Patna High Court
Lashan Lal Singh Alias Lakhan Rai And ... vs The State Of Bihar And Ors. on 30 August, 1991
Equivalent citations: 1992(1)BLJR38
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT Aftab Alam, J.
1. This application under Articles 226 and 227 of the Constitution seeks a declaration that the Bihar Collective Fine (Imposition) Act, 1982) (Bihar Act No. 70 of 1982) is unconstitutional and void. Such a declaration, if granted, would consequently lead to the quashing of order dated 17-8-1990, passed by the District Magistrate, Munger (third respondent) in Cr. Misc. Case No. 11-10-91 whereby in exercise of powers under this Act he imposed collective fine on the inhabitants of village Italian. It is to be noted that in the writ petition as originally presented the impuged order imposing collective fine and the follow up actions taken by the respondent-authorities were not assailed as bad, for not being in conformity with the provision of the Act. This plea was pressed into service, rather reluctantly and only at the end of the hearing of the case. The main challenge as noted above was to the constitional vires of the Act.
2. The facts are brief and without much controversy. The genesis of the impugned imposition of fine lies in the agitation on the issue of reservation that was plaguing not only this State but the entire country at the relevant time. It appears that on 15-8-1990, a 100 to 150 strong anti-reservation its mob ransacked and burnt Ratanpur Railway Station falling in the district of Munger. A passenger train was also stopped at the outer cabin of the station and one of its bogies was damages and partially burnt. This wanton and mindless act caused considerable damage to public property. On the same day a substantive case, being Jamalpur Railway Police Station Case No. 49/90 was instituted for offences under different2s of the Penal Code in which the Station Master, the Assistant Station Master of the concerned railway station and 100--150 unidentified residents of village Ithari were cited as accused persons. It was stated in the F.I.R. that on arrival of the police party the members of the mob were seen fleeing in the direction of village Ithari. It was further stated that on enquiry it transpired that the culprits were residents of village Itahari which was at a distance of only 1/2 Km. from the railway station. It was also stated in the F.I.R. that the members of the armed force posted at the railway station had identified the accused by face as the residents of village Itahari.
3. On 17-8-1990 the Sub-Divisional Officer, Sadar, Munger put up a memorandum before the District Magistrate, Munger referring to this attack on the railway station and making recommendation for imposition of collective fine on the inhabitants of village Itahari (excluding two totals of the village). The reasons for the recommendation are to be found in the memorandum, a copy whereof is enclosed as Annexure-2 to the writ petition. On the basis of this recommendation the learned District Magistrate Munger passed an order oh the same day in Cr. Misc. Case No. 11/90-91 imposing collective fine of Rs. 3,50,000 on the inhabitants of the village in question. The fine was distributed on the heads of families, a list whereof was furnished by the Block Development Officer and the Circle Officer. The inhabitants of the village being primarily agriculturists, the apportionment of fine was made on the basis of land holding. A notification to this effect was published in the District Gazette of Munger of August 18, 1990. A photo copy of this notification is enclosed as Annexure-4 to this writ application. The notification declared that the District Magistrate, Munger had arrived at the conclusion that unless collective fine was imposed on the residents of the concerned village in terms of Section 2 of the Act, such types of offences were likely to recur leading to disturbance of public order and dislocation of public services and essential supplies. It is alleged on behalf of the petitioners that 245 names mentioned in the Gazette notification include dead persons and those who are in Government services, posted at distant places from the village.
4. An announcement of this imposition was made in the village by beat of drum on 20-8-1990. It is stated that petitioner No. 4 filed an application before the District Magistrate, Munger on 24-8-1990 for exemption from the fine which was rejected by the District Magistrate, Munger on the same day; copies of the petition and the order are enclosed as Annexures 5 and 6 to this writ petition, 13 residents of the village, thereafter addressed a petition in this regard to the Chief Minister, Bihar, a copy whereof is enclosed as An-nexure-7 to this application. This invoked no response and then this application was filed before this Court.
