot be questioned in any manner whatsoever in a Civil Court. The impugned legislation enables the Government to deprive a land-holder of his property for an indefinite period of time merely on its subjective determination and as such takes away his fundamental rights without leaving any remedy to him.

Learned Counsel for the State urged that no doubt the Act left the entire matter to the Government and the Civil Courts were not competent to Question its discretion but he contended that it was perfectly within the competency of the Government to do so. I cannot persuade myself to subscribe to this view. There is abundance of authority to repel this contention. Article 19(1)(f) falls in Chapter 3 of Constitution dealing wife fundamental rights. It says:

All citizens shall have the right

(f) to acquire, hold and dispose of property; and

(g)to practise any profession, or to carry on any occupation, trade or business.

Sub-Article 5 which is a saving clause reads as follows:

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

It is manifestly clear that the Act takes away the possession of the property of a landholder by an arbitrary action of the Government or its officers. It was conceded by the learned Counsel for the State that the Act undoubtedly abridged the rights of the land-holder guaranteed to him under Article 19(l)(f). He, however, urged that this Article was not attracted as it did not deal with concrete rights.

There does not appear to be any substance in the contention raised by the learned Counsel for the State. There is no denying the fact and in fact there is abundant authority in support of the proposition that Art, 19 deals with concrete as well as abstract rights. As conceded by the learned Counsel for the State the Act undoubtedly places restrictions on the fundamental rights of a landholder guaranteed to him under Article 19(l)(f). The question to be determined therefore is if it places reasonable restrictions as envisaged in Cl. (5).

The impugned legislation enables the Government or its officers to deprive a land-holder of. the possession of his property for an indefinite-period of time, merely on their subjective determination. Thus Section 5(2)(d) enables the Government, specially in absence of any machinery, to act in an arbitrary manner. The Government or their officers are the sole judges of the fact that a landholder has entered upon a course of wasteful extravagance and as such he was not capable of managing his affairs.

No doubt Section 11 of the Act says that the Deputy Commissioner may make such enquiry into the circumstances of such land-holder as he may deem necessary, and pending the taking over of such action may issue such orders for the temporary custody and protection of the person or property or both of such land-holder as he thinks fit. But the matter still rests on the whims of the Deputy Commissioner. It is, however, not obligatory on the-Deputy Commissioner to institute any such inquiry.

There is No. provision in the Act which should, make it obligatory for the Deputy Commissioner to issue notice to the person affected. Thus the Act does not provide any opportunity for the land-holder affected to be heard. There is also no provision for an appeal against the action taken by the Government and the jurisdiction of the Civil Court is expressly barred. By a mere stroke of pen the executive can take possession of the land without any enquiry or even without giving any opportunity to the person affected to object to the proposed action, to be taken. The enquiry, if any, is conducted behind the back of the person affected.

Apart from this the criteria provided by Section 5(2)(d) for making a declaration is so ''vague and elusive'' and liable to such different interpretations by different persons that it is merely left at the pleasure of the Government to decide in a particular case whether criteria are satisfied. What constitutes extravagance is a matter which is open to various interpretations. Different persons may interpret it in different ways. There is no machinery provided by the Act to judge its correctness.

Thus it is obvious that it can lead to arbitrary action against the landholder on various extraneous, circumstances Section 5(2)(d) of the Act requires that before an action can be taken against the landholder it has to be seen if the person affected belongs to a family of social or political Importance. It is conceded that there is no machinery provided by the Act to judge it.

It is again left to the whims of the executive to judge if such a person belongs to a family of social or political importance. I am, therefore, clearly of the opinion that the law, making such provision, the application of which is left entirely on the subjective determination of the executive, can by no stretch of imagination be called reasonable restrictions on the fundamental rights of the Petitioners to hold property under Article 19(1)(f).

Learned Counsel for the State submitted that the object of the Act was to protect and to prevent dissipation of the property and to protect the collection of land revenue. It is common knowledge that the Act was enacted by a foreign Government for political reasons to protect a few big fuedal families of social and political importance, Our Government after attainment of independence have adopted a socialistic idealogy.

