NAWABKHAN ABBASKHAN versus THE STATE OF GUJARAT

NAWABKHAN ABBASKHAN

THE STATE OF GUJARAT

February 19, 1974

[V. R. KRISHNA IYER AND R. S. SARKARIA, ]J.j

Do1nbay Police Act, 1951, Sections 56 and 142-Prosecution for contraven-tion of exten11ne11t order-Pending trial High Court quashing the order u11der Art. 226-EQect of quashing-If void ab ini~io-Natural justice.

The appellant was prosecuted under s. 142 of the Bon1bay Police Act, 1951 on contravention of an cxternment order issued under s. 56 of that Act. During the pendcncy of the criminal trial, the High Court, in petition under Art. 226 of the Constitution, quashed the order of extemment on the ground that no opportunity to show cause was &iven against allegations relating to areas wh:!;· · the acts were alleged to have been committed. In criminal trial, the trial court acquitted the appellant. On appeal by the St~te the High C6urt convicted the appellant. It held that the accused bad re-entered the forbidden area during tht currency of the order. The High Court was of the view that the quashing of thL order by th: court did not render the order of externment void ad initio but it only invalidattd the order with effect from the date of the isstie of the writ D, quashing the order.

On the question whether the externment order having been quashed by the High Court during the pendency of the criminal trial the order had become void ob. initio and there being no quit order there was no offence.

Allowing the appeal,

HELD : that an order which infringed fundamental freedom passed in violation of the audi alteram partem rule was nullity. determination i<i no determination if it is contrary to the constitutional mandate of Art. 19. On this footing the externment order was of no· effect and its violation was no offence. Any order made without hearing the party affected is void and ineffectual to bind parties from the beginning if the injury is to constitutionally guaranteed right May be-that in ordinary legislation or at common Jaw Tribunal having )Urisdictidn and failing to bear the partie.11 may commit an illegality which may render the proceedings voidable when direct attack was made thereon by way of and appeal, revision so the order of or an administrative authority charged with review. but nullity is the consequence of the unconstitutionality duty of complv· tog with natural justice in the exercise of power before restricting the fundamen-tal right of citizen is void ab initio and of no legal efficacy. The duty to hear menacles his jurisdictional exercise and any act is, in its inception, void except when performed in accnrdancc with the conditions laid down in regard to hearinr. [432 G. 436 FJ An ~rder which is vi;>id ma.y b~ di,rec_tty and collateral!"." challenged in legal proceed1n~. An order ts null and void tf the statute cloth1ng the admini<itrati\"c tribunal with nower conditions it with the obligation to hear expressly or by implication. Beyond doubt an order which infringes fu~damental freedom passed in violation of the audi alterom parte1n rule is nullity. When n compe-ten~ ~ourt hol~s such _official act or order invalid, or sets it aside, it operates fro1n nativity, that 1s, the impugned act or order was never valid. [439 F]

In the present. case fuJ!d~mentaJ .right of the petitioner had b:en encroached uoon by the Pohce Co~m1ss1oner without due hearing. The Court quashed that orde~. The legal result !s that the accused .was never guilty of fl'·Jutiog .1n order which never legally existed. [439 D-E]

lT~e Cou_rt did not. express its final opinion on the many wideranging prob· lems tn public law of 1[1]1ega1 orders and violation the~eof by citi,z~n·~.J [439 E]

[ 1974 J 3 S.C.R.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 83 of J 970.

From the judgment and order dated MarGh 5, 1970 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 673 of 1968.

