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PETITIONER: SADHU SINGH

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT: 01/06/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C.

CITATION:  1966 AIR   91            1966 SCR  (1) 243  CITATOR INFO :  R          1967 SC 908  (9)  O          1967 SC1507  (8)  RF         1968 SC 327  (1,8)  F          1974 SC2249  (6)

ACT: Defence  of India Rules, 1962, Rules 30(1), 30-A(6)(b),  30- A(8)-Review of order of detention within six months-Order of review whether quasi-judicial-opportunity to detenu to  make representation whether necessary.

HEADNOTE:   The  petitioner was detained under an order  of  detention passed by the DIstrict Magistrate of Delhi under r. 30(1) of the  Defence  of India Rules, 1962 on 5th  September,  1964. The  order was confirmed by the Administrator under  r.  30- A6(b) on the same date,.  Within six months i.e. on February 24, 1965, the Administrator reviewed the order under r.  30- A(8)  and confirmed it.  The petitioner thereafter  filed  a petition under Art 32 of the Constitution praying for a writ of  certiorari  quashing  the order under  r.  30-A(8).   In support  of the petition it was urged that (1) Even  if  the proceedings  under  r. 30(1) and r. 30A6(b)  may  be  purely administrative,  a proceeding for review under r. 30A(8)  is quasi-judicial in character. (2) An order of review involves judicial  consideration of the facts on which  the  original detention  order  was  based  in  the  light  of  subsequent developments  including change of views on the part  of  the detenu,  and  this  cannot be effectively  made  unless  the detenu is afforded an opportunity to make a  representation. (3) Every order made by a public authority which affects the rights  of an individual must of necessity be preceded by  a quasi-judicial   determination  of  the  question   on   the determination  of  which  the  order  may  be  made,  and  a determination  made contrary to the rule of natural  justice is  liable to be struck down by order of a competent  court. (4)  The  use of the word ’decide’ in cl. (8) of  Rule  30-A implies  the  existence of a lis between the State  and  the detenu  relating  to the right of the State to  continue  to detain  him after the period of six months  contemplated  by the  statute.  (5) The Administrator had  reviewed  his  own order under s. 30-A6(b) and not the order under r. 30(1) and thus there was no compliance with r. 30-A(8).

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HELD : (i) It was not open to this Court to review the order under  r. 30A(8).  Making of an order of detention  proceeds upon the subjective satisfaction of the prescribed authority in  the light of the circumstances placed before him  or  on his coming to know that it is necessary to detain the person concerned with a view to preventing such person from  acting in  any manner prejudicial to the defence of India or  civil defence, the maintenance of public order etc.  If that order is purely executive and not open to review by the Courts,  a review of the very circumstances in which the order was made in  the  light of the circumstances since the date  of  that order cannot but be regarded as an executive order. [248  F- H] (ii)There is no provision in the statute that the reviewing authority must before making the order under r. 30A(8)  give an opportunity to the detenu to make a representation and no such  safeguard  is implicit in the scheme of  the  statute. [249 C] A writ of certiorari lies whenever a body of persons  having legal authority to determine questions affecting the  rights of subjects and having 2 44 the  duty  to act judicially act in excess  of  their  legal authority; it does not lie to remove or adjudicate upon  the order  which is of an administrative or ministerial  nature. [249 D] Province  of  Bombay v. Kusaldas S. Advani and  Ors.  [1950] S.C.R. 621, relied on. (iii)There  is no principle or authority in support  of the  view that whenever a public authority is invested  with power  to  make  an order which  prejudicially  affects  the rights  of an individual whatever may be the nature  of  the power  exercised, whatever may be the  procedure  prescribed and  whatever may be the nature of the authority  conferred, the proceedings of the public authority must be regulated by the  analogy  of rules governing judicial  determination  of disputed questions. [253 C-D] Ridge v. Baldwin and Ors. L.R. [1964] A.C. 40, explained. Rex v. Electricity Commissioner, Ex parte London Electricity Joint   Committee  Company,  [1924]  1  K.B.  171,  Rex   v. Legislative  Committee  of  the Church  Assembly,  Ex  Parte Haynes-Smith, [1928] 1 K.B. 411 and Nakkuda Ali v. Jayaratne [1951] A.C. 66, referred to. (iv)The word ’decide’ used in r. 30-A(8) does not make  the order under that rule judicial. [253 E] Observations  of  Fazl Ali J. as to the import of  the  word ’decision’ in Advanis case relied on. (v)The second paragraph of the order of the  administrator made  it  clear that the detention order of  the  petitioner would  continue  and that detention order  was  clearly  the order  made by the District Magistrate and confirmed by  the Administrator.   There  was no substance in  the  contention that the Administrator bid reviewed the order confirming the order  of detention and not the order of detention.   It  is difficult  to divorce the order of detention from the  order confirming  it,  for  without  confirmation  the  order   of detention would have no legal sustenance. [254 D-E]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 43 of 1965. Writ Petition Under Art. 32 of the Constitution of India for enforcement of fundamental fights. R.   K. Garg and S. C. Agarwala, for the petitioner.

