# PREM CHAND GARG v. EXCISE COMMISSIONER, U. P. ALLAHABAD

- **Citation:** [1963] Supp. 1 S.C.R. 885
- **Court:** Supreme Court of India
- **Decided:** 1961-12-12
- **Bench:** B. P. Sinha, P. B. GAJllNDRAGADKAR, K. N. Wanchoo, K. C. DA8 GuPTA, j. C. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-chand-garg-v-excise-commissioner-u-p-allahabad-2754
- **Pages:** 28

## Headnote

Supreme Court-Writ Petition-Security for costs of r ...
pondent-Rule, validity of-Supreme Court R?tles, O.XXXV,
r. 12-Constit?ttion of India, Arts. 32 and 145.
Rule 12 of O.XXXV Supreme Court Rules empowers the
Supreme Court in writ petitions under Art. 32 to require the
petitioner to furr.ish security for the costs of the respondent.
The petitioner contended that the rule was invalid as it placed
obstructions on the fundamental right guaranteed under Art. 32
to move the Supreme Court for the enforcement of fundamental
rights.
Held, (per Sinha, C. ]., Gajendragadkar, Wancboo and
Das Gupta,JJ., Shah, J., contra), that r. 12 of O.XXXV Supreme
Court Rules is invalid in so far as it relates to the furnishing of
security. The right to move the Supreme Court under Art. 32
is an absolute right and the content of this right cannot be
circumscribed or impaired on any ground.
An order for furnishing security for the respondent's costs retards the assertion
or vindication of the fundamental right under Art. 32 and
contravenes the said right. The fact that the rule is discretion.
ary does not alter the position. Though Art. 142(1) empowers
the Supreme Court to pass any order to do complete justice
between the parties, the Court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the
Constitution. No question of inconsistency between Art. 142(1)
and Art. 32 arises as Art. 142 ( 1) does not confer any power on
the Supreme Court to contravene the provisions of Art. 32.
Nor does Art. 145 which confers power upon the Supreme Court
to make n1les, empower it to contravene the provisions of
Art. 32.
Ramesh Thapper v. State of MadrM, [1950] S. C.R. 594,
State of Madras v. V. G. Row, [1952] S. C.R. 597 and Daryao
y. State of U. P, [1962] 1 S. C.R. 574, relied 011.
1962
Nornt61r, 6.
1962
Prem Chand Garg
v.
~eire Oommissioner,
U. P., Allahabad
;apdT&gadkar, J.
886 SUPREME COURT REPORTS (1963] SUPP.
Kavalappara KotW.rathil K(J(Jhunni Moopil Nayar v. State
of Madras, [1959] Supp. 2 S. C.R. 316, explained.
Pandit M. S. M. Sharma v.
Shri Sri Krishna Sinka,
[1959] Supp. 1 S. C. R. 806, K. M. Nanavati v. State of
Bombay, [1961] 1 S. C.R. 497, distinguished.
Shah, J. -The impugned ruk is not void. The rule dOC!
not directly place any restriction upon the right of a litigant to
move the Supreme Court. It merely recognises the jurisdiction
of the Court, in appropriate cases, to make an order demanding
security.
It is not, in substance, a rule relating to practice and
procedure but it deals primarily with the jurisdiction of the
Court, which has its source in Art. 142 of the Constitution.
No question of conflict arises between the rule which merely
declares the jurisdiction of the Court defined by Art. 142 and
the right guaranteed under Art. 32. The provisions of Art. 142
and Art. 32(1) must be read harmoniously. Both being provisions in the Constitution, one cannot prevail over the other.
Pandit M. S. M. Sharma v.
Shri Sri Krishna Sinha,
[1959] Supp. 1 S. C. R. 806, relied on.
ORIGINAL JURISDICTION :
Petition No. 52 of
1962.
Petition under Art. 32 of the Constitution of
India for enforcement of fundamental right;.
G. S. Pathak, R. Gopalakrisk'OOn and Naunit
Lal, for the petitioners.
K. 8. Hajek! and 0. P. Lal, for the respondents
Nos. I & 2.
0. K. Dapktary, Solicitor-General of India,
B. R. L. Iyengar and R. H. Dkebar, for respondent
No. 3.
1962.
November, 6.
The
Judgment of
Sinha,
C. J., Gajendragadkar, Wanchoo and Das
Gupta, JJ., was delivered by Gajendragadkar, J.
Shah, J., delivered a separate Judgment.
