# STATE OF PUNJAB AND ANR v. KHAN CHAND December 17, 1973

- **Citation:** [1974] 2 S.C.R. 768
- **Court:** Supreme Court of India
- **Decided:** 1973-12-17
- **Bench:** A. N. Ray, H. R. Khanna, K. K. Mathew, A. Alagiriswami, P. N. Bhagw~Ti
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-and-anr-v-khan-chand-december-17-1973-6183
- **Pages:** 19

## Headnote

Constitution of India, 1950, A.rt. 14-11 s. 2 of the East . Pun/ab Movable
Property (Req14/sltlonlng) A.ct, (15 of 1941) Is violative of A.rt. 14.
A
B
Tho truck of the respondent w.,. requisitioned under s. 2 of tho Eaat Punjab
Movable Property (R<quisitioning) Act, 1947 for famino
relief work. 1be
section provides that the State Government, if it considers it necessa'1 or expedient
so to do, may requisition any movable_ ·property •••••• provided that no property
used for the purpose of religious worship and. no aircraft or any thing connected
C
with aircraft, shall be requisitioned.
On the queation of the constitutional validity of the section
HELD: (Per A. N. Ray, C.J., H. R. Khanna, A. Alagiriswami and P. N.
Bhagwati, JJ. : ) The Act confers arbitrary powers for requisitioning of movable
property upon the authorities udner the Act and . no guidelines whatsoever have
been prescribed for the exercise of the powers. The provision therefore falls
within the mischief which Art. 14 of the Constitution 1s designed to prevent and
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hence is invalid.
In view of the complex nature of the problems a modem State bas to face, it
is but inevitable that matters of detail should be left to thr authorities acting
under an enactment. Discretion has therefore to be given to the authorities concerned for the exercise of powers vested in them under an enactment. Such
vesting does not by itself entail· contravention of Art. 14.
What is objectionable
is the conferment of arbitrary and uncontrolled discretion without any guidelines
for the exercise of that discretion.
The enactment must therefore prescribe the
guidelines so that, within the framework of those -guidelines the authorities can
exercise their discretion.
But discretion which absolute and uncontrolled degenerates into arbitrariness. If a Legislature bestows such untrammelled discretion
on authorities, it abdicates its essential function, for, such discretion is bound to
result in discrifnination which is a negation of the ideal of equalty enshrined in
Art. 14. A statute need not itself make any classification of the persons or things
for tho purpose of applying its provisions, but may leave it to the Government to
select and classify.
In determining the validity of such a statute, the Court will
not strike it down, n1erely because no classification appears on its face or because
discretion is given to Government to make the classification. The Court will
examine and ascertain if the statute has laid down any principle or policy for the
guidance of the Government in the matter of classification: and it is only if the
statute does not lay down any such principle or policy that the Court will strike
down the sta'tute on the ground that it provides for the delegation of arbitrary and uncontrolled power to the Government which may result in discrimination.
[774HJ
(1) In the present case, the Act ·confers uncontrolled power on the
State
Government or the officers authorised by it to requisition any movable property
except those excluded. No guidelines have been laid down in the Act reaarding
the object or the purpose for.which the State Government or its officers may C<?nsider it necessary or expedient to requisition. The Act does not even require
that the authority requisitioning the movable property should specify the purpose
in the order of rcQuisition.
[77301
(2) 'There is no provision in the Act that the power of requisitionin, ran be
exercised only for a public purpose or i~ an emerp,ncv or in. some special contingency. To read the words 'for a public purpese tn the section, when the words
are not there, would amount to judicial legislation.
[773Hl
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PUNJAB V. KHAN CHAND.
769
A
(3) It is open under the Act, for an authorised officer to requisition any
n1ovable property for any purpose. It is no answer to say that 8.n officer would
not do so when there is 110thing in the Act which makes it impermissible for him
to requisition any movable property for any purpose whatsoever.
[774A

## Text

_Characters 0–39,960 of 61,155. This is a partial read: ask again with offset=39960 for what follows._

768
STATE OF PUNJAB AND ANR.
v.
KHAN CHAND
December 17, 1973.
[A. N. RAY, C.J., H. R. KHANNA, K. K. MATHEW, A. ALAGIRISWAMI
AND P. N. BHAGW~TI, JJ.]
Constitution of India, 1950, A.rt. 14-11 s. 2 of the East . Pun/ab Movable
Property (Req14/sltlonlng) A.ct, (15 of 1941) Is violative of A.rt. 14.
A
B
Tho truck of the respondent w.,. requisitioned under s. 2 of tho Eaat Punjab
Movable Property (R<quisitioning) Act, 1947 for famino
relief work. 1be
section provides that the State Government, if it considers it necessa'1 or expedient
so to do, may requisition any movable_ ·property •••••• provided that no property
used for the purpose of religious worship and. no aircraft or any thing connected
C
with aircraft, shall be requisitioned.
