Damyanti Naranga Vs. The Union of
India & Ors [1971] INSC 60 (23 February 1971)
BHARGAVA, VISHISHTHA BHARGAVA, VISHISHTHA
SIKRI, S.M. (CJ) MITTER, G.K.
HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 966 1971 SCR (3) 840 1971
SCC (1) 678
CITATOR INFO :
D 1971 SC1737 (31) D 1985 SC 973 (9) RF 1985
SC1622 (5) D 1987 SC 379 (9) RF 1988 SC1136 (30,31)
ACT:
Fundamental Rights-Freedom of
Association-Hindi Sahitya Sammelan, a registered society-Parliament enacting
legislation declaring Sammelan as of national impor tance-Power to frame rules
to admit new members without consent of original members of Society If
infringes right to form Association of original members of societyTransferring
properties of Society to Sammelan while Society kept in existenceIf infringes
right to hold property-Constitution of India Article 19 (1)(c) and (f) cls. (4)
and (5)-Hindi Sahitya Sammelan Act, 1962.
HEADNOTE:
The Hindi Sahitya Sammelan (hereinafter
referred to as the Society) was a registered society founded for the development
and propagation of Hindi. After a number of years of its successful working
differences arose between its members and this resulted in litigation. in 1956
the Uttar Pradesh legislature passed the U.P. Sahitya Sammelan Act, under which
a statutory body was created under the name of Hindi Sahitya Sammelan. This act
was declared void by the Allahabad High Court as violating the freedom of
association guaranteed under article 19(1)(c) of the Constitution. Thereafter,
Parliament enacted the Hindi Sahitya Sammelan Act, 1962legislating under entry
63, list I of the Seventh Schedule declaringthat "the institution known as
the Hindi Sahitya Sammelan is an institution of national importance". By
the Act a statutory sammelan was constituted as a body corporate by the name of
the Hindi Sahitya Sammelan. Under s. 4(1) of the Act the Sammelan was to
consist of the first members of the Society and all persons who might become
members thereafter in accordance with the rules made in that behalf-by the
first Governing Body to be constituted by the Central Government by
notification. The Act provided, for vesting in the Sammelan of all property
movable or immovable, of or belonging to the society.
Petitions under Article 226 in the High Court
and under Article 32 in this Court were filed challenging the constitutionality
of the Act mainly on the ground that the Act interfered with the right of the
petitioners to form association under Article 19(1) (c) of the Constitution.
The High Court held that since all the
members of the society had also become members of the Sammelan under the Act,
there was no infringement of the right to form association. In the appeal and
in the petition under Article 32, the respondent contended that having declared
the old Hindi Sabitya Sammelan, which was a society registered under the Societies
Registration Act, 1860 as an institution of national importance, Parliament has
proceeded to legislate in respect of it under entry 63 of List I of the Seventh
Schedule in order that its administration may not suffer as a result of the
quarrels that were going inter be between the members of the society; it was
for this purpose that a first Governing Body was constituted to take over the
management temporarily; the Act was designed to reconstitute the Sammelan in
such a manner that it could worm successfully and without difficulties; and in
making provisions for this purpose all members of the old society were included
as members of the Sammelan 8 4 1 so that their right to form association may
not be taken away from them Alternatively the respondent took up the position
that the Act nowhere specifically laid down that the society shall stand
dissolved while it constituted a new Sammelan and therefore, it should be
inferred that while the society still continued to exist in its original form
the law has brought into existence a new Sammelan to which all the functions
and the properties etc.-of the society have been passed. Allowing the petition
and the appeal.
HELD : Under s. 12(1) (a) very wide powers
are given to the first governing body to make rules in respect of matters
relating to membership including qualifications and disqualifications for
membership of the Sammelan. Under this power the rules framed could make
provisions for admission of persons as members whom the original members of
society may never have liked to admit in their Society. The number of such new
members could even be so large as to leave the original members in a small
minority with the result that those members. could become totally ineffective
in the society. Thus the Sammelan which has come into existence, is not
identical-with the Sammelan which was a registered society under the Societies
Registration Act., This is clear interference with the right to form a society
which has been exercised by the members of the Society by forming the Society
with its constitution under which they were members. The Act does not merely
regulate the administration of the affairs of the Society; what it does is to
alter the composition of the society itself. The result of this change in
composition is that the members, who voluntarily formed the society are now
compelled to act in that Association with other members who have been imposed
as members by the Act and in whose admission to membership they had no say. The
right to form association necessarily implies that the persons forming the
society have also the right to continue to be associated with only those whom
they voluntarily admit in the association. Any law by which members are
introduced in the voluntary association without any option being given to the
members to keep them out or any law which takes away the membership of those
who have voluntarily joined. it will be a law violating the right to form
association. [847 H; 849 C-E] The right guaranteed by Article 19(1)(c) cannot
be confined to the initial stage of forming an association. if it were to be so
confined, the right would be meaningless because as soon as an association is
formed, a law may be passed interfering with its composition so that the
association formed may not be able to function at all. The right can be
effective only if it is held to include within, it the right to continue the
association with its composition as voluntarily agreed upon by the persons
forming the association. And, Article 19(4), on the face of it, cannot be
called in aid to claim lidity for the Act. Therefore the provision contained in
the Act for reconstituting the society into the Sammelan is void. The whole Act
becomes ineffective in as much as the formation of the new Sammelan is the very
basis for all the other provisions in the Act.
[849 F-H; 851 E] O.K. Ghosh and Another v. E.
X. Joseph, [1963] SUppl. 3 S.C.R. 789; State of Madras v. V. G. Row, [1952]
S.C. R. 597 and V. G. Row v. The State of Madras, A.I.R. 1951 Mad. 147,
referred to.
The alternative submission cannot be accepted
as ensuring the validity of the Act. First, the specific case taken by the
respondent has been, that the Act reconstitutes the Society and does not create
a separate and independent body in the form of a new Sammelan. Secondly, even
if it be accepted that a new Sammelan has been constituted, the question of842
legislative competence of Parliament to pass such a law will arise. The
Sammelan is itself a body corporate and that Sammelan has never been declared
as an institution of national importance. The only institution that was so
declared was the society which, of course, earlier carried the same name as the
new Sammelan. Parliament was, therefore, not competent to legislate in respect
of this newly constituted Sammelan which at no stage has been declared as an
institution of national importance. Thirdly, if it were to be held that
Parliament passed this Act so as to transfer all the properties and assets of
the Society to the Sammelan, the Act would contravene Article 19(1)(f) of the
Constitution. The Sammelan is a new, separate and distinct legal entity from
the Society. The Society is thus deprived of all its properties by the Act and
such a law depriving the Society of its properties altogether cannot be held to
be a reasonable restriction in the public interest on the right of the society
to hold the property. The applicability of Article 19(1(f) is on the assumption
that the old Society still exists as it was and yet its properties have been
transferred to the Sammelan. If the Society still exists, so does its Governing
Body in whom the property of the Society vested. The Act thus deprives the
members of the Governing Body of the property which still continued to vest in
them in spite of the passing of the Act. This total deprivation of property
instead of regulating the management of the affairs of the Society of its
property cannot clearly be justified as a reasonable restriction in public
interest. If the law is passed not merely for ensuring proper management and
administration of the property, but for totally depriving the persons, in whom
the property vested, of their right to hold the property, the law cannot be
justified as reasonable restriction under Article 19(5). [852 B-H; 853 E-854 A]
The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of
Delhi & Anr. [1962] Suppl. I S.C.R.
156; referred to.
ORIGINAL JURISDICTION: Writ Petition No. 91
of 1964.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights and Civil Appeal No. 358 of
1966.
Appeal by special leave from the judgment and
order dated September 9, 1963 of the Allahabad High Court in Civil Writ
Petition No. 1885 of 1962.
J.P. Goyal and Raghunath Singh, for the
petitioner (in W.P. No. 91 of 1964).
