TaxTMI 
TaxTMI 
1962 (11) TMI 52
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....e order passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol to the petitioners. This petition was admitted on December 12, 1961 and a Rule was ordered to be issued to the respondents, the Excise Commissioner of U.P., Allahabad, and the State of U. P. At the time when the rule was thus issued, this Court directed under the impugned Rule that the petitioners should deposit a security of Rs. 2,500/- in cash within six weeks. According to the practice of this Court prevailing since 1959, this order is treated as a condition precedent for issuing rule Nisi to the impleaded respon- dents. The petitioners found it difficult to raise this amount and so, on January 24, 1962, they moved this Court for a modification of the said order as to security. This application was dismissed, but the petitioners were given further time to deposit the said amount by March 26, 1962. This order was passed on March 15, 1962. The petitioners then tried to collect the requisite fund, but failed in their efforts, and that has led to the present petition filed on March 24, 1962. By this petition, the petitioners contend that the impugned Rule, in so far as it relates ....
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....nd it must always regard it as its solemn duty to protect the said fundamental rights zealously and vigilantly (Vide Daryao v. The State of U. P.) [1962] 1 S.C.R. 574, 582. 890. Mr. Pathak for the petitioners contends that the right guaranteed under Art. 32 (1) is not subject to any exceptions as are the rights guaranteed by Art. 19. The right to move this Court is an absolute right and the content of this right cannot be circumscribed or impaired on any ground, such as the interests of the general public. It is in this connection that Mr. Pathak preferred to describe the guaranteed right under Art. 32 as "absolutely absolute". The key role assigned to the right guaranteed by Art. 32 and the width of its content are writ large on the face of its provisions, and so, it is, in our opinion unnecessary and even inappropriate to employ hyperboles or use superlatives to emphasise its significance or importance. Mr. Pathak however, conceded that the right to move this Court can be validly regulated by rules of procedure and regulations made with a view to aid the assertion and vindication of the right and to provide for a fair trial of the points raised by the petitioners. For instance, ....
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.... in respect of the trial of the petition filed under Art. 32, the Court must act fairly by both the parties, and so, if it appears to the Court that it is in the interest of justice that the costs of the respondent should be secured, it would be open to the Court to make an order of security in that behalf and a rule which permits such an order to be made in a proper case, cannot be said to be inconsistent with Art. 32. In support of this argument, the Solicitor-General relied upon the provisions of Art. 145(1)(f) and more particularly on the wide power conferred on this Court under Art. 142(1) of the Constitution. He also suggested that in determining the effect of the wide provisions of Art. 142, we ought to adopt the rule of harmonious construction so as to reconcile the said powers with Art. 32. If the present dispute had been confined to the narrow question about the construction of the impugned rule and the propriety or otherwise of the prevailing practice, it would have become necessary for us to consider whether the rule can be said to be valid and the practice prevailing irregular inasmuch as in some cases security may perhaps have been demanded from the petitioner withou....
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....ndication of the fundamental right, or does it retard or obstruct it ? If the answer to the question is that the rule retards or obstructs the assertion or vindication of the fundamental right by imposing a pecuniary obligation on the petitioner, the rule is bad and there is no authority in this Court to make such a rule under Art. 145 and there is no jurisdiction in the Court to make such an order under Art. 142. It is this larger question which calls for our decision in the present petition. In support of his argument that this Court has no power to make such a rule, Mr. Pathak has relied on the decision of this Court in the Cape of Kavalappara Kottarathil Kochunni Moopil Nayar V. The State of Madras [1959] 2 S.C,R. 316, 335. In that case, Das, C.J has examined the scope and effect of the provisions of Art. 32 and has observed that an application made under Art. 32 cannot be rejected on the simple ground that the peti- tioner has an alternative remedy open to him., Then the learned C.J. addressed himself to the question as to whether such an application could be dismissed on the ground that it involves the determination of disputed questions of fact, and in answering this questio....
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....xt question to consider is whether an order for security can be said to retard or obstruct the assertion or vindication of a fundamental right under Art. 32. For anology, 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. 0, 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. 0.41 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 circumstanc....
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.... rise to as many petitions as the contravention of property rights has, and in that sense; it may be permissible to assume that the petitioners who complain against the infringement of their property rights may be able to comply with the orders of security passed by the Court under the impugned rule; but that, in our opinion, is hardly relevant. If the right under Art. 32 is circumscribed or impaired by such in order, the fact that the petitioner may be able to comply with the order would not help to make the order or the rule valid. Therefore, the practical considerations to which reference was made during the course of the arguments have no material bearing in deciding the validity or the constitutionality of the rule or the existence of the relevant power in this Court under Art. 142. It is, however, urged by the learned Solicitor-General that the powers of this Court under Art. 142 are very wide and cannot be controlled by Art. 32. He has put his argument in two ways. He urges that the words used in Art. 142 are very wide and since they constitute the constitutional charter of this Court's powers, theyu must be very liberally construed. This contention is undoubtedly well foun....
