# Bhagubhai Dullabhabhai Bhandari v. The District Magistrate - **Citation:** [1961] 1 S.C.R. 970 - **Court:** Supreme Court of India - **Decided:** 1961 - **Case number:** Civil Appeal No. 271 of 1956 - **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendba· Gadkab, K. SuBBJ RAo, K. N. Wanchoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagubhai-dullabhabhai-bhandari-v-the-district-magistrate-2194 - **Pages:** 12 ## Headnote GOOflllas, Conlrol and EJtcl11si011 of-Conslil11ti-Onal validity of enadment-Test-Central PrOl!inces and Berar G0011tlas Act, r946 (X of r946) a.s amerukd by Act XLIX of r950, ss. 4, 4-A-C011s· litllltOfl of IM.ia, Aris. r9(r}(d) & (e), IJ. By an order passed under s. 4-A of the Central Province. and Berar Goondas Act, 1946 (X o! 1946), as amended by the Madhya Pradesh Act XLIX of 1950, the State of Madhya Pra. desh directed the respondent to leave the district of Chhindwara, which bad been specified as a proclaimed area under the Act, and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the growul that the Act violated his lundamental rights under Art. 19o)(d) and (e) of the Constitution and was, therefore, invalidated' by Art. 13 of the Constitution. The HigJ> Court held that ss. 4 and 4-A of the impugned Act were invalid and since they w~e the r .. ,l/'I -. 1 s.c.R: SUPREME COURT REPORTS 971 main operative provisions of the Act, the whole Act was inI960 valid. Ileld, that when a statute authorises preventive action .gainst.the citizens, it is essential that it must expressly provide tlfat the specified authorities should satisfy themselves that the d>nditions precedent laid down by the statute existed before they acted thereunder. If the statute fails to do so in respect of any such condition precedent, that is an infirmity sufficient to take the statute out of Art. 19(5) of the Constitution. Although there can be no doubt that ss. 4 an.d 4-A of the impugned Act clearly contemplated. as the primary condition preced~nt to any action thereunder that the person sought to be proceeded against must be a goonda, they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever .in that regard 01 afford any opportunity to. the person proceeded against to show that he was not a goonda. The definition of a goonda laid down by the Act, which is of an inclusive character, indicated no tests for deciding whether the person fell within the first part of the definition. Gurbachan Singh v. The Slate of Bombay, [1952] S.C.R. 737, Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana, [1956] S:C.R. 533 and Hari Khenu Gawali v. The Deputy Commissioner of Police, Bombay, [1956] S.C.R. 506, referred to. Although the object of the impugned Act was beyond reproach and might well attract Art. i9(5) of the Constitution, since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid, the entire Act must fail. ## Text 970 SUPREME COURT REPORTS [1961) 196° the appellant's right is based a.re rules or regulations M having the force of law the impugned executive order adhavrao PhaJAe • ed b d t l Jd be · ) 'd Th · h 1ssu y respon en wou mva 1 • e rig t n, ;;ate of guaranteed to the appellant by an existing law canJt.dhya Bharat not be extinguished by the issue of an executive order. ·. - In fact on this point there has never been a dispute Ga1••dragadAar I between the parties in the present proceedings. That is why the only point of controversy between the parties was whether the Kalambandis in question amount to an existing law .or not. Since we have answered this question in favour of the appellant we must allow the appeal, set a.side the order passed by the High Court and direct that & proper writ or order should be issued in favour of the appellant as prayed for by him. The appellant would be entitled to his oosts throughout. Appeal allowed. THE STATE OF MADHYA PRADESH AND ANOTHER ti. BALDEO PRASAD (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDBA· GADKAB, K. SuBBJ RAo and K. N. WANCHOO, JJ.) GOOflllas, Conlrol and EJtcl11si011 of-Conslil11ti-Onal validity of enadment-Test-Central PrOl!inces and Berar G0011tlas Act, r946 (X of r946) a.s amerukd by Act XLIX of r950, ss. 4, 4-A-C011s· litllltOfl of IM.ia, Aris. r9(r}(d) & (e), IJ. By an order passed under s. 4-A of the Central Province. and Berar Goondas Act, 1946 (X o! 1946), as amended by the Madhya Pradesh Act XLIX of 1950, the State of Madhya Pra. desh directed the respondent to leave the district of Chhindwara, which bad been specified as a proclaimed area under the Act, and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the growul that the Act violated his lundamental rights under Art. 19o)(d) and (e) of the Constitution and was, therefore, invalidated' by Art. 13 of the Constitution. The HigJ> Court held that ss. 4 and 4-A of the impugned Act were invalid and since they w~e the r .. ,l/'I -. 