A.K. Sen, J. P. Goyal and Raghunath Singh,
for the appellants (in C.A. No. 358/66).
B.Sen and S. P. Nayar, for respondent No. 1
(in W.P. No. 91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of
1966).
N.N. Sharma, for respondent No. 2 (in W.P.
No. 91/64) and respondents Nos. 16 and 17(in C.A. No. 358/66).
843 The Judgment of the Court was delivered
by Bbargava, J.-This writ petition and the appeal challenge the validity of the
Hindi Sahitya Sammelan Act No. 13 of 1962 (hereinafter referred to as "the
Act"). The facts leading up to the passing of this enactment are that, in
the year 1910, some eminent educationists assembled at Banaras and founded an
Association for the development of Hindi and its propagation throughout the
country. This Association was named as the Hindi Sahitya Sammelan. On the 8th
January, 1914, it was registered as a Society under the Societies Registration
Act No. 21 of 1860, with Head Office at Allahabad, under the name of Hindi
Sahitya Sammelan. The rules and bye-laws of the Society laid down the objects
of this Association and the manner of its working. It had three classes of
members, viz., special members (Vishisht Sadasya), permanent members (Sthayi Sadasya),
and ordinary members (Sadharan Sadasya). Under the bye-laws, apart from the
original members constituting the Society, further members could be admitted
under these three classifications on being elected by the working committee of
the Society.
Under the Rules and bye-laws of the Society,
other bodies could be constituted for carrying on activities of the Society.
These included a Governing Body, a Working Committee, a Hindi University
Council, Literary Council (Sahitya Samiti), Library Committee, Parchar Samiti
and Rashtriaya Bhasha Prachar Samiti. Through the agencies of these various
Committees, the Society carried on the work of development and propagation of
Hindi, of spreading the use of Devnagri scrip, of holding examinations, and of
conferring Degrees for proficiency in Hindi. The Society owned landed
properties and buildings at Allahabad as well as at some other places such as
Warding, and was holding considerable funds for carrying on its activities. The
Society worked very successfully for a number of years. It appears that in the
year 1950, some differences arose between the members of the Society, and
attempt was made to alter the constitution, of the Society. while one section
wanted the alterations, another section was opposed to it.
This resulted in litigation. Three different
suits were instituted in the civil Courts at Allahabad in this connection and
injunctions were sought by one party against the other. Ultimately, the Court
appointed a Receiver.
In view ofthese circumstances, the U.P.
Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36
of 1956, under which a statutory body was created under the name of Hindi
Sahitya Sammelan, and the word "Sammelan" was defined as referring to
the Hindi Sahitya Sammelan constituted under the Act. Under that Act. Under
that Act, the mana844 gement and properties of the original Hindi Sahitya
Sammelan, which was a registered Society, were to be taken over by the new
statutory Sammelan. That Act was, however, declared void by the Allahabad High
Court on the ground that Act had made the original Sammelan cease to exist and
provided for the constitution of a new Sammelan under its terms in which the
members of the original Sammelan had no say, so that Act infringed the right of
the members of the original Sammelan of forming an association guaranteed by
Art. 19 (1) (c) of the Constitution. It was further held that Act was not saved
under Art. 19(4) of the Constitution.
Thereafter, the present Act, now challenged
in this writ petition and the appeal, was passed by Parliament under Entry 63
of List I of the Seventh Schedule to the Constitution. The Act itself, in
section 2, contained the necessary declaration to give legislative competence
to Parliament under that Entry.
The Act first contained in section 2 a
declaration in the following words :"Whereas the objects of the
institution known as the Hindi Sahitya Sammelan which has its head office at
Allahabad are such as to make the institution one of national importance, it is
hereby declared that the institution known as the Hindi Sahitya Sammelan is an
institution of national importance." Having declared this institution as
an institution of national importance, the, Act proceeded to define
"Sammelan" as meaning the institution known as the Hindi Sahitya
Sammelan incorporated under this Act, while the word "Society" was
defined to mean "the Hindi Sahitya Sammelan which has its head office at
Allahabad and is registered under the Societies Registration Act, 1860."
