Jagdev Singh Vs. State of Jammu And
Kashmir [1967] INSC 173 (14 August 1967)
14/08/1967 WANCHOO, K.N. (CJ)
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
RAMASWAMI, V.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1968 AIR 327 1968 SCR (1) 197
CITATOR INFO :
R 1968 SC 765 (1,17)
ACT:
Defence of India Rules, 1962, rr, 30(1) (b)
and 30A--Detention orders passed in March 1965 and reviewed from time to time
under s. 30A but without observing rules of natural justice--After Supreme
Court deciding review was quasi-judicial function fresh review made in February
1967 upon giving detenu opportunity for hearing--Whether such review effective
in continuing original detention order --Whether fresh detention Order can be
passed on the same facts to cure a defect.
HEADNOTE:
The petitioners were detained under r. 30(1)
(b) of the Defence of India Rules, 1962, under orders passed by the State
Government in March 1965. Their detention was continued from time to time after
review under r. 30A. One review was made in February 1967 when the scope of
such a review was governed by the judgment of this Court in Sadhu Singh v.
Delhi Administration [1966] I S.C.R. 243 to the effect that such review did not
require a judicial approach to the question of continuance of detention.
Accordingly, at the review in February 1967, no opportunity was given to the
petitioners to represent their cases and their detention was continued for a
further period of six months.
Thereafter, by its judgment in the case of P.
L.Lakhanpal v. The Union of India. [1967] 3 S.C.R. 114 this Court overruled the
decision in Sadhu Singh's case and held that the function of review under r.
30A was quasi-judicial and that in exercising it, the rules of natural justice
had to be complied with. In view of this judgment the respondent held another
review in April 1967, when notice was given to the petitioners and they were
given a hearing. Thereafter an order was passed in each case on April 27, 1967,
by which the State Goverment directed the continuance of the detention orders
for a further period. In the meantime the present petitions under Art. 32 of
the Constitution were filed on March 20, 1967 based on the judgment of this
Court in Lakhanpal's case.
It was contended on behalf of the respondent
State that as the review made in April 1967 was in accordance with the view
taken in Lakhanpalls case, the continuance of the detention thereafter was
justified; that the State Government had power to pass a fresh order of
detention on the same facts and even if the present petitions were to be
allowed, it should be made clear that the State Government had such power and
that the decision of this Court in the case of Avtar Singh v. The State of
Jammu and Kashmir (decided on June 9, 1967), was not correct.
HELD: (i) The writ petitions must be allowed
and the petitioners released.
In the Present cases the orders were passed
in March 1965 and should have been reviewed after every six months in the
manner explained in Lakhanpal's case. That admittedly was not done upto
February 1967, though a number of reviews were made in between. Consequently
orders of detention passed in March 1965 fell after six months and there were
no orders to continue thereafter. When 198 therefore the State Government
ordered the continuance of detention orders upon the review on April 27, 1967,
in accordance with the procedure indicated in Lakhanpal's case, there were no
orders to be continued because in-between the reviews were not proper and the
detention had become illegal. [201 C-D).
A. K Gopalan v. The Government of India,
[1966] 2 S.C.R.
427, distinguished.
Although r. 30A (9) only says that the
Government shall decide whether the detention order should be continued or,
cancelled, that does not mean that if the Government omits to make a review
under r. 30A within six months the detention order will still continue and the
detenu continue to be detained thereunder. The provision for review in r. 30A
is designed, to protect the personal liberty of the citizen and is a mandatory
provision; if it is not complied with and' the Government omits to review the
detention order within six months, the order must fall and the detenu must be
released. [200 FG] (ii) A fresh order of detention can be passed on the same
facts, provided it is not mala fide, if for any reason the previous order of
detention or its continuance is not legal on account of some technical or other
defect as in the present cases. There is nothing in the Defence of India Act
and Rules which forbids the State Government from cancelling one order and passing
another in its place. [2O2 C].
Ujagar Singh v. The State of Punjab., [1952]
S.C.R. 756 and Godavari Shamrao Parulekar v. State of Maharashtra and Ora.,
[1964] 6 S.C.R. 446, referred to.
The view taken in Avtar Singh v. The State of
Jammu and Kashmir, in so far as it says that no fresh order can be passed even
to correct any defect in an, order continuing detention under r. 30A(9) is not
correct. [204 B].
ORIGINAL JURISDICTION: Writ Petitions Nos. 69
and 71 of 1967.
Writ Petition under Art. 32 of the
Constitution of India for the enforcement of fundamental rights.
