Supreme Court of India
MANTRI SHRI THOLOK GOGOI AND ANOTHERversusSTATE OF ASSAM AND OTHERS
- Citation
- 1989 INSC 279
- Decided
- 19 September 1989
- Disposal
- Case Allowed
- Bench
- G L OZA
Holding
The Assam Rashtrabhasha Prachar Samiti (Taking over Management and Control) Act, 1984 and the notification appointing a Board are ultra vires of the Constitution as they violate the right to form associations under Article 19(1)(c).
Summary
The Assam Rashtrabhasha Prachar Samiti, a registered society promoting Hindi, was managed by elected bodies until a 1983 amendment removed the Chief Minister as ex‑officio president. In 1984 the Chief Minister invoked emergency powers, dissolved the elected committees and formed an ad‑hoc board, after which the Governor promulgated an ordinance and the Assam Legislature enacted the Assam Rashtrabhasha Prachar Samiti (Taking over Management and Control) Act, 1984, appointing a government‑nominated Board to run the society. The petitioners challenged the ordinance, the Act and the subsequent notifications as unconstitutional, arguing that they infringed the fundamental right to form associations under Article 19(1)(c) and exceeded the State’s legislative competence under Entry 25 of List III. The Supreme Court held that the Act and the Board appointment were ultra vires of the Constitution, violating the right of association, and that the State had no justification for a permanent takeover. Consequently, the Court set aside the Act and the notification, restored the society’s elected bodies, and ordered the return of its assets. The writ petition was allowed and costs were awarded to the petitioners.
Issues considered
- The constitutionality of the Assam Rashtrabhasha Prachar Samiti (Taking over Management and Control) Act, 1984 and its notifications
- Whether the State's takeover of a registered society violates Article 19(1)(c) of the Constitution
- Whether the State Legislature had authority under Entry 25 of List III to enact the Act
- Whether the ‘temporary’ nature of the Act was a genuine interim measure or a permanent deprivation of rights
Legislation cited
- Asom Rashtrabhasha Prachar Samiti (Taking over Management and Control) Ordinance, 1984
- Assam Rashtrabhasha Prachar Samiti (Taking over Management and Control) Act, 1984s. Section 3
- Constitution of Indias. Article 19(1)(c), s. Article 230, s. Entry 25, List III
- Societies Registration Act, 1860
Subjects
Article 19(1)(c)Right to form associationUltra viresState takeover of societyConstitutional validityTemporary legislationFundamental rightsAssam legislation
Judgment
A ASOM RASHTRABHASHA PRACHAR SAMITI-A SOCIETY
REGISTERED UNDER THE SOCIETIES REGISTRATION
ACT, 1860 AND HAVING ITS REGISTERED OFFICE AT
HEDAYATPUR, GAUHATI-3, REPRESENTED BY ITS
MANTRI SHRI THOLOK GOGOI AND ANOTHER
v.
B STATE OF ASSAM AND OTHERS
SEPTEMBER 19, 1989
[G.L. OZA, S. NATARAJAN AND KULDIP SINGH, JJ.]
C Assam Rashtrabhasha Prachar (taking over Management and
Cpntrol) Act, 1984-Section 3-Act held ultra vires-Notification
nominating Board to replace Karyapalika and Byabasthapika Sabh,,_
Quashed.
For the spread of Hindi in North-Eastern part of India an institu-
D tion named Asom Hindi Prachar Samiti was formed on 3.11.38 at
Gauhati. In 1948 this Samiti was renamed as Assam Rashtrabhasba
Prachar Samiti. The Petitioner No. 1 herein is a registered body which
claims to have a membership of about 22000 persons scattered all over
the North-Eastern part of India. This Samity has a sole constitution
known as Bidhan which is also a duly registered body. The Samiti holds
E different examinations in Hindi twice a year, publishes text books in
Hindi for Primary Schools, High Schools, Higher Secondary Schools
and Colleges upto the degree standard. Certificates issued by the Samity
are recognised by the Government of India, the Government of Assam
and various other organisations. The Samiti also Imparts training and
teaching in Hindi through a number of Vidyalayas and Pramanita
F Pracharaks. The assets and properties of the Samiti at the time of filing
this Petition are stated to be worth Rs.1,24,42,000.00.
According to the Bidhan, the management and administration of
the Samiti is run by elected bodies namely Byabasthapika Sabha and
Karyapalika, each having S years term from the date of holding of its
G first meeting. The Karyapalika consisted of 17 members. The Chief
Minister of Assam was the Ex-officio Adhyaksa of the Samiti but at the
time of holding of the first meeting, the State of Assam was under
President's rule and consequently the office of Adhyaksha remained
vacant. Petitioner No. 2 was unanimously elected Mantri. Petitioner
No. 2 and other office bearers of the Karyapalika held the first meeting
H on 19.8.1982 and the Karyapalika was running and managing the day
160
A.R.P. SAMIT!•. STATE OF ASSAM 161
to day affairs of the Samiti efficiently and diligently.
