328 of 1951Petition under article 32 of the Constitution for issue of writs in the nature of certiorari prohibition and mandamus
The facts appear in the judgment
The petitioner in person
CK Daphtary Solicitor General of India J B Dadachanji with him for the respondent
December 21
The Judgment of the Court was delivered by PATANJALI SASTRICJ
This is a petition under article 32 of the Constitution for the enforcement of the petition er s fundamental rights under article 19 1 f and article 311 alleged to have been violated by the Central Bank of India Ltd a company incorporated under the Indian Compa nies Act 1882 and having its registered office at Bombay hereinafter referred to as the Bank
It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a 51 392 third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner and the transfer was registered in the books of the Bank in the year 1937
The petitioner thereupon instituted a series of pro ceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer
The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March 1951 under Order 7 Rule 11 d of the Code of Civil Procedure as barred by limitation
The petitioner now prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit
It may be mentioned here that though the aforesaid order rejecting the petitioner s plaint was appealable the petitioner did not prefer an appeal on the somewhat extraor dinary ground that the appeal if filed could not be heard by the Judges of the said Court as all of them were disqual ified from hearing such appeal either because of their interest in the Bank or because of their prejudice against him
We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground
Neither article 19 1 f nor article 31 1 on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct
Article 19 deals with the right to free dom and by clause 1 assures to the citizen certain funda mental freedoms including the freedom to acquire hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses 2 to 6
The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regu late private rights in the public interest 393 Violation of rights of property by individuals is not within the purview of the article
The position is no better under article 31 1
The petitioner has urged that clause 1 should be construed apart from and independently of the rest of the article and if so construed its language is wide enough to cover in fringements of rights of property by private individuals
He laid emphasis on the omission of the word State in clause 1 while it was used in clause 2 of the same article as well as in many other articles in Part III
Referring to entry No 33 of the Union List entry No 36 of the State List and entry No 42 of the Concurrent List of the Seventh Schedule to the Constitution he also argued that while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be
no power was conferred to make laws regarding deprivation of property by the State so that the deprivation contemplated in clause 1 could only be deprivation by individuals
Sub section 1 of section 299 of the Government of India Act 1935 corresponding to clause 1 of article a 1 was it was pointed out omitted in the draft article 19 later numbered as article 81 which retained in a modified form only the provision contained in sub section 2 of that section relating to compulsory acquisition of property for public purposes
But clause 1 was subsequently restored and article was enacted in its present form as recommended in Drafting Committee s Report and this it was claimed showed that clause 1 was intended to operate as a distinct provi sion apart from clause 2
We see no force in any of these arguments
In support of the argument that clause 1  should be construed in isolation from the rest of the article the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal vs The Union of India 1 where the view was expressed that clause 1enunciated the general principle that no person should be deprived 1 1950 SCR 860
394 of his property except by authority of law and laid down no condition for payment of compensation while clause 2 dealt with deprivation of property brought about by acquisi tion or taking possession of it and required payment of compensation
In other words deprivation referred to in clause1 must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in clause 2
We consider it unnecessary for the purpose of the present petition to go into that question
Even assuming that clause 1 has to be read and construed apart from clause 2 it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty
There is no express reference to the State in article 21
But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals  The words except by procedure established by law plainly exclude such a suggestion
Similarly the words save by authority of law in clause 1 of article 31 show that it is a prohibition of unauthorised governmental action against private property as there can be no question of one private individual being authorised by law to deprive anoth er of his property
The argument based on the entries in the Lists is fallacious
It is not correct to suggest that merely be cause there is no entry in the Lists of the Seventh Schedule relating to deprivation of property as such it is not within the competence of the legislatures in the country to enact a law authorising deprivation of property
Such a law could be made for instance under entry No 1 of List II entry No 1 of List II or entry No 1 of List III