R. H. Dhebar, R. Gopalakrishnan and S. P.
Nayar, for the respondent (in both the petitions).
The Judgment of the Court was delivered by
Wanchoo, C. J.-These two petitions under Art 32 of the Constitution raise
common questions of law and will be dealt with together' The petitioners were
detained under, r30(1)(b) of the Defence of India Rules, 1962 (hereinafter
referred to as the Rules), under orders of the Government of Jammu &
Kashmir in March, 1965. Their detention was continued from time to time after
review under r.30A. One of such reviews was made in February, 1967. At that
time the scope of review was governed by judgment dated June 1, 1965 of Shah J.
(Vacation Judge) in Sadhu Singh v. Delhi Administration(1). In that case it was
held that r.30A relating to re-view did not require, a judicial approach to the
question (1) [1966] 1 S.C.R. 243.
199 of continuance of detention. No
opportunity therefore was given to the petitioners to represent their cases
when the review was made in February, 1967 and their detention was continued
for a further period of six months. Then came the judgment of this Court in P.
L. Lakhanpal v. the Union of India.(1) That judgment overruled the decision of Shah
J.
and held that the function of review under
r.30A was quasi judicial and therefore in exercising it, rules of natural
justice had to be complied with. In view of this judgment what the respondent
did was to hold another review in April, 1967. At that time notice was given to
the petitioners and they were given a hearing. Thereafter order was passed in
each case on April 27, 1967 by which the State Government directed the
continuance of the detention orders for a further period. In the meantime the present
petitions had been filed on March 30, 1967 and were based on the judgment of
this Court in Lakhanpal's case(1).
It is not disputed on behalf of the
respondent that Lakhanpal's case(1) will apply to the present petitions and the
petitioners will be entitled to release because the procedure of a quasi
judicial tribunal was not followed when earlier reviews were made from August,
1965 to February, 1967. Reliance is however placed on behalf of the respondent
on the review made in April, 1967 and it is urged that that review was in
accordance with the view taken by this Court in Lakhanpal's(1) case and
therefore continuance of detention thereafter is justified. Further it is urged
that even if this contention is not correct the State Government has power to
pass a fresh order of detention on the same facts, and even if we allow the
present petitions, we should make it clear that the State Government has such
power. It is urged in this connection that the judgment of Bhargava J. in Avtar
Singh v. The State of Jammu and Kashmir(1) is not correct.
The first question therefore is whether the
orders of review dated April 27, 1967 are sufficient for the continuance of
detention, even though the earlier orders of review passed from August, 1965 to
February, 1967 were not properly made in view of the judgment of this Court in
Lakhanpal's case(1). Reliance in this connection is placed on the judgment of
this Court in A. K. Gopalan v. The Government of India.(1) In that case it was
held that "it is well settled that in dealing with a petition for habeas
corpus the court has to see whether the detention on the date on which the
application is made is legal if nothing more has intervened between the date of
the application and the date of hearing." So it is urged for the
respondent that as the order passed on review (1) [1967] 3 S.C.R. 114.
(2) W. Ps. 68, 70, 79, 89, 92, of 1967
(decided on June 9, 1967).
(3) [1966] 2. S.C.,R. 427.
200 under r.30A continuing detention on April
27, 1967 was in accordance with the judgment of Lakhanpal's case(,) the earlier
orders of review made between August, 1965 and February, 1967 which were
improper made no difference.
We cannot accept this contention. In
Gopalatn's case(1) what had happened was that a fresh order was made on March
4, 1965 and the detention was under that order. The principle laid down in that
case is unexceptionable; but the question is whether that principle applies to
the facts of the present case. In Gopalan's case('-') the question that arose
was whether the fresh order of March 4, 1965 under which detention was made was
legal, and the Court did not look at the earlier order which had been cancelled
by the fresh order of March 4, 1965. In the present cases however no fresh
order was made on April 27, 1967 and this distinguishes the present cases from
Gopalan's case(1).
Rule 30A of the Rules was originally not in
the Rules and was introduced some time later. Before the introduction of r.30A
the position was that a detention made under r.30 would be of indefinite duration.
But r.30A provided for review of detention orders passed under r-30, and such
review was to be made at an interval of not more than six months. On such
review the Government had to decide whether detention orders should continue or
be cancelled. The effect of r.30 along with r.30A (9) would therefore be that
the detention order passed under r.30 would be good only for six months and
unless there was a review and the detention order was continued the detenu
would have to be released.