GAJENDRAGADKAR, J.-This 'is a petition under
Art. 32 and it raises an mteresting and importiuit
I S.C.R. SUPREME COURT REPORTS
887
question about the validity of one of the Rules made
by this Court in exercise of its powers under Art. 145
of the Constitution. The impugned Rule is Rule 12
in Order XXXV. It provides that the Court may,
in the proceedings to which the said Order applies,
impose such terms as to costs and a

## Text

_Characters 0–39,805 of 59,410. This is a partial read: ask again with offset=39805 for what follows._

1 S.C.R. SUPREME COURT REPORTS
885
PREM CHAND GARG
v.
EXCISE COMMISSIONER, U. P.
ALLAHABAD
(B. P. SINHA, c. ]., P. B. GAJllNDRAGADKAR,
K. N. WANCHOO, K. C. DA8 GuPTA and
j. C. SHAH. JJ.)
Supreme Court-Writ Petition-Security for costs of r ...
pondent-Rule, validity of-Supreme Court R?tles, O.XXXV,
r. 12-Constit?ttion of India, Arts. 32 and 145.
Rule 12 of O.XXXV Supreme Court Rules empowers the
Supreme Court in writ petitions under Art. 32 to require the
petitioner to furr.ish security for the costs of the respondent.
The petitioner contended that the rule was invalid as it placed
obstructions on the fundamental right guaranteed under Art. 32
to move the Supreme Court for the enforcement of fundamental
rights.
Held, (per Sinha, C. ]., Gajendragadkar, Wancboo and
Das Gupta,JJ., Shah, J., contra), that r. 12 of O.XXXV Supreme
Court Rules is invalid in so far as it relates to the furnishing of
security. The right to move the Supreme Court under Art. 32
is an absolute right and the content of this right cannot be
circumscribed or impaired on any ground.
An order for furnishing security for the respondent's costs retards the assertion
or vindication of the fundamental right under Art. 32 and
contravenes the said right. The fact that the rule is discretion.
ary does not alter the position. Though Art. 142(1) empowers
the Supreme Court to pass any order to do complete justice
between the parties, the Court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the
Constitution. No question of inconsistency between Art. 142(1)
and Art. 32 arises as Art. 142 ( 1) does not confer any power on
the Supreme Court to contravene the provisions of Art. 32.
Nor does Art. 145 which confers power upon the Supreme Court
to make n1les, empower it to contravene the provisions of
Art. 32.
Ramesh Thapper v. State of MadrM, [1950] S. C.R. 594,
State of Madras v. V. G. Row, [1952] S. C.R. 597 and Daryao
y. State of U. P, [1962] 1 S. C.R. 574, relied 011.
1962
Nornt61r, 6.
1962
Prem Chand Garg
v.
~eire Oommissioner,
U. P., Allahabad
;apdT&gadkar, J.
886 SUPREME COURT REPORTS (1963] SUPP.
Kavalappara KotW.rathil K(J(Jhunni Moopil Nayar v. State
of Madras, [1959] Supp. 2 S. C.R. 316, explained.
Pandit M. S. M. Sharma v.
Shri Sri Krishna Sinka,
[1959] Supp. 1 S. C. R. 806, K. M. Nanavati v. State of
Bombay, [1961] 1 S. C.R. 497, distinguished.
Shah, J. -The impugned ruk is not void. The rule dOC!
not directly place any restriction upon the right of a litigant to
move the Supreme Court. It merely recognises the jurisdiction
of the Court, in appropriate cases, to make an order demanding
security.
It is not, in substance, a rule relating to practice and
procedure but it deals primarily with the jurisdiction of the
Court, which has its source in Art. 142 of the Constitution.
No question of conflict arises between the rule which merely
declares the jurisdiction of the Court defined by Art. 142 and
the right guaranteed under Art. 32. The provisions of Art. 142
and Art. 32(1) must be read harmoniously. Both being provisions in the Constitution, one cannot prevail over the other.
Pandit M. S. M. Sharma v.
Shri Sri Krishna Sinha,
[1959] Supp. 1 S. C. R. 806, relied on.
ORIGINAL JURISDICTION :
Petition No. 52 of
1962.
Petition under Art. 32 of the Constitution of
India for enforcement of fundamental right;.
G. S. Pathak, R. Gopalakrisk'OOn and Naunit
Lal, for the petitioners.
K. 8. Hajek! and 0. P. Lal, for the respondents
Nos. I & 2.
0. K. Dapktary, Solicitor-General of India,
B. R. L. Iyengar and R. H. Dkebar, for respondent
No. 3.
1962.
November, 6.
The
Judgment of
Sinha,
C. J., Gajendragadkar, Wanchoo and Das
Gupta, JJ., was delivered by Gajendragadkar, J.