5. During the pendency of the application the petitioners, as permitted by this Court vide order dated 29-10-1990, once again moved the Collector, Munger for 'making an enquiry afresh in the matter'. This time details were given of persons who were not in the village on the relevant date; of those in Government service and posted elsewhere. A list was also given of tour persons who were said to be handicapped and 11 persons who were actually dead on the relevant date. A copy of this petition has been brought on the record enclosed as Annexure-10 to the second supplementary affidavit. This petition was also rejected by order dated 5-11-1990 a copy of which is enclosed as Annexure-9 to the supplementary affidavit.
6. Mr. Basudeo Prasad, learned Counsel appearing on behalf of the petitioners, has strongly assailed the constitutional validity of the Act. He contends that this Act is ultra viers Articles 14 and 20(1) of the Constitution, The argument is prompted by an earlier Division Bench decision of this Court in Ajab Lal Mandal and Ors. v. State of Bihar and Anr. . This judgment struck down as unconstitutional and invalid an apparently similar provision contained in Section 8 of Bihar Maintenance of Public Order Act, 1949 (then in existence). Mr. Prasad has placed very strong reliance on this decision. Mr. K.N. Jain, learned Additional Advocate-General appearing on behalf of the State, on the other hand, contended that the provisions of the present Act are radically different both in substance and in procedural safeguards from the one held to be invalid in Ajab Lal's case (supra) and hence the present Act cannot be characterized as bad on the basis of the earlier decision.
7. For a proper appreciation of the contentions advanced on behalf of the parties, it would be proper to examine the provisions of the earlier Act and those of the present Act. Section 8(1) of the earlier Act was as follows:
8.(1) If it appears to the State Government that the inhabitants of any area are concerned in or are abetting, the commission of offences prejudicially affecting the maintenance of public order, or are harbouring persons concerned in the commission of such offences, or are failing to render all the assistance in their power to discover or apprehend the offender or offenders, or are suppressing material evidence of the commission of such offences, the State Government may, by notification, impose a collective fine on the inhabitants of that area:
Provided that an imposition of a collective fine by any authority to whom the power may have been delegated under this Act may be made by publication of the order imposing the fine in any such manner as such authority may consider best calculated to bring the order to the notice of the inhabitants of the area concerned.
The corresponding provision under the present Act is Section 2(1) which is as follows:
2. Imposition of collective fine on inhabitants of an area.--(1) On being satisfied or the information received or otherwise regarding the participation of the inhabitants of any area of the State in any widespread or largescale disturbances of public order involving rioting, murder and arson or on account of their commission, attempt to commission or abetment of all or any of the offences specified in Chapter VIII, Sections 187 to 190, 212, 302, 304, 323 to 326, 332, 379, 383, 390 to 402 and 436 and Chapter XXII of the Indian Penal Code, 1860 XLV of 1860), offences under the Arms Act, 1959 (Act LIV of 1939) and the Indian Explosives Act, 1884 (Act IV of 1884) State Government or the District Magistrate of the district in order to prevent the recurrence of such disturbance in such area and to protect the life and property of the people of the State in general and of the area in particular or for the maintenance of public order and services or supplies essential to the life of the community may, by notification published in the official Gazette, impose such collective fines on all or such inhabitants or class of inhabitants of the said area, as may be considered necessary:
Provided that the collective fine exceeding rupees five thousand shall not be imposed on an individual or a family:
Provided also that when such a fine is imposed by the District Magistrate he will within ten days of such imposition send a report along with a copy of the order to the State Government explaining therein the cause of such imposition:
Provided further that where such an imposition has been made by the District Magistrate the State Government may within thirty days of such imposition, review or revise the orders of the District Magistrate on application or its own motion.
8. Mr. K.N. Jain, learned Additional Advocate General, submitted that although both the provisions contemplated imposition of collective fine on the inhabitants or a class of inhabitants of a certain area, the two provisions were really as a different as chalk from cheese. It is to be noted that in the earlier provision Section 8(1) the imposion of fine was visited as a directed consequence of certain acts of omission or commission by the inhabitants of that area. This rendered the imposition nothing but punitive in nature and it was for this reason that the provision was held to be ultra vires being indefinite and vague.
