NAIN SUKH DAS AND ANOTHER versus THE STATE OF UTTAR PRADESH AND OTHERS

il84 SUPREME COURT REPORT8 [i953]

NAIN SUKH DAS AND ANOTHER May 22

THE STATE OF UTTAR PRADESH AND OTHERS.

[PATANJALI SASTRI C.J., MuKHERJEA, S. R. DAs, GHULAM HASAN and BHAGWATI JJ.]"

Constitution of India, 1950, Arts. 14, 15(1), 32-},fonicipal election -Election on the basis of comin,ina1 electorates-Va1idity-Application tinder Art. 32 for writ to prevent elected candidates from sitting on the Board-Mciintaincib-ility-Remedy of rate-payers.

The petitioners, who were residents of municipality, alleging that they had been deprived of their rights to exercise their votes and to seek their election as candidates in certain by. elections to the Municipal Board, as those by-elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution, applied for writs under art. 32 of the Constitution for preventing the elected candidates from acting as members of the Board, and the District Magistrate and Civil Judge from holding any meetings of the Board: Held, that, though law which provides for elections on the basis of separate electorates for members of different religions communities offends against art. 15(1) of the Constitution and an election held after the Constitution in pursuance of such law subject to cl. 4 would be void, the right which the petitioners claimed as rate-payers in the municipality to insist that the Board should be legally constituted and that persons who have not been properly elected should not be allowed to take part in the proceedings of the Board was outside the purview of art. 32 of the Constitution inasmuch as such right, even if it existed, was not fundamental right conferred by Part III of the Constitution.

Held f1!rther, that the alleged infringement of the funda-mental rights of the petitioners under art. 15(1) and art. 14, that is, the discrimination practised against them related to rights which they in fact never sought to exercise and took no ste1~s to assert while there was occasion for doing so and the petitioners were therefore entitled to no relief under art· 32 of the Constitution.

ORIGINAL JURISDICTION: Petition No. 69of1953. Petitiop under article 32 of the Constitution for enforcement of fundamental rights.

8.C.R. SUPREME COURT REPOR'l'S li85

S. 0. Isaac;s (Ja·i Prasad Agarwal, with him) for the appellant.

-.Vain Sukh Das and Another v.

K. B. Asthana, for respondent No. 1.

S. P. Sinha (R. Patnaik, with him) for respondent

':Phe State of UUar Pradesh a.nd Others.

1953. May 22. delivered by

The Judgment of the Court was

P ATANJALI S ASTRI ,. V• J .-'Th' JS IS . an app 11cat10n [. ]. un-der article 32 of the Constitution seeking protection of the petitioners' fundamental right under article 15 ( 1) against alleged violation thereof by the respondentB.

Patanjali Sa.tri a. J.

The petitioners are three residents of Etah in Uttar Pradesh. They complain that at the by-elections to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, II and 12 were respectively elected, the petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as thosr by-elections were held on communal lines on the basis of separate electorates rnntrary to the provisions of the Constitution. They also allege that the nomi-nation of respondent 3 as member of the Board by the Government was an illegal exercise ofits powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently repre-sented. The petitioners accordingly pray for the issue of writs of quo warranto, mandamus and other appro-priate writs or directions to respondents 3, 4, II and 12 to show under what authority they are acting as members of the Board and to prevent them from act-ing as such mem hers. The petitioners also ask for writs on the District :Magistrate and the Civil Judge ofEtah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.

Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electo-rates for members of different religious communities offends againRt article 15 (1) of the Constitution which runs thus: ·

1186 8UPREiVIE COURT REPORT8 tl95:JJ

"15. (1) The State shall not discriminate against auy citizen on grounds only of religion, race, caste, sex, p ace o l b' 1rt or any o t em. ,,

IVJJ

. -Nain Snkh Das Das l

Nain Snkh Das Das l and Another p ace o l

v. This constitutional mandate to the State not to dis-Th• State of criminate against any citizen ou the ground, inter alia, Uttar Pradesh and Other•. o re l' . 1g10n ear 1 ] y ex t ~n t ·o po.' l't' .1~a ] as we 11 as o t .o t] 1~r . rights, and any elect1011 held atter the Const.itut10n rn Paranjali SaMri pursuance of such law subject to "1ause (4) must be held c. J. void as being repugnant to the Constitution. But the question is whether the petitioners are now entitled to the relief they seek in this application under artide :J2.