A
The Samiti in its meeting held on 17. 7.83 passed a resolution
amending the Bidhan deleting the provision that the Chief Minister of
Assam shall be the ex-officio Adhyaksha of the Samiti. This resolution
was adopted in full compliance of Section 30 of the Bidhan and all
members present in the meeting except one supported the resolution. B
After the passing of this amendment, the Respondent No. 4 as alleged
by the petitioners, passed an order dated 7. 7.84 on political considera-
tions purportedly to act as the Ex-officio Adhyaksha of the Samiti
declared a state of emergency in the Samiti in exercise of the powers
conferred under S. 16(Gha) of the Bidhan, dissolved the existing
Karyapalika and constituted an ad hoc body with himself as Chairman
and five others as members to manage the affairs of the Samiti and
c
asked the Petitioners to hand over the charge of the Samiti to this Ad
hoc committee. Thereupon, the petitioners filed a suit for a declaration
that the order dated 1.7.84 passed by Respondent No. 4 was void,
illegal, without jurisdiction and unenforceable against the petitioner
society. The Petitioners also prayed for a permanent injunction rest- D
raining the respondents from giving effect to the order and also moved
an application for issuance of a temporary injunction upon which a
show cause notice was issued to the defendants who filed their objec-
tions. While the matter w11s pending consideration of the question of
issuing of a temporary injunction the Governor of Assam purporting to
act under clause I of Article 230 of the Constitntion of India Jlromnl- E
gated an ordinance called the Asom Rashtrabhasha Prachar Samiti
(taking over of management and control) Ordinance, 1984. In dne
course the Ordinance was replaced by an Act passed by the Assam
Legislative Assembly. Unde the Ordinance and the Act virtually the
Samity which was a public body was substituted by a Board appointed
by the Government and all the functions, properties and affairs of the F
Samiti were taken over by the Board. It is this action taken under the
Ordinance and ultimately the Act which is the subject matter of
challeuge in this Writ Petition. It is contended that although the Act as
its title discloses, was a temporary measure, was continued at
perpetuity and the Samiti is being run by nominated members and the
rights of the members of the Samiti under Article 19 of the Constitution G
of India have not only been restricted but taken away.
Even during the hearing it was indicated that the Government of
Assam has no intention to end the temporary arrangement of the Samiti
and by this process the State Government intends to deprive the mem-
bers of the society their rights under Article 19(I)(C) fOr all times to H
I
162 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
\-
A come. In the Act there is no provision providing for restoration of the
elected bodies which shows that the use of phrase 'temporary' was just
an eye wash.
· Accepting the contentions of the Petitioners, this Court while
allowing the Writ Petition.
B
HELD: As the Act of 1984 and the Board nominated or appointed
under Section 3 of the Act is controlling the affairs of the Society it is not
necessary to go into the orders passed by the Chief Minister invoking
the emergency powers although the facts alleged clearly go to show that
except that the Constitution (Bidhan) was amended and the Chief
Minister was dropped from the place which he used to enjoy before the
c amendment of the Bidhan, there was nothing serious justifying all these
actions starting from invoking the emergency provisions till enacting
the present Act. [171G-H; 172A]
It is also apparent that since 1984 when this Act was passed and a
D notification appointing a Board was issued, the Government has not
chosen to take any steps to restore the Society back to its elected
authorities and office bearers and nor does it intend to do so even now.
Thus this Court is left with no option but to decide and decide uphold-
ing the Constitution and the right of association conferred under Article
19(l)(C) of the Constitution. [1750-E]
E
The Complete Control has been taken away from the Petitioner
Society and is given to Board nominated by the Government. The Board
is not as an interim measure. Bot will continue to control and manage
the affairs of the society. This amounts to taking away the fundamental
right of the Petitioner Society to form an Association guaranteed under
p Article 19(l)(C) of the Constitntion of India. [170E]
The Notification under the Act enacted by the Assam Legislature
is set aside holding that the Act itself is ultra vires of the Constitution.
The Notification issued under Section 3 of the Act by which a Board was
nominated to replace the Karyapalika and Byabasthapika Sabha is also
G quashed. [175E]
Damyanti Narang v. The Union of India and others, [1971] 3 SCR
940, referred to.
ORIGINAL JURISDICTION: Writ Petition (C) No. 9960-61
H of 1985.
A.R.P. SAMIT! v. STATE OF ASSAM [OZA, J.] 163
(Under Article 32 of the Constitution of India). A
Gobind Mukhoty and S.K. Verma for the Petitioners.
Dr. Shankar Ghosh and Prabir Choudhary for the Respondents.
The Judgment of the Court was delivered by B
OZA, J. This Writ Petition was filed challenging the action
taken by the respondent the State Government of Assam under the
Asom Rashtrabhasha Prachar Samiti (Taking over management and
Control) Act 1984 (Assam Act No. XXIII of 1984) which was an Act
enacted by the Legislative Assembly of Assam and received the assent
by the Governor of Assam and published in the Assam Gazette Extra-
c
ordinary dated 15.12.84. It also challenged the orders contained in
Notification Nos. EPG 57/84/25/A EPG 57/84/30-A and EPG 57/84/
51-A dated 1.10.84, 10.11.84 and 19.3.85 respectively issued by the
Education (Personal) Department of the Government of Assam.
D
According to the petitioner in 1929 Lahore Congress under the
leadership of Mahatama Gandhi adopted a resolution for the spread of
Hindi as the common language for ihe whole of India with a view to
promote national integrity and in pursuance of this resolution institu-
tions for the spread and prachar of Hindi in the non-Hindi areas were
established. First of this kind was established in Madras City in the E
name of Dakshin Bharat Hindi Prachar Samiti then in Wardha for the
development and spread of Hindi in the rest of India. Late Baba
Raghab Das a devoted disciple of Gandhi ji undertook the task of
spreading Hindi in the North Eastern part of India and in 1934 eminent
local leaders of this region Late Tarun Ram Phukan, Late Nabin
Chandra Bardaloi, Late Gopinath Bardaloi, Late Krishna Nath Sarma F
and others joined Baba Raghab Das and the first institution named
Asom Hindi Prachar Samiti was formed on 3.11.38 at Gauhati with
late Gopinath Bardaloi the first Chief Minister of Assam under the
1935 Act as its President. In 1948 Asom Hindi Prachar Samiti was
renamed as Assam Rashtrabhasha Prachar Samiti with its head Office
at Gauhati. G
It is this Assam Rashtrabhasha IJ>rachar Samiti, the petitioner
No. 1, which is a registered society under the Societies Registration
Act, 1860 with its registered office at.Hedayatpur, Gauhati-3 District
Kamrup. The registration No. of the Samiti which is 18th of 1951 and
according to the (Jetitioner this Society has a membership of about H
I
'·
164 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
A ·22,000 persons scattered all over the States and Union Territories of
North-Eastern part of India. The Samiti has district committees under
its control. The Samiti also has two affiliated bodies namely Manipur
Hindi Prachar Sabha, Imphal and the· Asam Rashtrabhasha Sewak
Sangh. This Samiti has a sole constitution known as Bidhan which is
also registered with the Registrar of Societies Assam at Gauhati. This
B Samiti is a literary body and under Section 4 of the Bidhan the objects
of the Samiti have been stated thus:
(a) To propogate and promote Hindi as a national
language in Assam, Meghalaya, Mizoram, Nagaland,
Manipur, Tripura and Arunachal Pradesh as provided in
Article 351 of the Constitution of India.
c
(b) to promote efficient, educated, qualified workers of
good character to hold out the Indian ideal before the
future generations.
D (b) to serve the State languages and literatures together
with the promotion of Hindi.
(d) to serve the tribal language and culture through the
medium of Hindi language and to create kindness with the
tribal brethren.
E
(e) to undertake a programme of literacy amongst the
illiterate .
•
This Samiti according to the petitioners discharge its functions
including the holding of examinations in Hindi in the State of Assam,
J? Meghalaya and the Union Territory (as they were then) of Mizoram
and also production and publication of prescribed text books_in Hindi
for Primary Schools, High School, Higher Secondary schools and the
Colleges upto the degree standard. The Samiti holds different exami-
nations twice in a year in which about 60,000 candidates at the time of
the filing of this petition on an average used to appear. The successful
G candidates are issued certificates which are recognised by the Govern-
ment of India and the Government of Assam and various All India
Organisation. The Samiti also imparts training and teaching in Hindi
through a large number of Vidyalayas numbering about 400 and
through Pramanita Pracharaks i.e. authorised propagators numbering
about 5000 scattered all over in the North-Eastern part of India. It is
lfl also alleged that the Samiti from the very inception had acquired assets
A.RP. SAMIT! v. STATE OF ASSAM [OZA, J.) 165
and properties and the assets and properties at the time of the filing of
A
the petition were stated to be:
1. Buildings - Rs.70,64,000.00
2. Printing Press with Machines Rs.15,00,000.00
and accessories
B
3. Furniture Fixture - Rs. 3,00,000.00
4. Two portraits - Rs. 10,000.00
5. Vehicle - Rs. 35,000.00
6. Typewriting Schools including - Rs. 60,000.00
machines and furnitures c
7. Iron Safe - Rs. 30,000.00
8. Compound fixing (leased las) - Rs. 30,000.00
9. Bank Deposits - Rs. 3,43,000.00
D
10. Security Deposit with Ashok - Rs. 30,000.00
Paper Mill Ltd.
11. Shares of Assam Coop-apex - Rs. 5,000.00
Bank Ltd.
12. Stock of printing papers - Rs. 50,000.00
and stationaries E
13. Stock of text books - Rs.22,00,000.00
14. Misc. articles including - Rs.50,00,000.00
utensils
15. Building Materials - Rs.25,00,000.00 F
16. Central Library - Rs.10,00,000.00
17. Value of the old books - Rs. 3,00,000.00
TOTAL - Rs.124,42,000.00
G
According to the Bidhan of -the Samiti the management and
administration of the Samiti is run by elected bodies namely Byabas-
thapika Sabha (meaning the General Council) and the Karyapalika
(meaning the Executive Committee), the term of each body is 5 years
from the date .of holding of their first meeting. Accordingly the term of H
I
166 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
A the Byabasthapika Sabha was to expire on 9.8.87 (five years from the
date of holding the first meeting) which was held on 10.8.82 and the
term of Karyapalika was to expire on 18.8.87 (five years from the date
of the first meeting which was 19.8.82).
That under Section 10 of the Bidhan the Karyapalika of the
B Samiti consisted of 17 members with the following office-bearers:
(i) Adhyakasha (President)
(ii) Karyadhakshya (Working President)
(iii) Upadhakshya (Vice President)
C . (iv) Mantri (General Secretary)
(v) Koshadhyaksha (Treasurer)
(vi) S.ix members elected by the Byabasthapika Sabha
(vii) The Education Secretary to the Government of Assam or a
ID · member nominated by him.
(viii) Five members of the Byabasthapika Sabha nominated by the
Adhyaksha, and
(ix) Pradhan Sachib (Chief Secretary) and other departmental sec-
retaries of the Samiti.
IE
According to the petitioner the first meeting of this last
Byabasthapika Sabha was held on 10.8.82 wherein petitioner No. 2
was elected unanimously as its Mantri (General Secretary) besides
other office bearers. According to the Bidhan of the Samiti as it stood
in 198i, the Chief Minister of Assam was the Ex-Officio Adhyaksha of
IF the Samiti but as at the time of holding of the· first meeting the State of
Assam was under President's rule, consequently the. office of
Adhyaksha of the Samiti remained vacant as then there was no Chief
Minister of Assam. Petitioner No. 2 and other office bearers of the
Karyapalika of the Samiti held the first meeting of the Karyapalika on
19.8.82 and the .Karyapalika was running the day-to-day administra-
<& tion and was managing the affairs of the Samiti according to the
Petiti<?ner very efficiently and diligently.
It is alleged that in early part of 1983 Pres.ident's rule was lifted
from Assam and a Ministry headed by Shri Hiteswar Saikia was instal-
led in power in Assam. But in the meantime the Samifr in its meeting
H of the Byabasthapika Sabha held on 17.7.83 passed a resolution for
A.R.P. SAMm v. STATE OF ASSAM (OZA, J.] 167
amendment of the provisions of the Bidhan in the following manner:
A
"That the words contained in Section 16 at page 21 of the
Bidhan to the effect that the Chief Minister of Assam shall
be the Ex-officio Adhyaksha of the Samiti be deleted. All
other such references contained in the Bidhan be also ac-
cordingly amended. This amendment shall come into·force B
from today the 17.7.83."
That the said resolution was adopted in full compliance of Section 30
of the Bidhan and all members 'present in the meeting except one
supported the resolution. This resolution amending Section 16 of the
Bidhan was passed considering the difficulties that arose in the work-
ing of the Samiti by keeping Chief Minister as the Adhyaksha of the c
Sainiti. According to the petitioner this amendment was sought neces-
sary to keep the Samiti away from politics'. According to the.petitioner
this amendment was introduced in accordance with Section 30 of the
Constitution (Bidhan) of the Samiti which provided:
D
"The Constitution of the Samiti may B'e amended as
follows:
(Ka) The proposal for amendment must reach the head
office within the month of January every year.
E
(Kha) The amendment proposals will be sent for informa-
tion to all the members of the Byabasthapika Sabha from
the Office.
