Input:
Appeal No. 21 of 1966.
Appeal from the judgment and order dated January 22, 1962 of the Patna High Court in Misc.
Judicial Case No. 757 of 1961.
D. Goburdhun, for the appellant.
M. K. Ramamurthi, for the respondents.
B. Sen and section P. Nayar, for intervener No. 1.
L. M. Singhvi and section P. Nayar, for intervener No. 2.
The Judgment of J. M. SHELAT, C. A. VAIDIALINGAM, K. section HEGDE and A. N. RAY, JJ.
was delivered by HEGDE, J., SHAH, J. delivered a dissenting Opinion.
Shah, J. The High Court of Patna has declared the second part of sub section
(6) of section 144 of the Code of Criminal Procedure ultra vires.
Sub Section (6) reads "No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette, otherwise directs.
" In the view of the High Court, an order made by the State Government extending the duration of an order under section 144 imposes an unreasonable restriction on the fundamental freedom of the citizens, because the order of the State Government is not subject to judicial scrutiny and the Code provides no machinery for applying for an order of rescission or alteration of the order.
Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where imme 184 diate prevention or speedy remedy is desirable.
It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section, and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place, if he considers that his direction is likely to prevent or tends to prevent obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
The order must state the material facts of the case and it must be served in the manner provided by section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management.
In cases of emergency or in cases where the circumstances do not admit of service in due time of a notice upon the person against whom the order is directed, it may be passed ex parte.
The order remains in force for not more than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray otherwise directs.
The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor in office.
In deciding the application made to him the Magistrate must give an opportunity of appearing before him either in person or by pleader and showing cause against the order. ' and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
This Court in Babulal Parate vs State of Maharashtra and Ors.(1) held that section 144 is intended to secure the public weal by preventing disorders, obstructions and annoyances.
The powers conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature 'and may be imposed only in an emergency.
The Court further held that the restrictions which the section authorises are not beyond the limits prescribed by cls.
(2) and (3) of article 19 of the Con stitution, for the prevention of such activities as are contemplated by the section is in public interest and therefore no, less in the interest of public order.
The Court observed that the wide power under the section may be exercised only in an emergency and for preventing obstruction, annoyance, or injury etc.
as specified therein and those factors necessarily condition the exercise of the power and, therefore, the power is not unlimited or untrammelled, and that the section cannot be struck down simply on the ground (1) [1961]3 S.C.R. 423. 185 that the Magistrate might possibly abuse his power.
Challenge to the validity of section 144 in its entirety was negatived in Babulal Parate 's case(1).
The Court however did not consider the validity of the power vested in the State executive to extend the duration of the order beyond two months, apparently because no argument was advanced at the Bar in that behalf.
Power conferred upon a Magistrate to make an order under section 144(1) is subject to the jurisdiction of the High Court under sections 435 & 439 of the Code of Criminal Procedure.
Again an order under sub section
(4) refusing to rescind or alter any order under the section, may be rectified by the High Court.
The Magistrate may pass an order in the conditions prescribed in sub section
(1) and not otherwise.
The order does not remain in force for a period longer than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, directs otherwise.
The power to "otherwise direct" involves authority to extend the duration of the Magisterial order for the ,duration of the danger or emergency.
Sub section (6) however does not authorise the State to make the order of the Magistrate permanent.
The State must in "otherwise" directing take into consideration, whether it is a case of danger to human life, health or safety, or of a likelihood of a riot or an affray in respect of which an order has been made by the Magistrate, and whether it is necessary to extend the period beyond two months and then to direct that the order shall remain in force for a period longer than two months, but not after apprehension of danger or emergency ceases.
It was submitted that in the absence on any statutory restriction on the exercise of the power, the State may abuse the power and continue it in force either permanently or for a period longer than the apprehension of danger or emergency justifies.
But the validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested.
, The order, duration of which is extended by declaration of the State,, is and continues to remain the order of the Magistrate.
The source of the authority of the order is derived not from the State Government, but from the Magistrate.
The direction of the State Government only extends its duration.
The Code, it is true, provides no machinery for subjecting the direction by the State Gov ernment to a judicial scrutiny.
The direction under sub section
(6) does not depend upon the subjective satisfaction of the Government.
On appropriate grounds the direction may be challenged in a petition under article 226 of the Constitution.
Again sub section
(4) of section 144 clearly authorises a Magistrate either on his own motion or on the application of any person aggrieved, to rescind (1) ; 6Sup.
CI/70 13 186 or alter any order made under the section.
The order is passed by the Magistrate, and, the source of its authority lies in the exercise of the judicial function of the Magistrate even after its duration is extended by the State Government.
Therefore under sub section
(4) notwithstanding that the State Government has made a direction extending the duration of the order beyond two months, the Magistrate would, in my judgment, be competent, on a judicial consideration of the materials placed before him, to rescind or alter the order.
It was submitted that a Magistrate exercising power under sub sections
(1) & (4) of section 144 of the Code of Criminal Procedure is an authority subordinate to the State Government, and he cannot rescind or alter an order made by the State Government.
That argument proceeds upon a misconception of the true nature of the division of powers under our Constitution.
Since the ultimate liability for maintaining law and order lies upon the State, the Legislature has provided that the order, if it is to remain in operation for a period exceeding two months, should have the imprimatur of the State Government.
But on that account the Magistrate does got become an authority subordinate to the State Government.
The State Government is the head of the executive and exercises no authority over the judicial functions of the Magistrates.
A Magistrate is independent of the State Government and he is entitled, notwithstanding the declaration made by the State Government, if the circumstances justify, to rescind or alter the order.
Under the scheme of division of the executive and judicial functions, it is true that power to make an order under section 144 is generally vested in Executive Magistrates who are in some matters responsible to the executive authorities.
But even under the scheme of separation of judicial and executive powers the function of the Magistrates exercising power under section 144 remains judicial.
To assume in deciding a constitutional issue, that in the prevailing administrative set up, an Executive Magistrate invested with power under section 144 of the Code of Criminal Procedure may not, on extrajudicial considerations, rescind a direction of the State Government is to overlook the distinction between abuse of power and noninvolvement of power.
If in a given case, the order is matte on extra judicial considerations it is, it is liable to be set aside by recourse to appropriate remedy.
The power to amend or alter the order after its duration is extended by the State Government cannot in my judgment be denied to the Magistrate merely because he is an Executive Magistrate.
In adjudging the reasonableness of the restrictions imposed by the exercise of power on the fundamental rights of the citizens, absence of a provision for judicial review and of machinery forobtaining an order recalling or amending the order made in exercise of that power have to be given due weight : Virendra vs The 187 State of Punjab and Anr.
(1) But as already pointed out the State Government has to make an order not on any subjective satisfaction.