9. In terms of Section 2(1), however, the imposition of fine is in order to prevent the recurrence of disturbance of public order and to protect life and property of the people or for maintenance of public order and services or supplies essential to the life of the community. Under Section 2 there is no direct relationship of the kind of punishment for offences committed. That aspect of the matter is dealt with by the general laws of crimes. This provision is concerned mainly with the nature of offences (as enumerated in the section) rather than the persons who might have participated in the commission of these offences. The nexus between the commission of offences and imposition of collective fine is to the extent that eruption of violence and the commission of offences of the kind as enumerated in the section forms the material for the authorities' opinion that unless drastically checked such violent incidents were likely to recur and snowball causing disturbance of public order etc. Learned Counsel submitted that it is common experience that regional, linguistic, caste, communal or other similar virulent forms of violence do not only disrupt public order etc. but they are highly contagious and have a tendency to rapidly grow both in extent and magnitude. An act of violence and rioting feeds upon the earlier one preceding it, gaining from it added strength and the chain thus grows till it starts posing threat to the integrity of the nation. The imposition of collective fine is only intended to the check the eruption of similar incidents of violence in that area and to prevent the contagion of violence spreading to other areas. It is like pulling down some houses and structures in order contain a raging, devastating fire.
10. The procedural aspect relating to apportionment and realization of the fine was dealt with in the remaining Sub-sections (2) to (5) of Section 8 of the earlier Act. These are as follows:
8(2) The State Government or any officer empowered in this behalf by the State Government, by general or special order, may exempt any person or class or section of such inhabitants from liabilty to pay any portion of such fine.
(3) The District Magistrate, after such inquiry as he may deem necessary, shall apportion such fine among the inhabitants who are laible collectively to pay it, and such apportionment shall be made according to the District Magistrate's judgment of the respective means of such inhabitants.
(4) In any such apportionment the District Magistrate may assign a portion of such fine to a Hindu undivided family to be payable to it.
(5) The portion of such fine payable by any person (including a Hindu Undivided family) may be recovered:
(a) In the manner provided by the Code of Criminal Procedure, 1898, for the recovery of a fine imposed by a court, as it such portion were a fine imposed by the District Magistrate acting as a Court:
Provided that the State Government may, in lieu of the rule referred to in Sub-section (2) of Section 386, Cr. PC, 1898, make rules under this Act regulating the manner in which warrants under Clause (a) of Sub-section (1) of the said section of the said Code are to be executed, and for the summary determination of any claims made by any person other than the person liable to pay the fine in respect of any property attached in execution of the warrant; or (b) as a public demand payable to the Collector.
Explanation.--For the purpose of this section, the expression, inhabitants of an area includes persons who themselves or by their agents or servants occupy or hold land or other immovable property within such area, and landlords, who having any house or cutchery for collecting, rents within such area themselves or by their agents or servants collect rents from holders or occupiers of land in the area, notwithstanding that they do not actually reside therein.
The corresponding provisions in the present Act are as follows:
2 (2) The notification made under Sub-section (1) shall be proclaimed in the area by boat of drum of in such other manner as the State Government or the District Magistrate may think best in the circumstances to bring the declaration to the notice of the said inhabitants:
Provided that when the imposition has been made by the District Magistrate, he would send a report to the State Government indicating the reasons for imposition of the collective fine within ten days of the imposition of the fine along with copy of the order:
Provided further that where such an imposition has been made by the District Magistrate, the State Government will have power to review or revise the motion passed by the District Magistrate either on application or on its orders within thirty days of the date of imposition.
(3) The District Magistrate shall, after such inquiry as he may consider necessary, apportion the fine imposed under Sub-section (1) among the said inhabitants according to his judgment of their respective means:
Provided that the fine apportioned to an inhabitant under this sub-section shall not be realized until a petition, if any, filed by him under Sub-section (4) is not disposed of.