On the queation of the constitutional validity of the section
HELD: (Per A. N. Ray, C.J., H. R. Khanna, A. Alagiriswami and P. N.
Bhagwati, JJ. : ) The Act confers arbitrary powers for requisitioning of movable
property upon the authorities udner the Act and . no guidelines whatsoever have
been prescribed for the exercise of the powers. The provision therefore falls
within the mischief which Art. 14 of the Constitution 1s designed to prevent and
D
hence is invalid.
In view of the complex nature of the problems a modem State bas to face, it
is but inevitable that matters of detail should be left to thr authorities acting
under an enactment. Discretion has therefore to be given to the authorities concerned for the exercise of powers vested in them under an enactment. Such
vesting does not by itself entail· contravention of Art. 14.
What is objectionable
is the conferment of arbitrary and uncontrolled discretion without any guidelines
for the exercise of that discretion.
The enactment must therefore prescribe the
guidelines so that, within the framework of those -guidelines the authorities can
exercise their discretion.
But discretion which absolute and uncontrolled degenerates into arbitrariness. If a Legislature bestows such untrammelled discretion
on authorities, it abdicates its essential function, for, such discretion is bound to
result in discrifnination which is a negation of the ideal of equalty enshrined in
Art. 14. A statute need not itself make any classification of the persons or things
for tho purpose of applying its provisions, but may leave it to the Government to
select and classify.
In determining the validity of such a statute, the Court will
not strike it down, n1erely because no classification appears on its face or because
discretion is given to Government to make the classification. The Court will
examine and ascertain if the statute has laid down any principle or policy for the
guidance of the Government in the matter of classification: and it is only if the
statute does not lay down any such principle or policy that the Court will strike
down the sta'tute on the ground that it provides for the delegation of arbitrary and uncontrolled power to the Government which may result in discrimination.
[774HJ
(1) In the present case, the Act ·confers uncontrolled power on the
State
Government or the officers authorised by it to requisition any movable property
except those excluded. No guidelines have been laid down in the Act reaarding
the object or the purpose for.which the State Government or its officers may C<?nsider it necessary or expedient to requisition. The Act does not even require
that the authority requisitioning the movable property should specify the purpose
in the order of rcQuisition.
[77301
(2) 'There is no provision in the Act that the power of requisitionin, ran be
exercised only for a public purpose or i~ an emerp,ncv or in. some special contingency. To read the words 'for a public purpese tn the section, when the words
are not there, would amount to judicial legislation.
[773Hl
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PUNJAB V. KHAN CHAND.
769
A
(3) It is open under the Act, for an authorised officer to requisition any
n1ovable property for any purpose. It is no answer to say that 8.n officer would
not do so when there is 110thing in the Act which makes it impermissible for him
to requisition any movable property for any purpose whatsoever.
[774A-B]
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( 4) The power under the Act can be exercised not only by the State Govern·
ment but by any of its officers to whom it may be delegated by the State Gcvcrnn1ent.
The Act does not specify that the delegate should not be an officer belo\v
a particular rank and hence the powers of requisitionini could be conferrr-<l even
upon a petty officer.
L774DJ
(5) No suitable machinery is provided in the Act for determining the con1pens:.ition payable to the owner. According to s. 4, it shall be such an1ount as the
State Governn1ent n1ny determine.
[774D-EJ
(6) The fact that Act is a pre-Constitution 1\ct nlakes no difference. The
protection flfforded by Art. 31(5) to pre-Constitution laws is against the challenge
on the ground of contravention of Art. 31 (2) and not <igainst challenge on the
ground of contravention of Art. 1-L
[77.JCJ
(7) Both the conditions 1aid do\vn in Pannafal Bi11jraj v. Union of lndia [1957]
S.C.R. 233 are satisfied. There is every possibility of real and substantial ..d.i!crimination under the impugned Act; and th~ Act in1pina:es on the fundamental right
of property. [776G·HJ
(8) In adjudicating on the Constitutional validity of statutes, the courts discharge an obligation imposed on them. by the Constitution and no judicial arrogance is involved. The Courts would be shirking: their responsibility if they
hesitate to declare the rrovisions of n statute unconstitutional. when they ru·e
found to be violative o the articles of the Constitution.
Abnegati011 in a matter
'vhere power is conferred to protect the interests of others against measures v. < .ich
are violative of the Constitution is not commendable and is fraught with serious
consequences. [7770]
Sl1ri Rarn Krishna Dal1nia v. Shri Justice S. R. Tendolkar
&:
Ors.