Under section 4(1) of the Act, the Sannnelan was constituted which was to
consist of the first members of the Sammelan and all persons who may hereafter
become members thereof in accordance with the rules made in that behalf. This
statutory Sammelan was constituted as a body corporate by the name of the Hindi
Sahitya Sammelan, and under sub-section (2) of section 4, it was to have
perpetual succession and a common seal with power, subject to the provision of
the. Act, to acquire, hold and dispose of property and to contract and to sue
and be sued by that name. The Head Office of the Sammelan was to be at
Allahabad. Under subs.(4) of section the first members of the Sammelan were to
consist of persons who, immediately before the appointed day.(a) were special
members (Vishisht Sadasya) of the Society;
8 45 (b) (were. life members (Sthayi Sadasya)
of the Society.
(c) had been Presidents of the Society; or
(d) were awarded the Mangla Prasad Paritoshik by the Society.
This sub-s. (4) of section 4 was amended
retrospectively with effect from the date that the Act came into force by the
Hindi Sahitya Sammelan (Amendment) Act No. 1 of 1963, and the first members of
the Sammelan were, under this amendment, declared to be(a) all persons who,
immediately before the appointed day, were members of the Society;
(b) all persons who, before that day, had
been Presidents of the Society; and (c) all persons who, before that day, were
awarded the Mangla Prasad Paritoshik by the Society.
It is not necessary to give in detail the
other provisions of the Act, except that it may be mentioned that the Act
provided for vesting of all property, movable or immovable, or, belonging to
the Society in the Sammelan, transferring all rights and Liabilities of the
Society to the Sammelan, converting reference to the Society in any law to the
Sammelan, and other similar necessary provisions. The Act itself did not make
any provision for the future membership of the Sammelan; but, under section
12(1) (a), the first Governing Body of the Sammelan was directed to make rules
in respect of matters relating to membership, including qualifications and
disqualifications For membership of the Sammelan. The first Governing Body was
to be constituted under section 8 and was to consist of a Chairman, a Secretary
and 13 other members. This Governing Body was to be constituted by a
notification in the Official Gazette by the Central Government. The thirteen
members were to be chosen as follows :(i) one member to represent the Ministry
of the Central Government dealing with education;
(ii)one member to represent the Ministry of
the Central Government dealing with finance;
(iii)not more than three members from among
the former Presidents of the Society; and (iv)the remaining number from among
persons who are, in the opinion of the Central Government, eminent in the field
of Hindi language or Hindi literature.
It was this first Governing Body which was to
make rules on all matters relating to membership of the Sammelan under section
12 (1 )(a) of the Act. These rules were not have effect until they were
approved by the Central. Government and were published by the first Governing
Body in such manner as the Central Government may, by order, direct. A copy of
the rules was also to be laid before each House of Parliament. Counsel for
respondent No. 1 placed before us a copy of the rules which, according to him,
have been made by the first Governing Body with the approval of the Government
and have been published as required. The Rules come into force on 1st of
February, 1971. The petition under Art. 32, and the petition under Art. 226,
out of which the civil appeal arises, were both moved much earlier and long
before these Rules were framed. These petitions challenged the validity of the
Act, without taking into account the actual Rules framed, mainly on the ground
that he Act had interfered with the right of the petitioners to form
association Linder Art. 19(1)(c) of the Constitution and was not protected by
Art. 19(4). In the petition before the Allahabad High Court, the Court held
that, since all the members of the Society had also become members of the
Sammelan under the Act, there was no infringement of the right to form
association, so that the Act could not be declared invalid on that ground. The
writ petition in this Court has been filed by only one member of the Society,
while the petition in the High Court and the appeal against the judgment of the
High Court, which is before us, were filed by the original Hindi Sahitya
Sammelan as one party and 72 members of that Sammelan joining as other
petitioning parties. 'In the civil appeal, thus, the grievance that the Act ha$
infringed the fundamental right has been put forward both by the Society itself
as well as by 72 of its members, including members of the Working Committee and
the Governing Body of the society. They have all come up to this Court against
the decision of the High Court in this appeal by special leave.