As a result of this there have been agrarian reforms in almost all the States and the process of agrarian reforms is still continuing. These reforms envisage ceiling of holdings of lands. In such a situation it is questionable whether the Act is in general interest of public to preserve larger estates and stop their dissipation. As far as collection of land-revenue is concerned the Land Revenue Act has provided stringent provisions to sale-guard its collection. The Act itself is silent if its aim is to safe-guard the laird revenue. The contention of the learned Counsel, therefore, docs not appear to have any force.

Once Art 19(1)(f) is attracted and the rights are abridged it is for the State to show that the restrictions placed on the enjoyment of fundamental rights are reasonable. It is well settled that restrictions to be reasonable must be imposed in the general interest of the public Section 5(2)(d) of the Act directly infringes the rights given to a person under Article 19(1)(f) in spite of the fact that it says that the action is taken in general interest of the public.

There does not appear to be any public interest behind the purpose of the Act. The action taken is entirely left to the subjective determination of the authority and is not open to examination by any extraneous tribunal. In such a situation Article 19 becomes nugatory. In my opinion the restrictions-left to the examination of the executive alone makes them unreasonable restrictions.

The learned Counsel for the State submitted that the scheme of the Act and its primary objects are to manage the property of the ward for his benefit. He further submitted that incidental to the management possession of the property has to be taken and that restrictions for this purpose are necessary to be imposed. This contention, in my opinion, does not advance the case any further.

Learned Counsel does not deny the imposition of the restrictions. I have already pointed out that these restrictions cannot be held to be reasonable. This view found favour with their Lordships of the Supreme Court. In Thakur Raghubir Singh Vs. Court of Wards, Ajmer and Another, Mahajan C.J., who recorded the judgment in the case ''at page 375, para 9'' observed:

Next, it was argued that the provisions of Section 112 amount to reasonable restrictions on the exercise of the right conferred by Article 19(l)(f) of the Constitution on a citizen, and these restrictions are in the interests of the general public. In our judgment, this argument also is not sound. As indicated above, the provisions of Section 112 of Act 42 of 1950 are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants. He is punished by being placed lit the mercy of the Court of Wards and by being made subject to the stringent provisions of Regulation I of 1888.

An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental right, indeed a punishment is not a restriction. This was frankly conceded by the learned Attorney General. It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right.

When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can on no construction of the word "reasonable" be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil Court. Section 112 of Act 42 of 1950 cannot therefore be held valid as coming within the scope of Article 19(5) of the Constitution.

Bhagwat Singh Vs. State of Rajasthan, is another case on the point Clause (c)(iii) of Section 8(1), Rajasthan Court of Wards-Act is similar to cl. 5(2)(d) of the Act. In the Rajasthan case their Lordships held:

It is well settled that the Court has to look at both the substantive and the procedural aspects of the impugned restrictions in order to judge the reasonableness of the provisions.

Looking at the substantive part of the law, cls. (ii), (iii) and (iv) of Section 8(1)(c) of the Rajasthan Court of Wards Act provide the criteria on which, the Government makes a declaration as to the unfitness of a landholder to manage, his estate and deprive him of the possession of the property. This declaration is a subjective determination by the executive in spite of the provisions made by Section 9(1) and Section 8(2).

Further, the criteria provided by these clauses for making a declaration are so vague and elusive and liable to such different interpretations that it is merely left at the pleasure of the executive government to decide in a particular case whether the criteria are satisfied. A law which makes such vague provisions, the application of which depends entirely on the subjective determination of the executive, cannot be called a reasonable restriction on the fundamental right of the applicant to hold property under Article 19(1)(f).

It may be mentioned here that there is a provision for giving notice to the person affected before taking possession in the Ajmer Act as well as in the Rajasthan Act.

A similar view was expressed in Jayantilal Laxmi Shanker v. State of Saurashtra AIR 1952 Sau 59 (SB) (C) a case before the Special Bench.

(17a) In Brajnandan Sharma Vs. The State of Bihar, it was held:

When the Constitution says that the restrictions must be reasonable, obviously it is for the Court to decide whether restrictive provisions, are reasonable or not. The argument that the legislature itself is the sole judge of reasonableness and that if it makes a provision the Courts must accept it as reasonable, if accepted renders the word ''reasonable'' in Cl. (5) completely nugatory.

The Courts do not apply any subjective test. There can be an objective test of reasonableness, and that is what the Courts apply. They do not ask themselves, whether they as individuals, feel satisfied that the restrictions are reasonable. But, would that fictitious individual, the reasonable man, that is to say, the normal average man, regard them as reasonable. That is a well recognised legal, means of examining the question of reasonableness and it is essentially an objective test.