[1959]
S.C.R. 279 on pages 299 and Pannalal Binjraj v. Union of India, [1957] S.C.R.
233, followed.
Jaya11tilal Par.shottamdas v. State of G11jt,rt1t & 11 Gujarat Law Report~r 403
Harishankar Bagla & Anr. v. The State of hfadhya Pradesh [1955] 1 S.C.R. 380.
Sri Ram Ram Narain Medhi y. The State of Bo111bn.y, [1959] 1 Suppl. S.C.R. "89,
and P. J. Irani v. The State of "ft1adras, [1962] 2 S.C.R. 169, distinguished.
Per Mathew J : (dissenting) With the proliferation of the functions of the
State, it has become necessary to vest wide discretionary powers upon adn1inistrative organs of the State.
Often it is practically useless to lodge power in a public
functionary without giving him a large n1easure of discretion, for, the situations
which might arise in public affairs :ire multifarious and very often unpredictable
and unforeseen. There is always a potential danger in vesting any discretionary
power in any person as it is liable to be abused or exercised in a discriminatory
manner, however much the lea;islature might try to hedge the power with
~afc
guards.
f781Fl
(1) It is impossible for anybody to read the section as conferring a-po\Ycr to
requisition any movable property for a purpose o~her than a public purpose.
(2) Nothing hinges uoon the presence or absence of such phrases as 'puhlic
interest' 'public good',. 'public purpose', Courts a,nd parties all assume that
the legislature always wants protection of the public interest, to serve public cause~
and do things for public good or to exercise powers for public purposes, and,
always intends that administrators act justly and reasonably whether the legislature says so or not in the statute. Government exists and its only title to exist is
its clain1 to advance the public good and serve the public interest. So, when the
section said that the State Government may requisition if it considers 'necessary
or expedient', it can only mean, when it considers 'necessary' or 'expedient' so to do
in public interest. This is implied in the section and when the purpose for \\'hich
a power is given may not be specified in the Act, the Cou'rt is not prevented from
inferring tlie purpose.
The expression 'necessary' or 'expedient' used in the section
770
SUPREME COURT REPORTS
( 1974] 2 S.C.R.
is sufficient to give an adequate guidance to the Government when read in juxta·
position with the implied purpose of the confernment of the oower. 'Necessary'
means 'wbat ·is indispensable, needful or essential' and 'expedient ' means 'useful
for atfecting a desired result, tit or suitable for tbe purpose.' One has to appre~
ciate the fact ihat the legislature, while laying down the policy or principle. is
bound to keep in mind the nature of the problem that is to be tacklt:d by the Sta.to
Government. A variety of factors and circumstances arise for consideration in
deciding whether a particular movable propt'l'lY should or should not bi.! n:qui!!:itioned.
The legislature rightly decided that it would not serve the purpose if it
were to define and describe all the relevant factors which have to be taken into
account for requisitioning any movable propert;.
It was not necessary Jor the
legislature to supply the State Governn1ent with a more SJ?Ccific formula for its
guidance where flexibility and adaptation to infinitely vanable conditions constitute the essence of the legislative scheme.
The expression 'necessary or expedient'
read in conjunction \Vith the public purpose implied in the section does canali~c:
the exercise of the power and discretion of the Government. [780H; 781H:
782Fl
(3) The validity of the section mu~t b~ tested with referenr:-e to its ter.ms and
not what an officer to whom the State Government delegates the power under
s. 8 might do in his quixotic vagaries.
The presumption is that public functionaries will administer the law properly. Courts do not strike down a provision in a
statute on the assumption that a person invested with power under it would,
e.i:ercise it with an evil eye and unequal hand.
So long as courts are open in this
country and the doctrine of. abuse of power is there, there need be no apprehansion that any power will be exercised arbitrarily or in a discriminatory manner
merely because the power is apparently capable of betng so exercised. It is perfectly open to the State Government or an officer to whom the power is delegated.
to exercise it in a reasonable and non-discriminatory manner. The court'& poWcr
is properly invoked tl a person is actually aggrieved by the exercise of the power
under the law. [78SBJ
(4) If the power which is conferred on the State Government under s. 2 of the
Act is valid there is no objection to that power being delegated.
It cannot be
assumed th.at the State Government will delegate the power without due regard
to the status of the delcgat.e in the official hierarchy. The vesting of the discretionary power in a State Government or in a high public dignitary is a gua1antee
that the oower win be exercised on the basis of a reasonable standard for the
purPOse intended by tho legislature. [78SF]
(5) It is not contrary to the rule of law that powers should be vested iu
public officers for performing public functions.
What the rule of law requires is
that any abuse of power by public officers should be subject to the control of the
courts. There is nothing unreasonable in granting power to meet unforscen
situations. If there are no guidelines for the exercise of the power the vestinz
of the power in a functionary need not be struck down.
