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TMI Blog1973 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... id. We may set out the facts giving rise to civil appeal No. 1730, because it is the common 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 truck 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 truck at the disposal of the Executive Engineer Rohtak because the District Magistrate was of the view that trucks were necessary to carry road material for famine work. 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 or 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pursuance 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 such 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 information 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 impermeable 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 requisitioning 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n element of pick and choose according to the notion of the individuals. If a Legislature bestows such untrammeled 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 discretion with discretion. As mentioned on page 3 of Parliamentary Supervision of Delegated Legislation by John E. Kersell, 1960 Ed. The point is, however, that no one ought to be trusted with power without restraint. Power can be of an encroaching 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax cases outside the area where the assessed resided or carried on business would not amount to a denial of equality before the law. The Court in 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 matter of issuing licences for carrying on trade, profession or business or where restrictions are imposed on freedom of speech, etc. by the imposition 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking 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 matter where power is conferred to protect the interest of others against measures which are violative of the Constitution is fraught with serious conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fixed by the executive and such delegation of power could not vitiate the enactment. This case again can be of no held to the appellants because, as would appear from the above, 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 is that of P. J. Irani v. The State of Madras([1962] 2 S. C. R. 169). 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 preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the Government. It was observed that the power tinder 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 lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on it by this Act shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by such officer as may be go specified . The Act is a pre-Constitution Act. As the provisions of s.299(2) of the Government of India Act, 1935, did not apply, the Act was a perfectly valid one when it was enacted. And, being an existing law, the Act is not liable to be challenged on the scope that it violates the fundamental right under article 31(2) (see article 31(5) ). In other words, it was not necessary for the Act to have expressly stated that the requisition of movable property could only be for a public purpose and to have fixed the amount of compensation or the principles therefore. The question, therefore, is whether the High Court was right in holding that s. 2 of the Act is violative of article 14, of the Constitution and in striking down the whole Act for the reason that s. 2 is not severable from the rest of the provisions of the Act. Let me take s. 2 and see whether the provisions thereof in any way violate article 14. That section confers power on the State Government if it considers it necessary or expedient so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the public good and serve the public interest. So when the section said that the, State Government, if it considers, it necessary or expedient so to do, may by an order in writing requisition any moveable property, it can only mean, when it considers it necessary or expedient so to do in public interest or for public good or purpose. That is implied in the section. Nobody could or would, in the year of our Lord 1973, read the section in any other manner. The purpose for which a power is given may not be specified in the enabling Act, but that does not necessarily prevent the Court from inferring the purpose and holding that the power has been abused ( See Hood Phillips, Constitutional and Administrative Law . pp. 623-24). Grant of discretionary power has been upheld in several cases by this Court on the ground of the high standing of the body or authority upon which the power was conferred. In Gurbachan Singh v. State of Bombay([1952] S.C. R. 737) Mukherjea, J. upheld the power of externment conferred on the Commissioner of Police, inter alia on the ground that- ... This power is vested not in minor officials, but in top-ranking authorities like the Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly appears to have 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 property. Section 3(1) of the Essential Commodities Act, 1955, reads 3(1) If the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity. Section 3(1) of the Essential Supplies (Temporary Powers) Act XXIV of 1946 provides: 3 (1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining and increasing supplies of any essential commodity. In all these provisions the Central Government on which the power is conferred has to decide as a condition-precedent whether, it is necessary or expedient to exercise tile power in relation to the purpose sought to be attained and the legislature, having regard to the nature of the power and the purpose to be attained, had thought it fit to leave the exercise of the power flexible to attain the object and advisedly used the expression necessary or expedient for that purpose. Whether a particular requisitioning is exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empt persons or bodies from all or any of the provisions of an Act. There is nothing unreasonable in granting a power to meet unforeseen situations. If there are no guidelines for the exercise of the power, the vesting of the power in a functionary need not be down. The unreasonableness is to be found in its exercise and not in its existence. I am aware that in K. I . Moopit, Nair v. State of Kerala([1961] 3 S.C.R 77,93), the Court without, referring to the view taken in State of Bombay v. F. N. Balsara([1951] S.C.R. 682) struck down s. 7 of the Travancore Cochin Land Tax Act, 1955, which gave power to the State Government to grant exemption from payment of land tax. I need only say that one can visualise several contingencies like drought, pestilence, etc. in which exemption from tax would be reasonable. In Bidi Supply Co. v. The Union of India and Others([1956] S.C.R. 267) the majority judgment held that s. 5(7A) read with s. 22(2) of the, Indian Income Tax Act, 1922, did not authorise an omnibus transfer of cases and consequently, it was not necessary to consider the constitutional validity of s. 5 (7A) as the Income-tax authorities had, by an illegal executive order pick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, the right to equality before the law. it is difficult to see why it is necessary for a person asserting that right to prove that another fundamental right has been violated. The-concept of equality before the law does not vary with tile nature, of the right in issue. In other words, whether the right at stake is fundamental or not, is quite immaterial when we are considering the question of equality before the law. Be that as it may,, this ruling, I think, is an authority for two propositions : (1) that even if a power is discretionary, it need not necessarily result in a discriminatory exercise of it and (2) that even if no guidelines are laid down for the exercise of discretionary power, the section which confers the power need not be struck down but only the actual exercise of power under it which is unreasonable or discriminatory. Dealing with the Equality Clause in the Constitution of the U.S.A. Professor Willis has said : (Willis, constitutional Law pp. 586-87) Perhaps the best view on the subject is that due process and equality are, not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom conferred (see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the obligation of its laws should not be unnecessarily and wantonly assailed. If the power which is conferred on the State Government under 2 of the Act is valid, I see no objection to that power being delegated. cannot assume that the State Government will delegate the power without due regard to the status of the delegate in the official hierarchy. We have not been referred to any case where it has been held that wide discretionary powers are bad for the reason that the State or any other body on which they have been conferred has power to delegate them to another body or person. The High Court has not passed upon the question whether the District Magistrate, in requisitioning the truck in question, was acting in an unreasonable or a discriminatory manner or the requisition of the truck was not for a public purpose. I think that the requisition of the truck by the District Magistrate was for a public purpose and that his action in so doing was perfectly reasonable. No other reason has been given by the High Court for declaring the provisions of s. 2 of the Act to be invalid. If section 2 is not invalid for the reasons given by the High Court, the ground on which the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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