LACHMANDAS H ADVANI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. K. M. Vakil, Judge of the City Civil Court, Bombay, who dismissed an application made by the applicants under Section 13, Displaced Persons (Debt Adjustment) Act, 70 of 1951, on a preliminary ground. The learned Judge took, the view that the Union of India, which was the respondent to the application, was not bound by Act 70 of 1951 and that the said Act did not enable a displaced person to make an application against the respondent under Section 13 of the Act.

(2.) NOW, the judgment of the learned judge raises a very important and a very large question. To a large extent the learned Judge's judgment is based on the prerogative of the Crown and the well known English principle that the Crown is not bound by a statute which abridges its prerogative unless expressly or by necessary intendment it acquiesces in the abridgement of the prerogative. The learned Judge has also relied on a judgment of the Privy Council reported in -- 'province of Bombay v. Bombay Municipality', AIR 1947 PC 34 (A), for the view that the English principle based on the prerogative of the Crown is also applicable to India and in construing statutes the the Courts must come to the conclusion that a particular legislation expressly or impliedly intended to cut down the prerogative of the Crown before it should come to the conclusion that the Crown was bound by the legislation. It is for serious consideration whether in view of the Constitution this English principle has any application now to our country. The very basis of that doctrine was that the Crown had certain rights over and above the rights that the subject enjoyed. In that sense there was no equality before the law. The Crown could claim certain prerogatives and by reason of those prerogatives it could defeat the rights of the subject. So long as the Government of India Act was the Constitutional Act of this country, with respect, the Privy Council was right in applying that doctrine to it, but after the enactment of the Constitution the position seems to be entirely different. We have now Article 14 which provides for equality before the law. The State can no longer claim a higher privilege or any prerogative right as against the citizen. The State and the citizens are alike before the law and the rule of law must prevail both in respect of the citizen as in respect of the State. Therefore, it is necessary to consider whether in view of Article 14 the doctrine essentially based upon inequality can possibly have any application in a country, the Constitution of which proudly proclaims equality before the law. The matter may also be looked at from a different point of view. If any discrimination is made, that discrimination is bad unless it is justified as necessary on some rational basis. Therefore, if any law made a discrimination in favour of the Government or the State, that discrimination would be void unless the State satisfies the Court that there was a reasonable basis for the making of that discrimination. Therefore, whereas at one time the burden was upon the citizen to satisfy the Court that the Crown or the State was bound by a particular legislation, under the Constitution the burden would be upon the State to satis- fy the Court that there was any ground for any discrimination in its favour. As against this Mr. Khambata drew our attention to a judgment of this Court in -- 'bank of India v. Bowman', (S) AIR 1955 Bom 305 (B), where we took the view that the right of the Crown to priority of precedence with regard to its debts over all other unsecured debts which was recognised before the Constitution was still available to the State after the Constitution was enacted and that this right was not in any way inconsistent with the fundamental rights embodied in Part III of the Constitution. But in view of the fact that the appeal is capable of being disposed of on a much narrower ground, we do not think it necessary finally to decide the interesting question which has been raised in the judgment. But we have pointed out the different aspects of the matter lest it should be thought that we accepted the doctrine which the learned Judge below has Held to be still prevalent in our country after the Constitution was enacted.

(3.) WE will now turn to the Act and the section under which this application is made. This Act has been passed to give relief to displaced persons and, therefore, to the extent that it is possible it must be liberally construed in favour of displaced persons. It contemplates three kinds of applications. One is under Section 5 which is to be made by a displaced debtor for the adjustment of his debts, the second is under Section 10 which is an application to be made by a displaced creditor against a displaced debtor, and the third is under Section 13 which is a claim to be made by a displaced creditor but against a debtor who is not a displaced debtor, and by this particular application the appellants, who are admittedly displaced persons, have claimed from the Union of India a sum of Rs. 1,06,159 being the sum paid by them in respect of a contract entered into with the Punjab Government before partition and also Rs. 70,000 as damages for breach of that contract, and the contention of the appellants is that they being displaced creditors, they are entitled to maintain this petition under Section 13, because the petition is against the Union of India which is not a displaced debtor. Mr. Bhavnani has drawn our attention to the fact that the scheme of the Act was that the persons who were displaced should be given certain facilities to recover, their claim by the procedure laid down in this Act. It is pointed out that a claim can be made under this Act without payment of Court-fees which would have to be paid if a suit had to be filed, that the period of limitation has been extended by this Act, and that a special tribunal has been set up which in its very nature would give more expeditious relief to the displaced person than an ordinary civil Court. We are undoubtedly impressed by this argument, and if it was possible to take the view that a displaced person could recover a debt due to him from the Union Government by this machinery, we would certainly have accepted Mr. Bhavnani's contention.