Shah, J., delivered a separate Judgment.
GAJENDRAGADKAR, J.-This 'is a petition under
Art. 32 and it raises an mteresting and importiuit
I S.C.R. SUPREME COURT REPORTS
887
question about the validity of one of the Rules made
by this Court in exercise of its powers under Art. 145
of the Constitution. The impugned Rule is Rule 12
in Order XXXV. It provides that the Court may,
in the proceedings to which the said Order applies,
impose such terms as to costs and as to the giving of
security as it thinks fit.
One of the proceedings
covered by Order XXXV is a petition under Art. 32.
The petitioners
Prem Chand Garg, 8 Anr., partners
of M/s. Industrial Chemical Corporation, Ghaziabad,
have filed under Art. 32 petition No. 348 of 1961
impeaching the validity of the order pass.ed 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 respondents. 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
to the giving of security, is ultra vires, because it
contravenes the fundamental right guranteed to the
petitioners under Art. 32 of the Constitution.
That
is how the question about the validity of the said
Rule falls to be determined on the present application.
J§f2
p,.,,. Chand Garg
v.
Excise Commissiour,
U. P ., Allahabad
Gaj111dragdfilc11r, /.
1962
Prem Chand Garg
v.
~cise Commis.~iotur,
U. P., Allhabad
Gajeniragadkar, J.
888 SUPREME COURT REPORTS [1963] SUPP.
Article 32 (1) provides that the right to move
the Supreme Court by the appropriate proceedings
for the enforcement of the rights conferred by this
Part is guaranteed, and sub-Art. (4) lays down that
this right shall not be suspended except as otherwise
provided for by this Constitution. There is no doubt
that the right to move this Court conferred on the
citizens of this country by Art. 32 is itself a guaranteed right and it holds the same place of pride in the
Constitution as do the other provisions in respect of
the citizens' fundamental rights.
The fundamental
rights guaranteed by Part III which have been
made justiciable, form the most outstanding and
distinguishing feature of the ln:lian Constitution.
It is true that the said rights are not absolute
and they have to be adjusted in relation to the
interests uf the
general
public.
But as
the
scheme of Art. 19 illustrates the difficult task of
determining the propriety or the validity of adjustments made either legislatively or by executive action
between the fundamental rights and the demands of
socio-economic welfare has been ultimately left in
charge of the High Courts and the Supreme Court by
the Constimtion. It is in the light of this position
that the Constitution-makers thought it advisable to
treat the citizens' right to move this Court for the
enforcement of their fundamental rights as being a
fundamental right by itself. The fundamental right
to move this Court can, therefore be appropriately
described as the corner-stone of the democratic edifice
raised by the Constitution. That is why it is natural
that this Court should, in the words of Patanjali
Sastri, J., regard itself "as the protector and guarantor
of fundamental rights, "and should declare that "it
cannot, consistently with the responsibility laid upon
it, refuse to entertain applications seeking protection
against infringements. of such rights" (Vide RamRSh
Tluippl!r V.
'l'he State of Madras). (') In discharging the duties assigned to it, this Court has to play
(l) [1950] S.C.R. 59+, 597.
1 S.C.R. SUPREME COURT REPORTS
889
the role "of a sentinel on the qui vive" (Vide State
of Madra8 v. V. G. Row)('), and 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.) (').
Mr. Pathak for
the petitioners contends that
ti,~ right guaranteed
under Art. 32 (I) 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 gent'ral
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 super·
latives to emphasise its significance or importance.
Mr. Pathak however. conceded that the right
to move this Court can be validly regulated by rules
of precedure 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, he agrees that a rule can
be made that the petition proposed to be filed under
Art. 32 should be legibly written, or typed, before
it is filed, or that the relevant paper book should be
prepared in the. prescribed manner in order to facilitate the n;ference in Court, or that a notice should
be issut'd to the respondent, or for the making of the
affidavit in the prescribed manner. These rules, he
argues, can be legitimately made because they serve
to aid and facilitate a fair disposal of the petition
made by the petitioner on the merits. If, however, a
rule is made which retards or obstructs the petitioner's
attempt to assert his fundamental right under Art.
32, that rule J?USt be struck down as being violative
of Art. 32.
Hts argument 1s that the impugned rule
imposes upon the petitioners an obligation to deposit
(I) [1952] S.C.R. 5l7, 605.
(2) [l962J I s.c.R. 574, 582.
1962
Prem Chani Gert
v.
&ciJe Commissione~
U. P .• Al!ahahad
Gajendrago:lk•r, J
1962
Prem Chand Garg
v.