S. K. Dholakia, for the appellant.

G. A. Shah and M. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

KRISHNA (YER, J. The appeal before us raises thorny issue of smr.e importance which may be epigramaticatly expressed as when has the citizen the discretion to disobey an order ? When is determi-nation not determination? This riddle has to be solved in the foggy legal light of conflicting decisions and academic opinions, Indian and Anglo-American. To appreciate the contention urged in the case few facts must be narrated. ·

Section 56 of the Bombay Police Act, 1951, (the Act, for short), empowers Police Commissioner to extern any undesirable person on grounds set out therein and the petitioner fell victim to such direction issued on September 5, 1967. On contravention of that order he was prosecuted under Sec. 142 of the Act but was acquitted by the trial Court. The State appealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is ·whether the externment order having been quashed 1'y the High Court under Art. 226 of the Constitution 011 July 16, 1968-during the pendency of the criminal trial-it had become void ab initio and there being thus no quit order in Jaw there was no offence. The learned Judge rejected this effect of the w.rit issued under Art. 226 and convicted the accused. His reason-it1g, invigorated by surgical imagery, flowed thus :

""Now the contraveption took place on September 17, 1967 whereas the externment order in question has been quashed about one year thereafter on July 16, 1968. The question, therefore, is : can person against whom an order of externment under section 56 of the Bombay Police Act has been issued disobey the said order and contravene the direc-tions contained therein with impunity if subsequently the order is quashed ? If the argument of the learned counsel were to be accepted, though the externment order held the field and had not been quashed at the material time, no offence would be committed io view of the subsequent quashing of the order. In other words, though the order had not been declared invalid at the material time contravention thereof would not constitute an offence. distinction in my opinion has to be drawn be!ween ·an order which is ab initio void and an order whkh is subsequently quashed on account of some technical defect or irregularity. If the order was ab i11itio void if it was nu)lity frqm the inception, if it was still born chil<f, the matter would have stood on different

footing. In the present case the child was alive and kicki,ng and apparenlly healthy. It bas subse'!Jlently died during the course of an exploratory operation. The order has been held to be invalid and is quashed on the ground that it cannot be sustained on account of some defect, infirmity or irregularity which has been subsequently discovered. It cannoi be said that the order was void ab initio. The order of the High Court passed on July 16, 1968 does not render the order nullity from its very inception. It is not retroactive. It does not render the order of e.xternment •·no11 est". What it does is to invalidate it with effect from the date of the issue of the writ quashing the. said order. If the argument of the learned counsel were to be sustained it would result in an anomalous situation. The externment order Ca)l be violat~d with impunity if subsequent writ petition is allowed and the order is quashed. The contravention, however, would .consti· tute an· offence if the writ petition is rejected. It is not possi· ble to take view which would result in such an anomalous situation. There is no principle in upholding the respondent's claim that he has right to violate an order passed by an authority having jurisdiction to pass it, if subsequently he can persuade the court that there was an in-built lacuna or latent defect in the said order. In other words he claims to have the right to judge for himself whether the order is legal or not and in anticipation of the court upholding his contention, the right to violate it with impunity. Be it realised that these powers are vested into the administration to enable it to take prophylactic action to protect the society from imminent dan· gers. These powers cannot be allowed to be robbed of their potency at the sweet will of the person proceeded against in anticipation of subsequent favourable verdict of the court."

There are sonie untoward ootentialities and legal anomalies visualised by the learned Judge which "lend assurance to the juridical coneept that an order or act quashed by court is valid until judicially set aside or declared void. We have to examine the validity of this temporary validity imputed to an otherwise bad order. When does bad order become bad?

Violation of natural justice is the vice of the order which was defied by the accused. We will first set out the relevant provision in the Act and the ground of decision in the writ petition, shorn of un-necessary portions. Section 56 reads :-

"Whenever it shall appear in Greater Bombay "lid other areas for which Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification ill tr.~ Ofil.· cial Gaz.ette, extend, the provisions of this section', to the Dis· trict Magistrate. or the Sub-Divisional Magistrate special!y empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated L9;4 Sup. Cl/74

to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission ot an ortence 1n".olving force or violence or an offence punish .. able under Chapter XII, XVI or XVII .of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant t~e said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fil, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and ala!'ln or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his juris-diction (or such area ancl any district or districts, or any part thereof, contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the said area (or the area and such contiguous dis .. tricts, or part thereof, as the case may be), from \vhich he was directed to remove himself."