UnreasonableneS& is to
be found in its exercise and not in its existence.
[782F-0]
(6) Under Art. 31(5). being an existing law. the Act is not liable to be
challenged on the score that it violates the fundamental right under Art. 31 (2).
Jt was not necessary for the Act to have expressly stated that the requisition of
inovable property could only be for a public purpose and to have fixed the amount
of compensation or the principles therefor.
[779HJ
••
(7) In Pannalal Binirai v. Union of India, [1957] S.C.R. 233 this Court held
that a power which is discretionary is not necessarily discriminatory and abuse of
pawer cannot be easily assumed where the discretion is vested in high officials.
Tbe Court was also of the view that there might be cases where improper execution of power will result in discriminatory treatment and injustice to the parties,
but, the possibility of such discriminatory treatment cannot necessarily invalidate
the legislation; and where there is abuse of such power, the parties aggrieved a~
11ot without ample remedies under the law and what will be struck down in suck
cases will not be the provision \Vhich invests the authorities· with such power but
the abuse of power itself by the auth'Jrities. f783Hl
(8) 'The attempt of the Court should be to preserve and not destroy.
R~ptct
for a coordinate branch of the Government as well as the presumption of constitu·
-'~n~ility demal\dS it.
Before a duty enact.ed law can be judicially nullified, it
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PUNJAB V. KHAN CHAND (Khanna, J,)
771
must be forbidden by some explicit restricUon in the Constitution. The attitude
of judicial humility which this consideration enjoim is not an abdication of tho
judicial function, but a due observance of its Iiauts. A just respect for the leaiala·
ture requires that the ob!ipμon of its laws should not bo unnecessarily and Want·
on1y assailed.
In determining the constitutionality of an Act, the Court sh.Outd
construe it in such a manner as tQ sustain it and every possible presumption will
be indulged in for that Purpose. [785C-EJ
Gu1bachan Singh v. State of Bombay, [1952] S.C.R. 737, Virendra v. State ·
of Puniab, [1958] S.C,R. 308, /ayantilal Parshottamdas v. State [1970] 11 Gui.
L.R. 403, State of Bombay v. P. N. Balsara, [19511 S.C.R. 682. K. T. Moopil
Nair v. State of Kara/a, [1961] 3 S.C.R. 77 at 93 and Bidl Supply Co. v. The
Union of India and Others, [1956] S.C.R. 267, referred to and explained.
Pannalal Binjroj v. Union of India, (1957]
S.C.R. 233, referred to and
discussed.
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C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1730 of 1967.
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From the judgment and order dated the 24th March, 1966 of the
Punjab High Court in C.W. No. 26 of 1965 and
Civil Appeals Nos. 1751-1753 of 1967.
From the judgment and order dated the 24th March, 1966 of the
Punjab High Court in C.W. Nos. 627 to 629 of 1965
V. C. Mahajan, and R. N. Sachthey, for the .appellant.
Shaukat Hussain, for the respondent.
The Judgment of A. N .. Ray, C.J., H. R. Khanna, A. Alagiriswami
and P. N. Bhagwati, JJ was delivered by Khanna, J. K. K. Mathew,
J gave a dissenting Opinion.
KHANNA, J.-This judgment would dispose ·of civil appeals No.
1730 and 1751, 1752 and 1753 of 1967 which have been filed on
certificate by the State of Punjab against a Full Bench judgment of the
Punjab High Court whereby section 2 of the East Punjab Movable
property (Requisitioning) Act, 1947 (East Punjab Act XV of 1947)
(hereinafter referred to as the Act) was struck down on the ground of
being violative article 14 of the · Constitution: It was further held
that section 2 was not severable from the rest of the Act and the
other provisions of the Act were merely ancillary to the powers of
requisitioning and acquisition of property contained in sections
2
and 3 of the Act. The High Court accordingly held the entire Act
to be unconstitutional and void.
We may set out the facts giving rise to civil appeal No. 1730,
because it is the comon case of the parties that the decision in that
appeal would govern the other three appeals also.
The respondent
in civil appeal No. 1730 is the owner of Tata Mercedes Benze truclt
No. 1607. On December 18, 1964 the District Magistrate Rohtak
passed an order under section 2 of the Act requiring Khan Chand
respondent to place the above tmck at the disposal of the Executive
Engineer Rohtak because the District Magistrate was of the view
thnt trucks were necessary to carry road material for fatnhw work.
772
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
It was also mentioned that compensation for the use of the truck
would be paid at the rate fixed by the Government. The truck was
thereafter taken into possession by
the
District
Magistrate
on
December 19, 1964. The respondent thereupon filed petition under
article 226 of the Constitution in the High Court challenging
the
validity of the above order of the District Magistrate.