4. (a) Any person aggrieved by the order of apportionment under Sub-section (3) may, within seven days from the date of apportionment under Sub-section (3) file a petition before the District Magistrate for being exempted from such fine or for modification of the order of appointment:
Provided that no fee shall be charged for filing such petition.
(b) The District Magistrate may at any time transfer the petition for disposal to the Sub-divisional Magistrate or any other officer specially empowered in this behalf.
(c) After giving the petitioner a reasonable opportunity of being heard, the District Magistrate or the Sub-divisional Magistrate or officer specially empowered in this behalf to whom the proceeding is transferred under Clause (b), may pass such order as he considers fit:
Provided that the amount of fine exempted or reduced under this sub-section shall not be realizable from any other person and the total fine imposed on the inhabitants of the area under Sub-section (1) shall be deemed to have been reduced to that extent.
(5) An appeal preferred under Sub-section (4) shall lie:
(i) If the order is passed by the District Magistrate, to the Commissioner of the Division ; and (ii) if the order is passed by any other officer, to the District Magistrate:
Provided that no appeal shall be entertained unless fifty per cent of the fine payable in accordance with the order under Sub-section (4) has been paid and the memorandum of appeal is accompanied with a proper receipt showing such payment:
Provided further that no fee shall be charged for filing such appeal.
(6) An order passed under Sub-section (1), or Sub-section (3) where no petition has been filed under Sub-section (4), or an order under Sub-section (4) if not appealed against and the order passed on appeal under Sub-section (5), shall be final.
(7) The fine payable by any person shall be recovered in the manner provided in the Code of Criminal Procedure, 1973 (Act II of 1974).
11. In the matter of procedural safeguards also the following differences between the two Acts are discernible:
(i) In the earlier Act there was no guideline as to the quantum of fine that could be imposed on an individual or a family. The present Act, however, prescribes the maximum amount of Rs. 5,000 that can be imposed on an individual or a family.
(ii) Sub-section (2) of Section 8 of the earlier Act which was held to confer unguided and unbriddled powers on the authorities finds no place in the present Act.
(iii) The most significant difference, however, is that there was nothing comparable to Sub-sections 2(4) and 2(5) of the present Act in the earlier Act.
(a) In the scheme of the earlier Act, the District Magistrate would apportion individual fines under Sub-section (3) and the fines, thus apportioned, would become immediately recoverable in terms of Sub-section (5) of Section 8. In the scheme of the present Act, however, even after apportionment no fine is realizable from anyone till the disposal of this petition filed under Sub-section (4).
(b) Against an order passed under Sub-section (4) then is also an appeal provided in terms of Sub-section (5) of Section 2, though the appeal is entertainable only after payment of 20% of fine.
12. If one refers to the earlier judgment of this Court in Ajab Lal's case (supra) keep in mind the differences in the two Acts as discussed above it will be plain and clear that the earlier decision has no application to this Act. The decision in Ajab Lal's case proceeded to examine Section 8 of the Bihar Maintenance of Publice Order Act, 1949 on the basis that it was a punitive provision, as it certainly was, and eventually held it ultra vires Articles 19(1)(f) and 31(2) of the Constitution. A perusal of the decision makes it abundantly clear that the impugned provision was examined by the Court as a punitive measure and not as a preventive measure. It is significant to note that in Ajab Lal's case there was also a faint attempt to defend the impugned provision on the ground that it was not a punitive measure but it was a preventive measure. The Court, however, rejected the contention almost out of hand and firmly held that it was a punitive measure. This was on the basis of the language of Section 8(1) and the use of expression 'fine' which their Lordships, referring to Stroud's Judicial Dictionary, held to mean a "pecuniary punishment for an offence or contempt committed against the King".
13. Mr. Basudeo Prasad placing strong reliance on paragraph 18 of Ajab Lal's case has contended that notwithstanding the present Act assuming an appearance of a preventive measure, in reality it continued to be a punitive Act. In support of his contention he relied on paragraph 18 of the judgment particularly where their Lordships discussed the meaning of the word 'fine'. In addition, Mr. Prasad cited Black Law Dictionary, 5th edition to show that the word 'fine' according to this dictionary means "a pecuniary punishment or mulct imposed by lawful tribunal upon person convicted of crime or misdemeanor.
14. The reasoning given in Ajab Lal's decision to hold Section 8(1) of the earlier Act as punitive and not preventive was two-fold. First, it was found, very rightly with respect I submit that the imposition was for certain acts already committed by the inhabitants and it was not anticipatory or based on suspicion. Secondly the use of the expression 'fine' which normally refers to criminality and punishment fortified their Lordships' view that the provision was penal.
15. As regards the present Act, the position so far as the first ground is concerned, is just the reverse, Here the imposition of fine is not for an Act done but the imposition is anticipatory and based on apprehension that similar acts may recur. As regard the second ground relating to the meaning of the word 'fine', I feel that the use of that expression is not conclusive. In support of the contention that the words 'penalty' and 'fine' may be used in contexts bereft of the elements of offence and in such contests the words shall have no content of criminality or punishment. Mr. Jain has cited several decisions. Reliance has been placed upon a decision of the Supreme Court in Om Prakash Sheo Prakash and Ors.0Union of India and Anr. reported in 184 (1984) ITR 664 at 687. In this case, the validity of Section 2-A inserted in Section 9 of the Central Sales Tax Act came under challenge. The amendment insertion was made to make the levy penalties as per the general Sales Tax Laws in force in the States permissible with retrospective effect and also to validate all such previous proceedings. The retrospectivity of the amendment was assailed as violative of Article 20(1). The Supreme Court said as follows:
The contention of the petitioners is that any Act or omission which is considered to be a default under the Act for which penalty is leviable is an offence, that such act or commission was not an offence and no penalty was payable under the Law in force at the time when it was committed and hence they cannot be punished by the levy of penalty under a law which is given retrospective effect. They principally rely on Article 20(1) in support of their case.... The word 'penalty' is a word of wide significance. Some times it means recovery of an amount as a penal measure even in a civil proceeding. An exaction which is not of compensatory character is also termed as a penaltyeven though it is not being recovered pursuant to an order finding the person concerned guilty of a crime.In Article 20(1) the expression 'penalty' is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge.
(emphasis supplied) After a consideration of a number of earlier decisions the Supreme Court finally held as follows:
After giving an anxious consideration to the points urged before us, we feel that the word 'Penalty' used in Article 20(1) cannot be construed as including a penalty levied under the Sales Tax laws by the departmental authorities for violations of statutory provisions. A penalty imposed by the Sales Tax authorities is only a civil liability, though penal in character. It maybe relevant to notice that Sub-section (2-A) of Section 9 of the Act specifically refers to certain acts and omissions which are offences for which a criminal prosecution would lie and the provisions relating to offences have not been given rertospective effect by Section 9 of the Amending Act. The argument based on Article 20(1) of the Constitution is, therefore, rejected.
16. Similarly a Division Bench of Andhra Pradesh High Court in the case of Addl. Commissioner of Income Tax, A.P. v. Khyam Constructions, reported in 123 (1980) ITR 573 at 576, while examining Section 285-A of the Income Tax Act held as follows:
Sub-section (2) of Section 285-A of the Act empowers the Commissioner to impose upon any contractor who contravenes the provisions of Sub-section (1), such fine not exceeding Rs. 50 for every day's default and in the aggregate not exceeding 25% of the value of the Contract. The power vested in the Commissioner to impose fine under Sub-section (2) of Section 283-A is without prejudice to the provisions of any other law for the time being in force. This statutory power of the Commissioner would not in any way affect or offend the provisions of any other law for the time being in force applicable to such contracts. On a careful reading of Section 285-A (1) and (2) we are unable to think that mens rea is really necessary to attack to provision of Sub-section (2). The provisions of Section 285-A(2)are regulatory in character and they have been enacted to enforce the compliance of the provisions of Section 285-A(2) by the persons mentioned therein, but not actually to punish them.