The order is liable to rescission or alteration under sub section
Validity of an order made by a Magistrate is open to challenge on appropriate ground even after it is extended by the direction of the State Government in a proceeding before the High Court, for the jurisdiction of the High Courts to examine the validity of the order of the Magistrate is not affected by the extension of the duration of the order by the direction of the executive.
Again under sub section
(4) of section 144 a proceeding for withdrawal or modification of the order may be initiated even after the State has by direction extended its duration.
I am unable to hold that the order of the Magistrate gets merged into the direction of the State Government when its duration is extended.
In terms, sub section
(6) provides that the order made by a Magistrate shall not remain in force for more than two months from the making thereof, unless in the classes of cases specified the State Government otherwise directs.
Therefore, even after the period is extended by the direction of the State Government the order continues to remain the order of the Magistrate.
The declaration made by the State Government only removes the temporaly limit on its operation prescribed by sub section
In State of Madras vs V. G. Row(2), Patanjali Sastri, C.J., observed that in considering the reasonableness of laws imposing restrictions on fundamental rights, the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.
Exercise of power under section 144 is intended to ensure the maintenance of law and order, and for that purpose the section authorises the Magistrate, exercising judicial power of the State, on being satisfied on sufficient grounds, and where it is necessary that immediate prevention or speedy remedy is desirable, to make an appropriate order.
Normally an order made by a Magistrate under sub section
(1) of section 144 remains in force so long as it serves its purpose, but not longer than two months.
In case the danger or emergency or apprehension thereof is deep rooted, the State Government is competent by direction to extend the duration of the order.
The duty of maintaining law and order ordinarily lies on the executive, but since the making of an order under section 144 involves serious infringement of the rights of the citizens, exercise of, the power is conditioned by a judicial evaluation of the circumstances which necessitate it.
Whether the order remains operative for its normal duration, or is extended by direction of the execu (1) ; (2) ; 188 tive, the Magisterial verdict lends sustenance to it.
Apprehension that the executive may abuse the power to extend the duration will not, in my judgment, justify the Court in holding that the extension shifts the source of authority of the order, or vitiates the Magisterial evaluation.
I cannot accept the abstract standard that every statute in the execution of which fundamental rights of citizens may be infringed will be adjudged unreasonable, if within its framework the statute does not provide machinery for judicial scrutiny or for rescission of the action taken.
Nor can I accept the plea that absence of machinery in the Code for approaching the High Court for redress against the direction of the State, and absence of express provision for moving the State for rescission or alteration of the duration constitute a test of unreasonableness.
Reasonableness of a statutory provision cannot be determined by the application of a set formula: it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
In my view, the appeal must be allowed and the order passed by the High Court set aside.
Hegde, J.
In a proceeding under article 226 of the Constitution initiated by the respondents the High Court of Patna struck down the second part of sub section
(6) of section 144, Criminal Procedure Code as being violative of sub cls.
(b), (c) and (d) of cl.
(1) of article 19 of the Constitution.
The State of Bihar after obtaining a certificate from the High Court under article 132(1) of the Constitution has brought this appeal.
The respondents are not represented in this Court.
This Court by its order dated April 7, 1969 appointed Mr. Ramamurthi, a senior Advocate of this Court as an amicus curiae to assist the Court at the hearing of the appeal.
The Union of India has intervened and it was represented before us by Mr. B. Sen.
As the question involved in this case directly concerns a legislation by the central legislature, notice to Attorney General was also given and the Attorney General was represented by Dr. Singhvi.
The only question that arises for decision in this appeal is whether the second part of sub section
(6) of section 144, Criminal Procedure Code namely the words "unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, the (State Government) by notification in the Official Gazette, otherwise directs" are liable to be struck down as being violative of any of the clauses in article 19 (1 ) of the Constitution.
189 The facts leading to the present proceedings are as follows It appears that there was dispute between two sections of workers in the Tata Workers Union, Jamshedpur.
In that connection Shri K. N. Mishra, City Magistrate, Jamshedpur passed an order against respondent Verma under sub section
(1) of section 144, Criminal Procedure Code on May 21,1961.
He followed up that order by another order against respondents, K. K. Mishra, Sadhu Singh, P. C. Joshi and M. N. Govende on June 20, 1961.
Thereafter the State Government of Bihar passed an order under sub s, (6) of s.144, Criminal Procedure Code and notified the same in the Bihar Official Gazette on July 18, 1961.
It is the validity of this notification that is in issue in this case.
That notification reads "NOTIFICATION The 18th July, 1961.
No. 8255 C Whereas the following orders have been made under the provision of section 144, Code of Criminal Procedure, 1898 (V of 1898) by Shri K. N. Mishra, City Magistrate, Jamshedpur 1.
TO Shri R. L. Verma, Jamshedpur.
Whereas it has been made to appear to me that the President, Tata Workers ' Union, Jamshedpur, has informed you regarding the adoption of the resolution of ratification of no confidence motion against you in the General Body meeting of T.W. Union on 17th May 1961, and you received the letter on 18th May, 1961 and still you have not refrained from attending the Office of Tata Workers ' Union, situated.
at K. Road, Jamshedpur, and I am satisfied that your going to the office of Tata Workers ' Union, may lead to a serious breach of the peace, the prevention of which is immediately necessary.
I, K. N. Mishra, City Magistrate, Jamshedpur, specially empowered under section 144, Criminal Procedure Code, therefore, hereby restrain you from going to the office of the Tata Workers, Union, situated at K. Road, Bistupur, Jamshedpur, for a period of 60 (sixty) days, with effect from today.
You are also called upon to show cause by 25th May, 1961,at 6 30 a.m. as to why this order under section 144, Criminal Procedure Code, should not be made absolute against you.
190 Given under my hand and seal of the Court, this the 21st day of May 1961.
K. N. Mishra City Magistrate Jamshedpur 21 5 1961.
To (1) Shri Kamla Kant Mishra, (2) Shri Sadhu Singh (3) Shri P. C. Joshi and (4) Shri M. N. Govende, all of Tata Workers ' Union.
Whereas the officer in charge of Bistupur P.S. has submitted a report that there is serious apprehension of breach of peace in respect of the Tata Workers ' Union Office and the same still continues.
And whereas I am satisfied that a serious apprehension of breach of peace still exists due to rivalry between two rival groups of the Tata Workers ' Union and the same (breach of peace) cannot otherwise be prevented unless these four members of the O.P. are prohibited from entering into the office and compound of the Tata Workers ' Union at 'K ' Road Bistupur, for _a further period of 30 (thirty) days, I. K. N. Mishra, City Magistrate, Jamshedpur, specially empowered under section 144, Criminal Procedure Code do hereby prohibit Shri Kamla Kant Mishra, Shri Sadhu Singh, Shri P. C. Joshi and Shri M. N. Govende from entering into the office and compound of the.