ExciJe CommiJsioner,
U. P., Allahabad
Gajendragadkar, J.
890 SUPREME COURT REPORTS [1963] SUPP.
a certain amount in Court as security for the respondents costs, and far from siding or assisting the petitioners' assertion of fundamental right, it has the
effect of retarding or obstructing the same. If, as in
this case the petitioners are unable to deposit the
security, their petition is liable to be dismissed for
non-prosecution.
That clearly illustrates the hardship that the rule will work, and thus brings ont how
it contravenes Art. 32.
On the other hand, the learned SolicitorGeneral who has appeared for the Registrar of this
Court, has argued that the rule cannot be said to
contravene Art. 32 becanse it is a discretionary rule
and it vests discretion in this Conrt either to make an
order as to the giving of the security or not to make
it, as it may deem fit according to the circumstances
of each case.
He conceded that for some time past
it has been the practice of this Court generally to
make an order as to security in Art. 32 petitions,
though in some cases, on the motion of the petitioner,
the amount of se<;urity has been reduced and sometimes security has even been dispensed with. But he
argues that if the prevailing practice is found to be
unsatisfactory or inconsistent with the spirit of the
rule itself, the remedy is to change the practice; tl.ere
is, however, no vice in the rule.
In a proper case,
security can be demanded from the petitioner because
that is the normal rule of procedure recognised by
the Civil Procedure Code.
In this connection, he
relied on the provisions of 0.25 r. 1 & 2 and 0.41
r. JO.
Like all judicial trials, even 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
tint the costs of the respondent should be secured, it
would be open to the Court to make an order of
~ecurity 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
1 S.C.R. SUPREME COURT REPORTS
\
'
I
-- !
-
n
'M'
891
argument, the Sqlicjtor-General relied upon the provisions of Art. 14q(l)(f) and more'Partic'ularly on the
wideJiow,er conferred.on this Court unaer":Att .. 14~_(1)
cif the Constitution.
He also suggeited that-~ueter
inining tqe effect of the' wide provisions of Art. 142,
we ought to adopt the tule of harmonious, cqnstruction
so as to reconc~le the said powers with..l'\tt. 32. ''
\
\
I
f I
•
If the present dispute hacl" been. confined to the
natrow ques1-io9
a_bou~ th!! ,construction of the impugned rule and. the iprop#ety o_r otherwise .of the
prevailing practicei. -~t wo_uld have become n~c;essary
for us to con$ider wheth~r;the rule can.- be said to be
.v&lid and th<;-practice prevaiiing lrreguiar in<1:5r114ch
.as in som"t). cases S!'!curity may -perl}aps haV!;' been
.deman~a fi:om th_e petitioner .withput full exan:iina-
• tioμ ;ur~to· ;the ,_speciaJ,.,.features.-0£ the case. J.n j:h,at
cas~, it·would li!!,ve ·be<win.c pec<issary alsq, to 'Consider
whether th.e rute-, cannflt Qt sustained in so ,fan1s it
, ves'ts. th~di$erctjon in,the'Jligh~st Co9rt,ofihis c.n/pti-y'
-.-and can be used o.nly in.s;ases 1-.wl).ere. fgr.,reason~ l~ke
those:contemplf).ted ]ly (Drdti;-25,r .. -1 & 2 .an.~ 9-~l
r. 10. an.order.,oi' ~ccprify;· js ,in:ade-.- In. -this COI:\lW,C·
tion,·two.rival conte9ti.ens haY,e_ beel) urg~EI ):ief9r~ ):IS·
·Mr,,, Pathak argues ,that the rule, is ver_y wide ai;id
would justify: , the m aki::ig -o~ <in, order for security
e.ven,in cases.which do not' >F\tisfy ,the teMs laid_ down
foi:-ipstancc1.<by 0.2() .r. l :and .0,41 r. io of the Code
.and )1e' argues ,that in sucli a,cas~ the rul~ must.be
-~truck-duw)l -as,a .whole:-
In.suppor.t of.his' conter.tion
Mr. Pathak has relied on the decisioG.' of this Court
in_ Ramesh Tlu~Jlp<lr 'v.