(emphasis supplied)
17. Mr. Basudeo Prasad has also relied upon some decisions in support of his contention that the word 'fine' always has an element of punishment. These are reported in AIR 1975 SC 625 : AIR 1970 SC 1782 and AIR 1970 SC 253. These decisions, however, examined provisions which were admittedly punitive and there was no controversy like the present one that a provision may not be punitive notwithstanding the use of the word 'fine'. These decisions are of no help to Mr. Prasad.
18. After giving my anxious consideration to the points urged as discussed above I fail to see any arbitrariness or unreasonableness in the provisions of this Act and I do not find the Act violative of Article 14 of the Constitution I also find that the present Act, unlike the earlier one is a precautionary and preventive enactment. It does not violate Articles 20(1) and 21 of the Constitution and the challenge to its, constitutional validity describing it as a punitive measure must fail.
19. I, however, hasten to add that this is not to say that I am in any disagreement with the decision of this Court in Ajab Lai's case. With utmost respect, I submit that Ajab Lal's case was rightly decided and Section 8 of the Bihar Maintenance of Public Order Act was rightly struck down. I only find that the present Act is quite different from the earlier one. In fact, the framers of the present Act have tried to (sic) benefited by the judgment of Ajab Lal's case. Care has been taken to remove the lacunae pointed out in the earlier provisions, e.g. Sub-section (2) of Section 8 which the Court held to confer unguided power on the authority has been altogether omitted and the provisions relating to a hearing before realisation of the fine and an appeal have been incorporated which this Court had found lacking in the earlier provision. Moreover, it has been made free from all doubt that the imposition of fine is not a punitive measure but a preventive measure. I, therefore, feel that the decision in Ajab Lal's case which dealt with a punitive fine is not applicable to this Act which is not a punitive provision but a preventive provision.
20. Mr. Prasad has further contended that a law which provides for punishment for commission of any offence either individual or collectively, in order to be valid, must satisfy the test of reasonableness both in substance as also in procedure. It is obvious that this argument also proceeds on the premise that the Act under challenge is a punitive measure. The finding being to the contrary I am not required to discuss this argument any further.
21. Coming now to the actions of the authorities under the Act. Mr. Prasad submitted that in any view of the matter imposition of fine in this case was not sustainable for the following reasons:
(i) Section 2(1) of the Act required publication of the notification 'in the official Gazette'. In this case, however, the notification was published in the district Gazette and this roust be held to be no publication in the eye of law, vitiating all subsequent proceedings.
(ii) Complete breach of the second proviso of Sub-section (1) of Section 2.
(iii) Complete breach of the third proviso of Sub-section (1) of Section 2.
(iv) Complete breach of the provision contained in Section 2(4).
22. As regards the first point, relating to publication in Gazette, Mr. Prasad submitted that Section 3(39) of the General Clauses Act defines 'official Gazette' to mean Central or State Gazette. This, according to him would not include the district Gazette of Munger.
23. After the hearing of this case was concluded and the judgment was reserved, a Division Bench decision has been rendered which directly supports the contention advanced by Mr. Prasad. This decision is in the case of A.S. Grih Niaman Samiri Ltd. v. State of Bihar (1991) 1 PLJR 380. This decision holds that the district Gazettes which are published by the Collectors of the district are for the purpose of notifications or other local informations issued by the Collectors concerned and as such the same cannot be treated to be the official Gazette of the State.
24. However, I sitting with the Hon'ble the C.J. have referred this question for consideration by a Full Bench in C.W.J.C. No. 6639 of 1987 and other analogous cases, I, accordingly, do not propose to go into this question as I feel that this application is fit to be allowed on the other points advanced by Mr. Prasad.