Prayer was
also made to declare the provisions of the Act to be unconstitutional.
The petition was resisted by the State of Punjab and the District
Magistrate of Rohtak, who are the appellants before us,
and the
affidavit of the District Magistrate was filed in opposition to the
petition. The petition was first posted for hearing before a single
Judge who referred it to a Division Bench. The Division Bench, in
view of the importance of the matter, referred it to Full Bench. The
Full Bench examined the different provisions of the Act and found
that section 2 of the Act ·was violative of article 14 of the Constitution
as it gave unfettered and unguided power to the executive to interfere
with the property rights of the citizens in an arbitrary manner. It
was observed that the Act did not lay down any principle or policy
for guidance in the exercise of the wide discretion conferred by it on
the executive authorities. Section 2 of tbe Act was accordingly,
as
observed earlier, held to be violative of article 14 of the Constitution.
As regards section 3 of the Act, it was observed that it could not come
into operation withont Section 2 being first invoked. The other provisions of the Act were held to be merely ancillary to the powers
of requisitioning and acquisition of property contained in sections 2
and 3 of the Act. As the Act was found ·to confer on the Government
arbitrary and uncontrolled power to discriminate both between things
and persons and as the discrimination was writ large on the face of
the Act, the entire Act was held to· be unconstitutional and void.
The Act, it may be stated replaced Ordinance V of 1947 which
had been promulgated by the Governor of East Punjab on September
15, 1947.
The Act was first published in the East Punjab Govern·
ment Gazette on December 13, 1947.
According to the preamble,
it was an Act to provide for tbe requisitioning and acquisition of
movable property. Section 2, 3, and 4 of the Act read as under :
"2. ( 1) The State Government, if it considers it necessary or expedient so to do, may by order in writing requisition any movable property and may make such further orders
as may be necessary or expedient in connection with the
requisitioning :
Provided that no property usod for the purpose of reli·
gious worship and no aircraft or anything forming part of an
aircraft or connected with the operation, repair or maintenance of aircraft, shall be requisitioned.
(2) Where tbe State Government makes any order under
suMection (1), it may use or deal with tbe property in such
manner as maiy appear to it to be expedient.
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PUNJAB v. KHAN CHAND {Khanna, /.)
773
3. (1) The State Government may at any time acquire
any movable property requisitioned by it under section 2 by
serving on the owner thereof, or, where the owner is not
readily traceable or the ownership is in dispute, by publishing
in the Official Gazette, a notice stating that the said authority
has decided to acquire it in pursuanoe of this section.
(2) Where a notice of acquisition .is served on the owner
of the property or published in the Official Gazette under subsection (1) then at the beginning of the day on which the
notice is so served or published the property shall vest in the
State Government free from all encumbrances and the period
of requisition thereof shall end.
4. The owner of any movable property requisitioned or
acquired under this Act shall be paid •uch compensation as
the State Government may determine."
Section 5 of the Act deals with release from requisition of the requisitioned property. Section 6 empowers the State Government to obtain
informations and to give directions with a view to requisitioning or
acquiring any property or for the purpose of determining the amount
of compensation payable under the Act. Section 7 enables the State
Government to take or cause to be taken such stepS and use or caulie
to be used such force as may be reasonably necessary for securing
compliance with any order made under the Act. According to section 8,
the State Government may by order notified in the Official Gazette,
direct that any power conferred or any duty imposed on it by the Act
shall in such circumstances and under such conditions as may be
specified in the direction be exercised or discharged by such officer as
may be specified. Section 9 prescribes the offences and penalties under
the Act, while section 10 gives protection to persons acting under the
Act against civil or criminal proceedings. Section 11 repealed Ordi·
nance No. V of 1947.
Mr. Maha.ian on behalf of the appellants )ias assailed the judgment
of the-High Court and has argued that the provisions of section 2 of
the Act do not contravene article 14 of the Constitution. This contention, in our opinion, is not well founded. The relevant provisions of
the Act have rem reproduced above and from a perusal thereof we find
that the Act confers uncontrolled power on the State Government or
the officers authorised by it to reauisition any movable property. Tue
only property excluded from the purview of the Act is one used for the
purpose of religious worship or an aircraft or anything forming part
of an aircraft or connected with the operation, repair or maintenance
of aircraft. No guidelines have been laid down in the Act regarding
the object or the purpose for which the State Government or . the
officers authorised by it may consider it necesary or expedient to
requisition a movable property. It is not even the requirement of
the Act that the authority requisitioning movable property should
specify in the order the piJrpoSe for which it has become necessary or
expedient to requisition that property. There is no provision in the
Act that the power of requisitioning movable property
C811 be
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
exercised under
the
Act only for a public purpose nor is
there any provision that powers under the Act can be exercised only
in an emergency or in some special contingency.