In the counter-affidavits filed on behalf of
the respondents in the writ petition before the High Court as well as in the
writ petition in this Court, the position taken up was that the Act, in fact,
does not deprive the Society and its members of any rights which they had under
the constitution of the Society and did not interfere with their right of
association inasmuch as all the members of the Society have been included as
members of the Sammelan under the Act. The High Court, in fact, dismissed the
writ petition on accepting this submission put forward on behalf of the
respondents. In the arguments before us, learned counsel for 847 respondent No.
1, however, took UP a different position and urged that the Act keeps the
Society in-tact as it was, where a new Sammelan is constituted under the Act
for the purpose of managing the institution which has been declared as an
institution of national importance. He put this aspect of the case in the
forefront, but, in the alternative, he also argued the case on the basis of the
position taken up in the counter-affidavits in the High Court and in this Court
as mentioned above. We consider it convenient to first deal with the case as
was specifically put forward in the counter-affidavits. In these counter affidavits,
the position taken up is that, having declared the old Hindi Sahitya Sammelan,
which was a Society registered under the Societies Registration Act, 1860, as
an institution of national importance, Parliament has proceeded to legislate in
respect of it under Entry 63 of List I of the Seventh Schedule in order that
its administration may not suffer as a result of the quarrels that were going
on inter-se between the members of the Society. It was for this purpose that a
first Governing Body was constituted to take over the management temporarily.
The Act was designed to reconstitute the Sammelan in such manner that it could
work successfully and without difficulties and, in making provision for this
purpose, all members of the old Society were included as members of the
Sammelan, so that their right of forming association may not be taken away from
them. The Society was never dissolved; instead of the Society remaining a body
registered under the Societies Registration Act, it was converted into a
statutory Sammelan under the Act.
It, however, appears on examination of the
provisions of the Act that the Sammelan under the Act is composed not only of persons,
who were members of the Society, but of others who have been given the right to
be members of the Sammelan without the consent of the preexisting members.
Under section 4(4) itself, as retrospectively amended in 1963, apart from
persons, who were members of the Society, others, who have been made members of
the Sammelan, are all persons who, before that day, had been Presidents of the
Society and all persons who, before that day, were awarded the Mangla Prasad
Paritoshik by the Society. These members have been added without any option
being available to the existing members of the Society to elect or refuse to
elect them as members which was the right they possessed under the constitution
of the Society itself. Further, under section 12 (1) (a), very wide powers were
given to the first Governor Body to make rules in respect of matters relating
to membership, including qualifications and disqualifications for membership of
the Sammelan. Under this power, the rules framed could make 10-L1100 SupCI71 848
provision for admission of persons as members whom the original members of the
Society may never have liked to admit in their Society. The number of such new
members could even be so large as to leave the original members in a small
minority with the result that those members could become totally ineffective in
the Society. Even in the Rules actually framed, there is provision for
admission of members under various classes. In addition to the persons
mentioned in section 4(4) of the Act, Rule 6 proVides for membership of persons
who may become Sabhapatis of the Sammelan for any annual session subsequent to
the Act coming into force, and persons who may be awarded Mangala Prasad
Paritoshik subsequent to the Act coming into force. Under Rules 7, 8, and 9, new
Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to
the membership of the Sammelan on payment of Rs. 1,000/or Rs. 300/-, as the
case may be. This admission to membership, according to the Rules, will be made
by the new Karya Samiti to be elected under the Rules and not by the Working
Committee of the original members of the Association. Further, under section
7(2) of the Act, the Governing Body of the new Sammelan is to consist of such
number of persons, not exceeding 55, as the Central Government may from time to
time determine; and out of these, a number not exceeding 7 are to be nominated
by the, Central Government from among educations of repute and eminent Hindi
scholars. These 7 nominees are to be chosen by the Central Government and on
becoming, members of the Governing Body, under Rule. 11 they become members of
the Sammelan. Under Rule 10, educational institutions can also be admitted as
Sanstha Sadasyas of the Sammelan by the new Karya Samiti and, thereupon, a
representative of each of such institution has right to participate in'
proceedings of the Sammelan, exercising all the rights of a member. It will,
thus, be seen that the Sammelan, which has come into existence under the Act,
is not identical with the Sammelan which was registered as a Society under% the
Societies Registration Act. 1860.