The. State of Madras('),
.R-ir.ta»[an' Ruq ·v.:!Pnf·,gtate r;f lFia,dliya )'radesh(') .
and )(f!<T(WShwa1', 'l'_ra-~qrJ; :~: .~tape ,_o.f _B~~ar_('), On
, ~h,e o_th~i; hip;1d, ~he Sohc1tor;GenefaJ.cpnte'nds; that
;t,he~mlr.-~~qtifdnbe ~o.cd9sttue'd as't'o· enable 'thi~.- ('.jqurt
.to m,;iKe.~rdern o,f secu_ntY._tmly' in 'P'rot>~r casd aiid tm
)hP,~'.par,r;,qw ,~9.\lsl~ucti.9.1'( it~ vali\iit'y 1~oul'd'B'e ti1:i'f1elcL
)fr· in spri\e c;<ises. qrders have heeh
pa'.~sed)'vithout a
fo, l eilaminati~n· of _the· niel\iJs df' the _tp.l\!stior\, tJ\at
·
pi r1?.so1J ~-~~ s9t,'591;
·
<2!:r1~~0J_'s.c.R.'7s9.
CS) [lll62)..Sppf" 3 $.~,~- 369.
I
I
19~2
Pr1m '·chand G'aTg
v.
,Excis1
Commission~
V· ! ., A.Uahaha'
paj1nrlragadkar, J
1962
l'rnn Cl1ind Gart
v.
Euisl G6mmissie111e,,
U. P., AtWwo••
~•,.1dk•r, J.
892 SUPREME COURT REPORTS [1963] SUPP.
Il'l.ay only mean that. the said orders may not have
been properly passed under the rule. The exercise of
the power conferred on the Court in such cases will
nc;it, however, invalidate the rule itself. In support
of this argument, reliance has been placed on the decisions of this Court in the cases of R.M.D. ChamarbaU{lwaUa v. The Union of lndia(1) and Kedar Nath
Singh v. State of Bihar(').
As we have just indicated, it would have become
necessary for us to examine these contentions if the
power to make an order for security in appropriate
cases had been conceded by the petitioners.
But
since the existence of th(' power is disputed, we have
to decide the larger i~sue raised by Mr. Pathak. Mr.
Pathak argues that even in cases to which the relevant
provisions of 0.25 and 0.41 may ordinarily apply, this
Court has no power to make an order of security in a
petition under Art. 32.
The only test, says Mr.
Pathak, which can be legitimately applied in dealing
with the matter is : <loes the rule aid or assist the
assertion or vindication 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 decisicn of this Court in the case of Kavalappara
Kottarathil Kochunni Moopil Nayar v. The State of
.Madras('). 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 u1:1der Art. 32 cannot be rejected on t~e simple ground th~t the ~eti
tioner has an alternative remedy open to him. 1 hen
(1) [1957] S.C.R.. 930.
(2) [1962] Supp. 2 ~.C.R. 769.
(3) [195!1J 2 S.C,R. 316, 535,
I S.C.R.
SUPREME COURT RB.PORTS
89:!
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 tlis-
~:mted questions of fact, and in answering this question
m the negative, he has stated his conclusion in these
words : "But we do not countenance the proposition
that, on an application under Art. 32, this Court may
decline to entertain the same on the simple ground
that it involves the determination of disputed questions of fact or on any other ground." It is on the
last clause of tl:e sentence that Mr. Pathak relies. He
contends that the statement of the learned C. J., is
categorical that a petition under Art. 32 cannot be
dismissed on the ground that it involves the decision
of disputed questions of fact or on anv other ground,
and that excludes the ground of non-payment of
security. We do not think that this argument is wellfounded. The words "or on any other ground" on
which the argument rests, cannot be torn from their
context. The context shows that 'any other ground',
which the learned C. J., had in mind must be similar
to the ground which he had enumerated before using
the said clause. Take, for instance, the case of a
petition which ·is barred by res judicata. This Court
has held that the principles of res judicata apply to
petitions under Art. 32 (Vide Daryao v. The St,ate
of U. P.) ('). Take also the case where a petition
under Art. 32 would be liable to be dismissed on the
preliminary ground that it purports to challenge an
order of assessment made by an authority under a
taxing statute which is intra vires, on the sole ground
that it is based on a mis-construction of a provision
of the Act or of a notification issued thereunder,
Vide Smt. Uiiam Bai v. The State of Utt,ar
Pradesh('). If the words "or on any other ground"
used by Das, C. J., are literally construed, they would
have to be treated as inconsistent with these subsequent decisions. That, however, is plainly not the
true position and so, the argument based on the said
words used by Das, C. J., cannot, in our (ilpinion, be
(I) [1962] I s.a.R. SM, 582,
(2) [196.!] I S.a.R. 778,
1'02
Prim Chand G•r
v.
ExciJe C.mmi.ssi•n
U. P., All•hd"
G•jmir•z•ik•r, J
1962
Prem Chand Garg
v.
Excise Commissioner
U.P., Allahabad
Gajendragadkar1 J.
894 SUPREME COURT REPORTS [1963j SUPP.
accepted.
