Appeal No 31 of 1957
Appeal from the judgment and order date September 27 1955 of the Jammu and Kashmir High Court in Misc
Application No 23 of 1955
Jaswant Singh Advocate General for the State of Jammu and Kashmir and R H Dhebar for the appellant
section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for respondent
February 23
The Judgment of the Court was delivered by SARKAR J
The respondent is a Civil Engineer who held various positions under the appellant the Government of the State of Jammu and Kashmir
On September 8 1954 while the respondent was holding the post of Development Commissioner he was placed under suspension by an order made by the appellant on that date
Later the appellant passed another order on February 12 1955 demoting the petitioner to the post of a Divisional Engineer
On May 12 1955 the respondent moved the High Court of Jammu and Kashmir under article 322A of the Constitution of India as applied to the State of Jammu and Kashmir for a writ directing the appellant not to give effect to the order dated February 12 1955 and to recognise him as the Chief Engineer the substantive post held by him when he was suspended with effect from the date of suspension and with all the emoluments of that office
The High Court issued the writ as prayed
The State appeals from the judgment of the High Court 971 In the view that we think must be taken of this case it is unnecessary to go into the facts a great deal
At one stage of his career under the appellant the respondent held a job of some responsibility in what was called the Sindh Valley Hydro Electric Scheme
This Scheme was for generating electric power by dams erected in the Sindyh water course and for using the water for irrigation purposes
The work on this Scheme seems to have commenced some time ago
The respondent was connected with the Scheme from 1949 till he was transferred from the work in 1953
It appears that the appellant was dissatisfied with the Progress of the work and the manner in which it had been carried out and decided to establish a Commission of Inquiry a to investigate into the reasons for i progressive rise in the estimates ii the defective planning and the delay in the execution of the work and iii the other irregularities and b to fix responsibility upon the persons concerned and make appropriate recommendations
Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent were placed under suspension on September 8 1954
Thereafter on October 20 1954 a commission was set up by the appellant consisting of various persons
The Commission made certain enquiries and eventually submitted its report to the appellant
The appellant then made the order demoting the respondent purporting to act on the basis of the report
It is not necessary to set out the facts any more
The respondent in his application for the writ questioned the validity of the orders suspending and demoting him on these grounds
He alleged that the Commission did not conduct the enquiry according to the rules of natural justice
He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity he would have proved that he had not been at fault at all
He also said that the appointment of the Commission could only have been made under section 2 of the Public Servants Inquiries Act 1977 124 972 Kashmir era and must therefore be deemed to have been so made
He complained that the provisions of this Act were not observed by the Commission in making the enquiry
Lastly he said that the respondent could be reduced in rank only in accordance with the procedure laid down in the Kashmir Civil Service Rules passed by the State Council Order No 81 C of 1939 and this procedure had not been followed
In the High Court the question as to whether these Rules had the status of law seems to have been debated at great length
The High Court took the view that they had
We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been substantiated
Now the High Court was moved to exercise its powers under article 32 2A of the Constitution
The order made by it cannot be upheld if it was not justified by that provision
This is not in dispute
That provision is in these terms article 322A
 Without prejudice to the powers conferred by clauses 1 and 2 the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions or orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by this Part
 The High Court can then exercise its powers under article 32 2A only  for the enforcement of any of the rights conferred by this Part 
The Part referred to is Part III and the rights conferred by it are the fundamental rights
Therefore the High Court can act under cl
2A of article 32 only to enforce a fundamental right
The only fundamental right however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by article 14 namely the right to the equal protection of the laws
He said that the 973 respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed his client had been denied the equal protection of the laws
It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them all that can be said to have happened is that the appellant has acted in breach of the law But that does not amount to a violation of the right to the equal protection of the laws
Otherwise every breach of law by a Government would amount to a denial of the equal protection of the laws
We are not aware of any authority in support of that proposition and none has been cited to us
Nor are we able to find any support for it in principle
It is not the respondent s case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him
It seems to us that the appeal must be allowed on the simple ground that the respondent s petition does not show a violation of any fundamental right
The High Court had no power to act under article 32 2A at all
We think it right to point out that articles 226 and 3112 of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time
No question of the respondent s application being maintainable in view of these articles therefore arises
The appeal is accordingly allowed
There will be no order as to costs
Appeal allowed


Summary:
The respondent executed an instrument and presented it to the Collector for his opinion under section 31 Stamp Act as to the duty chargeable
The Collector after a reference to the Board of Revenue determined the duty payable
He then impounded the instrument and ordered that the ditty be deposited within 98 fifteen days
Later a notice was served upon the respondent to deposit the amount of stamp duty and penalty within one month and threatening that in default proceedings would be taken to recover them as arrears of land revenue
The respondent challenged the legality of the impounding of the instrument and demand of stamp duty and penalty
Held that after determination of the stamp duty the Collector became functus officio and could not impound the instrument or demand duty and penalty
Under section 31 the Col lector has merely to determine the proper amount of duty
If the person executing the instrument wants to effectuate the instrument or to use it for purposes of evidence he has to make up the duty and under section 32 the Collector makes the necessary endorsement
Section 33 empowers every person in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions to impound the instrument if it is not duly stamped
When an instrument is presented to the Collector under section 31 for determination of duty it cannot be said that it is produced or comes in the performance of his functions as contemplated by section 33
These words refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any function in regard to those instruments when they come before them eg registration
In Re Cooke and Kelly Cal 1171 held obiter
Collector Ahmednagar vs Rambhau Tukaram Nirhali AIR  Paiku vs Gaya ILR and Chunduri Panakala Rao vs Penugonda Kumaraswami A1R  referred to