Tata Workers ' Union situated at 'K ' Road, Bistupur, for a further period of 30 (thirty) days with effect from today, the 20th June 1961, and also call upon you to show cause why this order under section 144, Criminal Procedure Code, should not be made absolute against you Cause, if any be on 29th June, 1961, 'at 6 30 a.m.
Given under my hand and the seal of the Court this 20th day of June, 1961.
K. N. Mishra, City Magistrate, Jamshedpur, 20 6 1961.
And whereas the above orders expire on the 19th July, 1961, and whereas the Governor of Bihar is satisfied that the conditions which rendered these orders necessary still exist and that there is apprehension that they may continue to exist for a longer time and that it is necessary that these orders should be "tended for 191 a further period beyond the present date of their expiry in the interest of the safety of the life of the inhabitants of the town of Jamshedpur and in order to avoid the risk of riotor affray.
Now, therefore, in exercise of the powers conferred by sub section (6) of the Section 144 of the said Code, the Governor of Bihar is pleased to direct that the above orders will continue to remain in force for a period of four months, with effect from the date of publication of this notification in the Bihar Gazette, unless previously withdrawn by a notification in the said Gazette.
By Order of the Governor,of Bihar, M. Sinha, Deputy Secretary to Government.
" At this stage we may mention that the validity of the orders made by the City Magistrate, Jamshedpur on May 21, 1961 and June 20, 1961 was not challenged in the present proceedings.
Nor was the validity of any portion of section 144, other than mentioned earlier was assailed.
The validity of parts of section 144 other than that impugned in the present proceedings has been upheld by this Court in Babulal Parate vs State of Maharashtra and Ors.
In order to consider the validity of the impugned part of section 144 Criminal Procedure Code, it is necessary to have before us the entire section.
That section reads thus : "(1) In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub Divisional Magistrate, or of any other Magistrate (not being a magistrate of the third class) specially empowered by the (State Government) or the Chief Presidency Magistrate or the District Magistrate to act under this section (there is sufficient ground for proceeding under this section and) immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray, (1) ; 192 (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may, (either on his own motion or on the application of any person aggrieved) rescind, or alter any order made under this section by himself or any Magistrate subordinate to him, or by his pre decessor in office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing case against the order; and it the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or 'a likelihood of a riot or an affray, the (State Government) by notification in the Official Gazette, otherwise directs.
" It may be noted that orders under sub sections
(1), (2), (3), (4) and (5) of section 144 can only be passed by superior Magistrates.
This Court in Babulal Parate 's case(1) sustained the validity of an order made by a Magistrate under section 144(1) because of the various safeguards provided in the section.
It may be seen that an order made by a Magistrate under section 144(1), Criminal Procedure Code is open to be revised on the basis of any representation made by the aggrieved party and is also revisable by the High Court.
An analysis of the section shows that an order under that provision is subject to the following safeguards : (1) It has to be made by a superior Magistrate; (2) While making the order the Magistrate has to act judicially; (3) The order will be in operation for a short period an order of a temporary nature; (4) An opportunity is given, to the aggrieved party of showing cause against that order; (5) Reasons have to be recorded by the Magistrate for rejecting an application under s, 144(4) and (1) ; 193 (6) The order of the Magistrate being a judicial order, it can be challenged in revision before the High Court under section 435 read with section 439, Criminal Procedure Code.
It was urged by Mr. Ramamurthi that whereas the legislature had provided adequate safeguards in respect of orders made by Magistrates, it has failed to provide for any safeguard in respect of orders made by the State Government under the second part of sub section
(6) of section 144, Criminal Procedure Code; before making an order under that provision, the State Government is not required to make any inquiry; no opportunity is given to the aggrieved party to show cause against the order; the order made by the State Government need not be of a temporary nature and the order of the State Government is neither appealable nor revisable.
Hence according to him the restriction imposed on the fundamental rights guaranteed to the respondents under article 19(1)(b)(c) '(d) viz., to assemble peaceably without arms, to form associations or unions and to move about freely throughout India, is an unreasonable restriction.
The State has not been consistent in its stand.
Before the High Court, in its grounds of appeal filed as well as in the initial stage of the arguments of Mr. Goburdan learned counsel for the State of Bihar and Dr. Singhvi, the stand taken was that the order made by the State Government is on administrative order and as such is not amenable to any judicial review.
But after some discussion and after obviously realising the untenability of their contention, they drastically changed their stand and contended that the only operative orders are those made by the Magistrate, the Government merely extended the duration of those orders; the order of the Government got merged in the orders of the Magistrate; the extended order is open to review under sub section (4) of section 144, Criminal Procedure Code and the same is revisable under section 435 read with section 439, Criminal Procedure Code.
We shall now proceed to consider whether there is any basis for the new line of argument advanced in this Court.
We have earlier seen the scheme of section 144, Criminal Procedure Code.
Its first sub section empowers the appropriate Magistrate to make any order contemplated therein.
The second sub section confers power on the Magistrate to pass the ex parte order under certain circumstances.
The third sub section sets out the person against whom the order made by the 'Magistrate can be directed.
The fourth sub section provides for the review of the order by the Magistrate who made the order or his successor in office or by his superior either suo moto or on the representation made by the aggrieved party.
The fifth sub section lays down the procedure to be adopted by the concerned Magistrate to deal with the repre 194 sentation received.
The first part of the sixth sub section fixes the period during which the order made by a Magistrate would be in operation.
Once the process set but above comes to an end the Magistrate has no further function.
Thereafter it is clear he becomes functus officio in relation to the order made by him.
The power conferred on the Government under the second part of the sixth sub section is an independent power.
Before issuing any direction under that sub section, the Government has to examine afresh whether the danger to human life, health or safety or a likelihood of a riot or an affray continues and if it continues how long the original order made by the Magistrate should 'be kept alive.
It is true that the basic order is the Magistrate 's order but the decision that the circumstances mentioned in sub section
(6) of section 144, Criminal Procedure Code continue to exist and the original order should be continued for a certain period of time or indefinitely is that of the Government.
It is not a case of the Government order getting merged in the Magistrate 's order.
It is rather the converse.
The Magistrate 's order is adopted by the Government as its own order.
Once the Government notifies its direction.
the responsibility for the continuance of the original order is that of the Government.
It may be noted that the direction given by the Government has to be notified in the Official Gazette.
We have earlier seen that the order with which we are concerned in this case was made in the name of the Governor and signed by a Secretary to the Government.
That is the usual procedure adopted in issuing directions under section 144(6).
From all these, it is clear that the direction in question is an executive act of the State Government coming within article 166 of the ConstitutiON.