1 s.c.R: SUPREME COURT REPORTS 971 main operative provisions of the Act, the whole Act was inI960 valid. Ileld, that when a statute authorises preventive action .gainst.the citizens, it is essential that it must expressly provide tlfat the specified authorities should satisfy themselves that the d>nditions precedent laid down by the statute existed before they acted thereunder. If the statute fails to do so in respect of any such condition precedent, that is an infirmity sufficient to take the statute out of Art. 19(5) of the Constitution. Although there can be no doubt that ss. 4 an.d 4-A of the impugned Act clearly contemplated. as the primary condition preced~nt to any action thereunder that the person sought to be proceeded against must be a goonda, they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever .in that regard 01 afford any opportunity to. the person proceeded against to show that he was not a goonda. The definition of a goonda laid down by the Act, which is of an inclusive character, indicated no tests for deciding whether the person fell within the first part of the definition. Gurbachan Singh v. The Slate of Bombay, [1952] S.C.R. 737, Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana, [1956] S:C.R. 533 and Hari Khenu Gawali v. The Deputy Commissioner of Police, Bombay, [1956] S.C.R. 506, referred to. Although the object of the impugned Act was beyond reproach and might well attract Art. i9(5) of the Constitution, since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid, the entire Act must fail. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 271 of 1956. Appeal from the judgment a.nd order dated August 2, 1955, of the former Nagpur High Court in Misc. Petition No. 249 of 1955 . . M. Adhikari, Advocate.General "for the State of Madhya Prade8h, B. K. B. Naidu a.nd I. N. Shroff, for the a.ppella.nts. R. Patnai.k, for the respondent. 1960. October 3. The Judgment of the Court we.a delivered by · The Sta.le of Madhya Pradesh c;. Anothet v. Bald10 Prasad GAJENDBAGADKAB J.-'J;hia appeal with &. oertifi, Goj1ndra1adhr J. ca.te iaaued by the Nagpur High Court under Art. 132(1) of the Ccnstitution raises a. question a.bout the validity of t~e Central Provinces and. Berar Goonda.s 972 SUPRK\IE cor;gr REPORTS [1961] i96o Act X of 1946 as amended by Madhya Pradesh Act n , XLIX of 1950. It appears that against the responMa;:,1~';::.;~,,, dent Ba.Iden Prasad the State of llfadhya Pradesh, ~ Ano1h" appella.11t l, pass('d a.n u1dn ou .June 16, 19:i!i, u11dcr v. s. 4-A oft.he Act. Subsequently the Dist.rid :'\lagi::11Jaldeo i'>arnd trate, Ch hind II' ara, a.ppellan t 2, passed a11uthcr ord~r G -- dated Juno 22, 1955, communicating to the rcspona;rnd•agadka•· j.d h fi · .J l . . ent t e rst. externment oruer pass(•c agarnst him. The respondent then filet.l a writ pdition in the High Court (No. 249 of 1955) nuder Art. 226 challenging tho validity of the said orders, inter alia, on the ground that the Act under which the said orders were passed was itself ultra vire:i. The appellants disputed the respondent's contention about the rires of the Act. The High Court, however, has upheld tho respondent's. plea and has held that ss. 4 and 4-A of the Act aro invalid, and since the two sections contain the main operative provisions of the Act, according to the High Court, the whole Act became invalid. It is the correctness of this conclusion whioh is challenged before us by the appellants. It would be convenient at this stage to refer briefly to the scheme of the Act and its relevant provisions. 'l'he Act was passed in 1946 and came into force on September 7, 1946. It was subsequently amended and the a.mend~d Act came into force on X ovember 24, 1950. As the preamble shows the Act was passed because it was thought expedient to provide for the control of goondas and for their removal in certain circumstances from one place to another. Section 2 defines a goonda as meaning a hooligan, rough or a ve.gabond and as including a person who is dangerous to public peace or tranquillity. It would thus be seen that the definition of the word "goonda" is an inclusive definition, and it includes even persons who may not be hooligans, roughs or vagabonds if they aro otherwise dangerous to public peace or tranquillity. Section 3(1) empowers the State Government toiissue a proclamation that distu~bed conditions exist or are likely to arise in the areas specified in such proclamations if tho State Government is satisfied that public pea.co or tranquillity in any area is disturl/ed or is , - • • ,. "\ < 1 S.C.R. SUPREME COURT REPORTS 973 likely to be disturbed. The area in respect of whieh I96o a proclamation is thus issued is described in the Act Th 5 . 