It would, we think, be unfair to assume
that in using the words "or on any other ground"
this Court wanted to imply, as Mr. Pathak seems to
assume, that once a petition is made under Art. 32,
there is no alternative but to consider its merits apart
from considerations like res j udicata or the competence
of the petition itself.
Therefore, the argument that
the rule is inconsistent with the decision in Kockunni
Jllloopit Nayar's(') case must be rejected.
The next 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. 0.4-1 r. 10 confers on
the appellate Court discretion to demand from the
appellant security for the costs of the appeal or of tl1e
original suit or of both in somewhat similar circumstances.
Now if an order is made calling upon the
petitioner to furnish security in cases similar to those
~overed by 0. 25 r. 1 and 0. 41 r. IO, would it not
be reasonable to say that the order of security would
retard the assertion or vindication of the fundamental
right ? The order imposes on
the petitioner a
financial obligation and if he is not able to comply
(I) [1959] 2 S.C.R. 316, 335,
l S.C.R.
SUPREME COURT REPORTS
895
with the order, his petition would fail. In our opinion,
there is no doubt that an order of securitv for the
respondent's costs would, in some cases effectively bar,
and in all cases amount to a hindrance
in, the
further progress of the petition. It cannot be said
that the said order aids a fair hearing of the petition
like the order prescribing the manner in which the
paper booki> have to be prepared, or other steps in
connection with the petition have to be taken.
It
may be conceded that the order is intended to prott ct
the interest of the respondent and in that sense, may
be treated as fair; but the fairness of the order or of
the object intended to be achieved by it will not
disguise the fact that its effect is not to aid the
petition but to retard it to some extent. In consi<lcring
the constitutionality of the -order or the rule which
permits the order to· be made, the fact that the
object intended to be achieved is good, just or
unexceptionable would be immaterial, vide the 8 l!ite
of Bombay v. Bombay Eduwtion. Sooiety(1) and Pwnjrib
Province v. Daulat Singh('). Therefore, we do not see
how it is possible to escape the conclusion that the
order for security retards the assertion or vindication
of the fundamental right
under Art. 32 and in
that sense, must be held to contravene the said
right.
It is true that the statistics of the Art. 32 petitions filed in this Court during the last decade may
sh~w that the majority oi the petitions are fikd bv
citizens who complain about the contravention o'f
their. fundamental right u.n~er Art. 19(l)(f) and (g)
and m that. ~ense, the validity of the impact of 'he
welfare policies cf the States or the Union Government on the property rights of the citizens has more
frequently .fallen to be considered by
this Court.
Contravent10n of fundamental rights in respect of ihc
freedom of speech and expression, and the
freedom to
form assemblies, associations or Unions
which some jurists d~scribe as "pre!Crred freed;ms';
1962
Prem Chand Garg
v,
Excise Commissioner,
U. P., All•ha\ad
GajendrrZgadkar 1 J,
( l) [1955] l S.C.R. 568, 583,
(2) (1946) LR. 73 LA.,;~, 74,
1961
PHI/I CM11d Garg
v.
Ex"ciu Commirrinu,
U. P., J.11 ahablJd
Gsjnrdra1Mkar, J.
896 SUPREME COURT REPORTS [1963] SUPP.
has not given rise to as many petitions as the contravention of property rights has, and in that ser.oe; 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
an order, the fact that the petitioner may be able to
comply with lhe 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 SolicitorGeneral 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 a11d
since they constitute the constitutional charter of
this Court's powers, they must be very liberally construed. This contention is undoubtedly well founded.
Article 142(1) provides that in exercise of its jurisdiction, this Court may pass such decree or make such
order as is necessary for doing complete justice in any
cause or matter pending before it; and it adds that a
decree or order so made shall be enforceable throughout the territory of India in the manner prescribed by
any law made by Parliament and, until provision in
that behalf is so made, in such manner as the President
may by order prescribe. The Solicitor-General wants
us to compare Art. 142(1) with Art. 194(3) and he
suggests that just as the powers, privileges and immunities specified by the latter Article are not subject to
the provisions in respect of fundamental rights, so is
the power specified by Art. 142 (1) not subject to the
said rights.