Article 31 1 itself contemplates a law being passed authorising deprivation of the properties and it is futile to deny the existence of the requisite legislative power
Nor does the legislative history of the article lend any support to the petitioner s contention
Section 299 395 1 of the Government of India Act 1935 was never inter preted as prohibiting deprivation of property by private individuals
Its restoration therefore in the same form in article 31 after omission in the original draft article 19 could lead to no inference in support c of the peti tioner s contention which indeed proceeds on the fundamen tal misconception that article 191f and article 31 1 which are great constitutional safeguards against State aggression on private property are directed against in fringements by private individuals for which remedies should be sought in the ordinary law
In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor General on behalf of the Bank
The petition is dismissed
We make no order as to costs
Petition dismissed


Summary:
On the basis of a vigilance enquiry against Kailash Nath respondent pertaining to the purchase of sign boards by him while working as Executive Engineer in the State Public Works Department a First Information Report was lodged against him in August 1985
The respondent challenged the FIR in the High Court on the ground that the same having been lodged about three years after his retirement in October 1982 and about six years after the event of purchase in 1979
was in the teeth of proviso 3 to Rule 22b of the Punjab Civil Service Rules Volume II which provided that no judicial proceedings if not instituted while the officer was in service shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution
The same ground was taken by Mangal Singh Minhas respondent when a challan was filed against him
The High Court relying on its earlier decision quashed the First Information Report and the challan
Dismissing the State appeal against Kailash Nath and allowing it against Mangal Singh Minhas this Court HELD 1 Any rule framed under Article 309 has to be confined to recruitment and conditions of service of persons mentioned therein916E 2 The expression conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond itin matters like pension etc
PG NO 911 PG NO 912 3 Rule 22
is in Chapter II of the Punjab Civil Service Rules which deals with ordinary pension
There can be no manner of doubt that making provision with regard to pension falls within the purview of conditions of service
918D 4 Whether or not a government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service
917D 5 Even on a plain reading of Rule 22 it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a government servant if the conditions mentioned therein are satisfied
918C 6 Making a provision that a government servant even if he is guilty of grave misconduct or negligence which constitutes an offencepunishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive
917D E 7 On the face of it the government servants cannot constitute a class by themselves so as to bring their case within the purview of reasonable classification if the purpose of granting immunity from prosecution is ensuring peace of mind in old age
918B 8 Even if in a given case a proviso may amount to a substantive provision making of such a substantive provision will have to be within the framework of Article 309
If a rule containing an absolute or general embargo on prosecution of a government servant after his retirement for grave misconduct or negligence during the course of his service does not fall within the purview of laying down conditions of service under Article 309 such a provision cannot in the purported exercise of power under Article 309 be made by either incorporating it in the substantive clause of a rule or in the proviso thereto
919C D 9 Even if on first impression Rule 22 may appear to be placing an embargo on prosecution it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the framework of its source of power without of course frustrating the purpose for which such provision was made
This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if PG NO 913 a government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years before such institution the government will not be entitled to exercise the right conferred on it by the substantive provision contained in clause b with regard to pension of such a government servant
The word such in the beginning of the third proviso also supports this interpretation
919D H920A 10 By applying the role of interpretation with regard to a beneficent legislation a benefit never intended to be conferred cannot be conferred
923D 11 It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case
In this view of the matter
the appeal against Kailash Nath is dismissed whereas the appeals against Mangal Singh Minhas are allowed
924F Des Raj Singhal vs State of Punjab  State of Madhya Pradesh  Ors
vs Shardul Singh  IN Subba Reddy vs Andhra University   Ms Ram Narain Sons Ltd vs Asstt
Commissioner of Sales Tax and Others   Abdul Jabar Butt vs State of Jammu  Kashmir   Ishverlal Thanorelal Almaule vs Motibhai Nagjibhai 1966 1 SCR 367 PP Venkatavardan vs The State of Tamil Nadu by the Deputy Superintendent of Police Vigilance and Anti corruption Vellore 1979 23 MLJ Crl 275 State of Punjab vs Charan Singh   Madhashwardhari Singh and Another vs State of Bihar AIR 1986 Patna Vol73 page 324 referred to