It is open under
the provisions of the Act for an officer authorised under the Act to requisition movable property for any purpose whatsoever.
For example,
it would be permissible under the provisions of the Act for the District
Magistrate, who is an officer auhorised under the Act, to requisition
the furniture of any one within the district for use in the office of the
District Magistrate. Likewise, it would be permissible for the District
Magistrate to requisition any private car which may have caught his
fancy for his own use. It is not necessary to go into the question as
to whether the District Magistrate would ever use his powers under the
Act for such purposes.
Suffice it to say that there is nothing in the
provisions of the Act which makes it impermissible for a District
Magistrate to requisition movable property for any purpose whatsoever for which he considers it necessary or expedient to do so.
The power conferred under -the Act can be exercised not only by
the State Government but also by the officers to whom it may be delegated by the State Government.
There is nothing in the Act that
the officer to whom the powers under the Act can be delegated must
not be below a particular rank. The result is that the powers of requisi·
tioning a movable property, which are of a most comprehensive nature,
can be conferred even upon a petty officer. No suitable machinery is
also provided in the Act for determining the compensation payable to
the owner of the movable property nor does the Act contains any guiding principles for determining the amount of compensation. According to section 4 of the Act, the compensation to be paid shall be such
"as the State Government may determine".
The drastic and unusual features of the Act which have been pointcli out above highlight the fact that the Act confers arbitrary powers
for requisitioning of movable property upon the authorities under tho
Act and that no guidelines whatsoever have been prescribed for the
exercise of the powers of requisitioning. The total absence of guidelines for the exercise of power of requisitioning of movable proporty,
in our opinion, vitiates section 2 of the Act. Arbitrariness and the
power to discriminate are writ large on the face of the said provision
of the Act and, in our opinion, that provision falls within the mischief
which article 14 of the Constitution is designed to prevent. The fact
that the impugned Act was enacted before the coming into force of the
Constitution would not made any material difference. The protection
afforded by article 31 (5) to pre-Constitution laws is against the challenge on the ground of contravention of article 31(2); article- 31(5)
gives no immunity to pre-Constitution laws from attack on the ground
that they violate article 14 of tho Constitution.
We may state that the vesting of discretion in authorities in the
exercise of power under an enactment does not by itself entail contravention of article 14. What is objectionable is the conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever
with regard to the exercise of that discretion. Considering the complex nature of problems which have to be faced by a modern State, it
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PUNJAB v. KHAN CHAND (Khanna, J.)
775
is but inevitable that the matter of details should be left to the autho·
rities acting under an enactment. Discretion has, therefore, to be given
to the authorities concerned for the exercise of the powers vested in
them under an enactment. The enactment must, however, prescribe the
guidelines for the furtherance of the objects of the enactment and it is
within the framework of those guidelines that the authorities can use
their discretion in the exercise of the powers conferred upon them.
Discretion which is absolute uncontrolled and without any guidelines in
the exercise of the powers can easily degenerate into arbitrariness. When
individuals act according to their sweet will, there is bound to be an
element of. 'pick and choose' according to the notion of the individuals.
If a Legislature bestows such untrammelled discretion on the authorities
acting under an enactment, it abdicates its essential function for such
discretion is bound to result in discrimination which is the negation and
antithesis of the ideal of equality before law as enshrined in article 14
of the Constitution. It is the absence of any principle or policy for the
guidance of the authority concerned in the exercise of discretion which
vitiates an enactment and makes it vulnerable to the attack on the
ground of violation of article 14. It is no answer to the above that the
executive officers are presumed to be reasonable men who .do not stand
to gain in the abuse of their power and can be trusted to use "discre·
tion" with discretion. As mentioned on page 3 of Parliamentary Super·
vision of Delegated Legislation by John E. I<ersell, 1960 Ed. :
"The point is, however, that no one ought to be trusted
with power without restraint.
Power can be of an encroach·
ing nature, and its encroachments are usually for the sake
of what are sincerely believed to be good, and indeed necessary, objectives.
Throughout history the most terrible form
of tyranny has been the forcing on human beings of what
someone believes to be good for them.
The imposition of
controls on the use of delegated legislative authority, therefore, does not i,nply a deep suspicion of malevolent intentions.
Human nature, being what it is, has to be protected .against
itself, and where power is concerned the very existence of
the possibility of restraint, as we shall see, is a safeguard
against abuses in which ends may be used to justify means
and the. good in intent becomes the evil in effect."