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....n 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). Basing himself on this decision, the Solicitor General argues that the power conferred on this Court under Art. .142(1) is comparable to the privileges claimed by the members of the State Legislatures under the latter part of Art. 194(3), and so, there can be no question of striking down an order passed by this Court under Art. 142(1) on the ground that it is inconsistent with Art. 32. It would be noticed that this argument proceeds on the basis that the order for security infringes the fundamental right guaranteed by Art. 32 and it suggests that under Art. 142(1) this Court has jurisdiction to pass such an order. In our opinion, the argument thus presented is misconceived. In this connection, it is necessary to appreciate the actual decision in the case of Sharma and its effect. The actual decision was that the rights claim....
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....hat 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 parties. 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. 32. In the case of K. M. Nanavati v. The State of Bombay [1961] 1 S.C.R. 497 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 Co....
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....itizens, 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 anology 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 s....
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....r as it relates to the giving of security cannot be sustained. In the result, the petition is allowed and the order passed against the petitioners on December 12, 1961, calling upon them to furnish security of Rs. 2,500/- is set aside. There would be no order as to costs. SHAH, J.-The petitioner filed petition No. 348 of 1961 invoking jurisdiction of this Court to issue a writ under Art. 32 of the Constitution on the plea that certain orders passed by the Excise Commissioner, U.P. were invalid. The petitioner was directed on December 12, 1961 when rule was ordered to issue to the respondents-Excise Commissioner, U.P. Allahabad, and the State of Uttar Pradesh to "furnish security in the sum of Rs. 2,500/- in cash within six weeks for the costs of the respondents". The petitioner failed to comply with the order, and moved this Court for modification thereof. This application was dismissed, but at the request of the petitioner time for furnishing security was extended till March 26, 1962. Stating that his efforts to collect the requisite amount were unsuccessful, the petitioner presented this petition and prayed that the order requiring him to furnish security in the sum of Rs. 2,50....
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.... rendered all laws inconsistent therewith if preexisting, or made in con- travention, thereof if enacted after the commencement of the Constitution, void to the extent of the inconsistency or contravention. For relief against infringement of these rights by action legislative or executive by the State, recourse may undoubtedly be had to the ordinary Courts by institution of civil proceedings for appropriate relief. But the Constitution has conferred upon the High Courts and the Supreme Court power to issue writs for the protection of those fundamental rights, and the Constitution has guaranteed by Art. 32(1) the right to move this Court for enforcement of those rights. The right to move this Court for enforcement of the fundamental rights is therefore itself made a fundamental right. Law which is repugnant to the effective exercise of the right to move this Court in enforcement of the rights described in Ch. III therefore to the extent of inconsistency or contravention would be void. Is it that the exercise of the right is to be so unfettered, that any law which imposes any restriction in any form whatever against the exercise of that right direct or indirect must be regarded as vo....
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....ere to refuse to entertain a petition for enforcement of a fundamental right or to decline to adjudicate upon the same. We cannot direct, the litigant to seek relief by recourse to a Civil Court or other remedy where prima .,facie an infringement of the fundamental right is made out, but that is not to say that, after the petition is entertained the Court, is not bound to hold the scales even between the litigating parties. The party complaining of infringement of a fundamental right has undoubtedly the right to demand that his petition shall be entertained and heard and disposed of according to. law, but in the investigation of the claim to relief the petitioner is not entitled to any higher privileges than any other litigant would be entitled to in respect of a lis which is brought up for adjudicating before this Court. The claim of the parties must be supported by evidence, witnesses in support must be brought before the Court or examined on commission; if the party dies or ceases legally, to exist representative of the party should be brought on record, if the pleadings arc not proper they. may be struck off or amended and if the claim sought to be litigated has been previously....
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....ree or make such order as is necessary for doing complete justice in any cause or matter pending before it x x x x x x ". The jurisdiction of the Court so described undoubtedly embraces power to make an order requiring security in appropriate cases, and the impugned rule does no more than enunciate a facet of the jurisdiction of this Court which is conferred by Art. 142. The expression "as it thinks fit' must in the context in which it occurs mean that where the Court deems it necessary for doing complete justice in the cause or matter pending before it, the Court may make the order as to giving of security. It is not necessary to consider whether in exercise of the delegated power of legislation conferred by Art. 145 (1) it is open to this Court to make a rule requiring security for costs from a litigating party which may apparently place a restriction upon 'the exercise of the fundamental right under Art. 32. The impugned rule is not in substance a rule relating to practice and procedure, but deals primarily with the jurisdiction of the Court, which has its source in Art. 142. Can the petitioner claim immunity from an order for furnishing security for costs or for other purpose....
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....onstitution contained in Art. 142 and Art. 32(1) must be read harmoniously. On the one hand there is the guaranteed right in favour of the litigant by an appropriate proceeding to move this Court for enforcement of a fundamental right, on the other there is the jurisdiction vested in this Court to pass all such orders as may be necessary in the interests of justice such orders including inappropriate cases an order for payment of costs by the petitioner. There is no warrant for assuming that the exercise of this jurisdiction has to be subordinated to the exercise of the right to move this Court. Article 32(1) is included in Ch. III and the right to move this Court is itself made a fundamental right, whereas Art. 142 falls in Part V dealing with Union Judiciary. But these being parts of a Constitutional document no special sanctity attaches to the provisions contained in Ch. III so as to prevail over the other provisions. In Pandi M.S.M. Sharma v. Shri Sri Krishna this Court had to consider whether Art. 194 dealing with the powers, privileges and immunities of the State Legislatures and of their members was subordinate to fundamental right of speech under Art. 19(1)(a) of the Consti....