Certain persons have been added as members by
the Act and by the Rules. Admission of future members is no longer at the
choice of the original members who' had formed the Association Persons, in
whose admission as members the members of the, Society, had no hand, can become
members and get the right of associating with them in the Sammelan, without the
original members having any right to object. this is clear interference with
the right to form an association which had been exercised by the members of the
Society by forming the Society with its constitution, under which they were
members and future members could only come in as a result of their choice by
being elected by their Working Committee.
We are unable to agree with the High Court
that the new Sammelan, as constituted under the Act, 849 is identical with the
Society and that all the rights of forming an association, which were being
exercised by members of the Society, have been kept in-tact under the Act.
It was argued that the right guaranteed by
Article 19 (1 (c) is only to form an association and, consequently, any
regulation of the affairs of the Association, after it has been formed, will
not amount to a breach of that right. It is true that it has been held by this
Court that, after an Association has been formed and the right under Art. 19
(1) (c) has been exercised by the members forming it, they have no right to
claim that its activities must also be permitted to be carried on in the manner
they desire. Those cases are, however, inapplicable to the present case. The
Act does not merely regulate the administration of the affairs of the Society,
what it does is to alter the composition of the Society itself as we have
indicated above. The result of this change in composition is that the members,
who voluntarily formed the Association, are now compelled to act in that
Association with other members who have been imposed as members by the Act and
in whose admission to membership, they had no say. Such alteration in the
composition of the Association itself clearly interferes with the right to
continue to function as members of the Association which was voluntarily formed
by the original founders. The right to form an association, in our opinion,
necessarily, implies that the persons forming the Association have also the
right to continue to be associated with only those whom they voluntarily, admit
in the Associate on. Any law, by which members are introduced in the voluntary
Association without any option being given to the members to keep them out, or
any law which. takes away the membership of those who have voluntarily Joined
it, will be a law violating the right to form an association. If we were to
accept the submission that the right guaranteed by Art. 19 ( 1 ) (c) is
confined to the initial stage of forming an Association and does not protect
the right to continue the Association with the membership, either chosen by the
founders or regulated by rules made by the Association itself, the right would
be meaningless because, as soon as an Association is formed, a law may be
passed interfering with its composition., so that the Association formed may not
be able to function at all.
The right can be effective only if it is held
to include within it the right to continue the, Association with its
composition as voluntarily agreed upon by the persons forming the Association.
This aspect was recognised by this Court though not in plain words, in the case
of O. K. Ghosh and Another v. E. X. Joseph("). The Court, in that case..
was considering the validity of Rule 4 (B) of
the Central Civil Service,,, (Conduct) Rules, 1955, which laid down that:
(1)[1963] Supp 3 S.C.R. 789.