It is true, as pointed out in the Cross Roads casc(1 ), that article :J2 provides, in some respects, for more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the ;}funicipality to insist that t.he Board should be legally const,ituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article :J2, as such right, even if it exists, is not fundamental right con-ferred by Pa.rt III.Petitioners' learned counsel, however, uontended that the fundamental right conferred by a.rticle 15 (1) on the petitiont'rs a.s citizens oi' India was violated by the elections in question having been held on basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candi-dates and from contesting the elections without regard to the reservation of seats on communal basis. Learned counsel also submitted that the delimitation of the constituencies on communal lines was denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their (1) [1950] S.C.H.· 594·

S.C.R. SUPREME COURT REPORTS

fundamental ri~ht under article 14. We are unable to accede to theRe contentions.

" . .-.\ain 8 kh u. Da8 and Another v.

u. It is plain that the fundamental right conferred by and Another article 15( 1) is conferred on citizen as an individual v. and is guarantee against his being subjected to dis-The State ~f crimination in the matter of the rights, privileges and Uttor Prad'8h ...,. and Others, immunities pertaining to him as citizen generally. It is not the petitioners' ease that any discrimination is i'ntnnjnli sa,1,.; now being practised or threatened against them. Their o. J. grievance iK that the mode of election by separate electorates formed on communal lines involved dis-t·.rimination against them in relation to seats other than those reserved for their respective eommunities as to which they <:ould not exercise their right to vote or their right to stand as candidates. There is no sugges-tion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimina-tion having been practised against them until no-con-fidence motion was tabled recently against the former Chairman who has since lost his seat as result of that motion having bePn carried. Thus, the infringement of their fundamental rights under article 15( 1) and article 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there 'ms still room for doing so, and for the exercise of which the opportunity is now lost. But, argues Mr. Isaacs, the elention of the respondents 4, 11 and 12 being void, they are no better than usur-pers, and tlw petitioners are entitled to prevent them from functioning as members of the Municipal Board. It may be, as we have already remarked, that the peti-tioners could daim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners' funda-mental right under article 15(1) or article 14 in such chim, Tlwn' is still less ground for seeking rclief o~

N ain Sukh Da/J and Another v. The State of U ttar Pradesh and Others.

Patanjali Sastri 0.J.

that basis against respondent 3 who is pnly nominat· ed member.

The petitioners appear to have misconceived their remedy and their application under article 32 must fail. The petition is dismissed with costs, one set. Petition dismissed.

Agent for the petitioners: K. L. 11fehta. Agent for respondent No. 1 : 0. P. Lal. Agent for respondent No. 4: S. P. Varma.

.ilfay 22

RAO SHIV BAHADUR SINGH AND ANOTHER v .

THE STATE OF VINDHYAPRADESH.

PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE, GHULAM HASAN and JAGANNADHA DAS JJ.

Constitution of India, 1950, Art.1. 14, 20-Acts committed in Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr> Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V of 1949) -Validity of trial and conviction-F\tncla.>nental rights to equality of laws and against conviction nnrler ex post facto law-Scope of Arts.14 and 20-Integration of States and Vi·ndhwi Pra-desh Ordinances, effect of.

The appellants, who were during the relevant period, the ~Iiuister for Industries and Secretary to the Government respect-ively of the State of Vindbya Pradesh, were tried by Special Judge under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance (No. V of 1949) for charges under ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts alleged against them being that they entered into conspiracy in February, 1949, at Rewa to obtain illegal gratification for revoking previous Government Order and in pursuance of that conspiracy the second appellant domanded such gratification on 8th March, 1949, at Rewa and the first appellant received Rs. 25,000 towards it on the 11th April, 1949, at New Delhi and forged certain docu-ments purporting to be official orders. They were acquitted by the Special Judge but on appeal the first appellant was convicted by the Judicial Commissioner 011 all t.he charges and the second •ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian