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SUPREME COURT OF INDIA
A.N. RAY, C.J.I., H.R. KHANNA, K.K. MATHEW, A. ALAGIRISWAMI AND P.N. BHAGWATI, JJ.
The State of Punjab and another, Appellants
Versus
Khan Chand, Respondent.
Civil Appeals Nos. 1751-1753 of 1967.
Decided on 17-12-1973.
East Punjab Movable Property (Requisitioning) Act, 1947 - Section 2, 3 , 4 , 6 , 8, 9 , 7 , 11 , 5 – Constitution Of India, 1950 - Article 14, 31 (5), (2), 32 and 226 - Indian Income-tax Act, 1922 - Section 5 (7-A) - Land Acquisition Act, 1894 - Section 4 - Requisition and Acquisition of Immovable Property Act, 1952 - Section 3 - Defence of India Rules - Rule 75A - Defence of India Act, 1939 - Essential Supplies Act, 1946 - Sections 3, 4 and 6 - Madras Buildings Act, 1949 - Section 13 - Government of India Act, 1935 - Section 299 (2) - Essential Commodities Act, 1955 - Section 3 (1) - Essential Supplies (Temporary Powers) Act, 1946 - Section 3 (1) - Bombay Prohibition Act, 1949 - Sections 52, 53 and 139 (c) - Truck Owner - Compensation for Use of Truck - Possession of Truck by District Magistrate - Challenging validity of Order - Whether District Magistrate would ever use his powers under Act for such purposes - Whether laws made by legislature are in conformity with provisions of Constitution - Whether High Court was right in holding that S. 2 of Act is violative of Article 14 of Constitution and in striking down whole Act for reason that S. 2 is not severable from rest of provisions of Act - Whether provisions thereof in any way violate Article 14 - Whether legislature says deal with problem in public interest or exercise power for public good or for public purpose - Whether it says so or not is of absolutely no consequence - Whether a particular movable property should or should not be requisitioned - Whether it is necessary or expedient to exercise power in relation to purpose sought to be attained - Whether a particular requisitioning is expedient for a particular purpose or not may require many factors and shades of considerations to be taken into account - Whether right at stake is fundamental or not, is quite immaterial when considering question of equality before law - Whether District Magistrate, in requisitioning truck in question, was acting in an unreasonable or a discriminatory manner or requisition of truck was not for a public purpose – Held, Government exists and its only title to exist is its claim to advance public good and serve public interest - So when section said that State Government, if it considers it necessary or expedient so to do, may by an order in writing requisition any moveable property, it can only mean, when it considers it necessary or expedient so to do in public interest or for public good or purpose - In enacting a general law it is not possible to foresee every situation or to envisage every contingency and to provide specially for it by excluding operation of law wholly or in part in respect of such situations or such contingencies - Power is, therefore, conferred by statutes on executive to exempt persons or bodies from all or any of provisions of an Act - Article 14 confers a fundamental right, namely, right to equality before law - It is difficult to see why it is necessary for a person asserting that right to prove that another fundamental right has been violated - Concept of equality before law does not vary with nature of right in issue - Respect for a coordinate branch of Government as well as presumption of constitutionality demands it - Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction in Constitution - Our duty of deference to those who have responsibility for making laws has great relevance in this context - Attitude of judicial humility which this consideration enjoins is not an abdication of judicial function - It is a due observance of its limits - If power which is conferred on State Government under S. 2 of Act is valid, Court see no objection to that power being delegated – Court cannot assume that State Government will delegate power without due regard to status of delegate in official hierarchy – Court have not been referred to any case where it has been held that wide discretionary powers are bad for reason that State or any other body on which they have been conferred has power to delegate them to another body or person - No other reasons has been given by High Court for declaring provisions of S. 2 of Act to be invalid - If Section 2 is not invalid for reasons given by High Court ground on which other provisions of Act were struck down by High Court will not survive - In Court view, provisions of S. 2 do not violate Article 14 and are not invalid for that reason - Appeals dismissed.
Judgment
KHANNA, J.:- (On behalf of himself and Ray C. J., Alagiriswami and Bhagwati JJ.). This judgment would dispose of civil appeals No. 1730 and 1751, 1752 and 1753 of 1967 which have been filed on certificate by the State of Punjab against a Full Bench judgment of the Punjab High Court whereby Section 2 of the East Punjab Movable Property (Requisitioning) Act, 1947 (hereinafter referred to as the Act) was struck down on the ground of being violative of Article 14 of the Constitution. It was further held that Section 2 was not severable from the rest of the Act and the other provisions of the Act were merely ancillary to the powers of requisitioning and acquisition of property contained in Sections 2 and 3 of the Act. The High Court accordingly held the entire Act to be unconstitutional and void.
2. We may set out the facts giving rise to civil appeal No. 1730, because it is the common case of the parties that the decision in that appeal would govern the other three appeal also. The respondent in civil appeal No. 1730 is the owner of Tata Mercedes Benze truck No. 1607. On December 18, 1964 the District Magistrate Rohtak passed an order under Section 2 of the Act requiring Khan Chand respondent to place the above truck at the disposal of the Executive Engineer Rohtak because the District Magistrate was of the view that trucks were necessary to carry road material for famine work. It was also mentioned that compensation for the use of the truck would be paid at the rate fixed by the Government. The truck was thereafter taken into possession by the District Magistrate on December 19, 1964. The respondent thereupon filed petition under Art. 226 of the Constitution in the High Court challenging the validity of the above order of the District Magistrate. Prayer was also made to declare the provisions of the Act to be unconstitutional.
3. The petition was resisted by the State of Punjab and the District Magistrate of Rohtak, who are the appellants before us, and the affidavit of the District Magistrate was filed in opposition to the petition. The petition was first posted for hearing before a single Judge who referred it to a Division Bench. The Division Bench, in view of the importance of the matter; referred it to Full Bench. The Full Bench examined the different provisions of the Act and found that Section 2 of the Act was violative or Article 14 of the Constitution as it gave unfettered and unguided power to the executive to interfere with the property rights of the citizens in an arbitrary manner. It was observed that the Act did not lay down any principle or policy for guidance in the exercise of the wide discretion conferred by it on the executive authorities. Section 2 of the Act was accordingly, as observed earlier, held to be violative of Article 14 of the Constitution. As regards Section 3 of the Act, it was observed that it could not come into operation without Section 2 being first invoked. The other provisions of the Act were held to be merely ancillary to the powers of requisitioning and acquisition of property contained in Sections 2 and 3 of the Act. As the Act was found to confer on the Government arbitrary and uncontrolled power to discriminate both between things and persons and as the discrimination was writ large on the face of the Act, the entire Act was held to the unconstitutional and void.
4. The Act, it may be stated, replaced Ordinance V of 1947 which had been promulgated by the Government of East Punjab on September 15, 1947. The Act was first published in the East Punjab Government Gazette on December 13, 1947. According to the preamble, it was an Act to provide for the requisitioning and acquisition of movable property. Sections 2, 3 and 4 of the Act read as under :
"2.(1) The State Government, if it considers it necessary or expedient so to do, may by order in writing requisition any movable property and may make such further orders as may be necessary or expedient in connection with the requisitioning:
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