Constitutional Law - Validity of preventive provisions - Code of Criminal Procedure 1898 - Sections 107 and 144 read with Chapter VIII - Constitutional challenge under Article 19(1)(a)(b)(c) and (d) of the Constitution of India - Petitioners challenged the constitutional validity of Section 144 and Chapter VIII of Code of Criminal Procedure alleging infringement of fundamental rights to freedom of speech assembly association and movement - Matter referred to Special Bench of seven Judges - Petitioners arrested under Section 151 and proceeded against under Section 107 without inquiry - City Magistrate issued notice under Section 112 and demanded interim bond under Section 117(3) adjourning case without examining witnesses and remanding petitioners to jail on default - Supreme Court examined whether the provisions impose reasonable restrictions in interests of public order and general public under Article 19 Clauses (2) (3) (4) and (5) - Held - Section 144 and Chapter VIII of Code of Criminal Procedure are constitutionally valid as they constitute reasonable restrictions imposed in interests of public order and general public - provisions are hedged with adequate judicial safeguards - however detention of petitioners was illegal because Magistrate ordered interim bond under Section 117(3) without commencing inquiry into truth of information under Section 117(1) - [Paras 1-51, 59-74].

Criminal Law - Urgent cases of nuisance or apprehended danger - Code of Criminal Procedure 1898 - Section 144 - Scope and constitutional validity - Challenge on ground of overbroad powers and lack of prior inquiry - Nature of judicial power exercised by Magistrate - Safeguards against abuse - Held - Power under Section 144 is judicial in character and subject to judicial scrutiny - Urgency and grave emergency justify ex parte or absolute orders to prevent subversion of public order - Existence of adequate safeguards including opportunity to show cause and revision before superior courts renders the restriction reasonable - Possibility of abuse of power is not a ground for striking down the provision - Section 144 is intra vires the Constitution - [Paras 23-30].

Criminal Law - Security for keeping peace - Code of Criminal Procedure 1898 - Sections 107 112 and 117 - Procedure and requirement of inquiry before demanding interim bond - Magistrate called upon petitioners to execute bond under Section 112 and immediately remanded them to custody under Section 117(3) without conducting any inquiry into truth of information - Held - Magistrate cannot order execution of interim bond under Section 117(3) or commit person to custody in default without first entering upon inquiry under Section 117(1) and prima facie satisfying himself about truth of information - Section 117(3) postulates commencement of inquiry under summons procedure before directing interim bond - Postponing inquiry and demanding bond or remanding to custody is completely illegal - [Paras 31-45, 59-74].

Constitutional Law - Public Order - Constitution of India - Article 19 Clauses (2) (3) and (4) - Scope and ambit of expression in the interest of public order - Comparison with law and order and security of State - Preferred-position doctrine - Held - Preferred-position doctrine of American jurisprudence does not apply in India - Pre-Constitution laws carry no presumption of invalidity and burden rests on challenger - Expression in the interest of public order is wide and covers acts endangering security of State as well as acts disturbing public order and certain breaches of public tranquillity affecting even tempo of community life - [Paras 9-21, 48].

Criminal Law - Preventive Justice - Code of Criminal Procedure 1898 - Sections 55 91 and 344 - Inapplicability to Chapter VIII proceedings - Resort to general provisions for detention or appearance - Held - Special procedure under Chapter VIII is exhaustive for preventive security proceedings - Recourse to Section 55 or Section 91 or Section 344 to detain a person or seek bond during proceedings under Chapter VIII is wholly impermissible and fallacious - Bail is not admissible in place of interim bond under Chapter VIII - [Paras 49-50, 72-73].

Decision: Petitions disposed of – Constitutional validity of Section 144 and Chapter VIII of the Code of Criminal Procedure, 1898 upheld – Detention of the petitioners from August 9, 1970 held illegal for non-compliance with statutory inquiry under Section 117(1) prior to demanding interim bond under Section 117(3) – Petitioners declared free from custody.

Civil Law - Pre-emption by Vicinage - Rewa State Pre-emption Act 1946 - Section 10 - Constitution of India 1950 - Article 19(1)(f) and Article 19(5) - Constitutionality of pre-emption right granted to adjoining owners - Pre-emptors and purchaser both owned property adjoining property sold - Pre-emptors related to vendor whereas purchaser was not related - Trial Court decreed pre-emption suit in favour of pre-emptors under proviso to Section 10 - High Court maintained decree - Purchaser appealed challenging constitutionality of pre-emption based on vicinage under Article 19(1)(f) - Held (Majority) - Right of pre-emption imposes a restriction on right to acquire hold and dispose of property - Ostensible ground of vicinage was historically rooted in excluding strangers belonging to different religion race or caste which cannot be countenanced under constitutional scheme prohibiting discrimination under Article 15 - Pre-emption based on vicinage operates as an unreasonable restriction on fundamental rights under Article 19(1)(f) and is not saved by Article 19(5) as it does not serve general public interest and promotes litigation - Second clause of Section 10 struck down as unconstitutional - Proviso survives only for first clause relating to co-sharers - Appeal allowed and suit for pre-emption dismissed - [Paras 1-10 64-65].