At page 331'' of the judgment Das J. has referred to Liversidge v. Anderson 1942 AC 206 (E)and has explained the meanings of subjective and objective tests. It is observed as follows:

The words ''objective'' and ''subjective'' have a philosophical flavour; but put in ordinary language e.g. the language used by Lord Wright in 1942 (SIC) 206 : 1941 3 All ER 338(E), the objective test merely means an ''external standard to be applied by some one other than the authority imposing the restriction, namely by a judge''; whereas the subjective test excludes an external yardstick and means the decision of the person who acts - may be reasonably; but still it is his decision and not the decision of any one else.

As Lord Wright said in 1942 AC 206 : 1941 3 All ER 338 (E), the word ''reasonable'' connotes a quality or characteristic. Who is to decide on reasonableness is a different matter which depends on the circumstances''. Under Article 19(5) of the Constitution, the Court is to decide on reasonableness; this cannot be disputed.

In Ebrahim Vazir Mavat Vs. The State of Bombay and Others, a case under Influx from Pakistan (Control Act) it was held:

The question whether an offence has been committed is left entirely to the subjective determination of the Government. The inference of a reasonable suspicion rests upon the arbitrary and unrestrained discretion of the Government and before a citizen is condemned all that the Government has to do is to issue an order that a reasonable suspicion exists in their mind that an offence u/s 5 has been committed. The section does not provide for the issue of a notice to the person concerned to show cause against the order nor is he afforded any opportunity to clear his conduct of the suspicion entertained against him. This is nothing short of a travesty of the right of citizenship.

A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public. The Act purports to control admission into and regulate the movements in India of persons entering from Pakistan but Section 7 oversteps the limits of control mid regulation when it provides for removal of a citizen from his own country. The effect of the provisions of the Act, however, has no reasonable relation to the subject in view but is so drastic in scope that it goes much in excess of that object.

In Chintaman Rao Vs. The State of Madhya Pradesh, their Lordships held:

The phrase ''reasonable restriction'' in Article 19(6) connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ''reasonable'' implies intelligent care and deliberation that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article I9(l)(g) and the social control permitted by Cl. (6) of Article 19, it must be held to be wanting in that quality.

The determination by the Legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by the Supreme Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the Constitution and in exercising its functions(SIC) it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution.

In Dr. N.B. Khare Vs. The State of Delhi, their Lordships observed;

Clause (5) of Article 19 must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguard against the abuse of the power given to the executive authority to administer the law is not relevant for the true interpretation of the clause. The Court on either interpretation, will be entitled to consider whether the restriction on the right to move throughout India, i.e. both; as regards the territory and the duration, are reasonable or not.

The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restriction has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years'' externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the Court under Clause (5).

Similarly, if the law provides the procedure under which the exercise of the right may be restricted the same is also for the consideration of the Court, as it has to be determined if the exercise of the right has been reasonably restricted. By this interpretation the scope and ambit of the word ''reasonable'' as applied to restrictions on the exercise of the right, is not in any way unjustifiably enlarged. It seems that the narrow construction sought to be put on the expression, to restrict the Court''s power to consider only the substantive law on the point, is not correct.

Though in Clause (5) the adjective ''reasonable'' is predicated of the restrictions that are imposed by law and not of the law itself, that does not mean that in deciding the reasonableness or otherwise of the restrictions, the Courts have to confine themselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond their province to look up to the circumstances under which or the manner in which the restrictions have been imposed.

It is not possible to formulate an effective test which would enable the Courts to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot disassociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restrictions imposed by a law may arise as much from the substantive part of the law as from its procedural portion.