We cannot accept the contention on behalf of
the respondent that the detention order would continue even after six months
and the detenu may be detained under that order even thereafter without an
order under r.30A (9), continuing the order of detention. It is true that
r.30A(9) only says that the Government shall decide whether the detention order
should be continued or cancelled. That however does not mean that if the
Government omits to make a review under r.30A within six months the detention
order will still continue and the detenu continue to be detained there under.
The provisions in r.30A are designed to
protect the personal liberty of the citizens of this country and that is why
that rule provides that every detention order shall be reviewed at an interval
of not more than six months. This is a mandatory provision and if it is not
complied with and the Government omits to review the detention order within six
months the order must fall and the detenu must be released.
of course when the Government actually reviews
the order it will either continue that order or cancel that order. That is why
r.30A (9) says that on review the Government shall decide whether the order
should be continued or cancelled,.
But that does not mean that if for any reason
(say, by oversight) the Government omits to review an order within the time
provided in the first part of r.30A(9), the detention can continue even though
there has been (1) [1967] 3 S.C.R. 114 (2) [1966] 2 S.C.R. 427 201 no review.
What applies to an omission to review an order under r.3OA(9) applies equally
to a case where a review is not in accordance with law as held by this Court in
Lakhanpal's case(1). Where therefore there has been no review under r.30A(9) or
a review is not in compliance with the, provisions thereof, as explained in
Lakhanpal's case(1), the result is that the original detention order though it
may have been good when it was passed, falls and the detention after the first
period of six months becomes illegal. Further if there is no review of the detention
order in the manner provided by law, as explained in Lakhanpal's case(1) the
original order falls after six months and there is nothing to continue
thereafter. In the present cases the orders were passed in March, 1965 and
should have been reviewed after every six months in the manner explained in
Lakhanpal's case(1). That admittedly was not done upto February, 1967, though a
number of reviews were made inbetween. Consequently orders of detention passed
in March, 1965 fell after six months and there were no orders to continue
thereafter. When therefore the State Government ordered the continuance of
detention orders on review on April 27, 1967, in accordance with the procedure
indicated in Lakhanpal's case(1), there was no order to be continued because
in-between the reviews were not proper and the detention had become illegal. In
these circumstances, the principle laid down in Gopalan's case(2) cannot apply
to the facts of the present case, for we cannot ignore that between September,
1965 and April, 1967 there was no proper review as required by r.30A(9) and the
detention for all that period was illegal and could not be saved by the
original order of March,1965 which must be deemed to have come to an end, after
six months, in the absence of a proper review under r.30A(9). So there was no
order which could be continued on April, 1967, and therefore the petitioners
would be entitled to release on that ground.
'This brings us to the next question, namely.
whether it is open to the State Government to pass a fresh order in the
circumstances of the present cases. In this connection reliance is placed on
behalf of the respondent on two cases of this Court Ujagar Singh v. The State
of Punjab (3) and Godavari Shamrao Parulekar v. State of Maharashtra and others(4).
The first case was under the Preventive Detention Act (IV of 1950). In that
case it was held that "if the authority making an order is satisfied that
the ground on which a detenu was detained on a former occasion is still
available and that there was need for detention on its basis no mala fides can
be attributed to the authority from the fact that the ground alleged for the
second detention is the same as that of the (1) [1967] 3 S.C.R. 114.
(3) [1952] S.C.R. 756.
(2) [1966] 2 S.C.R. 427.
(4) [1964] 6 S.C.R. 446.
202 first detention." In the latter case
what had happened was that detenues were first detained under the Preventive
Detention Act. Later 'that order was revoked and they were detained under r.30
of the Rules and the order was served in jail. The second order of detention
was apparently based on the same facts on which the first order of detention
was passed. This Court held that the second order of detention was perfectly
valid and its service in jail did not make the detention illegal.
These cases certainly show that a fresh order
of detention can be passed on the same facts, if for any reason the earlier
order of detention has to be revoked by the Government. Further we do not find
anything in the Defence of India Act (hereinafter referred to as the Act) and
the Rules which forbids the State Government to cancel one order of detention
and pass another 'in its place. Equally we do not find anything in the Act or
the Rules which will bar the Government from passing a fresh order of detention
on the same facts, in case the earlier order of detention or its continuance is
held to be defective for any reason. This is of course subject to the fact that
the fresh order of detention is not vitiated by mala fides. So normally a fresh
order of detention can be passed, on the same facts provided it is not mala
fide, if for any reason the previous order of detention or its continuance is
not legal on account of some technical defect as in the present cases.