The vital freedom guaranteed under Art. 19 of the Constitution becomes fleeting fragrance if police or magisterial officer can \\'hisk you a\vay by' n1orc executive-than-judicial fiat. 'This strtJnge power, whose constitutionality is not challenged before us, is hopefully fettered in its exercise by Section 59 which runs thus :-

"(])Before an order under section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector autho-rised by that officer shalt inform the person in writing o[ the general n~ture of the material allegations against him and give him reasonable opportunity of tendering an exolanation re-garding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such npplication; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application iS made for the purpose of vexation or delay. Any written statement put in by such person sha!] be filed with the record of the case. Such person shall be entitled to appear before the offi-cer proceeding under this section by an advocate- or attorney for the purpose of tenderin~ his explanation. and examining the witness produced by him.

(2) The authority or officer proceeding under sub-section (1) may, for the purpose of securing the attendance of any person a2ainst whom any order is orooosed to be made under section 55, 56 or 57, require such perso.n to appear before

him and to pass security bond with or without sureties for sucn attendance durmg tne inquiry. If tne person taits to pass the secunty bona as reqwred or f~ils to appear before the officer or authority during the inquiry, it shau be lawful to the. officer or authonty to proceed w1tn the inquiiy and thereupon such order as was proposed to b~ passed against him may be passed."

The externment order was subject to this obligation of judicialisa-tion. Mr· Justice Bhagwati (as he then was) in quashing the order reasoned :-:-

"The show cause notice started with" general allegation that the petitioner was desperate and dangerous man and was committing acts involving force and violence .. ; ........ . This general allegation was then particularised and four diffe-rent kinds of ·acts were specifically set out in clauses I to 4 with an overriding statement that these different kinds of •<:ts were committed by the petitioner during the .period from January 1967 upto the date of the show cause notice in "the aforementioned localities'', i.e. the localities knoV1[1]n· as Narol, Dani Limda Jamapur, Chandola and Benrampura local!ties situate within the limit of Kagdapity, Gaikwad Havcli and Maninagar Police Stations. . . . . . . .. None of the allegations in the show cause ,notice contained any reference to the area round about these specified localities and the petitioner was there:fore .not called upon to meet any allegation in regard to the area round about the specified localities. Even so, the Deputy Commissioner of Police relied on material which puri;>orled to show that the petitioner was guilty of different kinds of act in the area rour.d-about the specified localities and acting on such material proceeded to hold that he was satisfied that the petitioner was engaged in the commission of acts involving force and violence . ..... The cxternn1ent order is so far as ir was based on the satisfaction of the Deputy Commissioner of Police that the petitioner was engaged i" the commission of ,acts involving force and violence and acts punishable under Chapter XVI and XVII of the Indian Penal Code in the roundabout are~ within the limits of Kagdapity, Gaikwad. Haveli and Maninagar Police Stations was, there-·fore, cloarly beyond the scope of the show cause notice. No opportunity to show cause against any allegation relating to the roundabout area within the limits of Kagdaoity, Gaikwad Haveli and Maninagar Police Stations was afforded to the peti-tioner and the' exter.nment order must therefore be held to be invalid.

There is also second ground on which we must hold the externment order to be invalid. It. is well settled that it is mandatory requirement of section 56 that the externing authority must from subjective ooinion that witnesses are not willing to come forward to give evidence in public. against

[ 19741 3 S.C.R.

the person sought to be ex.terned by reason of apprehension on their part as regards the safety of their person or property; This requirement is clearly not satisfied in the present case ... it is clear tltttt the opinon formed by the Deputy Commissioner of Police is only as regards the witnesses who are victims of the said incide.nts and not as regards the other witnesses. This opinion would clearly not be the requisite opinion con· templated by the mandatory requirem~nt of section 56.

We therefore allow the petition and make the rule absolute by issuing writ quashing and setting aside the externmeitt order passed by the Deputy Commissioner of Police against the petitioner."

This judgment is now final an.d binds State and subject alike. But does the demolition of the externment order take effect retroactively? If it does, the accused is not guilty; if not, he is.