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R.   H. Dhebar, for the respondent. The Judgment of the Court was delivered by Shah,  J. In exercise of the powers conferred by Rule  30(1) of   the  Defence  of  India  Rules,  1962,   the   District Magistrate, Delhi ordered that the petitioner be detained in the  Central  Jail, New Delhi.  On September  11,  1964  the District   Magistrate  informed  the  petitioner  that   the Administrator, Union Territory of Delhi, -hereinafter called ’the  Administrator-had reviewed the detention order,  dated September 5, 1964, and had confirmed the same.  On April 12, 1965  the petitioner moved this Court for an "order  setting aside  his detention" and for an order for his release.   He submitted, inter alia, that the District Magistrate had made the                             245 order  for a collateral purpose; that there was  nothing  on the  record  to show that the District  Magistrate  reported forthwith   the   detention  of  the   petitioner   to   the Administrator,  or that the Administrator had  reviewed  the detention of the petitioner as required by law; and that  in default  of a "proper review" of the detention order by  the Administrator  under Rule 30-A (8) of the Defence  of  India Rules,  1962, detention of the petitioner after  six  months from the date of the original order was unauthorised. The  District Magistrate, Delhi swore an affidavit  that  he had carefully considered the materials placed before him and on  being  satisfied that the petitioner "was  indulging  in anti-social  activities",  and that the  activities  of  the petitioner  were  prejudicial to the maintenance  of  public order,  and that it was necessary to detain the  petitioner, he  made an order that the petitioner be detained; that  the fact of detention was forthwith reported to the  Administra- tor;  that  the  Administrator had confirmed  the  order  of detention  of September 5, 1964, and that the  Administrator had  also  within  six months from  the  date  of  detention reviewed that order and had decided on February 24, 1965, to continue the detention of the petitioner. By  order, dated April 28, 1965, this petition was  directed to  be  heard  during the vacation and  accordingly  it  was placed before me for hearing on May 18, 1965.  On that  day, the petitioner filed an argumentative affidavit in rejoinder without setting out any facts, controverting the  statements made by the District Magistrate. In support of the petition, counsel urged that the detention of   the  petitioner  was  without  authority  because   the Administrator had confirmed the order under Rule 30-A(6) (b) of  the Defence of India Rules without taking  into  account all the circumstances which had a bearing upon the order  of detention  passed  by  the  District  Magistrate,  and   the Administrator  reviewed  the  order  of  detention   without affording  an opportunity to the petitioner to  satisfy  him that  the grounds which may have existed for  directing  the petitioner’s  detention did not exist on the date  when  the order was reviewed. A resume of the relevant provisions of the Defence of  India Act and the Rules may briefly be made.  The Defence of India Act,  1962 was enacted by the Parliament with a view to  arm the  Central  Government with extraordinary  powers  in  the situation which arose on account of the Chinese invasion  of the  borders  of  India.   By S. 3  of  the  Act  power  was conferred upon the Central 246 Government to make rules for securing the defence of  India, civil  defence, public safety, maintenance of  public  order and  related  matters.   Rule  30  authorised  the   Central