850 "No Government servant shall join or
continue to be a member of any Service Association of Government servants
(a)which has not, within a period of six months from its formation, obtained
the recognition of the Government under the Rules prescribed in that behalf; or
(b)recognition in respect of which has been refused or withdrawn by the
Government under the said Rules." This Court held:"It is not disputed
that the fundamental rights guaranteed by Art. 19 can be claimed by Government
servants. Art. 33 which confers power on the Parliament to modify the rights in
their application to the Armed Forces, clearly brings out the fact that all
citizens including Government servants, are entitled to Claim the rights
guaranteed by Art. 19. Thus, the validity of the impugned rule has to be judged
on the basis that the respondent and his co-employees are entitled to form
Associations or Unions. It is clear that Rule 4-B imposes a restriction on this
right. It virtually compels a Government servant to withdraw his membership of
the Service Association of Government Servants as soon as recognition accorded
to the said citation is withdrawn or if, after the Association is formed, no
recognition is accorded to it within six months. In other words, the right to
form an Association is conditioned by the existence of the recognition of the
said Association by the Government. If the Association obtains the recognition
and continues to enjoy it, Government servants can become members of the said
Association; if the Association does not secure recognition from the Government
or recognition granted to it is withdrawn, Government servants must cease to be
the members of the said Association. That is the plain effect of the impugned
rule." The Court in the above passage, thus, accepted the principle that
the Government servants, who may have formed an Association. could not, be
compelled to resign from it by imposition of a condition of recognition of this
Association by the Government and that if the Government servants are required
to cease to be members that would be a violation of the right under Art. 19 (1)
(c). The Court, of course, in that case, further proceeded 'to examine whether
such a restriction on the right could be justified under 851 Art. 19(4) or not.
That case, thus, supports our view that the right to form an Association
includes the right to its continuance and any law altering the composition of
the Association compulsorily will be a breach of the right to form the
Association.
This Court had also proceeded on the same
basis in the case of State of Madras v. V. G. Row(1). Though this aspect was
not clearly brought out in the judgment, the point, which came up for
consideration, was decided on the basis that persons forming, an Association
had a right under Art. 19 (1) (c) to see that the composition of the
Association continues as voluntarily agreed to by them. That decision was given
in an appeal from a judgment of the High Court of Madras reported in V. G.
Row,v. The State of Madras(2). In the High Court, this principle was clearly
formulated by Rajamannar, C.J., in the following words :"The word
"form" therefore, must refer not only to the initial commencement of
the association, but also to the continuance of the association as such."
The Act, insofar as it interferes with the composition of them Society in
constituting the Sammelan, therefore, violates the right of the original
members of the Society to form an association guaranteed under Art. 19(1) (c).
Article 19(4), on-the face of it, cannot be
called in aid to claim validity for the Act. Under Art. 19(4), reasonable
restrictions can be imposed only in the interests of the sovereignty and
integrity of India, or in the interests of public order or morality. It has not
been contended on behalf of the respondent, nor could it be contended that this
alteration of the constitution of the Society in the manner laid down by the
Act was. in the interests of the sovereignty and integrity of India, or in, the
interests of public order or morality. Not being protected under Art.
19(4), if must be held that the provision
contained, in the Act for reconstituting the Society into the Sammelan is,
void. Once that section is declared void, the whole Act becomes. ineffective
inasmuch as the formation of the new Sammelan is the very basis for all the
other provisions contained in the Act.
In view of this position emerging in the
course of arguments, Mr. B. Sen put forward an entirely different and
alter-native case before us which we have mentioned earlier.
The. position he took up was that the Act
nowhere specifically lays. down that the Society small stand dissolved, while
it does constitute a new Sammelan.
According to him, therefore, it should (1)
[1952] S.C.R. 597.
(2) A.I.R. 1951 Mad. 147.
852 be inferred that, while the Society still
continues to exist in its original form, the law has brought into existence a
new Sammelan to which all the functions, properties, etc. of the Society have
passed under the Act. There are three reasons why this alternative submission
cannot be accepted as ensuring the validity ,of the Act. The first is that the
specific case taken by the respondents has been that the Act reconstitutes the
Society and does not create a separate and indepedent body in the form of a new
Sammelan. Secondly, even if it be accepted that a new Sammelan has been
constituted by the Act, the question will ,arise of the Legislative competence
of Parliament to pass such :a law.