Civil Law - Pre-emption in Urban Property - Punjab Pre-emption Act 1913 - Section 16 - Constitution of India 1950 - Articles 14 and 19(1)(f) - Pre-emption claimed on grounds of co-sharer common staircase common entrance and contiguity - High Court held first third and fourth grounds constitutional while sixth ground relating to contiguity unconstitutional - Subsequent five-Judge Bench of High Court had upheld contiguity ground - Appeal by purchaser before Supreme Court - Held (Majority) - Pre-emption based on vicinage or contiguity under clause sixthly of Section 16 is unconstitutional as an unreasonable restriction under Article 19(1)(f) - Pre-emption in favour of co-sharers under clause firstly is a reasonable restriction in public interest to prevent introduction of strangers into joint property - Pre-emption on ground of common staircase under clause thirdly and common entrance under clause fourthly are akin to co-sharership and constitute reasonable restrictions under Article 19(5) - Exemption of katras and shops under Section 5 does not violate Article 14 as business and public resort premises form a distinct reasonable classification - Appeal dismissed - [Paras 11-17 64-65].

Civil Law - Pre-emption in Agricultural Land - Berar Land Revenue Code 1928 - Section 174 - Constitution of India 1950 - Article 19(1)(f) and Article 19(5) - Right of pre-emption amongst occupants of a survey number - Suit for pre-emption filed by occupants of sub-division 2 against purchaser of sub-division 1 of same survey number - Trial Court and High Court decreed pre-emption suit upholding validity under Article 19(1)(f) - Purchaser appealed - Held (Unanimous) - Survey number forms a single unit of assessment under the Code where occupants are jointly and severally liable for land revenue - Occupants of sub-divided survey numbers are akin to co-sharers - Pre-emption restricted to unalienated agricultural lands within a survey number aids consolidation of holdings and prevents fragmentation - Statutory restriction under Section 174 is reasonable and in the interests of general public under Article 19(5) - Appeal dismissed - [Paras 18-20 57-63 65].

Constitutional Law - Property Rights and Pre-emption - Constitution of India 1950 - Article 19(1)(f) and Article 19(5) - Incidents of property versus statutory restrictions - Argument that right of pre-emption is an incident attaching to property and not a restriction on fundamental right to acquire hold or dispose of property - Held - Even if law of pre-emption creates a right attaching to property it imposes a restriction on acquiring holding or disposing of property which did not exist before the law was enacted - Any such statutory liability attaching to property amounts to a restriction under Article 19(1)(f) and must satisfy the test of reasonableness under Article 19(5) - [Paras 4 27].

Constitutional Law - Customary Law and Constitutional Validity - Constitution of India 1950 - Article 13 and Article 19(1)(f) - Pre-Constitution customs of pre-emption upheld by courts - Relevance after advent of Constitution - Held - Prior judicial acceptance of pre-emption customs in pre-Constitution era is not decisive of reasonableness under Article 19(5) - Reasonableness must be tested in the light of fundamental rights newly conferred by the Constitution - Customs designed to preserve caste or religious seclusion run contrary to constitutional values and cannot sustain statutory restrictions on property rights - [Paras 5 8 13].

Decision: Civil Appeal No. 270 of 1955 allowed with costs and pre-emption suit dismissed – Civil Appeal No. 595 of 1960 dismissed without costs and matter remitted for disposal according to law – Civil Appeal No. 430 of 1958 dismissed with costs.

Civil Law - Pre-emption - Code of Civil Procedure 1908 - Order 20 Rule 14 - Maintainability of appeal - Doctrine of approbate and reprobate - Suit for pre-emption instituted by respondent against appellant-vendee - Trial Court dismissed the suit - Judicial Commissioner Vindhya Pradesh reversed the dismissal on appeal and decreed pre-emption directing respondent to deposit purchase money within four months - Respondent deposited Rs 3000 into court - Appellant obtained special leave to appeal before Supreme Court and subsequently withdrew the deposited pre-emption money - Respondent raised preliminary objection that appellant having withdrawn the pre-emption money adopted the decree and was precluded from challenging it under the doctrine of approbate and reprobate - Majority held that withdrawal of pre-emption price does not forfeit statutory right of appeal - Held - A vendee against whom a pre-emption decree is passed does not take any benefit under the decree - The pre-emption price is only in the nature of compensation for the loss of property - The doctrine of approbate and reprobate applies only where a person elects to take a benefit de hors the merits of the claim under an order or where restitution is impossible or inequitable - Preliminary objection overruled and appeal set down for hearing on merits - [Paras 1-12, 32-34].

Civil Law - Right of appeal - Code of Civil Procedure 1908 - Order 20 Rule 14 - Equitable doctrine of election - Applicability of doctrine of approbate and reprobate - Whether vendee withdrawing court-deposited pre-emption purchase money is barred from prosecuting appeal against pre-emption decree - Held - In the absence of a statutory provision or a well-recognised principle of equity no person can be deprived of a legal right including a statutory right of appeal - Doctrine of approbate and reprobate is founded on the equitable doctrine of election which requires alternative or mutually exercisable rights to choose from - Withdrawal of pre-emption price does not constitute election of a benefit de hors the lis - Restitution is neither impossible nor inequitable - Right of appeal is not forfeited - [Paras 4-12].

Decision: Preliminary objection overruled – Appeal directed to be set down for hearing on merits – Costs of this hearing to be costs in the appeal.