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Government or the State Government, if it was satisfied with respect  to  any  particular  person that  with  a  view  to preventing him from acting in any manner prejudicial to  the defence  of India and civil defence, the public safety,  the maintenance of public order etc. it was necessary so to  do, to  make  an  order, amongst others, directing  that  he  be detained.    By   Rule  30-A  machinery  was  set   up   for confirmation and review of detention orders.  Clause (2)  of Rule  30-A  provided  that every detention  order  shall  be reviewed in accordance with the provisions contained in  the Rule.  Clause (5) provided that a detention order made by an officer  empowered by the Administrator shall  forthwith  be reported  to the Administrator.  By cl. (6) it was  provided that  on  receipt  of  a  report  under  sub-rule  (5)   the Administrator  shall  after  taking  into  account  all  the circumstances  of  the case, either confirm  or  cancel  the order.  Clause (8) provided that every detention order  made by  an officer empowered by the Administrator and  confirmed by  him  under cl. (b) of subrule (6) shall be  reviewed  at intervals  of not more than six months by the  Administrator who  shall decide upon such review whether the order  should be continued or cancelled. The  validity of the order of detention was challenged  only on  the  ground that there had been no confirmation  of  the order  by the Administrator in the manner provided  by  Rule 30-A (6) (b).  In the petition it was alleged that there was in fact no confirmation by the Administrator.  The  District Magistrate  in his affidavit stated that  the  Administrator had  confirmed the order of detention on September 5,  1964, and  that  all the procedural requirements relating  to  the making  of  the  order  were duly  complied  with.   By  his affidavit in rejoinder the petitioner merely argued that  as the  order was confirmed only on the basis of the report  of the  fact of detention, it could not be said that the  order was   confirmed   after   taking  into   account   all   the circumstances  of  the  case under  Rule  30-A(6).   At  the hearing counsel for the petitioner asked for leave to  amend the  petition by setting up in support of the  Petition  the ground  that the Administrator had not taken  into,  account all  the circumstances of the case.  In order to  avoid  any delay in the disposal of the petition, counsel for the Delhi Administration, showed to me the order of confirmation  made by  the Administrator and the original order was banded  up. The order prima facie suffered from no defect.  Counsel  for the  petitioner did not urge any further argument in  regard to the validity of 247 the  order of confirmation after the order was handed up  by counsel for the Delhi Administration. Relying  upon the use of the expression  "the  Administrator who  shall decide upon such review whether the order  should be  continued  or cancelled", it was urged that  even  if  a proceeding  directing detention of a person in  exercise  of powers under Rule 30(1) and a proceeding for confirmation of the  order  may be purely administrative, a  proceeding  for review of the order under Rule 30-A (8) is quasi-judicial in character and the Administrator must afford to the detenu an opportunity  to  make  his  representation  on  the   action proposed  to be taken in regard to him on  review.   Counsel submitted  that an order of review of detention  leading  to continuation  of detention involves a judicial  approach  by the  authorities to all the facts on the basis of which  the original  order of detention was made and a review of  those facts in the light of subsequent developments including  the change  of  views,  if  any, of  the  detenu  since  he  was