The same view finds support in Brundaban Chandra Dhir Narendra Vs. The State of Orissa in the Revenue Department and Others, ; Emperor Vs. Jeshingbhai Ishwarlal, ; Rani Raj Rajeshwari Devi Vs. The State of U.P. and Others, ; Mrs. A. Cracknell Vs. State of Uttar Pradesh and Others, ; R. Balakrishnan Vs. State of Madras, ; Ismail and Another Vs. State of Orissa, Nathmal and Another Vs. Commissioner, Civil Supplies, Rajasthan and Others, Gopala Chetty v. Director of Public Instruction in Mysore (S) AIR 1955 Mys 81 (P)and State of Madras Vs. V.G. Row,

Learned Counsel for the State has cited two direct authorities of the Punjab High Court in support of the validity of the Act, Kuldip Singh v. State AIR 1954 Punj 247 (R); Raja Harmahendra Singh Vs. The Punjab State and Another, In Kuldip Singh'' case (R), the judgment of the Court was recorded by Bhandari C.J. Dealing with Section 5(2)(d), Punjab Court of Wards Act (2 of 1903) the learned Chief Justice observed:

The contention that Section 5(2)(d), Punjab Court of Wards Act, 1903, is void and of no effect as it empowers the Government to assume superintendence of the property of a landholder in its own discretion and on its own subjective determination,, cannot bear any scrutiny.

The Punjab Act of 1903 has provided an adequate machinery for ascertaining whether the requirements of Section 5(2) have or have not been complied with by imposing certain obligations on the Deputy Commissioner u/s 11. And if the Deputy Commissioner makes the appropriate enquiry and if Government makes an order on the basis of this enquiry, it cannot be said that the Court of Wards has assumed superintendence of the estate of a landholder in its own discretion and on its own subjective determination.

Section 11 of the Act says:

For the purpose of satisfying himself as to whether in respect of any landholder;

(a) the Government should be moved to make an order under Sub-section(2) 5, or

(b) the Court of Wards should be moved to make an order u/s 6, or for the purpose of making any report which may be called for in connection with any application of a landholder under Sub-section (1) of Section 5, the Deputy Commissioner may make such enquiry into the circumstances of such landholder as he may deem necessary, and, pending the taking of any such action.

A plain reading of Section 11 of the Act makes it abundantly clear that the enquiry contemplated by it is merely for the satisfaction of the Deputy Commissioner in respect of the matter mentioned therein. In this enquiry it is not necessary for him nor there is any such provision in the Act to issue notice to the land-holder affected. The enquiry, as contemplated by the Act therefore, is held in absence of the person affected. Apart from this the result of the enquiry is not open to examination by any Court of law. It is a. decision of the Deputy Commissioner followed by a decision of the Government or the Court of Wards. It, therefore, excludes examination by a Judge.

In these circumstances it is nothing but a decision left for the subjective determination of the executive authority. It appears that Bhandari Chief Justice''s further finding is inconsistent with the finding already cited. In the course of judgment learned Chief Justice observed that it was not within the competency of the High Court to express any opinion on the adequacy or otherwise of the material on which the conclusion of a Deputy Commissioner is based. It clearly means that the, matter is entirely left to the subjective determination of the authorities.

With respect I, therefore, cannot persuade myself to agree with the observation of the learned Judge that Section 11 provides ample machinery and takes the matter out of the subjective, determination of the Government. It remains the decision of the Government and it is not open to examination by any tribunal.

The learned Judge further takes support for his finding from AIR 1940 82 (Privy Council) in which it was held that the Act protects persons incapable of managing their own affairs, it prevents dissipation of property and enables the land revenue to be ''more easily and more certainly'' collected. At the time this judgment was delivered the present Constitution of India guaranteeing fundamental rights was not in existence. The question of infringement of Article 19 therefore did not arise and was naturally not considered.

The main emphasis in the two Punjab judgments is laid on the fact that the Act enables the Government to collect land-revenue and also to see that there was no discontentment amongst the tenants. It was, therefore, considered that the provisions of the Act were in general interest of public. There is no provision in the Act dealing either with the collection of land-revenue or with the discontentment of the tenants.

The scheme of the Act is to manage the estate of the Ward for his benefit. As already mentioned there are stringent provisions in the Land Revenue Act which enable the Government to collect land-revenue ''easily and more certainly''. On the other hand there is no dearth of authority to show that when a matter is left for the subjective determination of the Government it is itself evidence of imposing unreasonable restrictions.

The case is fully covered by Supreme Court authority- Thakur Raghubir Singh Vs. Court of Wards, Ajmer and Another, and I find no escape from the conclusions arrived at by Mahajan C.J.I do not see how this case can be distinguished from the one before us. In these circumstances with respect I cannot persuade myself to agree with the conclusions arrived at by the learned Judges in the Punjab authorities cited above.