(Ga) The amendment will be carried out by the 2/3rd
members present." F
According to the petitioner the procedure stated in this Section
of the Constitution was followed arid as only one person opposed the
Constitution amendment was passed. It is further alleged by the
petitioner that as this amendment was passed on 17.7.83 from this date
the Chief Minister ceased to be the Ex-officio President and since then G
according to the petitioner he had nothing to do with the Samitf. The
post of Ex-officio President was abolished.
According to the petitioner that Respondent No. 4 after passing
of this amendment of the Bidhan on political consideration passed an
order dated 7.7.84 contained in the notification No. CMS 202/79/319 H
168 SUPREME COURT REPORTS 11989] Supp. 1 S.C.R.
dated 7.7.84 whereby respondent No. 4 purportedly to act as the Ex-
A
Officio Adhyaksha of the Samiti declared as a state of emergency in
the Samiti in exercise of his powers conferred under section 16 (Gha)
of the Bidhan and dissolved the existing Karyapalika of the Samiti with
immediate effect and also constituted an ad hoc body with himself as
Chairman and five others as members to manage the affairs of the
B Samiti. The peti!ioner has also filed a copy of this order. It is alleged
by the petitioner that under this order petitioners Nos. 1 and 2 were
asked to hand over the charges of the management of the Samiti fo the
Ad hoc Committee. Thereupon the petitioner filed a suit being a Title
Suit No. 110 of 1984 in the Court of the Assistant District Judge No. l,
Gauhati for a declaration that the order dated 7.7.84 passed bv
Respondent No. 4 declaring a state of emergency and by which he
c dissolved the existing Karyapalika of the Samiti and constituted an Ad
hoc Committee, as void, illegal and without jurisdiction and unen-
forceable against the petitioner Society. As on the day on which he
passed the Order he was no longer the Adhyaksha as the Constitution
has been amended before that day. Petitioner also prayed for perma-
D nent injunction restraining the respondent No. 4 and other members of
\he Ad hoc co~mittee, their agents and servants from giving effect to
the order. The petitioners also filed an application under Order 39
Rule 1 and 2 of the Code of Civil Procedure for the issuance of a
temporary injunction.
E It is alleged that the Assistant District Judge No. 1, Gauhati by
his order dated 19. 7 .84 issued a notice to the defendants of that suit to
show cause as to why a temporary in junction as prayed for by the
petitioners should not be granted and fixed 13.8.84 as the date for
showing cause. The defendants filed their objection on 21.8.84 and the
case was fixed on 25.10.84 for consideration of the question of issuing
F a temporary injunction.
When the matter was pending in the Court for consideration of
the question of temporary injunction the Governor of Assam pur-
ported to act under Clause 1 of Article 230 of the Constitution of India
promulgated an Ordinance called the Asom Rashtrabhasha Prachar
c; Samiti (taking over of Management and Control) Ordinance, 1984 and
Section 1 sub,clause (ii) of this Ordinance provided that the Ordinance
shall extend to all areas over which the Asom Rashtrabhasha Prachar
Samiti ·had its jurisdiction immediately before the commencement of
the Ordinance by a Notification No. EPG 57/84/16 issued under the
signatures of Respondent No. 3 the Governor of Assam fixed Ist of
li:L October, 1984 as the appointed day on which the aforesaid Ordinance
A.R.P. SAMm v. STAIB OF ASSAM [OZA, J.] 169
came into force and Section 3 of the said Ordinance provided that the A
Government may constitute a Board for the purposes of taking over the
management and control of the Samiti consisting of not more than 9
members. According to the petitioners this Ordinance was issued at the
instance of the Chief Minister which was unnecessary, unwarranted
and uncalled for and was against the law laid down by the Constitution
Bench of this Court. Notification was issued on 7.7.84, Preamble of B
which reads as under:
"Whereas the Chief Minister of Assam in his capacity as
Ex-officio Adhyakasha of the Asom R.B.P. Samiti is
satisfied that deterioration of the financial condition of the
Samiti has resulted in financial deadlock and the group
rivalary among the members, confrontation between the
c
management and the employees culminating in institution
of law suits, hunger strikes by employees and chaos in
administration matters have resulted in administration
deadlock."