If the direction given under section 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 144(1), Criminal Procedure Code.
Further it is least likely that the legislature would have prescribed that such a direction should be notified in the Official Gazette.
It we bear in mind our legislative practice, it is difficult to accept the contention that the legislature had conferred upon the Magistrate power to review the directions given by the Government.
Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate sub ordinate to him or by a predecessor in office.
It is not possible to bring within the scope of this section the order made by the State Government.
If the legislature intended to bring within the scope of this sub section direction (which really means order) given by the State Government, it would have stated so particularly when it specifically referred to the order made by the Magistrate 's predecessor in office or that made by a subordinate Magistrate.
The scheme of the section.
the language employed therein and our legislative practice militate against the new line of defence adopted 195 on behalf of the State of Bihar, Union of India and the Attorney General in this Court.
From a plain reading of section 144(6), Criminal Procedure Code, it is clear that the power conferred on the State Government is an independent power and it is an executive power.
It is not expected to be exercised judicially.
It is open to be exercised arbitrarily.
The directions given in the exercise of that power need not be of a temporary nature.
The ambit of that power is very large and it is uncontrolled.
Dr. Singhvi at one stage urged that the only check on the exercise of that power by the Government is the searching scrutiny of governmental actions expected from our legislators.
We shall assume as Dr. Singhvi wants us to do that de executive actions of the Government are constantly being watched by the legislators.
But that does not absolve this Court 's responsibility.
To quote the felicitous expressions of one of the illustrious former Chief Justices of this Court (Sri Patanjali Sastri) in State of Madras vs Y. G. Row(1) that as regards the fundamental rights, the Constitution has assigned to this Court the role of a Sentinel on the quivive.
Proceeding further the learned Chief Justice observed in that case that "while this Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute".
It will be neither fair nor just to this Court or to our Constitution or even to our representatives, if this Court deserts its duty on the assumption that the other organs of the State would safeguard the fundamental rights of the citizens.
Dr. Singhvi 's contention ignores the very character of the fundamental rights, the basic principles underlying them and the safeguards carefully erected by our Constitution against the legislative encroachment of the fundamental rights of citizens.
Further it is based on an over simplification of the concept of the rule of the majority in a parliamentary democracy.
It overlooks the fact that these safeguards are primarily intended to protect the rights of the minority.
Dr. Singhvi 's contention also overlooks the fact that the fundamental rights constitute a protective shield to the citizens as against State actions.
Therefore there is no point in saying that the legislators would see that those rights are not impugned.
The real question for decision is whether impugned restriction is a reasonable restriction.
Unless that restriction can be considered as a reasonable restriction, it does not get the protection of Sub articles
(3), (4) and (5) of article 19, which means that restriction is violative of article 19 (1 ) (b) (c) and (d).
(1) ; 196 As observed in Dr. Khare vs State of Delhi(1), and reiterated in V. G. Rao 's case (2 ) that in considering reasonableness of laws imposing restrictions on fundamental rights both substantive and procedural aspects of the law should be examined from the point of view of reasonableness and the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.
It is not possible to for mulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se.
All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
In other words in order to be a reasonable restriction, the same must not be arbitrary or excessive and the procedure and the manner of imposition of the restriction must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable.
One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate, fair and reasonable.
Further the courts have to see whether the restriction is in excess of the requirement or whether it is imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of Sub articles
1 to 6 of article 19, if the statute fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid see The State of Madhya Pradesh vs Baldeo Prasad(3).
A restriction imposed under section 3(1) of the Punjab Special Powers Act, 1956 was struck down by this Court in Virendra vs State of Punjab(4) on the ground that the Act did not provide for any time for the operation of an order made thereunder nor for a representation by the aggrieved party.
Now adverting to the restriction impugned in this case, the power to impose the same is conferred on the executive Government and not to any judicial authority.
There is no provision to make representation by the aggrieved party against the direction given by the Government; no appeal or revision is provided against that direction and the order made need not be of temporary nature.
Hence we agree with the High Court that impugned provision is (1) ; (2) ; (3) ; (4) ; , 197 violative of article 1 9 (1) (b) (c) and (d) and is not saved by article 19(3), (4) or (5).
In the result this appeal fails and the same is dismissed.
ORDER In accordance with the opinion of the majority the appeal is dismissed.

Output:
Sub section (6) of section 144 of the Code of Criminal Procedure provides that no order under s, 144 shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette otherwise directs.
The City Magistrate of Jamshedpur passed orders under section 144(1) against the respondents which were later extended by the State Government of Bihar in exercise of its powers under section 144(6).
In a writ petition filed by the respondents the High Court of Patna struck down the second part of sub s.(6) of section 144 as being violative of sub cls.
(b), (c) and (d) of cl.
(1) of article 19 of the Constitution.
The State appealed and contended that the only operative orders were those made by the Magistrate and the Government merely extended those orders.
Further, since the order of the Government got merged in the orders of the Magistrate, the extended order was open to review under sub section
(4) of section 144 and the same was also revisable under section 435 read with section 439 of the Code of Criminal Procedure.
HELD : Per Shelat, Vaidialingam, Hedge and Ray, JJ. (i) The Magistrate 's order is no doubt the basic order.
But after the process in the first five sub sections of section 144 is completed he becomes functus officio.
The decision that the circumstances mentioned in sub section
(6) of section 144 Criminal Procedure Code continue to exist and the original order should be continued is that of the Government.
It is not a case of the Government order getting merged in the Magistrate 's order.
Rather the Magistrate 's order is adopted by the Government as its own order.
[194 A C] The order of the Government is made in the name of the Governor ,and signed by a Secretary to the Government.
It is published in the Official Gazette.
It is thus clearly an executive act of the Government coming within article 166 of the Constitution.
If the direction given under section 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 144(1).
[194 E F] Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate subordinate to him or by a predecessor in office.
It is not possible to bring within the scope of this section the order made by the State Government.
for if it was so intended it would have been mentioned in the section.
[194 G] From a plain reading of section 144(6) it is clear that the power conferred on the Government is an independent executive power, not expected to be exercised judicially.
It is open to be exercised arbitrarily.
The direc 182 tions given in the exercise of that power need not be of a temporary nature.
The ambit of that power is very large and is uncontrolled.
[195 B] (ii) The fact that the Legislature is expected to keep a check on governmental actions does not absolve this Court 's responsibility.
The fundamental rights constitute a protective shield to the citizen as against State actions and the Court cannot desert its duty on the assumption that the other organs of the State would safeguard the fundamental right of the citizens.
[195 C D] (iii) In order to be a reasonable restriction within the meaning of article 19 of the constitution the same must not be arbitrary or excessive and the procedure and the manner of its imposition must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable.