For the reasons stated above I am clearly of the opinion that the law enacted in Section 5(2)(d), is not saved by Article 19(5) or by Article 31A of the Constitution. It manifestly infringes the fundamental rights of the Petitioners guaranteed by Article 19(l)(f) and therefore is void to that extent. The orders and notifications issued by the Government or the Court of Wards as a consequence of this are also void. The Petitioners, therefore; are entitled to possession of the property.

The learned Counsel for the State argues that the Petitioners were deprived of their property under Article 31(1) of the Constitution. This Article also falls in Chapter III of the Constitution dealing with fundamental rights. It says "no person shall be deprived of his property save by authority of law".

The contention of the learned Counsel is that the Petitioners are deprived of their property under the ''police power'' of the Government. His contention is based on a minority judgments given in, The State of West Bengal Vs. Subodh Gopal Bose and Others, and Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, In his written reply to the petitions the position taken up by the Respondents counsel was that Article 31 was not attracted in this case.

In spite of this we, however, allowed the counsel to argue on the applicability of Article 31. This position of the Respondents appears to be inconsistent with the contention that the Act merely enables the Government to take over the management of the property of the ward and taking of possession was merely incidental to better management.

From the Petitioners'' side it was urged that in spite of the amendment of Article 31 the majority judgments delivered in West Bengal and Sholapur cases (U and V), still hold good. It was urged that the possession under the Act was not taken for public purpose and that there was no provision for compensation. The Act was, therefore, unconstitutional.

It was further urged that the Act was ineffective as it was not reserved for the consideration of the President for obtaining his assent as required by Article 31(3) and in fact his assent was not received. In my view it is wholly unnecessary to express any opinion on these matters as the petitions can be disposed of conveniently on the position taken up by the learned Counsel for the State.

The submission of the learned Counsel for the Respondents was that the Petitioners were deprived of their property under police power of the State. As already mentioned the whole contention is based on the minority judgment in West Bengal and Sholapur cases, (U and V). There is no doubt that our Constitution does not recognise any such police power. It would, therefore, be just and proper to refer to those judgments at once.

In the West Bengal case (U), Patanjali Sastri C.J. ''at page 98'' observed:

Thus the American doctrine of police power as a distinct and specific legislative power is not recognised in our Constitution and it is therefore contrary to the scheme of the Constitution to say that Clause (1) of Article 31 must be read in positive terms and understood as conferring police power on the Legislature in relation to rights of property. I entirely agree with the observations of Mukherjea J. in - Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, that ''In interpreting the provisions of our Constitution we should go by the plain words used by the Constitution - makers and the importing of expressions like ''police power'' which is a term of variable and indefinite connotation in American Law, can only make the task of interpretation more difficult''.

Again in the Sholapur case (V), at page 137, Bose J. observed:

But I prefer to rest my decision on simpler foundations. With the utmost respect I depricate, as I have done in the previous cases, the use of doubtful words like ''police power'' ''social control'', ''eminent domain'' and the like. I say doubtful, not because they are devoid of meaning but because they have different shades of meaning in different countries and because they represent powers which spring from widely differing sources.

In my opinion, it is wrong to assume that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the Constitution and it is for jurists and students of law, not for Judges, to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries.

It. is abundantly clear that the majority of the learned Judges in the two cases referred to above hold the view that there was no such tiling in our Constitution as ''police power''.

Now let us assume that Article 31(1) gives such power to the State to deprive a person of his property by an authority of law. The Article, however, says that no person shall be deprived of his property save by authority of law. it means that a right to property is guaranteed by this Article.

It is not denied that the police power of the State is exercised for the protection of the public interest or the community by restraining persons from'' infringing equal rights of others. If so the Act does not fall within the purview of any such legislation. It merely provides for the better management of the property of an individual land-holder and has nothing to do with such protection, or prevention as referred to above.