D
The petitioners contended that what is stated in the Preamble is incor-
rect and misconceived. The financial condition of the Samiti had never
deteriorated nor there were any adverse remark by any auditor in the
regular:am-liting.of the accounts of the Samiti. It is alleged that even
other facts leading to the taking over are wholly incorrect and
malacious. E
Thereafter in 1984 Assam Legislative Assembly passed an Act
i.e. Act No. XXIII of 1984 replacing the Ordinance and this Act
received the assent of the Governor of Assam on 12.8.84 and was
published in the Gazette Extraordinary dated 15.12.84. Under Section
3 of this Act the Assam Rashtrahhasha Prachar Samiti (taking over of F
Management and Control) Act, 1984, the number of members con-
stituting the Board was raised to 13. By the provisions of this Act
virtually the Samiti which was a public body constituted by its mem-
bers having elected Byabasthapika Sabha and Karyapalika were sub-
stituted by Board appointed by the Government and all the functions,
properties and affairs of the Samiti were taken ove~ by this Board and G
it is this action taken under the Ordinance and the Act and ultimately
the Act which is the subject matter of challenge in this Writ Petition.
As this infringes the fundamental rights of the members who constitute
the Samiti their rights under Article 19(1)(c) and by this process of
taking over the Samiti has been deprived of its assets and properties
and even as alleged by the petitioners Government has gone to the H
170 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
A extent of changing the name of the institution also. It is alleged that
after the passing of this Act the notification under section 3 was issued
which was EPG 57/34/75 dated 1.10.84 by which the Rashtrabhasha
Prachar Board was constituted with respondents 11,12 and 13 as mem-
bers and by this order all persons except respondent No. 12 who was
not even the member of the Rashtrabhasha Prachar Samiti were
B nominated.
The petitioners also alleged that in fact all this happened because
when the then Chief Minister of Assam learnt about the amendment of
the Constitution carried out by Byabasthapika Sabha learnt that under
the unamended Bidhan was the Ex-officio Adhyaksha has been drop-
ped by the amendment of the Constitution that with ma/a fide inten-
c tion he started taking action in a manner in which he could retain the
control of the institution. First he invoked the Constitution itself by
superceding the body by invoking emergency provisions but when that
was challenged by a suit, an ordinance was brought taking over the
Samiti as a whole specially replacing the Byabasthapika Sabha and the
D Karyapalika and later the ordinance was replaced by the Act and it was
contended that this all was the ma/a fide action of the then Chief
Minister of Assam and it is further contended that unfortunately even
after the new elections and a new Government comes in power in
Assam the Act which as its title discloses was a temporary measure was
continued at perpetuity, and the Samiti is being run by nominated
E. members and the rights of the members of the Samiti under Article 19
has not only been restricted but has been .taken away. It was also
contended that the history of the Samiti and the manner in which it was
formed and the persons who initially constituted the Samiti is of
significance because its history and historical background touches the
ideological and sentimental aspirations of the people of Assam and the
F infringement of this right to form an association under Article 19(l)(c)
is challenged as ma/a fide action motivated with selfish political moti-
vation. It is also contended that by the operation of this Act those who
have nothing to do with the Samiti or its ideals and who were not even
the members of the Samiti have been nominated as the members of the
Board and they are supposed to run the affairs of the Samiti whereas
G those who have contributed their heart and soul for the ideals of the
Samiti and who have put in long years of hard labour to build up are
deprived of their right to manage the affairs of the Samiti. It is also
contended that even the assets and the properties of the Rashtrab-
hasha Prachar Samiti is being mismanaged by nominated board as it
has no moral attachment to the ideals nor aptitude with the work of the
I:i Samiti and the assets are being neutralised.
A.R.P. SAMIT! v. STATE OF ASSAM [OZA, J.] 171
It was also co .. tended that the heading of the Act as it disclosed
A
"An Act to provide for temporary transfer of the management and
control of the affairs of A.R.B.P.S. from the Byabasthapika Sabha,
Karyapalika and other holders of office of the Assam Rashtrabhasha
Prachar Samiti to a Board". This heading of the Act, according to the
learned counsel, is just an eye wash as this heading shows that a
temporary arrangement was made because the management of the B
Samiti was not in proper hands and the temporary arrangement was
only to improve the functioning of the society and ultimately it has to
be handed over back to the elected body constituted under the Bidhan
(constitution of the society registered under the Societies Registration
Act) but in fact after the passing of this Act in 1984 till today the
respondent State had no point of time, even thought of restoring the
body to the normal functioning after holding election in accordance c
with the constitution of the Society. In fact even during the hearing of
this Writ Petition the counsel appearing for the State was asked to
intimate the Court if even now the State knowing that this was a
temporary measure is intending to restore the society back with
elected functionaries under the constitution. It was indicated that the D
Government of Assam has no intentions even now to end this tempo-
rary arrangement of the Samiti. It is plain that although the Act talks
of a temporary measure but it is only an eye wash and by this process
the State Government intends to deprive the members of the society
their rights under Article 19( 1)( c) for all times to come. In the Act
there is no provision providing for restoration of the elected bodies E
which shows that the use of phrase 'temporary' was just an eye wash.
Learned counsel appearing for the State attempted to justify the
action however denying that it was not because the constitution was
amended and therefore the Chief Minister was annoyed but attempted
to suggest that there was some mismanagement of the society but in F
any event there was no logic which could be suggested for such a
permanent taking over of the society registered discharging functions
which could not be said to be not ideal and which had started working
on some ideals which could not be said 'not for public good'.
It is clear that now as the Act of 1984 and a Board nominated or G
appointed under Section 3 of the Act is controlling the affairs of the
Society it is not necessary to go into the orders passed by the Chief
Minister invoking the emergency powers although the facts which were
alleged clearly go to show that except that constitution was amended
and the Chief Minister was dropped from the place which he used to
enjoy before the amendment of the Bidhan (Constitution). There was H
172 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
nothing serious and the Chief Minister who in fact had ceased to be an
Adhyaksha because of the constitutional amendment took that action
only to stick to the position and the subsequent acts even if ma/a fide
action is not clearly established, as was alleged, we have no hesitation
in observing that there appears to be no justification as it is clear that if
the Act was enacted to meet a temporary contingency for taking over
B of the management temporarily it could have provided for the restora-
tion of the elected body in due course. It is significant that this Act is
silent and although as quoted above it talks of being temporary act, it
continues and even as stated above there appears to be no intention of
the State Government to restore the body back to the elected bodies
under the constitution of the society itself. In these circumstances
therefore there appears to be no justification for all these actions
CC starting from invoking the emergency provisions till enacting the pre-
sent Act i.e. Asom Rashtrabhasha Prachar Samiti (taking over of the
Management and Control) Act, 1984.
Except the allegations of ma/a fide which are not admitted, rest
Ji)of the facts are not in dispute. The only suggestion made in the counter
is that there was mismanagem~nt, delay in examinations and results
and it was because of that that management only under this Act was
taken over. But neither in the counter nor during the course of argu-
ments anything could be said on behalf of the State for a permanent
justification of taking over of the management of the Samiti depriving
IE its members the right under Article 19(1)(c) of the Constitution of
India.
In the counter it was contended that the Legislature of the State
was competent under Entry 25 of the List III (concurrent list)
Schedule 7 of the Constitution to enact this law. Entry 25 List III
Ji' reads:
"25. Education, including technical education, medical
education and universities, subject to the provisions of
Entries 63, 64, 65 and 66 of List I; vocational and technical
training of labour."
The mere perusal of Entry 25 will reveal as to how difficult it will be to
stretch Entry 25 to mean the authority to deprive an association of its
right under Article 19( 1)(c) of the Constitution of India. It would have
been different situation, if the state felt that it wanted to do the same
thing what this Samiti was doing and further the acts of education and
JjI for that purpose if it had taken steps to start similar functions at the
A.R.P. SAMIT! v. STATE OF ASSAM [OZA, J.] 173
state level probably the things-would have been different. But here we
A
are simply concerned with the taking over of the management of a
registered society having large membership and assets and properties
following programme and policies living to the ideals which could not
be in any way challenged or adversely commented. Article 19( 1)( c) of
the Constitution provides:
B
"19. Protection of certain rights regarding freedom of
speech, etc.-( 1) All citizens shall have the right -
(a) xx xx xx
(b) xx xx xx
(c) to form associations or unions;
(d) xx xx xx c
(e) xx xx xx
(f) xx xx xx
(g) xx xx xx''
The Constitution Bench of this Court had an occasion to con- D
sider exactly a similar situation when a Hindi Sahitya Sammelan was
taken over first by a State law and later by an Act of Parliament and
this Court considering the question in Damyanti Naranga v. The Union
of India and Others, [1971] 3 SCR 840, observed:
"Further, under Section 7(2) of the Act, the Governing E
Body of the new Sammelan is to consist of such number of
persons, not exceeding 55, as the Central Goovernment
may from time to time determine; and out of these, a
number not exceeding 7 are to be nominated by the Central
Government from among educationists of repute and
eminent Hindi scholars. These 7 nominees are to be chosen F
by the Central Government."
In the present case the Government has taken the power under
Section 3 to appoint a Board and the Government can appoint any one
not connected with the Society at all to be in the Board. In the Act
which was being examined by the Constitution Bench there were some G
restrictions on the nominations of persons although the persons were to
be nominated by the Central Government but in the present Act it is
left to the discretion of the Government to appoint the whole _of the
Boad which will take place of not only 'the Managing Committee i.e.
the · Karyapaiika but also the place of Byabasthapika Sabha which
normally used to be an elected body. In this view the observation of H
174 SUPREME COURT REPORTS [19891 Supp. 1 S.C.R.
the Constitution Bench in Damyanti Naranga's case goes a Jong way. It
A is observed in this judgment:
"This is clear interference with the right to form an associa-
tion which had been exercised by the members of the So-
ciety by informing the Society with its Constitution, under
B which they were members and future members could only
come in as a result of thier choice by being elected by their
working Committee."
