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PETITIONER: JAGDEV SINGH

       Vs.

RESPONDENT: STATE OF JAMMU AND KASHMIR

DATE OF JUDGMENT: 14/08/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: 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

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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  (de- cided 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].

JUDGMENT: 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

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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,  r- 30(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  re- lating  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

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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  thereunder. 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

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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

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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

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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). 205