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detained, and this, it was contended, cannot be  effectively made  unless the detenu is afforded an opportunity  to  make his  representation and to convince the  Administrator  that the  facts  or circumstances which may  have  justified  the making  of the original order of detention did not  continue to exist or in the context of changed circumstances did  not justify  the continuation of detention.   Alternatively,  it was  contended that the use of the word "decide" in cl.  (8) of  Rule  30-A implies the existence of a  lis  between  the State  on the one hand and the detenu on the other  relating to  the right of the State to continue to detain  him  after the  expiry of the Period of six months contemplated by  the statute. In  my  view  there  is  no  substance  in  either  of   the contentions.  Rule  30(1) has been enacted as  an  emergency measure.   It authorises the appropriate Government  or  the Administrator, or authorities empowered by the Government or the  Administrator,  with a view to prevent  a  person  from acting  to  the  detriment of public order  and  safety,  to detain  him without trial.  However shocking it  may  appear that  a  person may be detained without a trial  or  without being  even informed of the specific grounds on  which  such action  is deemed necessary, in the larger interests of  the security  of the State such as maintenance of peaceful  con- ditions  in the country, public order, conduct  of  military operations etc. the Parliament has thought it necessary when a grave emergency arose to invest the appropriate Government and  the  Administrator with that power.   Validity  of  the statute  which  invests  the executive  with  these  drastic powers has been upheld 248 by  this  Court, and that is no longer a live issue.  It  is conceded, and in my judgment rightly, that the  satisfaction of the authority which justified the use of the power  under Rule 30, and confirmation of the order of detention are  not subject  to  judicial  review, for the  order  of  detention without  trial  is  preeminently  an  executive  act.    The subjective  satisfaction  of the detaining  authority  is  a condition of the making of the order, and if that  condition is shown to exist, the courts have no power to enquire  into the  sufficiency of materials on which the order is made  or the  propriety or expediency of making the order. It is  the satisfaction   of   the  prescribed   authority   which   is determinative  of  the  validity. That,  however,  does  not exclude the Court’s power to investigate into the compliance with  the procedural safeguards imposed by the  statute,  or into the existence of prescribed conditions precedent to the exercise  of power, or into a plea that the order  was  made mala  fide or for a collateral purpose.  That,  however,  is not judicial review of the order.    If  jurisdiction  of the Court to enter upon  a  judicial review  of  the order of detention and its  confirmation  is excluded, it is difficult to appreciate the grounds on which it  may legitimately be urged that the decision to  continue detention upon review of the order of detention may still be regarded as subject to judicial review. By cl. (8) of Rule 30-A power is conferred upon the Adminis- trator to review the detention at intervals of not more than six  months.   This provision has apparently been  made  for ensuring that detention of a person may not continue  longer than is necessary for effectuating the purpose for which  it was originally made. It  invests  the Administrator, subject to  the  restriction imposed,  with power to review the order of  detention  from time  to  time  and to decide whether the  order  should  be

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continued or cancelled. Making of an order of detention proceeds upon the subjective satisfaction  of  the prescribed authority in the  light  of circumstances placed before him, or coming to his knowledge, that  it is necessary to detain the person concerned with  a view to preventing him from acting in any manner prejudicial to  the  defence  of India and  civil  defence,  the  public safety,  the maintenance of public order etc. If that  order is purely executive, and not open to review by the courts, a review  of those very circumstances on which the  order  was made  in  the light of the circumstances since the  date  of that  order  cannot but be regarded as an  executive  order. Satisfaction  of the authority under Rule  30(1)  proceeding upon  facts and circumstances which justifies him in  making an  order of detention and the satisfaction upon  review  of those very facts and 249 circumstances in the light of circumstances, which came into existence since the order of detention, are the result of an executive  determination  and are not  subject  to  judicial review. It was, however, urged that even if this Court cannot review the determination of the authority, the Court is entitled to inquire  whether  the  authority  before  making  the  order brought to bear upon it a judicial approach, that is whether the  authority gave an opportunity to the detenu to. make  a representation  against the action proposed to be  taken  in regard to him, and if it appears that he failed to do so,  a writ of certiorari may issue and the order may be discharged by the issue of an appropriate writ. There is no such safeguard prescribed by the statute : it is also  not implicit in the scheme of the statute.  A writ  of certiorari  lies  wherever a body of  persons  having  legal authority  to  determine questions affecting the  rights  of subjects and having the duty to act judicially act in excess of  their  legal  authority; it does not lie  to  remove  or adjudicate  upon the order which is of an administrative  or ministerial  nature.  See Province of Bombay v. Kusaldas  S. Advant and others.(1) Counsel  for the petitioner contended that every order  made by  a  public  authority  which affects  the  rights  of  an individual must of necessity be preceded by a quasi-judicial determination of the question on the determination of  which the  order  may  be made and if the  determination  is  made contrary to the rules of natural justice, it is liable to be struck  down  by order of a competent court.   He  submitted that this rule has been expounded by the House of Lords in a recent  judgment (to be presently noticed.  The  view  which this Court has taken is inconsistent with any such _proposi- tion e.g., observations of Kania C.J. in Advani’s case(1) at p. 633, of Mukherjea J. at p. 669 and of S. R. Das J., at p. 715;  and  in my judgment the observations of Lord  Reid  in Ridge  v.  Baldwin  and  others(1)  which  counsel  for  the petitioner leans upon, do not support that proposition.   In Ridge’s  case(1)  the  watch  committee  of  a  Borough   in purported exercise of powers conferred on them by S.  191(4) of  the Municipal Corporations Act, 1882 dismissed  a  chief constable  from his office, without formulating  a  specific charge,  and without informing him of the grounds  on  which they  proposed  to  proceed,  and  without  giving  him   an opportunity  to  present his case.  The watch  committee  in arriving  at  its decision considered, inter alia,  his  own statements  in  evidence and the observations  made  by  the Judge who tried a case against him of (1) [1950] S. C. R. 621