One of the im portant tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
Further the courts have to see whether it is in excess of the requirement or imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of sub articles
1 to 6 or article 19, if the State fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid.
[196 C F] Since section 144(6) gives the power to impose the restrictions contemplated by it to the executive Government and not to a judicial authority and there is no right of representation, appeal or revision given to ,the aggrieved party against an order which may not be of a temporary nature, it must be held that the said impugned provision is violative of article 19 (1) (b) (c) and (d) and is not saved by articles 19(3) (4) or (5).
[196 G] Babulal Parate vs State of Maharashtra and Ors. ; , ,referred to.
State of Madras vs V. G. Rao, ; ; Dr. Khare V. State of Delhi, ; ; State of Madhya Pradesh vs Baldeo Prasad ; and Virendra vs State of Punjab; , , applied.
Per Shah, J. (dissenting).
Sub section
(6) of section 144 does not authorise the ,State Government to make the order of the Magistrate permanent.
It ,cannot direct it to continue after apprehension of danger or emergency ceases.
The validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested.
The order duration of which is extended by declaration of the State is and continues to remain that of the Magistrate.
The 'source of the authority of the order is derived not from the State Government, but from the Magistrate.
It cannot be said that the order of the Magistrate gets merged with that of the Government when its duration is extended.
Although no provision is made in the Code for a judicial review of the State Government 's order under section 144(6), the said order does not depend on the subjective satisfaction of the Government and is capable of being challenged in a petition under article 226 of the Constitution ' Further the Magistrate who passed the original order may in considera tion of the materials placed before him under section 144(4) rescind or alter the State Government 's order.
In the exercise of his judicial functions 183 the Magistrate is independent of the Government and not subordinate to it.
The principle applies even in the case of an Executive Magistrate who under the scheme of separation of powers may be responsible to the executive authorities.
The above remedies being available the provision in section 144(6) cannot be held to be unreasonable on the mere ground that there is no express provision in the Code for redress against the, State Government 's order.
Reasonableness of a statutory provision cannot 'be determined by the application of set formulas : it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
B D] Case law referred to.


Input:
Appeal No. 88 of 1959.
Appeal by special leave from the judgment and order dated May 6, 1958, of the Industrial Tribunal, Delhi, in 0.
P. No. 54 of 1958.
M.C. Setalvad, Attorney General for India, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
Janardan Sharma, for the respondent.
March 10.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
The appellant is a company carrying on the manufacture of textiles.
The respondent Kushal Bhan was in the employ of the company as a peon.
It appears that the cycle of Ram Chandra, Head Clerk of the Folding Department was stolen on August 24, 1957.
The matter was reported to the police.
Sometime later, the cycle was recovered from the railway station cycle stand at the instance of the respondent who took the police there and picked out 229 the stolen cycle from among 50/60 cycles standing there.
This matter was apparently brought to the notice of the company in October 1957 and thereupon a charge sheet was served on the respondent to the effect that he had stolen the cycle of Ram Chandra, Head Clerk, that it had been recovered at his instance and that a criminal case was pending against him with the police.
He was asked to show cause why he should not be dismissed for misconduct.
The respondent submitted his explanation on October 13, 1957.
As his explanation was unsatisfactory, November 14, 1957, was fixed for enquiry.
The respondent appeared before the enquiry committee but stated that as the case was pending against him, he did not want to produce any defence till the matter was decided by the court.
He further stated that he did not want to take part in the enquiry and was not prepared to give any answers to questions put to him.
When questions were put to him at the enquiry he refused to answer them and eventually he left the place.
The company, however, completed the enquiry and directed the dismissal of the respondent on the ground that the misconduct had been proved against him.
Thereafter an application was made under section 33(2) of the Industrial Disputes Act, No. 14 of 1947, by the company to the tribunal for approval of the action taken against the respondent.
The matter came before the tribunal on May 6, 1958.
In the meantime, the respondent had been acquitted by the criminal court on April 8, 1958, on the ground that the case against him was not free from doubt.
The copy of the judgment of the criminal court was produced before the tribunal and it refused to approve the order of dismissal.
The company thereupon applied for special leave to this Court resulting in the present appeal.
The main contention on behalf of the appellant company is that the company was not bound to wait for the result of the trial in the criminal court and that it could, and did, hold a fair enquiry against the respondent, and if the respondent refused to participate in it and left the place where the enquiry was being held, the company could do no more than to complete it and come to such conclusion as was 230 possible on the evidence before it.
Learned counsel for the respondent, on the other hand, urges that principles of natural justice require that an employer should wait at least for the decision of the criminal trial court before taking disciplinary action, and that inasmuch as the employer did not do so in this case the employee was justified in not taking part in the disciplinary proceedings which dealt with the very same matter which was the subject matter of trial in the criminal court.
It is true that very often employers stay enquiries pending the decision of the criminal trial court& and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.
In Shri Bimal Kanta Mukherjee vs Messrs. Newsman 's Printing Works (1), this was the view taken by the Labour Appellate Tribunal.
We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.
The present, however, is a case of a very simple nature and so the employer cannot be blamed for the course adopted by him.
In the circumstances, there was in our opinion no failure of natural justice in this case and if the respondent did not choose to take part in the enquiry, no fault can be found with that enquiry.
We are of opinion that this was a case in which the tribunal patently erred in not granting approval under section 33(2) of the Industrial Disputes Act.
Besides it is apparent that in making the order under appeal, the tribunal has completely lost sight of the limits of its jurisdiction under section 33(2).
We therefore allow the appeal and setting aside the order of the tribunal grant approval to the order of the appellant dismissing the respondent.
In the circumstances we pass no order as to costs.
Appeal allowed.

Output:
The appellant company served a charge sheet on the res pondent who was one of its employees alleging that he had stolen the cycle of the company 's Head Clerk.
A criminal case relating 228 to the theft was pending against him then.
He was asked to show cause why he should not be dismissed for misconduct, and as his explanation was unsatisfactory a certain date was fixed for enquiry.
The respondent appeared before the enquiry committee but refused to participate in the enquiry by answering questions put to him as he did not want to produce any defence till the matter was decided by the Court.
The company,however,after completing the enquiry directed the dismissal of the respondent on the ground that misconduct had been proved against him.
The company thereafter made an application under section 33(2) Of the Industrial Disputes Act to the Industrial Tribunal for approval of the disciplinary action taken against the respondent.
In the meantime the respondent was acquitted by the Criminal Court. 'The judgment of the Criminal Court was produced before the tribunal which refused to approve the order of dismissal of the respondent.
On appeal by the company by special leave : Held, that the principles of natural justice do not require that an employer must wait for the decision of the Criminal Trial Court before taking disciplinary action against an employee.
Shri Bimal Kanta Mukherjee vs Messrs. Newsman 's Printing Works, , approved.