The constitutional perspective must be clear in unlocking the mystique of 'void'' and 'viodable' vis-a-vis orders under the Act. The Act is constraint on fundamental right and so the scheme of Art. 19 must be vividly before our minds if ext~aordinary controls over human rights statutorily vested in administrative tribunals are to be held in constitutional leash. Freedom of movement, of association, of profession and property, are founding commitments and severe res .. traints thereon must be strictly construed, not in the name of natural justice-an elusive phrase-nor in literal loyalty to Section 59 but in plenary allegiance to the paramount law. The restriction on the funda-mental right must be reasonable and the harsher the restriction the heavier the onus to prove reasonableness. The High Court in Special Criminal Application 18. of 1969 held the basic condition clamped on the authoritv to hear and be satisfied according to the 'due process' prescriptions of Section 59 had been violated and the order was liable to be quashed. In short, the finding was that the deprivation of the petitioner's fundamental right having been effected in mode whic.h is not reasonable, as statutorily expressed in Section 59 of the Act, is i!le~al and unconstitutional. Once the jurisprudential underpinnings of Section 56 and 59 of the Act arc seen, the invalidatory effect is p1ain. An unconstitutional order is void, consequential administrative inconveniences being out of place where an administrator abandons constitutional discipline and limits of power. What about the peril to the citizen if an official, in administrative absolutism, ignores the con-stitutional restrictions on his authority and conden1ns person to flee his home ? determination is no determination if it is contrary to the constitutional mandate of Article 19. On this footing the extern-ment order is of no effect and it!i violation is no d'ffence.

the

. Unfortunately, counsel overlooked the basic link-up between con. stitutionality and deviation from the audi altJeram partem rule in this jurisdiction and chose to focus on the familiar subject of natural just1ce as an independent requirement and the illegality following upon its non·compliance. In Indian constitutional law, natural justice does not exist as an absohite jural value· but js humanistically read by

courts into those great rights ensh!i\led in Part III as the quintessence of reasonableness. We are not unmindful that from Seneca·s Medea, the Magna Carta and Lord Coke, to .the constitutional norms of modern nations and the Universal Declaration "of Human Rights it is deeply rooted principle that 'the body of no free man shall be taken, · nor imprisoned, nor diss~ised, nor outlawed, nor banished nor destroy-ed in any way' without opportunity for defen!'e and one of the first principles of this sense of justice is that you must not permit one side to use means of influencing decision which means are not known to the other side.Now, we may as well examine the invalidatory consequence of violation of natural justice on judicialised administrative act like the externment order under Sec. 56. The wider questions of error versus excess of jurisdiction, <leclaration of invalidity as distinguished from voidable orders being avoided, order void ab inilio and valid till voided retroactively by competent tribunal and the directory-manda-tory and ministedal-Judicial dichotomies and allied problems, pre-sent, on current precedents, picture of juristic jungle and need not be ordered into garden for the limited purp'oses of this case. learned author has cynically said : 'The case law, however, affords the usual spectacle of anarchy up9n which order can hardly be super-imposed'.(')

Here, tribunal, having jurisdiction over area, person and subject-matter, has exercised it disreiarding the obligation to give real hear-ing before condemning. Does it spell death to the order and make it still-born so that it can be ignored, defied or attacked collaterally ? Or dqes it mean nullifiability, not nullity, so that before disobeying it court must declare it invalid? Or, •the third alternative, docs it remain good and binding•~hough voidable at the instance of party aggrieved by direct fhallenge ? And if court voids the order docs it work retroactively?

All these lines of approach have received judicial blessings from the House of Lords in the .landmark case of Ridge v. Baldwin.(") The legal choice depends not so much on neat logic but the facts of life-a pragmatic proposition. Where the law invests an authority with power to affect the behaviour of others what consequence should be visited on abuse or wrong exercise of power is no abstract theory but experience of life and must be solved by practical considerations woven into legal principle. Verbal rubrics like illegal, void, mandatory," jurisdictional, are convenient cloaks but leave the ordinary 111an, like the petitioner here, puzzled about his remedy. Rubinstein poses the issue clearly :-

"How does the validity or nullity of the decision affect. the rights and liabilities of the persons concerned? Can the persons affected by an illegal act ignore and disregard it with impunity? What are the remedies available to the aggrieved parties? When will the courts recognize right to compcnsa-

(I) Jurisdiction And lllegality-RubinStein. (2) [19631 2 All E.R 66.

tion for damage occasioned by an illegal act? All these ques-tions revert to 1he one basic issue; has the act concerned ever had an existence o: is it merely nullity ?