It has been observed by this Court in the case of Shri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar & Ors.(') that a statute may
not make any classification of the persons or things for the purpose of
applying its provisions but may leave it to the discretion of the Gov--
ernment to select and classify persons or things to whom its provisions
are to apply. In determining the question of the validity or otherwise-1
of such a statute the court will not strike down the law out of bane!
only because no classification appears on its face or because a disere·
tion is given to the Government to make the selection or classification
but will go on to examine and ascertain if the statute has laid down any
principle or policy for the guidance of the exercise of discretion by the
Government in the matter of the selection or classification. After such
(l) [1959] SCR 279 on page 299.
776
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[ 1974] 2 s.c.IC
scrutiny the court will strike down the statute if it docs not lay down
any principle or policy for guiding the exercise of discretion by the
Government in the matter of selection or classification, on the ground
that the statute provides for the delegation of arbitrary and uncontrolled
power to the Government so as to enable it to discriminate between
persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike
down both the law as well as the executive action under such law.
A distinction which may also be kept in view was pointed out by
this Court in the case of Pannalal Binjraj v. Union of India('), which
has been referred to by Mr. Mahajan. In that cl!Se this Court upheld
the constitutional validity of section 5(;7-Al of the Indian Income-tax
Act, 1922 and held that the power vested in the Commissioner of Income Tax or the Central Board of Revenue to transfer income-tax cases
outside the area where the assessee resided or carried on· business
would not amount to a denial of equality before the law. The Court
iti this context observed :
"There is a broad distinction between discretion which
has to be exercised with regard to a fundamental right guaranteed by the Constitution and. some other right_ which is given
by the statute. If statute deals with a right which is not
fundamental in character the statute can take it away but a
fundamental right the statute cannot take away. Where, for
example, a discretion is given in the J)latter of issuing licences
for carrying on trade, profession or business or where restrictions are imposed on freedom of sp~h, etc. by the imposi;-
tion of censorship, the discretion must be controlled by clear
rules so as to come within the category of reasonable restrictions. Discretion of that nature must be differentiated from
discretion in respect of matters not involving fundamental
rights such as transfer of cases. An inconvenience resulting
from a change of place or venue occurs when any case is
transferred from one place to another but it is not open to a
party to say that a fundamental right has been infringed by
such transfer. In other words, the discretion vested has to be
looked at from two points of view, viz., (1) does it admit of
the possibility of any real and sub$tantial discrimination, and
( 2) does it impinge on a fundamental right guaranteed by the
Constitution? Article 14 can be invoked only when both
these conditions are satisfied."
The view taken by the High Court in the present case, in our opinion,
can be sustained because both the conditions laid down aoove have
been satisfied. There is every possibility of real and substantial discrimination under the impugned Act. The Act further impinges on the
. fundamental right of property.
We find it difficult to accede t\l the contention that the requisitioning of movable proper! y contemplated by section 2 of the Act is requisitioning of such property for a public purpose. The words ''for a
public purpose" do not find a mention in section 2 and it is, in our
(I) [I957J s .. c.R.2n.
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PUNJAB v. KHAN CHAND (Khanna, J.)
77T
opinion, impermissible to construe that section in such a way as if
those words were a part of that section. To read those words in the
section, even though those words are not there, would for all intents
and purposes amount to judicial legislation. It may be mentioned
that section 4 of the Land Acquisition Act, 1894 (Act 1 of 1894)
which relates to the acquisition of land makes an express reference to
the need for a public purpose. Likewise, section 3 of the Requisition.
and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952)
purpose for which property could be requisitioned. If the purpose
purpose.
Rule 75A of Defence of India Rules framed under section
2 of Defence of India Act, 1939 (Act 35 of 1939) also specified the
purpose for which property could be requisitioned. It the purpose
for which property can be requisitioned under the Act had been
specified by saying that it should be a 'public purpose' or some other
specified purpose, it might have been possible to sustain section 2 as
was done by the Gujarat High Court in Jayantilal Parshottamdas v.
State of Gujarat,(1) but as pointed out above, we find no specification
cf any purpose at all in the section.
It would be wrong to assume that there is an element of judicial
arrogance in the act of the courts in striking down an enactment.
The Constitution has assigned to the courts the function ·of determining as to whether the laws made by the legislature are in conformity
with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the courts discharge an obligation which
has been imposed upon them by the Constitution. The courts would
be shirking their responsibility if they hesitate to declare the provisions
of a statute to be unconstitutional, even though those provisions are
found to be violative of the articles of the Constitution. Articles 32
and 226 are an integral part of the Constitution and provide remedies
for enforcement of fundamental rights and other rights conferred by
the Constitution. Hesitation or refusal on the part of the courts to declare the provisions of an enactment to be unconstitutional, even tho,,•h·
they are found to infringe the Constitution because of any notic.1 01
judicial humility would in a large number of cases have the effect of
talcing away or in any case eroding the remedy provided to the aggrieved parties by the Constitution. Abnegation in matters affecting one's
own interest may sometimes be commendable but abnegation in a mafter where power is conferred to protect the interest of others against
measures which are violative of the Constitution is franght with serious
consequences. It is as much the duty of the courts to declare a provision of an enactment to be unconstitutional if it contravenes any article
of the Constitution as it is theirs to uphold its validity in case it ir found
1 suffer from no such iiifirmity.
