PREM CHAND GARG versus EXCISE COMMISSIONER, U.P. ALLAHABAD

Citation: [1963] SUPP. 1 S.C.R. 885 · Decided: 06-11-1962 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

1 S.C.R. SUPREME COURT REPORTS 
885 
PREM CHAND GARG 
v. 
EXCISE COMMISSIONER, U. P. 
ALLAHABAD 
(B. P. SINHA, c. ]., P. B. GAJllNDRAGADKAR, 
K. N. WANCHOO, K. C. DA8 GuPTA and 
j. C. SHAH. JJ.) 
Supreme Court-Writ Petition-Security for costs of r ... 
pondent-Rule, validity of-Supreme Court R?tles, O.XXXV, 
r. 12-Constit?ttion of India, Arts. 32 and 145. 
Rule 12 of O.XXXV Supreme Court Rules empowers the 
Supreme Court in writ petitions under Art. 32 to require the 
petitioner to furr.ish security for the costs of the respondent. 
The petitioner contended that the rule was invalid as it placed 
obstructions on the fundamental right guaranteed under Art. 32 
to move the Supreme Court for the enforcement of fundamental 
rights. 
Held, (per Sinha, C. ]., Gajendragadkar, Wancboo and 
Das Gupta,JJ., Shah, J., contra), that r. 12 of O.XXXV Supreme 
Court Rules is invalid in so far as it relates to the furnishing of 
security. The right to move the Supreme Court under Art. 32 
is an absolute right and the content of this right cannot be 
circumscribed or impaired on any ground. 
An order for fur-
nishing security for the respondent's costs retards the assertion 
or vindication of the fundamental right under Art. 32 and 
contravenes the said right. The fact that the rule is discretion. 
ary does not alter the position. Though Art. 142(1) empowers 
the Supreme Court to pass any order to do complete justice 
between the parties, the Court cannot make an order inconsis-
tent with the fundamental rights guaranteed by Part III of the 
Constitution. No question of inconsistency between Art. 142(1) 
and Art. 32 arises as Art. 142 ( 1) does not confer any power on 
the Supreme Court to contravene the provisions of Art. 32. 
Nor does Art. 145 which confers power upon the Supreme Court 
to make n1les, empower it to contravene the provisions of 
Art. 32. 
Ramesh Thapper v. State of MadrM, [1950] S. C.R. 594, 
State of Madras v. V. G. Row, [1952] S. C.R. 597 and Daryao 
y. State of U. P, [1962] 1 S. C.R. 574, relied 011. 
1962 
Nornt61r, 6. 
1962 
Prem Chand Garg 
v. 
~eire Oommissioner, 
U. P., Allahabad 
;apdT&gadkar, J. 
886 SUPREME COURT REPORTS (1963] SUPP. 
Kavalappara KotW.rathil K(J(Jhunni Moopil Nayar v. State 
of Madras, [1959] Supp. 2 S. C.R. 316, explained. 
Pandit M. S. M. Sharma v. 
Shri Sri Krishna Sinka, 
[1959] Supp. 1 S. C. R. 806, K. M. Nanavati v. State of 
Bombay, [1961] 1 S. C.R. 497, distinguished. 
Shah, J. -The impugned ruk is not void. The rule dOC! 
not directly place any restriction upon the right of a litigant to 
move the Supreme Court. It merely recognises the jurisdiction 
of the Court, in appropriate cases, to make an order demanding 
security. 
It is not, in substance, a rule relating to practice and 
procedure but it deals primarily with the jurisdiction of the 
Court, which has its source in Art. 142 of the Constitution. 
No question of conflict arises between the rule which merely 
declares the jurisdiction of the Court defined by Art. 142 and 
the right guaranteed under Art. 32. The provisions of Art. 142 
and Art. 32(1) must be read harmoniously. Both being provi-
sions in the Constitution, one cannot prevail over the other. 
Pandit M. S. M. Sharma v. 
Shri Sri Krishna Sinha, 
[1959] Supp. 1 S. C. R. 806, relied on. 
ORIGINAL JURISDICTION : 
Petition No. 52 of 
1962. 
Petition under Art. 32 of the Constitution of 
India for enforcement of fundamental right;. 
G. S. Pathak, R. Gopalakrisk'OOn and Naunit 
Lal, for the petitioners. 
K. 8. Hajek! and 0. P. Lal, for the respondents 
Nos. I & 2. 
0. K. Dapktary, Solicitor-General of India, 
B. R. L. Iyengar and R. H. Dkebar, for respondent 
No. 3. 
1962. 
November, 6. 
The 
Judgment of 
Sinha, 
C. J., Gajendragadkar, Wanchoo and Das 
Gupta, JJ., was delivered by Gajendragadkar, J. 
Shah, J., delivered a separate Judgment. 
GAJENDRAGADKAR, J.-This 'is a petition under 
Art. 32 and it raises an mteresting and importiuit 
I S.C.R. SUPREME COURT REPORTS 
887 
question about the validity of one of the Rules made 
by this Court in exercise of its powers under Art. 145 
of the Constitution. The impugned Rule is Rule 12 
in Order XXXV. It provides that the Court may, 
in the proceedings to which the said Order applies, 
impose such terms as to costs and as to the giving of 
security as it thinks fit. 
One of the proceedings 
covered by Order XXXV is a petition under Art. 32. 
The petitioners 
Prem Chand Garg, 8 Anr., partners 
of M/s. Industrial Chemical Corpo

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