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                (2) L R. [1964] A. C. 40. 250 conspiracy  to  obstruct the course of justice.   The  chief constable then brought an action against the watch committee for  a  declaration that his dismissal was  "illegal,  ultra vires and void".  The House of Lords by a majority held that the  chief  constable  could  be  dismissed  by  the   watch committee only on grounds stated in s. 191(4) of the Act  of 1882, and as they dismissed him on the ground of neglect  of duty,  they were bound to observe the principles of  natural justice.  The power of dismissal under s. 191(4) of Act 1882 could  not in the view of the house be exercised  until  the watch  committee  had informed the chief  constable  of  the grounds on which they proposed to proceed and had given  him a proper opportunity to present his case in defence, and the resolution  of  the  watch  Committee  without  giving  that information  and  affording  him an  opportunity  to  defend himself was null and void.  Ridge’s case(1) does not support the  broad  proposition that no order  of  public  authority which  affects the rights of a person may be  made,  without giving that person an opportunity of making a representation against the proposed order and the observations made on  pp. 72  &  73  of  the  Report  are  clearly  against  any  such proposition.   The House was dealing with a  case  involving the  interpretation of a statute enacted at a time when,  as the Parliament was well aware, the courts habitually applied the principles of natural justice to Provisions like s.  191 (4)  of  the Act of 1882.  The principal criticism  of  Lord Reid  was  directed  against  what  he  conceived  was   the misunderstanding  of the well known passage in the  judgment of Atkin, L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Company(1) in  subsequent decisions   especially  by  Lord  Hewart  C.J.  in  Rex   v. Legislative  Committee  of  the Church  Assembly,  Ex  parte Haynes-Smith ( 3 ) and in the judgment of the Privy  Council in  Nakkuda  Ali v. Jayaratne(4)-a case from  Ceylon,  Atkin L.J.  in Rex v. Electricity Commissioners, Ex  parte  London Electricity joint Committee Company(1) observed :               "But   the   operation  of   the   writs   (of               prohibition  and certiorari) has  extended  to               control the proceedings of bodies which do not               claim  to be, and would not be recognised  as,               courts  of  justice.   Wherever  any  body  of               persons  having legal authority  to  determine               questions  affecting the rights  of  subjects,               and having the duty to act judicially, act  in               excess  of  their legal  authority,  they  are               subject to the controlling jurisdiction of the               King’s  Bench  Division  exercised  in   these               writs." (1) L. R. [1964]   A. C. 40. (2) [1924] 1 K. B 171, 205 (3)  [1928] 1 K.B. 41 1. (4) [1951] A. C. 66. 251 In  dealing  with a preliminary question whether a  writ  of prohibition  may  be  issued  to  prohibit  the  Legislative Committee  of  the Church Assembly from  proceeding  with  a measure called the "Prayer Book Measure, 1927", Lord  Hewart C.J. in Rex v. Legislative Committee of the Church  Assembly Ex parte Haynes Smith(1) proceeded to observe at p. 415 :               "  In  order  that  a  body  may  satisfy  the               required test it is not enough that it  should               have  legal authority to  determine  questions               affecting  the rights of subjects; there  must