There is no provision in the Act restraining persons from so exercising their rights of property as to infringe the equal rights of others, or to abridge the interest of the community, willoughby on the Constitution of the United States dealing with the doctrine of police power in Vol. 3 page 1766 says:

in this sense the phrase soon became generally current. Gradually, however, in this contest between the States and the General Government, and especially with reference to the control of inter-State commerce, there arose the practice of justifying, or attempting to justify, the enforcement by the States of regulations affecting inter-state commerce, and other subjects placed within the control of the General Government, by arguing that the regulations in question were necessary or reasonably required for the protection of the health, morals or general welfare of the citizens of the States enacting them, which subjects, it was asserted, are subject to the States control in the exercise of their residual sovereignty or police powers notwithstanding the fact that, in the exercise of this regulating power Federal concerns are incidentally affected. Thus the phrase police power, by degrees, came, in practice, to refer not to the general residuary powers of the States but to their right to provide and enforce reasonable regulations in behalf of the morals, safety and convenience of their inhabitants, even when inter-State commerce or some other subject of Federal control was incidentally or indirectly, though often substantially, affected." On page 1767 is given the opinion of Shaw C.J. in. Commonwealth v. Alger (1853) 7 Cush 53 (X).

We think it is a settled principle growing out of the nature of well-ordered civil society, that every owner of property, however absolute and unqualified; may be his title holds it under the implied liability that his use of it shall not be injurious to the general enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.

At page 1768 it is observed:

It does not follow", the Court continued, "that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police power of the State. There are, of necessity, limits beyond which legislation cannot rightly go.

At page 1774 under the heading "The General Scope of the Police Power it is said:

From what has been said it sufficiently appears that the police power knows no definite limits; It extends to every possible phase of what the Courts deem to be the public welfare: it is a general right upon the part of the public authority to abridge, or, if necessary, to destroy, without compensation, the property or contract lights of individuals, and to control their conduct in so far as this may be necessary for the protection of the community or of a particular class of the community, against danger in any form, against fraud, or vice, or economic oppression, or even for the securing off the public convenience. As is said in the Bank: Guaranty case,'' "It may be said in a general way that the police power extends to all the great public needs.

In the course of his judgment in the West Bengal case (U) Das J. (now C. J.) no doubt observed that the Court of Wards and the Lunacy Acts were instances of deprivation of property by the State under its police power. It must, however-be remembered that his Lordship was not considering the constitutionality of the provisions of the Court of Wards Act. In the same judgment at page 107 his Lordship observes:

This line of reasoning amounts, in effect, to likening one thing with another thing and then saying that as that other thing means such and such this thing must, therefore, bear the same meaning- a method which has been deprecated by Lord Halsbury in Network Life Insurance Co. v. Styles XIV(1889) ACC 381 (Y).

It, therefore, seems to me that his Lordship merely mentions these two Acts as illustrations of deprivation of property under police power without examining various provisions of the Act as it was-wholly unnecessary to do so in that case. In the same judgment at page 115 his Lordship observed:

Thus the police power is exercised in the interest of the community and the power of eminent domain is exercised to implement a public purpose and in both cases there is a taking of possession of private property. There is, however, a marked distinction between the exercise of these two sovereign powers.

According to Professor Willis at p. 717 eminent domain takes property for use by the public or for the benefit of, the public, while the police power prevents people from so using their own property as to injure others. The fundamental principle which is held to justify the exercise of police power is that no one shall use his property or exercise any of his legal rights as injuriously to interfere with or affect the property or other legal rights of others. (See Willoughby, Vol. III, p. 1775.)

Again his Lordship observed:

The primary purpose of police power is protection or prevention-that persons may be restrained from so exercising their private rights of property, contract, or conduct as to infringe tire equal rights of others or to prejudice the interests of the community.... Without, therefore, a tempting any such general enunciation of any inflexible rule It is possible to say bmadly that the ain purpose and he effect of the two kinds of taking of possession are different and that in each ease lime provisions of the particular law in question will have to be carefully scrutinized in order to (let ertimine ill which category falls the taking of poasniuii authoriseci by such law.

A consideration of the ultimate aim, the immediate purpose and the mode and manner of the taking of possession and the duration for which such possession is taken, the effect of it on the rights of the person dispossessed and other such like elements must all determine the judicial verdict.

Similarly in the Sholapur case (V) his Lordship at page 137 remarked:

There is no suggestion either in this long title or in the body of the Act except in Section 12 that the Act is intended only to be a temporary emergency measure. The object of the Ordinance was stated to be to provide employment to a largo number of workmen and to keep up the production of an essential commodity. There is no doubt that Section 12 of the Act provides that the property of the Company and the management and administration of its affairs would be restored to the company or its directors elected by the share-holders but that is left entirely to the unfettered discretion of the Government.