It is therefore clear that so far as the present case is concerned it is
not only that the new members are introduced, not only that the comp-
lete control is left to the Board to be nominated by the Government,
c about the persons no norms have been laid down, the person so
nominated could be anyone and no control is kept to those who
formed the Society, those who had a right to form an association will
be kept away and the Society shall be ·run by group of persons
nominated by the Government in accordance with Section 3. It is
D therefore clear that what was done in the Sammelan Acts which were
under examination in the Constitution Bench judgment referred to
above, much more has been done in this case. In this case virtually the
right of association has been taken away and not only that it is a sort of
deprivation for all times as it is not even provided that this Board may
be an interim Board and thereafter a proper Board will be elected but
E here this Board will continue to control and manage the affairs of the
Society. In the Constitution Bench case their Lordships considered the
scope of Article 19(1)(c) in the context of what was contemplated in
that Act and observed:
"The right to form an association, in our opinion, neces-
F sarily implies that the persons forming the Association
have also the right to continue to be associated with only
those whom they voluntarily admit in the Association. Any
law, by which members are introduced in the voluntary
Association without any option being given to the members
to keep them out, or any Jaw which takes away the mem-
G bership of those who have voluntarily joined it, will be a
Jaw violating the right to form an association. If we were to
accept the submission that the right guaranteed by Art.
19(1)(c) is confined to the initial stage of forming an
Association and does not protect the right to continue the
Association with the membership either chosen by the
H founders or regulated by rules made by the Association
A.R.P. SAMITI v. STATE OF ASSAM (OZA, J.( 175
itself, the right would be meaningless because, as soon as
A
an Association is formed, a law may be passed interfering
with its composition, so that the Association formed may
not be able to function at all. The right can be effective
only if it is held to include within it the right to continue the
Association with its composition as voluntarily agreed
upon by the persons forming the association." B
It is therefore clear that even on the basis of the pronouncement of the
Constitution Bench, the Act and the notification issued under this Act
taking over the management of the Rashtrabhasha Prachar Samiti
could not be accepted to be in accordance with the Constitution.
Apart from this it is also clear that although when the Act talks
c
of a temporary measure in fact, the Act does not provide for as to how
when the temporary measures comes to an end the elected Byabas-
thapika Sabha and Karyapalika would be restored. It is not only that
but it is also apparent that since 1984 when this Act was passed and a
notification appointing a Board was issued, the Government has not D
chosen to take any steps to restore the Society back to its elected
authorities and office bearers, inspite of the fact that we indicated and
asked the counsel appearing for the State to let us know even if now
the State is intending to restore it back to the Society but unfortunately
it appears that without considering the question and its constitutional
aspects the reply came that the State has no desire to restore the Samiti E
and therefore we are left with no option but to. decide and decide
upholding the Constitution and the right of association conferred
under Article 19(1)(c) of the Constitution. We therefore allow these
writ petitions, set aside the notification issued under the Act enacted
by the Assam Legislature holdil)g that the Act itself is ultra vires of the
Constitution. We therefore also quash the notification issued under F
Section 3 of the Act as ultra vires by which a Board was nominated to
replace the Karyapalika and Byabasthapika Sabha.
At the time when this Board was constituted under Section 3 the
Karyapalika and Byabasthapika Sabha duly elected were funnctioning
and they had sufficient time to go on and in this view of the matter we G
further direct that the Karyapalika and Byabasthapika Sabha which
were in existence in 1984 when initially the action under the emer-
gency provisions was taken followed by the notification under the
Ordinance and the Act shall be restored back and they shall take over
the management of the Samiti from the Board immediately but it is
made clear that the Karyapalika and Byabasthapika Sabha which were H
176 SUPREME COUR1 REPORTS [1989] Supp. 1 S.C.R.
A functioning in 1984 and which we are restoring will within six months
from the date of this Order will hold proper elections in accordance
with the Constitution to elect a Byabasthapika and Karyapalika. This
is necessary because the period of the Karyapalika and Byabasthapika
Sabha which was functioning in 1984 has come to an end although from
B 1984 till today they were not allowed to function. It is further directed
that the authorities, officers appointed by the Board or the State
Government shall restore back all assets and properties of the Samiti
to the Karyapalika which will be restored immediately after the pass-
ing of this Order. The petitioners shall also be entitled to costs of this
petition. Costs quantified at Rs.10,000.
C R.N.J. Petition allowed.
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