Constitution of Societies is under List 11 of
the Seventh Schedule. Parliament purported to exercise legislative power under
Entry 63 of List I on the basis of a declaration that the Hindi Sahitya
Sammelan, Allahabad was an institution of national importance. The institution
that was declared was the Society itself. It was not a case where the Society
could be distinguished from some other institution which might have been
declared as an institution of national importance There can, of course, be
cases where a Society may be running a college, a school or some other like
institution, in which case Parliament may declare that particular institution
as of national importance, without declaring the Society as such In the present
case, what section 2 of the Act did was to declare the Society itself as an
institution of national importance, and, consequently, Parliament became
competent to legislate in respect of the Society. On the interpretation now
sought to, be put forward, the Act keeps that Society in-tact, but deprives it
of all its functions and properties and transfers them to 'a newly constituted
body, viz., the Sammelan, as defined under the Aet. This Sammelan is itself a
body corporate, and that Sammelan has never been declared as an institution of
national importance. The only institution that was declared as of national
importance was the Society which, of course, earlier, carried the same name as
the new Sammelan.
Parliament was, therefore, not competent to
legislate in respect of this newly constituted Sammelan which, at no stage, had
been declared as an institution of national importance. The third reason why
this submission must be rejected, is that, if we were to hold that Parliament
pased this Act so as to transfer all the properties and assets of the Society
to the Sammelan, the Act would contravene Art.
19(1)(f) of the Constitution. On this
interpretation, what the Act purports to do is to take away all the properties
of the Society, leaving the Society as an existing body, and give them to the
new Sammelan. This Sammelan is a new, separate and distinct legal entity from the
Society. The Society is, thus' deprived of all its properties by the Act. Such
a law depriving the Society of its properties al8 5 3 together cannot be held
to be a reasonable restriction in the public interest on the right of the
Society to hold the property. The property, under section 5 of the Societies Registration
Act, 1860, vested in the Governing Body of the Society. The members of the
Governing Body, therefore had the right to hold the property under Art.
19(1)(f) and they having been deprived of that property have rightly approached
the Courts for redress of their grievance.
In this connection counsel for the
respondents relied on decision of this Court in The Board of Trustees,
Ayurvedic and Unnanii Tibia College, Delhi v. The State of Delhi and
Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbit
College, Delhi was dissolved by the Tibbia College Act, 1952, and the property,
which had vested in the Board of Trustees, passed to the newly constituted
Board under the impugned Act. The Court held that there was no violation of the
fundamental rights guaranteed by Art.
19(1)(f) or Art. 31 That decision, however,
proceeded on the basis that the property of the original Society registered
under the Societies Registration Act had vested in the Board of Trustees which
had been dissolved and the property, thereafter, did not vest in the members of
the Society in view of the provisions of the Act of 1860. In these
circumstances, it was held that no one could complain that his right to
property under Art. 31 or his right to hold the property under Art. 19 (1) (f)
had been violated by the impugned Act. In the present case, the applicability
of Art. 19(1)(f) is being considered by us on the assumption that the old
Society still exists as it was and, yet all its properties have been transferred
to the Sammelan. If the Society still exists, so does its Governing Body in
whom the property of the Society vested. The Act, thus, deprives the members of
the Governing Body of the property which still continued to vest in them in
spite of the passing of the Act. This total deprivation of property, instead of
regulating the management of the affairs of the Society or its properties,
cannot clearly be justified as a reasonable restriction in public interest. It
is true that, at the time when the Act was passed, litigation was going on
between the members of the Society, and the affairs of the Society were
probably in a mess. The remedy, however, could not lie in depriving the Society
of its property altogether. Reasonable restrictions could have been imposed so
as to ensure the proper preservation of the property of the Society and its
proper management. If the law is passed not merely for ensuring proper
management and administration of the property, but for totally depriving the
persons, in whom the property vested, of their (1) [1962] Suppl. I S.C.R. 156.
854 right to hold the property, the law
cannot be justified as a reasonable restriction under Art. 19(5). Consequently,
even on this alternative position taken up by counsel for the respondents, the
Act cannot be held to be valid.
As a result, the petition and the appeal are
both allowed with costs. The Act is declared to be invalid, so that there will
be restraint on the concerned bodies, including the Union Government, from
taking or continuing any action under the Act. There will be one hearing fee.
R.K.P.S. Petition and Appeal allowed.
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