The provisions of the Ordinance and the Act are drastic in the extreme. The Managing Agents and the elected directors have been dismissed and new directors have been appointed by the State. So far as the Company is concerned, it has been completely denuded of the possession of its property. All that is left to the company is its bare legal title. The carrying on of business demands many personal qualities and considerable business acumen and is much more complicated than collecting the rents of the estate of a disqualified proprietor.

His Lordship then observed:

Indeed we are told that under such -State management which is going on for pretty nearly four years the business has been running at a loss. At any rate no profit has been made or distributed as and by way of dividend during this long period-a sad commentary on the efficacy of state management-and nobody knows how long this state of affairs will continue for the Act does not prescribe any definite time limit to this hazardous experiment.

It is, in the premises, impossible to uphold this law as an instance of the exercise of the State''s police power as an emergency measure. It has far over-stepped the limits of police power and is, in substance, nothing short of expropriation by way of the exercise of the power of eminent domain and as the law has not provided for any compensation it must beheld to offend the provision of Article 31(2)." Thus there is no doubt in my mind that the impugned legislation cannot stand the test laid down by his Lordship. No emergency is contemplated by the impugned legislation. Taking possession of the property of an individual for indefinite period is manifestly unreasonable and undoubtedly over-steps, the limits of police power.

The primary purpose of the Act is not protection or prevention, and to restrain the ward to use his private property in the manner so as not to infringe the equal rights of others or to abridge the interest of the community. The Act is simply enacted for the benefit of an individual land-holder. There is no public purpose involved in it. It is, therefore, clear that the impugned provision of law over-steps the constitutional limits of the powers conferred upon the State and offends against the provisions of Article 31(1) and is, therefore, unconstitutional.

References under Article 228 of the Constitution of India.

In almost all these references the following question is referred to the High Court by the Subordinate Judges under Article 628 of the Constitution-Whether the provisions of Section 5(2)(d) and Section 16, Pepsu Court of Wards Act, 2008 are inconsistent with the provisions of Arts. 19(1)(f) and 31 of the'' Constitution of India and are, therefore, ultra vires Section 5(2)(d) of the Act has already been found to be unconstitutional.

As far as Section 16 of the Act is concerned the learned Counsel for the State conceded that it clearly fells under Article 19. He, however, contended that it imposed reasonable restrictions as contemplated by Article 19(5). In these cases question of applicability of Article 31 does not arise as the possession of the land in dispute in various cases is still with the alienees.

The only question for determination, therefore, in these references is whether Section 15(SIC) imposes reasonable restrictions and is thus constitutional. A plain reading of this provision of law shows that even after the disqualification of the landholder is removed he still remains incompetent to dispose of his property as contemplated by Art, 19(1)(f). This disability is imposed upon him for an indefinite period of time.

Thus when there is no time-limit prescribed as to the duration of the existence of disability to dispose of the property it becomes manifestly unreasonable and cannot be supported on other grounds. This aspect of the case in fact has already been dealt with while dealing with the provisions of Section 5(2)(d) in relation to Article 19(1)(f)(SIC) of the Constitution. If the Government is assumed to be dealing with the ward in a reasonable manner they must, therefore, be releasing his property from their control after the disqualifications incurred by the ward have vanished.

After this there is no occasion for the Government or its officers to place any such disability as is contemplated by Section 16 of the Act. On the other hand this provision of law enables the Government to place the disability on him for an indefinite period of time. This power given to the Government cannot be brought within the ambit of reasonableness. The power in favour of tire Government contemplated in this provision of law is excessive in nature and arbitrary.

In the result both the petitions are allowed and the assumption of the Petitioners estates by the Court of Wards under the. notifications referred to being illegal is quashed. The Respondents are directed to restore the possession of the estates to the Petitioners. It is further ordered that the accounts of Petitioners'' property and all the dealings of Court of Wards with it and with its income should be explained to them.

The references will be sent back to the respective Subordinate Judges who will deal with them in accordance with law keeping in view the finding: of this Court about the constitutionality of the provisions of the Act. The Petitioners shall have the costs of the petitions. Counsel fee in each petition will be Rs. 200/-. No order as to costs in the references as the amount of costs in any case will be a burden on the estates.

Mehar Singh, J.

I agree.