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Rajasthan High Court
Wanchoo C.J. & Bapna, J.
Surajmal - Appellant
Versus
The Rajasthan State - Respondents
D.B. Civil Miscellaneous Writ Application No. 65 of 1951
Decided On : May 01, 1952
An ordinance made and promulgated by the Rajpramukh under Article X(3) of the Covenant where no date of its coming into force is mentioned or where it is mentioned that it shall come into force at once, comes into force when it was made and promulgated and not from the date of its publication in the Raj Patra. (Paras 7 and 8)
An obligation to obey an order passed by the Government under an enactment continues only so long as the enactment is in force. The obligation to obey such an order is not something duly done or suffered which will not be affected by the repeal. The obligation to obey the order arises from day to day and so long as the law is in force that obligation is there. But when the law comes to an end the obligation also comes to an end.
Any liability which may be incurred on disobedience of such an order arises when the order is actually disobeyed and not when the order is passed. There is no question of disobedience after the law, under which the order was made, comes to an end. (Paras 10 and 11)
Article 31 (1) is wider in its application than Art. 31 (2). Under Art, 31 (2) acquisition is clearly acquiring of title to the property and includes taking possession of it by the State. This taking possession under Art. 31 (2) for which compensation has to be paid must be for the purpose of beneficial enjoyment by the State. Thus beneficial enjoyment, whether it be merely taking possession, or whether it be taking over title as well as possession, is necessary before Art. 31 (2) is attracted to a case of acquisition or taking possession of property for public purposes. But a person may still be deprived if his property under Art. 31 (1) even though the State may not have acquired or taken possession of it within the meaning of Art. 31(2). That is why Art. 33 (1) is wider in scope than Art. 31(2). But there should be authority of law for deprivation under Art. 31(1),
A person may be deprived of his property even though he may not have been deprived of all the rights that he has in the property. Thus where the applicant was deprived of effective possession as well as right of management and was liable to be saddled with any loss incurred in running the undertaking it was held that all that was left to the applicant was "empty husk" of ownership. In these circumstances it was impossible to come to any other conclusion except this that the applicant had been deprived of his property within the meaning of Art. 31(1).
2. The application in this case was made on the 6th of September, 1951. The applicant is the licensee of the Power House at Pratapgarh. He increased the rates of supply of electricity for domestic and industrial consumers from the 1st of May, 1951. The Government of Rajasthan however, did not approve of this increase in rates and tried to persuade the applicant to continue charging the old rates till such time as the Government appointed rating committee. The applicant, however, refused to agree to this on the ground that this Would ruin his financial condition. Thereupon, on the 29th of August, 1951, the State of Rajasthan served an order which is said to have been passed under sec. 33 of the Rajasthan Public Security Ordinance. 1949 (Ordinance No. XXVI of 1949). By this order the applicant was directed to carry on the working of the Power House at Pratapgarh until further order and to abstain from closing the same and from removing any machinery appertaining to the said Power House. The applicant asked for withdrawal of the order and when it was not withdrawn, filed the present application on the 6th of September, 1951, praying for certain reliefs which it is not necessary to set down here. Before, however the application came up for hearing, the State took possession of the Power House by forcibly breaking open the lock put upon it by the applicant. In view of this changed situation the applicant filed another affidavit on the 17th of September, 1951, in which he set out these facts and said that the taking of possession of the Power House without any authority of law and without compensation was a breach of the provisions of Arts. 31 (1) and 31 (2) of the Constitution of India as Ordinance No.XXVI of 1949 had expired on the 9th of September, 1951. It was also urged that sec 33 of the Rajasthan Public Security Ordinance, 1949 (No. XXVI of 1949 was invalid as it violated Art.19(1) of the Constitution and was not saved under Art 19 (5). It was also urged that the order violated Art. 19 (1)(g) of the Constitution of India and was not saved under Art. 19 (6). Thus the applicant in the altered situation gave up the reliefs he had sought in the application of 6th September, 1951, and prayed for an order for the restoration of his property of which he had been deprived without the authority of law.
3. The application has been opposed by the State of Rajasthan and their main contention is chat their action is lawful and does not in any way contravene any of the Articles contained in part III of the Constitution of India. It is not denied that the State took control of the Power House on the 14th of September, 1951. It is not necessary to put down the objections of the State in detail as they will appear in their proper place when we consider the arguments addressed before us.
4. The first contention on behalf of the applicant is that Ordinance No. XXVI of 1949 had come to an end on the 9th of September 1951, and whatever authority the State might have had when the Ordinance was in force, it disappeared on the 9th of September, 1951. Their action therefore, in taking possession of the Power house on the 14th of September 1951, was not authorised by any law and was clearly a breach of Art 31 (1) of the Constitution which provides that no person shall be deprived of his property save by authority of law. The applicant further contends that since he has been deprived of his property without the authority of law this court should order restoration of possession of property to him.
5. The first question, therefore, which arises is whether Ordinance No. XXVI of 1949 came to an end on the 9th of September 1951. The contention on behalf of the State is that it came to an end on the 19th o
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