I S.C.R. SUPREME COUltT REPORTS
897
In support of this arguaent, he has relied on
the decision of this Court in the case of Pandit
M. S. Jf. Sharma v. Skri Sri Krishna Sinha (').
It may be recalled that
Art. 194 deals
with
the powers, privileges and immunities of State Legislatures and their members and Art. 194(3) provides
that in other respects, the powers, privileges and
immunities shall be such as may from time to time
be defined by the Legislature by law, and until so
defined shall be those of the House of Commons of
the Parliament of the United Kingdom, and of its
members and committees, at the commencement of
this Constitution. The effect of this provision is that
until law is made in that behalf, the powers enjoyed
by the members of the House of Commons and its
Committees at the commencement of this Constitution
shall continue to be enjoyed by the members of the
State Legislatures and their committees. One of the
points which fell to be considered by this Court in the
case
of
Sharma (1 ),
was whether the
rights,
powers and privileges of the members of the House
of Commons which could be claimed by the members
of the State Legislatures had to stand the scrutiny of
the test prescribed by Art. 19. In other words, if it
appears that the said rights were inconsistent with the
provisions of Art. 19(1), had the said rights to yield
before
the fundamental
rights
guaranteed by
Art.19(1); and this Court held that Art. 19(l)(a) and
Art. 194(3) have to be reconciled and the only way
of ;econciling the same is to read Art. 19(l)(a) as
subject to the latter part of Art. 194(3) just as
Art. 31 has been read as subject to Art. 265 in the
earlier decisions of this Court. In other words the
effect of this decision is that if there is a co~flict
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 provisio11S of Art. l!(l)(a).
(I) [1959] i S.C.R. 806, 859-860.
1952
Prem 01-l Gorz
v.
&cis1 Cmnmi#imur,
U. P., .41Wuihad
1962
Prem Ohand Gari
v.
Etcis1 Oommissioner
U. P., Alfa/uJ/Jad
Ga}mdrazadkar, J.
898 SUPREME COURT REPORTS [1963] SUPP.
Basing himself on this decision, the SolicitorGeneral argues that the power conferred on this Court
under Art. 142( I) 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 ul).der 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 Bharma (1)
and its effect. The actual
decision was
that
the rights claimable
under the
latter part of
Art. 194(3) were not subject to Art. I9(l){a), because
the said rights had been express! y provided for by a
Constitutional provision, viz., Art.
194(3), and it
would be impossible to hold that one part of the
Constitution is inconsistent with another part. The
position would, however, be entirely different if the
State Legislature was to pass a law in regard to the
privileges of its members. Such a law would obviously have to be consistent with Art. 19(l)(a). If any of
the provisions of such a law were to contravene any
of the fundamental rights guaranteed by Part III,
they would be struck down as being unconstitutional.
Similarly, there can be no doubt that if in respect of
petitions under Art. 32 a law is made by Parliament
as contemplated by Art. 145(1), and such a law, in
substance, corresponds to the provisions of 0.25 r. 1
or 0.41 r. 10, it would be struck down on the ground
that it purports to restrict the fundamental right
guaranteed by Art. 32. The position o~ an order
made either under the rules framed by this Court or
under the jurisdiction of this Court under Art. 142(~)
can be no different. If this aspect of the matter 1s
borne in mind, there would be no difficulty in rejecting
(I) [1959] I S.O.R, 806, 859-860.
1 S.C.R.
SUPREME COURT REPORTS
899
the Solicitor-General's argument ba~ed on Art. 142(1).
The
P?wers
of this
Court
are
no
doubt
very wide and they are intended to be and will always be exercised in the interest of justice. But that
is not to say that an order can be made by this Court
which is inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. An order
which this Court can make in order to do complete
justice between the parties, must not only be consistent with the fundamental rights guaranteed by the
Constitution, but it eannot even be inconsistent with
the substantive provisions of the relevant statutory
laws. Therefore, we do not think it would be possi·
ble to hold that Art. 142(1) confers upon this Court
powers which can contravene the provisions of Article 32.
In this connection, it may be pertinent to point
out that the wide powers which are given to this Court
for doing complete justice between the parties, can
be used by this court for instance, in adding parties to
the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time.
It is
plain that 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 harmo·
nious_ cons.truction.
In this connection, we ought to
bear m mmd 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
1962
Prem Chand Garg
v.
&cise Cammission1r,
U. P., Allahabad
GajendrogadktJr, J.
19i2
p,.,. CAai Gari
v.
&ti.re CommWiour,
U. P., J.ll•habad
Gaj1ndrogodkM, J,
900 SUPREME COURT REPORTS [1963] SUPP.
law, much less, inconsistent with any Constitutional
provisions. There can, therefore, be no conflict between Art. 142(1) and Art. 32. In the casr of K. 1ll.
Nanavati v. The State of Bombay(') on which the
Solicitor-General rdics, it was conceded, and rightly,
that under Art. 14-2(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 Court under the said Article and that vested in
the Governor of the State under Art. 161. The possibility of a conflict between these p0wers necessitated
the application of the rule of harmonious construction. The said rule ca11 have no application to the
present case, because on a fair construction of Att.