This brings us to the consideration of the judgment
of our brother Bhargava J. in Avtar Singh's case(1), to which we have already
referred. Our learned brother held that where the original order of detention,
as in these cases, was a good order for the first period of six months, it
would not be open to the State Government to pass a fresh order of detention on
the same facts after cancelling the order on the expiry of six months, for that
would be going round the provisions of r.30-A, and that the only way in which
detention could be continued after the first period of six months, where a good
order was originally passed, was to make a review in a proper manner as
indicated in the case of Lakhanpal.(2) Our learned brother also seems to have
held that if a review was not made in a proper manner as indicated in
Lakhanpal's case(2), the Government would be completely powerless and could not
detain the persons concerned by a fresh order. In effect therefore our learned
brother held that if a mistake is made by Government in the matter of review it
could not correct it and the detenu must go free.
Now there is no doubt that if the Government
resorts to the device of a series of fresh orders after every six months and
thus continues the detention of a detenu, circumventing the provisions (1)
W.Ps. 68, 70, 79, 89, 92, of 1967 (decided on June 9, 1967) (2) [1967] 3 S.C.R.
114.
203 of r.30-A for review, which, was
interpreted by this Court in Lakhanpal's case(1), gives some protection to the
citizens of this country, it would certainly be acting mala fide. Such a fresh
order would be liable to be struck down, not on the ground that the Government
has no power to pass it but on the ground that it is mala fide exercise of the
power. But if the Government has power to pass a fresh order of detention on
the same facts in case where the earlier order or its continuance fails for any
defect, we cannot see why the Government cannot pass such fresh order curing
that defect. In such a case it cannot be said that the fresh order is a mala
fide order, passed to circumvent r.30-A. Take the present case itself. The
Government passed the original order of detention in March, 1965. That order
was good for six months and thereafter it could only continue under r.30-A on
orders passed under r.30-A(9). The Government did pass orders under r.30-A (9)
and we. cannot say in view of the judgment in Sadhu Singh's case(2) that the
Government went wrong in the procedure for review. It was only after the
judgment of this Court in Lakhanpal's case(1) that the manner of review became
open to objection, with the result that the continuance of the order in these
two cases failed and the detention became illegal. If in these circumstances
the Government passes a fresh order under r.30, it cannot be said that it is
doing so mala fide in order to circumvent r.30-A (9). In actual fact the
Government had complied with the provisions of r.30-A(9) and what it did was in
accordance with the judgment of this Court in Sadhu Singh's case(2). It is true
that after Lakhanpal's case(1) the manner in which the review was made became
defective and therefore the continuation of detention became illegal. Even so,
if the Government decides to pass a fresh order in order to cure the defect
which has now appeared in view of the judgment of this Court in Lakhanpal's case(1),
it would in our view be not right to say that the Government cannot do so
because that would be circumventing r.30-A. We do not think that we should
deprive the Government of this power of correcting a defect particularly in the
context of emergency legislation like the Act and the Rules. The Courts have
always the power to strike down an order passed in mala fide exercise of power,
and we agree with Bhargava, J. to this extent that if the Government, instead
of following the procedure under r.30-A as now laid down in Lakhanpal's case(1)
wants to circumvent that provision by passing fresh orders of detention on the
same facts every six months, it will be acting mala fide and the court will
have the power to strike down such mala fide exercise of power. But in cases.
like the present, where the continuance became defective after the judgment of
this Court in Lakhanpal's case,(1) we can see no reason to deny power to
Government to rectify the defect by passing a fresh order of detention. Such an
order in such circumstances (1) [1967] 3 S.C.R. 114.
(2) [1966] 1. S.C.R. 243.
204 cannot be called mala fide, and if the
Government has the power to pass it-which it undoubtedly has, for there is no
bar to a fresh order under the Act or the Rules-there is no reason why such a
power should be denied to Government so that it can never correct a mistake or
defect in the order once passed or in the continuation order once made. We are
therefore of opinion that the view taken in Avtar Singh's case(1) insofar as it
says that no fresh order can be passed even to correct any defect in an order
continuing detention under r-30-A(9) is not correct.
We therefore allow the writ petitions and
order the release of the petitioners. But it will be open to the State
Government to pass a fresh order of detention if it considers such a course
necessary.
Petitions allowed R.K.P.S.
(1) W. Pe. 68, 70, 79, 89, 92 of 1967
(decided on June 9, 1967).
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