1 as the proclaimed area. Section 3(2) limits the operaMad:ya'~:a~esh tion of the proclamation to three months from its & Another date and provides that it may be renewed by notifioav. tion from time to time for a period of three months at Baldeo Prasad · a time. The first step to be taken in enforcing the -- operative provisions of the Act thus is that a procla- Gajendragadkar f. mation has to be issued specifying the proclaimed areas, and the limitation on the power of the State Government to issue such a proclamation is that the proclamation can be issued only after it i~ ,;atisfied as required by s. 3(1); and its life will not be longer than three months at a stretch. Section 4 reads thus: "4(1). During the period the proclamation of emergency issued or renewed under Section 3 is in operation, the District Magistrate having jurisdiction in or in any part of the proclaimed area, if satisfied that there are reasonable grounds for believing that the presence, movements or acts of any goonda in t~e proclaimed area is prejudicial to the interests of the general.public or that a reasonable suspicion exists that any goonda is committing or is likely to commit acts calculated to disturb the public peace or tranquilli~y may make an order- (i) directing such goonda to notify his residence and any change of or absence from sμch 1residence during the' term specified and to report his movements in such manner· and to such authority as may be 1! pecified ; · • (ii) directing that he shall. not remain . in the proclaimed area within his Jurisdiction or any specified part thereof and shall not enter such area ; and (iii) directing .him. so to conduct himself during the period specified as the District Magistrate shall deem necessary in the interests of public order : . Provided 'that no order under clause (ii) which d,ireots the exclusion of any goonda from a place in w_hich he ordinarily resides aha.II be made. excJJpt with the previou·s approval of the State Government : · Provided further that no such order shall be l.24 974 SUPREME COURT REPORTS [1961] r96o made directing exclusion of any goonde. from the dis· T"' 51 1 trict in which he ordinarily resides. Madhya ~;a~csh (2) No order under sub.section (I) shall be ~ Anoth" made by a District Me.gistrate in respect of a goonde. v. without giving to such goonda e. copy of the groundij Baldeo Prasad on which the order is proposed to be me.de and with· G . - , out giving an opportunity to be heard: 4Jtndragadnar }. p 'd d th h h D" • M ' t ' f rov1 e at w ere t e 1str1ct ag1s rate 1s o opinion that it is necessary to make an order without e.ny delay he may for reasons to be recorded in writ· ing, make the order and shall, as soon as may be within ten de.ya from tho date on which tho order is served on the goonda concerned, give such goonda a copy of the grounds and an opportunity to be heard. (3) After hearing the goonda, the District Magis· trate may cancel or modify the order as he thinks fit ... This section confers on the District Magistrate jurisdiction to make an order against a goonda if there are reasonable grounds for bolioving that his presence, movements or acts in any proclaimed e.ree. is likely to be prejudicial to the inte.rests of the general public, or if there is a reasonable suspicion that a goonda is committing or is likely to commit prejudicial sots. Sub-clauses (i), (ii) e.nd (iii) indicate the nature of the directions and the extent of the restrictions which can be placed upon a goonda. by an order passed under s. 4. Sub-section (2) requires the District Ma.gistrate to give the goonda a copy of the grounds on which an order is proposed to be made, and to give him an opportunity to be heard why such an order should not be passed aga.inst him. The proviso to th" section deals with an emergency which needs immediate action. After hearing the goonda the District Magistrate may under sub-s. (3) either ca.nee) or modify the order a.s he thinks fit. Section 4-A ree.ds thus: · "(I) Where the District Magistrate considers that with a. view to maintain the pee.co and tranquil· lity of the proola.imed area in his district it is neoes· sary to direct a. goonda to remove himself outside the district in which the proclaimed area is compri.'6(1 C7I • ' ' r- •• ' • 1 S.C.R. SUPREME COURT REPORTS 975 to require him to reside or remain in any place or '960 within any area outside such district, the District The Stale of Magistrate may, after giving the goonda an opportu- Madhya Pradm nity as required by sub-section (2) of Section 4 forward & Anothir to the State Government a report together with conv. 9ected papers with a recommendation in that behalf. Balde• Prasad (2) On receipt of such report the State Govern- - 'f 't ' t' fi d th t th d t' Gajendragadkar J. ment may, 1 1 1s sa 1s e a e recommen a 10n · made by the District Magistrate is in the in~erests of the gerieral public, make an order directing such goonda- . (a) that except in so far as he may be permitted by the provisions of the order, or by such authority or persori as may be specified therein, he shall not remain in any such area or place in Madhya Pradesh as may be specified in the order; (b) to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may by specified in the order : Provided that no order shall be made directing the exclusion or removal from the State of any person ordinarily resident in the State." . Thus an order more stringent in character can be passed under this section. The safeguard provided by the section, however, is that . the District . Magistrate is rtrquired to give the· goonda an opportunity to be hear