Voidable acts are those that can be invalidated in certain proceedings; these proceedings are. especially formulated for the purpose of directly challenging such acts ...... On the other hand, when an act is' not merely voidable but void, it is nullity and can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon. In other words, it is subject tq 'collateral attack'.''

Kelson's view, when court holds an act nullity, is that it is not declaration of nullity; it is (fue annulment, an annulment with retroactive force'.

Even so, the dilemma of the petitioner is, if an authority in excess or error of jurisdiction directs an illegal act, should the citizen suffer it until upturned in legal proceeding directly or collaterally ? Can he resist the injury even if the seal of authority simulates validity ? The eloquent words of Wedderburn quoted by Rubinstein in the context of nullity is pertinent:-

"What is sentence? It is not an instrument with bit of wax and the seal of court put to it; it is not an instru-ment with the signature of person calling himself register; it is not such quantity of ink bestowed upon such quan-tity of stamped paper : sentence is judicial determination of cause agitated between real parties, upon which real interest has been settled."

Illegal acts of authorities, if can be defied on self-determined voidness, startling consequences \Viii follo\v, as the High Court appre-hends. detcnu will beat back, builder will put his wall on the forbidden line, court officer will meet with physical resistance, all because the order is, on the view of the affected party, nullity and is later proved so before court. Not every action by Government agency carries with it the force of law and naturally what should he do if he concludes that the action is invalid? Should he disobey, face penal proceedings and get his violation legitimated by Court? Is there no alternative to breaking the laW or order to expose the 1awlessness of the law or order? recent book ('Discretion to Disobey' by Kadish and Kadish(!) establishes this line of thought from Benjamin Couttis, former Supreme Court justice, who argued to the Senate on behalf of President Andrew Johnson(sic) during the latter's impeach-ment trial century ago :

"I am aware that' it is asserted to be the civil and rnoral duty of all men to obey those laws which have been passed through all the forms of legisbtion until they shall have been decreed by .iudicial authority not to be binding; but this is too broad statement of the civil and n1oral duty incun1bent

(t) Study of Lawful Departures from Legal Rules p. 105 1973-Stanfoni University Press, California, U.S.A.

either upon private citizen or public officers. If this is the measure of duty there never could be judicial decision that law is unconstitutional, inasmuch as it is only by disregard-ing law that any question can be raised judicially under it. I submit to senators that not only is there no such rule of civil or moral duty, but that it may be and has been high and patrotic duty of citizen to raise question whether law is within the Constitution of tJie country."

On this view it is almost as though the Constitution contained the words to be found in the constitution of one contemporary German stat• : "It is the right and duty of every man to resist unconstitutionally exercised public power."

More appooite to the present case are these remarks of the same authors:-

"If ~ policeman, in the exercise of his office, orders Black person to leave park in Southern town, is the citizen obliged to obey the policeman's order and wait until later to invoke some remedy to challenge 'its validity ? Can the citizen be constitutionally convicted of some crime based on his refusal to obey the policeman's order, even if court should later determine" that the order was unconstitutional? Not long ago the Supreme Court considered just this case. It had little difficulty reaching decision. The order was found to be an unconstitutional violation of the defendant's rights first because it was designed to enforce racial discri-mination in the park, and second because it was based on the possibility of unlawful troublemaking by others rather than on any wrongdoing by the defendant. So much was sufficient to require reversal-of the defendant's conviction : "Obviously,. . . one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The policeman's order was treated like statute : obedience to an unconstitutional order of an official is not required, even though the order has not yet been ruled invalid by court. The citizen is at liberty to make his owrr judgment of the order's validity and to act accordingly. If he tufns out to be wrong, of course, he is answerable. But if he turns out to be right, he is not answerable in any way and not for disobeying the order, since the order was in, valid, and not for undertaking himself to decide in advance that the order was invalid, since he was at liberty to make that decision.