If a case is of a grave nature involving questions of fact and law which are not simple it would be advisable for the employer to await the decision of the Criminal Trial Court but in a simple case like the present the tribunal erred in not granting approval under section 33(2) of the Industrial Disputes Act.


Input:
Appeal No. 455/59.
Appeal by special leave from the judgment and order dated January 16, 1956, of the former 429 Nagpur High Court, in Misc.
Petition No. 448 of 1954.
N. section Bindra and D. Gupta, for the appellants.
Purshottam Trikamdas, G. J. Ghate and Naunit Lal, for the respondents.
April 6.
The Judgment of the Court was delivered by MUDHOLKAR, J.
The respondent was a proprietor of mauza Bhivapur, Tehsil Umerer, District Nagpur.
His proprietary interest in the village was abolished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. 1 of 1951).
By virtue of section 4 of the Act, ill rights, titles and interests, among others, in all pathways, village sites, hats, bazars and melas in Bhivapur vested in the State of Madhya Pradesh for the purposes of the State free from all encumbrances under section 4(1)(a) of the Act.
Under the provisions of the those rights vested in the State of Bombay and now by virtue of Bombay Re Organisation Act, 1960 (11 of 1960) in the State of Maharashtra.
The provisions of section 4(1)(a) are as follows: " All rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren) grass land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, waterchannels, ferries, pathways, village sites, hats, bazars and melas;. . shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge or any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions (if this Act" 430 After the Act came into operation proceedings for compensation in respect of the village Bhivapur were started in the court of the Compensation Officer, Umrer, in Revenue case No. 583/1 A 4/1950 51 decided on January 19, 1952.
The Compensation Officer held that 0.
14 acres of land out of Khasra No. 61/1 which is recorded in the village papers as abadi wherein a bazar is held, should be settled with the respondent under section 5(a).
On a portion of the land which was used for bazar, ottas and chabutras, with or without sheds, and separated by passages, exist.
It is common ground that they belong to the respondent.
It is also common ground that the land covered by ottas and chabutras on which sheds have been constructed were ordered to be settled on the respondent in the revenue case referred to above.
The respondent 's contention, however, was that not only the sheds and the land on which those sheds were erected but also the open uncovered ottas and chabutras should also have been settled with him by virtue of the provisions of section 5(a) of the Act along with the land appurtenant to those structures.
The total area of this land, according to him, is 2.85 acres.
The respondent, therefore, preferred an appeal against the order of the Compensation Officer which directed settling only 0.14 acres of land on him.
That appeal was.
however, dismissed by the Additional Commissioner of Land Reforms and Additional Commissioner of Settlement, Madhya Pradesh, on March 28, 1952.
The respondent thereafter was asked to remove his ottas and chabutras.
Even so, the matter of settling land covered.
by ottas and chabutras on the expropriators was being considered by Government.
On May 16, 1952, a press note was issued by the Directorate of Information and Publicity, Government, of Madhya Pradesh the material portion of which runs thus: "The Government consider that the option 431 given to expropriators to remove the material etc., might cause hardship to them in such cases.
Government have, therefore, decided on the following lines of action in such matters: (i) where the ottas and chabutras were, constructed in brick and stone, they should be allowed to remain with the exproprietors and the land thereunder should be settled with them under section 5(a) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (1 of 1951) on terms and conditions determined by the Government; and (ii) where the ottas and chabutras are in mud, the land Under them should be deemed to have vested in the State Government.
But after this press note was issued the Government, apparently on the advice of its law officers, issued instructions to the Deputy Commissioners on June 22, 1954, to give one month 's notice all ex proprietors to remove the materials, clear the site of ottas and chabutras other than those on which there were sheds.
In pursuance of this, a notice was issued to the respondent on July 13, 1954.
Feeling aggrieved by this, the respondent preferred a petition under article 226 of the Constitution before the High Court of Nagpur for issue of a writ of mandamus or certiorari or other appropriate to writ to quash the orders passed by the Commpensation Officer and the appellate authority as well as the order of the State Government of Madhya Pradesh dated June 22, 1954, and the notice issued in pursuance thereto on July 13, 1954.
The High Court allowed the petition and set aside the impugned orders and directed the State Government to settle the on tire area of Khasra No. 61 /1 of Bhivapur 432 with the respondent on such terms and conditions as may be determined by it.
It may be mentioned that the entire area of Khasra No. 61/1 is 12.85 acres or so.
The State of Madhya Pradesh sought a certificate from the High Court under article 133(1)(c) of the Constitution.
But the certificate was not granted.
Thereupon a special leave petition was made before this Court under article 136 of the Constitution.
Leave was granted by this Court by its order dated March 18, 1957.
That is how the appeal has come up before us.
It may be mentioned that the High Court granted the petition of the respondent on the view that ottas and chabutras etc.
, are buildings within the meaning of section 5(a) of the Act and that consequently the State Government was bound to settle the land covered by them with ex proprietors along with land appurtenant to those structures.
In the application made before the High Court for grant of certificate, the following three grounds were raised: "5.
For that the total market area as claimed by the non applicant being only 2.85 the entire abadi area of 12.85 acres in Khasra No. 61/1 could not be granted and settled with the ex proprietor.
For that the ottas and chabutras in the bazar area could not be held to be buildings contemplated under section 5(1)(a) read with section 4 (1) (a) of the Act 1 of 1941 and could not be settled with the ex proprietor under the law.
For that the buildings envisaged in the provisions 5(1)(a) are those buildings which are situated in the abadi and not those stand ing in bazars even though the bazar may also be located in the abadi and that ottas and chabutras etc., in the bazar being an integral part thereof are clearly different from those other 433 buildings used for agricultural or domestic purposes.
" It would, however, appear from para.
2 of the order of the High Court refusing certificate that the learned Advocate General for "the State did not challenge the correctness of the meaning given by the High Court to the word "buildings" in section 5(a) of the Act.
But the contention he pressed was that the words "ottas and chabutras" must be restricted to structures standing on the abadi of the village excluding that on which bazar was held, which under section 4(1)(a) vests in the State.
Before us however, Mr. Bindra reiterated the contention which was originally pressed in the High Court that ottas and chabutras cannot be regarded as buildings within the meaning of that word in section 5(a) of the Act.
According to him the concession made by the learned Advocate General was on a question of law and the State is entitled to withdraw that concession.
In our opinion the question whether ottas and chabutras fall within the term " 'buildings" is not purely one of law and the State is not entitled to withdraw that concession.
It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate General in support of the application for grant of certificate.
All the same we allowed Mr. Bindra to urge the contention that ottas and chabutras are not included in the term "buildings" in section 5(a) of the Act.
The relevant portion of section 5(a) of the Act reads thus: "Subject to the provisions in sections 47 and 63 all open enclosures used for agricultural of domestic purposes and in continuous possession for twelve years immediately before 1948 49; all open house sites purchased for 434 consideration; all buildings;. . . within the limits of a village site belonging to or held by the out going proprietor or any other person, shall continue to belong to or be held by such proprietor or other person as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;" "Village site" means the abadi in an estate or a mahal.
Section 5(a) is an exception to section 4(1)(a) of the Act.
No. doubt, section 4(1)(a) provides for the vesting in the State of the land on which bazar is held.
But reading that section along with section 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those buildings, bad to be settled with the ex proprietor.
Land on which the bazar is held is part of the village abadi land and, therefore, all buildings standing on such land would fall within section 5(a) of the Act and would have to be settled with the ex proprietor.
The only question, therefore, is whether ottas and chabutras can be regarded as buildings.
A perusal of that provision would show that where the ex proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him.
The word "buildings" should, therefore, be given its literal meaning as something which is built.
Mr. Bindra 's contention, however, is that for a structure to be regarded as a building, it should have walls and a roof and in support of this contention lie relied upon the decision in Moir vs Williams (1) In that case Lord Esher has observed that the term building generally means all (1) 435 enclosures of brick and stone covered by a roof.
But he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the context in which it is used.
There, what was being considered was the provisions of the Metropolitan Buildings Act, 1855 (10 & 19 Vict.
c. 122) which dealt with residential houses.
He also relied upon the decision in Morrison vs Commissioners of Inland Revenne (1).
That was a case under the Finance (10 Miw.
7 c. 8).
The observations on which he relied are as follows: " It is quite clear that the expression 'buildings ' does not mean everything that can by any means be described as built: it means buildings in a more narrow sense than struct ures, because there are other structures of a limited class which under the terms of the sub section may also be taken into considera tion.
" Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word "Buildings", is something which has been built.
That meaning would be modified if the provisions of law justify giving some other meaning.
Finally he relied upon the decision in Samuel Small vs Parkway Auto Supplies (2).
The observations relied on by him are as follows: "The word 'building ' in its ordinary sense denotes 'a structure or edifice including a. space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed. ' The word 'building ' cannot be held to include every Species of erection on land, such as fences, gates or other like structures.
Taken (1) (1915) I K. B. 176 at 722.
(2) 49 A.I.R. 1361 at 1363.
436 in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed. .
These observations must Be considered in the context of the Act which was being construed and in the context in which they were made.
There the Court bad to consider whether erection of gasoline pumps and construction of under ground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street.
In the particular context buildings had, according to the Court, to be given its popular meaning.
That case, therefore, does not assist the appellants.
In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in section 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent.
Mr. Bindra pointed out that the High Court was in error in asking the Government to settle the whole of Khasra No.61/1 on the respondent because whereas its area is 12.85 acres, the land covered by the structures, including the appurtenant land, does not measure more than 2.85 acres.
Mr. Purushottam Trikamdas, learned counsel for the respondent readily conceded this fact and said that the High Court has committed an error through an oversight and that all that the respondent wants is 2.85 acres of land and nothing more.
Mr. Bindra then said that it would not be proper to give a direction to the Government to settle any particular area of the land and it should be left to the revenue authorities 437 to determine the precise area covered by the structures and the passages separating these various structures.
We agree with him.
It would be sufficient to direct the Government to settle with the respondent the whole of the land covered by the structures as well as land appurtenant to those structures from out of Khasra No. 61/1.
What the area of that land would be is a matter to be determined during the settlement proceedings.
With this modification we dismiss the appeal with costs.
Appeal dismissed.

Output:
The proprietary interest of the respondent in his village was abolished by the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and all rights, title and interest were vested in the State by section 4.
Section 5(a) of the Act provide that where any "buildings" belonging to the proprietor exist on any portion of the abadi land, that land together with the land appurtenant to those buildings shall be settled with the ex proprietor.
Land covered by ottas and chabutras on which sheds had been constructed was settled with the respondent but not the land on which open uncovered ottas and chabutras existed.
Held, that the respondent was entitled under section 5(a) of the Act to have the land on which uncovered ottas an chabutras existed, as also the land appurtenant thereto, settled with him.
Uncovered ottas and chabutras fell within the term "buildings" as used in section 5(a).
The provisions showed that where the proprietor had spent money on constructing something on an abadi site within the limits of the village sites, that site had to be settled with him.
Accordingly the word "buildings" has to be given its literal meaning as something which is built.
Moir vs Williams, , Morrison vs Commissioners of Inland Revenue, and Samuel Small vs Parkway Auto Supplies, , distinguished.


Input:
Civil Appeal No. 96 of 1961.
Appeal by special leave from the award dated December 7, 1959, of the central Government Industrial Tribunal Dhanbad in reference No. 42 of 1959.
S.C. Banerjee and P. K. Chatterjee, for the appellant.
Janardan Sharma, for the respondent.
January 30.
The Judgment of the Court was delivered by SARKAR, J.
The appellants, the Bhowra Kankanee Coal Co. Ltd., own the Bhowra and other collieries.
On the Bhowra Colliery there are a number of residential bungalows belonging to the appellants occupied by their officers employed in the colliery.
The appellants employ certain malis for working as such in these bungalows and their duty is to look after and maintain the gardens there.
A dispute along between the appellants and their workmen as to whether these malis, who were fourteen in number, were entitled to bonus.
By an order made on June 23, 1959, under the , the Government of India referred this dispute along with another with which we are not concerned in this case, for adjudication to the Industrial Tribunal, Dhanbad.
The Points referred concerning the dispute above mentioned were in these terms: (1) Whether the withdrawal of the benefit of bonus provided in the Coal Mines Bonus 885 Scheme by the management of the Bhowra Colliery from the following garden mazdoor/malis is justified.
If not, to what relief are they entitled and from what date? (2) Whether the garden mazdoors/malis referred to above are employed on domestic and personal work within the meaning of paragraph 3 (b) of the Coal Mines bonus Scheme, 1948 and if not, to what relief are they entitled and from what dates The points so referred were decided by the Tribunal against the appellants by an award made on December 7, 1959, and the present appeal is against that award.
Till January 1, 1955, the Bhowra and certain other collieries managed as a group, were owned by the Eastern Coal Company Ltd., and on that date these collieries were sold to the appellants.
At the time when this sale was being arranged, the workmen in these collieries raised a dispute that their services should be treated as continuous inspite of the transfer of the collieries from one owner to another by the sale and that the conditions of their service and the facilities which they were enjoying under the previous owners should be guaranteed and continued by the succeeding owners, that is the appellants, after the latter took over the collieries.
At the instance of the conciliation officer appointed under the Act this dispute was settled by an agreement made on January 14, 1955, to which the Conciliation officer the workmen the previous owners and the appellants were parties.
Paragraph 3 of this agreement provided as follows: "Agreed that the existing service conditions and the facilities will be continued, excepting pension." Now in 1948 an Act called the Coal Mines Provident Fund and Bonus Schemes Act had been passed by section 5 of which the Central Government was 886 empowered to frame a bonus scheme for the payment of bonus to the employees of coal mines, The Central Government had framed a Bonus Scheme under this provision in 1948 and since then the previous owners had been paying the malis employed for the bungalow gardens belonging to the Bhowra Colliery, bonus in terms of it.
In 1951 they once stopped the bonus but that caused an industrial dispute and they thereupon restored the bonus.
Upto the acquisition of the Bhowra Colliery by the appellants they position thus was that these malis had been receiving bonus since 1948 excepting for a short period during which it had been stopped as earlier mentioned.
After they became the owners of the Bhowra Colliery, the appellants however stopped the payment of bonus to these malis.
This raised the industrial dispute which had led to this appeal.
Paragraph 3 of the Bonus Scheme framed under the Act, so far as relevant for this case, is in these terms: Paragraph 3.
Except as hereinafter provided every employee in a coal mine to which this Scheme applies shall be eligible to qualify for a bonus, Exceptions: An employee in a coal mine shall not be entitled to a bonus under the Scheme for the period during which (a) . . . . . . . . (b) he is employed as a mali, sweeper or demestic servant on demestic and personal work; (c) . . . . . . . .
One of the questions raised in this appeal is whether the bungalow malis were entitled to bonus under this paragraph.
The appellants contended before the Tribunal that malis as a class were excepted from the benefit of the Bonus Scheme by the provision 887 in exception (b) in this paragraph.
They further contended in the alternative that these malis were excepted in any event because they were In malis employed on domestic and personal work within the meaning of the exception.
The Tribunal rejected these contentions of the appellants and held (a) that these malis were entitled to bonus under paragraph 3 of the agreement of January 14, 1955 and (b) that they were not employed on domestic and personal work and were therefore not within the exception.
For these reasons the Tribunal held that the withdrawal of the bonus by the appellants was not justified.
It is not clear on what ground the Tribunal held that the malis were entitled to bonus under paragraph 3.
of the agreement of January 14, 1955.
It may be that the Tribunal thought that the Bonus Scheme framed by the Central Government formed a condition of service of the malis or a facility to which they were entitled and which the appellants undertook by the agreement of January 14, 1955, to continue.
If this was the point of view, then of course the further question still remains whether the malis were on domestic and personal work for if they were, then they would not be entitled to the bonus as a facility or a condition of their service under the Scheme.
It was however contended on behalf of the respondent workmen in this Court that the right to bonus was a condition of the service of the malis and a facility to which they were entitled independently of the Bonus Scheme and that this is what the Tribunal had held.
The record however is not very clear on this question.
The appellants dispute the contention of the workmen and further say that in any event the Tribunal had no jurisdiction to decide that question for the question referred to it was the right of the malis to bonus under the Bonus Scheme.
888 We think that the appellants ' contention is well founded.
What had been referred was the question "whether the withdrawal of the benefit of bonus Provided in the Coal Mines Bonus Scheme . is justified".
On the language of the order of reference it seems to us that the dispute referred was as to the right as provided in the Bonus Scheme and not as to any other right.
This also was the workmen 's case before the Tribunal as appears from its written statement filed there.
In the statement of case filed in this appeal also, the respondent took the same position.
We therefore think that if the Tribunal had held that the malis were entitled to the bonus under the agreement of January 14, 1955 independently of the Bonus Scheme it had exceeded its jurisdiction and its award cannot be upheld.
The question still remains as to whether on a proper construction of paragraph 3 of the Bonus Scheme these malis had any right to bonus.
That was undubitably the question referred to the Tribunal.
The words requiring construction are "on domestic and personal work".
The Tribunal held that malis working in bungalows belonging to the appellants were not working for the home or household of private persons or individuals and were therefore not on domestic work.
It also held that as the malis work under the direction and control of the appellants and were liable to be transferred from one bungalow to another or to some other work they were not on personal work.
We are unable to accept this construction of paragraph 3 of the Bonus Scheme.
Domestic means as of the home.
We feel no doubt that the malis who were working in the bungalows occupied by the officers were working in the home of the officers.
They were, therefore, on domestic work.
The work they were doing would not cease to be domestic work because the bungalows belonged not to the officers but to the appellants.
Whether a work 889 is domestic or not would depend on its nature.
Suppose an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work.
This is not disputed.
The nature of that work would not change because the the mali was working not under the orders of the officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants.
Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any differences The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant.
On such transfer they might become entitled to bonus.
The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.
Paragraph 3, of the Bonus Scheme contemplated malis who were employees of the colliery owners and were yet on domestic work.
The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by them.
It may be that malis to engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only.
As we have said earlier, whether a malis on domestic work or not would depend on the nature of the work.
As the work which the malis with whom we are concerned did, was domestic work.
these malis must be deemed to be within the exception mentioned in paragraph 3.
They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and orders.
We further feel no difficulty in holding that 890 these malis were on personal work.
The word "personal" is obviously used in the sence of work for an individual as distinguished from work for the Coal mine as an institution.
These malis were undoubtedly working for the officers as individuals.
Therefore they were on personal work.
For these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme.
As in our opinion the order of reference does not raise any question as to whether the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so.
The result is that this appeal allowed and we set aside the award of the Tribunal in so far as it is concerned with the two points of dispute earlier set out which had been referred to it.
We do not think it a fit case to make any order for costs.
Appeal allowed.

Output:
In exercise of the power conferred by 5. 5 of the Coal Mines Provident Fund and Bonus Schemes Act, 1948, the Central Government framed a Bonus Scheme for the payment of bonus to employees of coal mines.
Paragraph 3 of the scheme made every employee in a coal mine eligible for a bonus except, infer alia, "a mali on domestic and personal work".
The question for consideration was whether under this paragraph the malis working in the officers ' bungalows had any right to bonus. ^ Held, that these malis were not entitled to any bonus under the Bonus Scheme.
Paragraph 3 contemplated malis who were employees of the colliery owners and were yet on domestic work.
Domestic meant as of the home.
The malis 884 who were working in the bungalows occupied by the officers, were working in the homes of the officers.
They were therefore, on domestic work.
The work they were doing did not cease to be domestic work because the bungalows belonged not to the officers but to the appellant or because they were under the control and orders of the appellant.
Further, these malis were on personal work.
The word "personal" was used in the sense of work for an individual as distinguished from work for the coal mine as an institution.
These malis were undoubtedly working for the officers as individuals.