142(1). This Court has no power to circumscribe the
fundamental right guaranteed under Art. 32. The
existence of the said power is itself in dispute, and so,
the present case is clearly distinguishable from the
case of K. M. Nanavati(1).
Let us now consider whether a rule can be made
under Art. 145(1) providing for the making of an
order for furnishing security in cases of petitions under
Art. 32 where the Court is satisfied that in case the
petition fails, the petitioner may not be able to pay
the costs of the respondent. The impugned rule is
presumably based upon the provisions of Art. 145(1)
(f). It may be assumed that the expression "costs of
and incidental to any proceedings in the Court" used
in clause (f) may cover in order of security ; but if an
order for securitv amounts to a contravention of
Art. 32, there woiild be no power to make such a rule
under Art. 145(1)(£). After all, rules framed under
Art. 145 are in exercise of the delegated power of
legislation, and the said power cannot be exercised so
as to affect the fundamental rights. If the wide words
•
used in Art. 142 cannot justify an order of security in
1
an Art. 32 petition, it follows that a rule made under
...
Art. 145 cannot authorise the making of such an order.
We ought to add that cases of frivolous petitions filed
(I) (1961] I s.c.R. 497.
I S.C.R.
SUPREME COURT REPORTS
901
under Art. 32 can be eliminated at the preliminary
hearing of such petitions. Since 1959, petitions filed
under Art. 32 arc set down for a prcl iminary hearing
and it is only after the Court is satisfied that a prima
facie case has been made out by the petitioner that a
rule Nisi is ordered to be issued against the respondent. In order to decide this question, sometimes
notice is issued to the respondent even at the preliminary hearing and it is after hearing the respondent
that a rule is issued on the petition. It may be that
in some cases, the respondent may not be able to recover its cost£ from the petitioner even if the petition
is dismissed on the merits. But that, in our opinion,
cannot justify the making of an order for security,
because even impecunious citizens, 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 mov~ this Court in case their fundamental rights are contravened, and following the
analogy 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 stage or after their final decision, and
no objection can be taken against such orders on the
ground that they contraven~ Art. 32. In a proper
l
'
;
i
Prem Chand Garg
v.
Excise Commissioner,
U. P., A/lahdbad
Gajendr!Jgadkar, J,
•
1962
Prem Clland Garg
v.
Exci.t1 Commissitmer,
U. P., dllahabad
Gaj1ndra1adkar, J.
902 SUPREME COURT REPORTS [1963]SUPP.
case, proceedings threatened against the petitioners
may be stayed unconditionally or on condition or may
not be stayed, or a Receiver may be appointed in
respect of the property in dispute, or at the end of the
final hearing if the petition fails, the petitioner may
be ordered to pay the costs of the respondent.
All
these are m~tters whose validity cannot be challenged
on the ground that they contravene Art. 32. But if a
rule or an order imposes a financial liability on the
petitioner at the thresh-hold of his petition and that
too for the benefit of the respondent, and non-compliance with the said rule or order brings to an end the
career of the said petition, that must be held to constitute an infringement of the fundamental right
guaranteed to the citizens to move this Co11rt under
Art. ~2. That is why we think Rule 12 in respect of
the imposing of security is invalid.
There is another aspect of the matter to which
reference must incidentally be made. The rule is
obviously intended to secure the costs of the respondent in a proper case.
Let us see how this rule will
work if it is interpreted and acted upon in the
manner suggested by the learned Solicitor-General.
In practice, at present, an order of security is nor·
mally made unless a request is made by the petitioner
either for the reduction of the amount or for dispens·
ing with the security altogether. If the petitioner is
not impecunious, an order for security will not serve
any essential purpose, because if the costs are award·
ed against him after the final hearing, the respondent
may be able to secure his costs. If, however, the
petitioner is impecunious, the Court may not, after
granting a rule on the petition, in its discretion, pass
an order· of security and in that sense, the very object of securing the respondent's costs would not be
served. It is true that if the discretion is exercised
by the Court in favour of impecunious petitioners and
orders for security are not passed in their cases, no
hardship will be callSCd to them. But it seems to us
t S.C.R.
SUPREME COURT REPORTS
903
that what would be left to the discretion of the Court
on this construction of the rule, is really a matter of
the right of impecunious petitioners under Art. 32.
That is why we think that the impugned rule in so
far as it relates to the giving of security cannot be
sustained.
In the result, the pet1t10n is allowed and the
order passed
against the p'etitioners on December
12, 1961, calling upon thepi• 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.