Where the situation escalates into active resistance and perhaps the use of force, typically involved in cases of resis-tance to unlawful arrest or to the execution of some process, such as serving search warrant, the interest in the physical welfare of the policeman and the citizen (as well as others) may often produce contrary answer. Indeed, an increasing numper of jurisdictions afford no right to resist an arrest made under colour of authority, even if the arrest is later deter-mined to be invalid. The dtizcn is obliged in this circum-

stance to yield and submit his case to the courts. As the Model Penal Code concludes, '.'It should be possible to provide adequate remedies against illegal arrest, without permitting the arrested person to resort to force-a course of action highly likely to result in greater injury even to himself than the detention."

The law in this area is full of alarming conundrums hardly resolved by academic writing or judicial" dicta.

We may narrow down the scope of the discussion by confining it to breaches of the audi alteram par/em rule. Does this defect go to jurisdiction? Perhaps-not all violations of natural justice knock down the order with nullity. In Dimes v. Grand Junction Canal(') bias or pecuniary interest in the judge was held to render the proceedings voidable, not void. It must be conceded that even this proposition is not out of the penumbra of doubt and dispute (vide A.I.R. 1958 S.C. p. 86). Formali~tic moulds will not solve these issues of life and juristic policy enacted with clarity into the statute book is the neces-sity of this lawless region of the rule of Jaw. The common man and thei Courts are confronJed with issues we have touched upon; and, against the background of processual guarantees under the Constitu-tion, the law of jurisdiction and illegality has to be legislatively settled, not as logical extensions of juridical doctrine but empirical formula-tions based on experience. Grave implications of law and order lurk behind this mlll'.ky branch of public law.Where hearing is obligated by statute which affects the funda-mental right of citizen, the duty to give the hearing sounds in consti-tutional requirement and failure to comply with such duty is fatal. May be that in ordinary legislation or at common law Tribunal, having jurisdiction and failing to hear the parties, may commit an illegality which may render the proceedingi; voidable when direct attack is made thereon by way of appeal, revision or review, but nullilly is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before res-tricting the fundamental right of citizen is void and ab illilio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is, in its inception, void except when performed in accor-dance with the conditions laid down in regard to hearing. May be, this is radical approach, but the alternative is travesty of constitutional guarantees, which leads to the conclusion of post-legitimated disobe-dience of initially unconstitutional orders. On the other hand law and order will be in jeopardy if the doctrine of discretion to disobey invalid orders were to prevail. As Learned Hand observed :-

"The idea that you may resist peaceful arrest. . . . be-cause you are in debate about whether it is lawful or not, instead of going to the authorities which can determine (the question is) not blow for liberty but, on the contrary, blow for attempted anarchy." ·

The opposite view is expressed by the California Supreme Court in case where one Yick came into the country unlawfully but was hell! by the deputy sheriff without authority. He escaped and his abettor in the escape was convicted but in appeal the Court held :-

"An escaJ?e is classed as crime against public justice, .and the law, m declaring it to_ be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that when one has been, by its authority or command, con-fined in prison, that it is his duty to submit to such con-finement until delivered by due course of law. But when the imprisonment is unlawful, and is itself crime. the reason which makes fiight from prison an offense does not exist. In such case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape."

American case-law is confiicting and doubtful expressions like "void on its face" "transparently invalid" have been used. We must remem-ber the words of Justice Frankfurter "If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny". We ·dwell on these PQssible views to underscore the difficulties o~ solution.

English Judges also have not been uniform. Granting the order against party to be void, does it have to be so declared by court at bis instance of can the citizen interpret for himself and act on the basis of invalidity. The problem was considered by the Judicial Com· mittee in Fernando's(') case where minister dissolved municipal council without opportunity to be heard. Lord Upjobn stated the posi-E tion thus :-·

