# May 22 il84 SUPREME COURT REPORT8 NAIN SUKH DAS AND ANOTHER v. THE STATE OF UTTAR PRADESH AND OTHERS

- **Citation:** [1953] 1 S.C.R. 1184
- **Court:** Supreme Court of India
- **Decided:** 1951-11-02
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/may-22-il84-supreme-court-report8-nain-sukh-das-and-another-v-the-state-of-106
- **Pages:** 5

## Headnote

•
•
1953
May 22
il84
SUPREME COURT REPORT8
NAIN SUKH DAS AND ANOTHER
v.
THE STATE OF UTTAR PRADESH
AND OTHERS.
[i953]
[PATANJALI SASTRI C.J., MuKHERJEA, S. R. DAs,
GHULAM HASAN and BHAGWATI JJ.]"
Constitution of India, 1950, Arts. 14, 15(1), 32-},fonicipal
election -Election on the basis of comin,ina1 electorates-Va1idityApplication tinder Art. 32 for writ to prevent elected candidates
from
sitting on the Board-Mciintaincib-ility-Remedy of ratepayers.
The petitioners,
who were residents of a municipality,
alleging that they had been deprived of their rights to exercise
their votes and to seek their election as candidates in certain by.
elections to the Municipal Board, as those by-elections were held
on communal lines on the basis of separate electorates contrary
to the provisions of the Constitution, applied for writs under
art. 32 of the Constitution for preventing the elected candidates
from acting as members of the Board, and the District Magistrate
and Civil Judge from holding any meetings of the Board:
Held, that, though a law which provides for elections on the
basis of separate electorates for members of different religions
communities offends against art. 15(1) of the Constitution and an
election held after the Constitution in pursuance of such a law
subject to cl. 4 would be void, the right which the petitioners
claimed as rate-payers in the municipality to insist that the
Board should be legally constituted and that persons who have
not been properly elected should not be allowed to take part in the
proceedings of the Board was outside the purview of art. 32 of
the Constitution inasmuch as such a right, even if it existed, was
not a fundamental
right
conferred by
Part III of
the
Constitution.
Held f1!rther, that the alleged infringement of the fundamental rights of the petitioners under art. 15(1) and art. 14, that
is, the discrimination practised against them related to rights
which they in fact never sought to exercise and took no ste1~s to
assert while there was occasion for doing so and the petitioners
were therefore entitled to no
relief under art· 32 of the
Constitution.
ORIGINAL JURISDICTION: Petition No. 69of1953.
Petitiop under article 32 of the Constitution for
enforcement of fundamental rights.
•
•
8.C.R.
SUPREME COURT REPOR'l'S
li85
S. 0. Isaac;s (Ja·i Prasad Agarwal, with him) for
the appellant.
K. B. Asthana, for respondent No. 1.
S. P. Sinha (R. Patnaik, with him) for respondent
No. 4.
1953. May 22.
The Judgment of the Court was
delivered by
• •
1953
-.Vain Sukh Das
and Another
v.
':Phe State of
UUar Pradesh
a.nd Others.
P
S
,. J
'Th'
.
1.
.
Patanjali Sa.tri
ATANJALI
ASTRI V• .-
JS IS an app 1cat10n una. J.
der article 32 of the Constitution seeking protection of
the petitioners' fundamental right under article 15 ( 1)
against alleged violation thereof by the respondentB.
The petitioners are three residents of Etah in Uttar
Pradesh. They complain that at the by-elections to
the Municipal Board of Etah held on November 2,
1951, December 8, 1951, and March 17, 1952, at which
respondents 4, II and 12 were respectively elected, the
petitioners were deprived of their rights to exercise
their votes and to seek their election as candidates, as
thosr by-elections were held on communal lines on the
basis of separate electorates rnntrary to the provisions
of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board
by the Government was an illegal exercise ofits powers,
as the interest which that respondent was nominated
to represent in the Board was already sufficiently represented. The petitioners accordingly pray for the issue
of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, II and
12 to show under what authority they are acting as
members of the Board and to prevent them from acting as such mem hers. The petitioners also ask for writs
on the District :Magistrate and the Civil Judge ofEtah,
respondents 2 and 13 respectivel

## Text

•
•
1953
May 22
il84
SUPREME COURT REPORT8
NAIN SUKH DAS AND ANOTHER
v.
THE STATE OF UTTAR PRADESH
AND OTHERS.
[i953]
[PATANJALI SASTRI C.J., MuKHERJEA, S. R. DAs,
GHULAM HASAN and BHAGWATI JJ.]"
Constitution of India, 1950, Arts. 14, 15(1), 32-},fonicipal
election -Election on the basis of comin,ina1 electorates-Va1idityApplication tinder Art. 32 for writ to prevent elected candidates
from
sitting on the Board-Mciintaincib-ility-Remedy of ratepayers.
The petitioners,
who were residents of a municipality,
alleging that they had been deprived of their rights to exercise
their votes and to seek their election as candidates in certain by.
elections to the Municipal Board, as those by-elections were held
on communal lines on the basis of separate electorates contrary
to the provisions of the Constitution, applied for writs under
art. 32 of the Constitution for preventing the elected candidates
from acting as members of the Board, and the District Magistrate
and Civil Judge from holding any meetings of the Board:
Held, that, though a law which provides for elections on the
basis of separate electorates for members of different religions
communities offends against art. 15(1) of the Constitution and an
election held after the Constitution in pursuance of such a law
subject to cl. 4 would be void, the right which the petitioners
claimed as rate-payers in the municipality to insist that the
Board should be legally constituted and that persons who have
not been properly elected should not be allowed to take part in the
proceedings of the Board was outside the purview of art. 32 of
the Constitution inasmuch as such a right, even if it existed, was
not a fundamental
right
conferred by
Part III of
the
Constitution.
Held f1!rther, that the alleged infringement of the fundamental rights of the petitioners under art. 15(1) and art. 14, that
is, the discrimination practised against them related to rights
which they in fact never sought to exercise and took no ste1~s to
assert while there was occasion for doing so and the petitioners
were therefore entitled to no
relief under art· 32 of the
Constitution.
ORIGINAL JURISDICTION: Petition No. 69of1953.
Petitiop under article 32 of the Constitution for
enforcement of fundamental rights.
•
•
8.C.R.
SUPREME COURT REPOR'l'S
li85
S. 0. Isaac;s (Ja·i Prasad Agarwal, with him) for
the appellant.
K. B. Asthana, for respondent No. 1.
S. P. Sinha (R. Patnaik, with him) for respondent
No. 4.
1953. May 22.
The Judgment of the Court was
delivered by
• •
1953
-.Vain Sukh Das
and Another
v.
':Phe State of
UUar Pradesh
a.nd Others.
P
S
,. J
'Th'
.
1.
.
Patanjali Sa.tri
ATANJALI
ASTRI V• .-
JS IS an app 1cat10n una. J.
der article 32 of the Constitution seeking protection of
the petitioners' fundamental right under article 15 ( 1)
against alleged violation thereof by the respondentB.
The petitioners are three residents of Etah in Uttar
Pradesh. They complain that at the by-elections to
the Municipal Board of Etah held on November 2,
1951, December 8, 1951, and March 17, 1952, at which
respondents 4, II and 12 were respectively elected, the
petitioners were deprived of their rights to exercise
their votes and to seek their election as candidates, as
thosr by-elections were held on communal lines on the
basis of separate electorates rnntrary to the provisions
of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board
by the Government was an illegal exercise ofits powers,
as the interest which that respondent was nominated
to represent in the Board was already sufficiently represented. The petitioners accordingly pray for the issue
of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, II and
12 to show under what authority they are acting as
members of the Board and to prevent them from acting as such mem hers. The petitioners also ask for writs
on the District :Magistrate and the Civil Judge ofEtah,
respondents 2 and 13 respectively, directing them not
to hold or permit the holding of any meeting of the
Board which is said to be illegally constituted.
Now, it cannot be seriously disputed that any law
providing for elections on the basis of separate electorates for members of different religious communities
offends againRt article 15 (1) of the Constitution which
runs thus:
·
•
•
•
1186
8UPREiVIE COURT REPORT8
tl95:JJ
IVJJ
"15. (1) The State shall not discriminate against auy
. -
citizen on grounds only of religion, race, caste, sex,
Nain Snkh Das l
f b' h
f h
,,
and Another p ace o
1rt or any o t em.
v.
This constitutional mandate to the State not to disTh• State of criminate against any citizen ou the ground, inter alia,
Uttar Pradesh
f
l' .
1
]
t
d t
l't' ]
11
t
t]
.
and Other•.
o re 1g10n c ear y ex ~n H ·o po.' .1~a as we as o .o
1~r
rights, and any elect1011 held atter the Const.itut10n rn
Paranjali SaMri pursuance of such a law subject to "1ause (4) must be held
c. J.
void as being repugnant to the Constitution.
But the
question is whether the petitioners are now entitled to
the relief they seek in this application under artide :J2.
It is true, as pointed out in the Cross Roads casc(1 ),
that article :J2 provides, in some respects, for a more
effective remedy through this court than article 226
does through the High Courts.
But the scope of the
remedy is clearly narrower in that it is restricted solely
to enforcement of fundamental rights conferred by
Part III of the Constitution. Any right, for instance,
which the petitioners may have as rate-payers in the
;}funicipality to insist that t.he Board should be legally
const,ituted and that respondents 3, 4, 11 and 12, who
are not properly elected or nominated members, should
not be permitted to take part in the proceedings of the
Board, is outside the purview of article :J2, as such
right, even if it exists, is not a fundamental right conferred by Pa.rt III.
Petitioners' learned counsel, however, uontended
that the fundamental right conferred by a.rticle 15 (1)
on the petitiont'rs a.s citizens oi' India was violated by
the elections in question having been held on a basis
which discriminated against the petitioners on the
ground of their religion in that it precluded them from
exercising their franchise in relation to all the candidates and from contesting the elections without regard
to the reservation of seats on communal basis. Learned
counsel also submitted that the delimitation of the
constituencies on communal lines was a denial of
equality to the petitioners in the matter of their political
rights and in that respect also
infringed their
(1) [1950] S.C.H.· 594·
•
•
•
• •
S.C.R.
SUPREME COURT REPORTS
1187
fundamental ri~ht under article 14. We are unable to
1958
accede to theRe contentions.
" . 8 kh
.-.\ain u. Da8
It is plain that the fundamental right conferred by
and Another
article 15( 1) is conferred on a citizen as an individual
v.
and is a guarantee against his being subjected to disThe State ~f
crimination in the matter of the rights, privileges and Uttor Prad'8h
...,.
and Others,
immunities pertaining to him as a citizen generally. It
is not the petitioners' ease that any discrimination is i'ntnnjnli sa,1,.;
now being practised or threatened against them. Their
o. J.
grievance iK that the mode of election by separate
electorates formed on communal lines involved dist·.rimination against them in relation to seats other than
those reserved for their respective eommunities as to
which they <:ould not exercise their right to vote or
their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those
rights by taking appropriate proceedings to have the
bar removed and the election conducted in accordance
with the Constitution. In fact, the petitioners acquiesced
in the elections being conducted under the old
system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former
Chairman who has since lost his seat as a result of that
motion having bePn carried. Thus, the infringement of
their fundamental rights under article 15( 1) and article
14, that is, the discrimination practised against them,
of which they now complain, related to rights which
they in fact never sought to exercise and took no steps
to assert, while there 'ms still room for doing so, and
for the exercise of which the opportunity is now lost.
But, argues Mr. Isaacs, the elention of the respondents
4, 11 and 12 being void, they are no better than usurpers, and tlw petitioners are entitled to prevent them
from functioning as members of the Municipal Board.
It may be, as we have already remarked, that the petitioners could daim such relief as rate-payers of the
Municipality in appropriately framed proceedings, but
there is no question of enforcing petitioners' fundamental right under article 15(1) or article 14 in such
chim, Tlwn' is still less ground for seeking rclief o~
•
•
•
1953
1188
SUPREME COURT REPORTS
[1953]
that basis against respondent 3 who is pnly a nominat·
ed member.
N ain Sukh Da/J
and Another
The petitioners appear to have misconceived their
v.
The State of
U ttar Pradesh
and Others.
Patanjali Sastri
0.J.
1953
.ilfay 22
remedy and their application under article 32 must
fail.
The petition is dismissed with costs, one set.
Petition dismissed.
Agent for the petitioners: K. L. 11fehta.
Agent for respondent No. 1 : 0. P. Lal.
Agent for respondent No. 4: S. P. Varma.
RAO SHIV BAHADUR SINGH AND ANOTHER
v .
THE STATE OF VINDHYAPRADESH.
PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE,
GHULAM HASAN and JAGANNADHA DAS JJ.
Constitution of India, 1950, Art.1. 14, 20-Acts committed in
Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII
of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr>
Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V
of 1949) -Validity of trial and conviction-F\tncla.>nental rights to
equality of laws and against conviction nnrler ex post facto lawScope of Arts.14 and 20-Integration of States and Vi·ndhwi Pradesh Ordinances, effect of.
The appellants, who were during the relevant period, the
~Iiuister for Industries and Secretary to the Government respectively of the State of Vindbya Pradesh, were tried by a Special
Judge under the Vindhya Pradesh Criminal Law Amendment
(Special Courts) Ordinance (No. V of 1949) for charges under
ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted
by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts
alleged against them being that they entered into a conspiracy in
February, 1949, at Rewa to obtain illegal gratification for revoking
a previous Government Order and in pursuance of that conspiracy
the second appellant domanded such gratification on 8th March,
1949, at Rewa and the first appellant received Rs. 25,000 towards
it on the 11th April, 1949, at New Delhi and forged certain documents purporting to be official orders.
They were acquitted by
the Special Judge but on appeal the first appellant was convicted
by the Judicial Commissioner 011 all t.he charges and the second
•ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian
•