We may now refer to the other cases relied upon by Mr. Mahajan.
In llarishankar Bag/a & Anr. v. The State of Madhya Pradesh(")·,
this Court upheld the validity of sections 3, 4 and 6 of the Essential
Supplies (Temporary Powers) Act, 1946. It was observed that the·
Legislature must declare the policy of the law and the legal principles
which are to control given cases and must provide a standard to guide·
(1) Gujrat Law Reporter 403.
(2) (1955] 1 S. C.R. 380.
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[ 1974] 2 s.c.R.
<he officials or the body in power to execute the law. This Court in
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that context examined the various provisiqns of the Essential Supplies
(Temporary Powers) Act, 1946 and found that the Legislature had
laid down such a principle in the Act and that the said principle was
the maintenance or increase in supply of essential commodi'ies and of
securing equitable distribution and availability at fair prices. .The
preamble and the body of the sections of the aforesaid Act, it was observed, sufficiently formulated the legislative policy and the ambit and
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the character of the Act. This case can hardly be of any assistance
to the appellants because, as would appear from the above, the Legislature has not declared the policy of the Jaw and the legal principles
which are to govern the authorities in the exercise of the discretion
vested in them under the Act with which we are concerned in the present case.
Another case referred to on behalf of the appellants is Sri Ram Ram
Narain Medhi v. The State of Bombay(') wherein the constitutional
validity of the Bombay Tenancy and Agricultural Lands
(Amend·
ment) Act, 1956 was assailed.
This Court on examining the provisions of the Act found that the Legislature had laid down the policy of
the Act in the preamble and enuciated the broad principles in sections 5, 6 and 7 of the Act. The Court accordingly came to the conclusion that the Aci had not conferred uncontrolled power on the State
Govornment to vary the ceiling area of the economic holding. The
Court in this context observed that where the Legislature settles the
policy and broad principles of the legislation, there could be no bar
against leaving the matters of detail to be fixed by the executive and
'uch delegation of power could not vitiate the enactment.
This case
;;gain can be of no held to the appellants because, as would appear
from the abo,•e, the Legislature has not settled the policy and broad
principles of the legislation in the impugned Act in the present case.
The last case to be relied upon on behalf of the appellants i• that
of P. I. Trani v. The State of Madras('). In that case the constitutional
validity of section 13 of the Madras Buildings (Lease and Rent Control) Act, 1949 under which exemption could be granted to a building
or class of buildings from the operation of all or any provision of the
Act was assailed on the ground that the said section violated article 14
of the Constitution. This Court upheld the validity of that section on
the ground that enough guidance was afforded by the preamable and
the operative provisions of the Act for the exercise of the discretionary
power vested in the Government. It was observed that the power
under section 13 of the aforesaid Act for exempting any building or
class of buildings was to be exercised in cases where the protection given
by the Act caused hardship to the landlord or was the subject of abuse
by the tenant. As the provisions of the impugned Act in the present
case do not afford any guidance for the exercise of the discretionary
power, the above case, in our opinion, cannot be of much assistance to
the appellants.
There is no merit in these appeals which accordingly fail and are dismissed with costs.
One set of hearing fee.
·-m[t9S9J 1 Supp. s. c. R. 489.
(l) [1962] 2 s. c. R. 169.
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PUNJAB v. KHAN CHAND (Mathew, J.)
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MATHEW, J. The ultimate question in these appeals is whether the
provisions of s.2 of the East Punjab Movable Property (Requisiioning) Act, 1947 (East Punjab Act XV of 1947), hereinafter referred
to as the Act, violate article 14 of the Constitution and are, therefore,
bad.
Sections 2,3,4 and 5 of the Act provide:
"2. Requisitioniilg of movable property.-(!) The State Government, if it considers it necessary or expedient so to do, may by
order in writing requisition any movable property and may make
such further orders as may be necessary or expedient in connection
with the requisitioning :
Provided that no property used for the purpose of religious worship and no aircraft or anything forming part of an aircraft or connected with the operation or maintenance of aircraft, shall be requisitioned.
(2) Where the State Government makes any order under subsection ( 1), it may use or deal with the property in such manner as
may appear to it to be expedient.
3.