"Apart altogether from authority their Lordships would be of opinion that this was case where the Minister's order was voidable and not nullity. Though the council should have been given the opportunity of being beard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person shQuld have the right to interfere. To take simple example to which their Lordships will have to advert in some detail presently, if in Ridge v. Baldwin the appellant Ridge, who bad been wrongly dismissed because he was not gi-:en the opportunity of presenting his defence, bad perferred to abandon· the point and accept the view that he bad been properly. dismissed, .their Lordships can see no reason why any other' person, such, for example, as rate-payer of Brightonj should have any right to contend that Mr. Ridge was still the Chief Constable of Brighton. As matter of ordinary common sense, with all respect to other opinions that have been expressed, if person in the position of Mr. Ridge had not felt sufficiently aggrieved to take an)' action hy reasoo of the failure to afford him his strict right

(I) L.R. [1967] 2 A.C. 337, 35'2 (Darayappah v. Fernando)

to put forward defence, the order of ·the watch committee should stand and no one else should have any right to complain.. . . . . . . . Their Lordships deprecate the use of the word void in distinc.tion to the word voidable in the field of Jaw with which their Lordships are concerned because, as Lord EveI'Shed pointed out in Ridge v. Baldwin quoting from Sir Frederick Pollock, the words void and voidable are imprecise and apt to mislead."

I,n Ridge v. Baldwin (supra) Lord Reid and Lord Hodson opted for 'nullity', Lord Evershed and Lord Devlin supported the 'voidable' theory and Lord Morris of Broth-Y-Gest struck practical note in between. The learned Lord said :-

"It was submitted that the decision of the watch com-C mittee was voidable but not void. But this involves the inquiry as to the sense in which the word "voidable", a.word deriving from the law of contract, is in. this connexion us~d. !f the appellant had bowed to the decision of the watch committee and had ncit asserted that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the watch committee adhered to their decision, so claiming that it was valid, only the court could decide who was right. If in that situation it was said that the decision was voidable. thati was awaited. But if and when the court decides that the appellant was right, the court is deciding that the decision of the watch committee was invalid and of no affect and null and void. The word "voidable" is, therefore, appo-site in the sense that it became necessary for the appellant to take his stand : he was obliged to take action for unless he did the view of the watch committee, who were in autho-rity, would prevail. .In that sense the decision of the watch committee could be said to be voidable."

In Svackman v. Plumstead Board of Works(') (181), Lord Seiber-F ne said:-

''There would be no decision within the meaning of the sta-tute if there was anything of that sort done contrary to the essence of justice."

In 1959 A. C. 83 Lord Somervell of Harrow highlighted the dik!l'ma of 'void' and 'voidable' in these effective words :-G

'ls man to be sent to prison on the basis that an order is good order when the court knows it would be set aside if proper proceedings were taken ? .... , .. The_ distinction bet-ween void and voidable is by no means clear one . ..... "

The test of ex-facie illegality or bad on its face or in Lord Radcliffe's words 'it bears no brand of invalidity on its forehead', is ~lso unwork-H able in the work-a-day world of law. Error of jurisdiction and error -----

within jurisdiction, have been suggested as means to cqt the Gordian Knot. Many great writers have dealt with the subject but few have offered fair answer to the questioni is determination determination at all when made without statutory hearing and when is it void and to what extent? Decisions are legion where the conditions for the exercise of power !1ave been contravened and the order treated as void. Ancl when there is excess or error of jurisdiction the end product is semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when finality clause exists. The order becomes 'infallible in error', peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to learned author, Lord Denning is largely responsible. The legal chaos on thi• branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The. only safe course, unt.il simple and sure light is shed from legislative source, is to treat as void and ineffectual to bind parties from the beginning, any order made without hearing the party affected if the injury is to constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoi-ded by court with retroactive force.

In the present case, fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it-not killed it then but performed the formal obse-quies of the order which had died at birth. The legal result is that the accused was never gulity of flouting an order which never legally existed.

We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void '.!lay be directly and collaterally challenged in legal proceedings, An order is null and void if the statute clothing the administrative tri-bunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes fundamental freedom passed in violation of the audi alteram partem rule is nullity. When competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid. The French jurists call it L'indevistence or outlawed order (p.127), Brown and Garner, French Administrative Law) and could not found the ground for prosecution. On this limited ratio the ap-pellant is entitled to an acquittal. We allow his appeal.

P. B. R.

Appeal allowed.