Case: Prem Chand Garg Vs. Excise Commissioner, U. P., Allahabad


Decision:
1[ds]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 Court has held that the principles of res judicata apply to petitions under Art. 32 (Vide 1962-1 SCR 574  : (AIR 1967 SC 1457). Take also the case where a petition under Art. 32 would he 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, Vide Smt. Ujjam Bai v. Stat. of Uttar-Pradesh, W.P. No. 79 of 1959, D/- 10-4-1962 (AIR 1962 SC 1621). if the words "or on any other ground, used by Das C. J. are literally construed they would have to be treated as inconsistent with these subsequent decisions. That, however, is plainly not the true position and so, the argument based on the said words used by Das C. J. cannot, in our opinion, be accepted. It would, we think, be unfair to assume that in using the words `or on any other ground" this Court wanted to imply, as Mr. Pathak 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 resjudicatata or the competence of the petition itself. Therefore, the argument that the rule is inconsistent with the decision in Kochunni Moopil Nayars case, (1959) Supp (2) SCR 316 : (AIR 1959 SC 725  ) must be rejectedFor analogy, 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. O. 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 Court 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 Court is satisfied that she does not possess sufficient immovable property within India. Order 41, R. 10 confers on the appellate Court 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 O. 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 with the order his petition would fail. In our opinion, there is no doubt that an order of security for the respondents costs would, in some ceases 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 he 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 tact 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 State of Bombay v. Bombay Education Society, 1955-1 SCR 568   at p. 583: (AIR 1954 SC 561   at p. 567) and Punjab Province v. Daulat Singh, 73 Ind App 59 atp.74 (AIR 1946 PC 66   at p. 70).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 rightThis contention is undoubtedly well-founded. Article 142(1) provides that in exercise of its jurisdiction, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matters 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 Parliament and, until provision in that behalf if 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 rightsIt may be recalled that Art. 194 deals with the powers, privileges and immunities of State Legislatures 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 Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament 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 the House of Commons and its committees at the commencement of this Constitution shall continue to be enjoyed by the members of the State Legislatures and their committees. One of the points which fell to be considered by this Court in the case of Sharma, (1959) Supp (1) SCR 806: (AIR 1959 SC 395  ), was whether the rights, power and privileges of the members of the House of Commons which could be claimed by the members of the State Legislatures 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 Court 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 Court. 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)13. In this connection, it may be pertinent to point out that the wide powers which are given to this Court 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 Court 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 parties14. 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 Court 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 Court 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. 32In the case of K. M. Nanavati v. State of Bombay, 1961-1 SCR 497  : (AIR 1961 SC 112  ), on which the Solicitor-General relies, it was conceded, and rightly, that under Art. 142(1) this Court had the power to grant bail in cases brought before it, and so, there was obviously a conflict between the power vested in this Court 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 Court 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 K. M. Nanavati, 1961-1 SCR 497  ; (AIR 1961 SC 112  )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 Court" used in cl. (f) may cover an order of security; but it 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 e 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 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 Court is satisfied that a prima facie case has been made out by the petitioner that a rule nisi is ordered to be issued against the respondent. In order to decide this question, sometime 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 recover 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 Court if they feel that their fundamental rights have been contravened. Similarly, women who own no property would be entitled to move this Court in case their fundamental rights are contravened, and following the analogy 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 Court 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 conditions 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 threshold 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 Court under Art. 32. That is why we think Rule 12 in respect of the imposing of security is invalid16. 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 Court 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 respondents costs would not be served. It is true that if the discretion is exercised by the Court 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 discretions of the Court 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.