25. It is an admitted position that the order of imposition of collective fine in this case was issued by the District Magistrate, Munger. The second proviso to Sub-section (1) requires the District Magistrate to send a report along with a copy of the order to the State Government explaining therein the cause of such imposition. No counter-affidavit has been filed in this case and hence it is not known whether this requirement was complied with or not. This omission is of no consequence, however, as there is no averment in the writ petition (or even in the supplementary affidavits) that no such, report was sent by the District Magistrate to the State Government. In the absence of any averment whatsoever in this regard the petitioners cannot to be heard on this point.
26. It is, however, stated that a representation was filed before the State Government addressed to the Chief Minister a copy whereof is enclosed as Annexure-7. It was clearly incumbent upon the State Government in terms of the third proviso of Sub-section (1) of Section 2 to dispose of this representation by passing a speaking order. The State Government failed to do so.
27. As regards the provisions of Sub-section (4), it undoubtedly confers a valuable right on the person affected to be heard in the matter and the provision is certainly not an empty formality. With the permission given by this Court, the petitioners, during the pendency of this application filed a petition before the Collector which his been rejected by order as contained in Annexure-9. This order is quite cryptic and non-speaking so much so that the learned Addl. Advocate General did not even try to defend it and very fairly conceded that this order has to be set aside. Similar is the position with regard to order dated 24-8-1990 (copy enclosed as Annexure-6 whereby the District Magistrate rejected an application for exemption on behalf of petitioner No. 4. This order is also completely non-speaking and hence unsustainable in law.
28. To sum up I find and hold as follows:
(i) Bihar Collective Fine (Imposition) Act,, 1982 (Bihar Act No. 70 of 1982) is constitutionally valid and the challenge to its constitutional validity must fail.
(ii) The provisions contained in the second and third provisos to Section 2(1) and the provisions contained in Section 2(4) are intended to be very valuable safeguards and protection against an abuse of the powers under the Act by the authorities and they must adhere to both in letter and spirit.
(iii) In this case there is no material to hold that there was a breach of the second proviso to Section 2(1).
(iv) However, there was non-compliance with the third proviso to Section 2(1) as the State Government failed in the discharge of its statutory duty by not considering the application made to it (a copy enclosed as Annexure-7) and by not taking a decision regarding the imposition of collective fine by the District Magistrate, Munger.
(v) There was a complete breach of the provision contained in Section 2(4) indicated by the manner in which the orders, contained in Annexures 6 and 9, were passed rejecting the petitions filed before the District Magistrate, Munger. The orders contained in Annexures 6 and 9 are, accordingly, quashed.
29. On the basis of the above I pass the following orders/directions:
30. The matter is remitted back to the authorities to proceed afresh from the stage of issuance of the Gazette notification dated August 18, 1990 as contained in Annexure-4.
31. Although the petition, a copy whereof enclosed as Annexure-7, is not specifically stated to be a petition under the third proviso to Section 2(1) but it must be considered by the State Government as such. The State Government is, accordingly directed to consider this petition and to take its own independent decision regarding the imposition of collective fine in question within 30 days from today in terms of the third proviso to Section 2(1).
32. The District Magistrate, Munger himself or the Sub-divisional Magistrate or any other Officer specifically empowered in this behalf must re-consider the petitions, copies whereof are enclosed as AnnexureB-5 and 10 and in case the submissions made in these petitions are not accepted must pass a fully reasoned speaking order.
33. I further direct that any other aggrieved person may file a petition in terms of Sub-section (4) within 7 days from today which must be duly considered by the authorities as provided under Section 2(4) and(c). Although the time for filing such petition(s) ended in August, 1990. In the special facts and circumstances of the case I consider it just and fair to give such liberty of filing petitions under Section 2(4). It is needless to say that in terms of the Act itself no fine shall be realized from any one in case one has filed a petition under Section 2(4) until such petition is disposed of.
34. With these observations and directions this writ application is allowed to the extent indicated above.
S.B. Sanyal, J.
35. I agree. Words don't bear the same meaning in all the contexts. Time in the context of a legislation punitive in nature will bear one meaning while in a preventive legislation as a deterrent not to commit an offence.