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             be  super  added to  that  characteristic  the               further  characteristic that the body has  the               duty to act judicially."               Lord Reid took exception to the last clause of               the law so stated.               He observed :               " If Lord Hewart meant that it is never enough               that  a  body simply has a duty  to  determine               what  the rights of an individual  should  be,               but  that there must always be something  more               to  impose  on  it a duty  to  act  judicially               before   it  can  be  found  to  observe   the               principles  of  natural  justice,  then   that               appears to me impossible to reconcile with the               earlier authorities." The  point  of the criticism was that a body  invested  with authority  to  determine what the rights  of  an  individual should  be,  may  be held to  perform  a  judicial  function without something more in the statute to impose on it a duty to act judicially.  But it was not said that whenever a body is  called upon to determine or decide some  question  which affects the rights of an individual, the proceeding must  be regarded as judicial. In Nakkuda Ali v. M. F. De S. Jayaratne(2) a decision of the Judicial Committee in a case coming from Ceylon-an order  of the Controller of Textiles in Ceylon cancelling the  licence of  a  dealer  under  Rule 62 of  the  Defence  (Control  of Textiles)  Regulations,  1945-a  war-time   regulation-which authorised him to cancel a licence "where the Controller had reasonable  grounds to believe that any dealer was unfit  to be  allowed to continue as a dealer" was challenged  in  the Supreme  Court  of  Ceylon  by a  petition  for  a  writ  of certiorari.   The Supreme Court dismissed the petition,  and the  Judicial Committee affirmed the order.  In the view  of the Judicial Committee the words of Regulation 62 imposed "a condition that there must in fact exist such reason- (1) [1928] K. B. 411.                     (2) [1951] A. C. 66. 252 able grounds, known to the controller, before he can validly exercise the power of cancellation.  But it does not  follow necessarily  from  this that the controller must  be  acting judicially   in  exercising  this  power".    The   Judicial Committee observed "               "It is a long step in the argument to say that               because  a  man is enjoined that he  must  not               take  action unless he has  reasonable  ground               for believing something he can only arrive  at               that  belief by a course of conduct  analogous               to the judicial process.  And yet, unless that               proposition  is  valid,  there  is  really  no               ground  for  holding that  the  controller  is               acting judicially or quasi-judicially when  he               acts  under  this regulation.  If he  is  "not               under  a duty so to act then it would  not  be               according  to law that his decision should  be               amenable  to  review  and,  if  necessary,  to               avoidance by the procedure of certiorari," and  held  that  certiorari did not lie in  the  case.   The Judicial  Committee then quoted the passage already set  out from  the  judgments of Atkin L.J., in  Rex  v.  Electricity Commissioners,  Ex parte London Electricity Joint  Committee Company(1),  and of Lord Hewart C.J. in Rex  v.  Legislative Committee of the Church Assembly, Ex parte Haynes-Smith (2 ) and  observed  that,  "It is that  characteristic  that  the

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controller lacks in acting under regulation 62". In  Nakkuda  Ali’s case(1) the Controller  was  prima  facie dealing with a case in which the rights of a person were  to be  determined, but the Judicial Committee was of  the  view that the statute in the particular case did not require  the Controller to act judicially.  There is undoubtedly a  clear distinction between cases in which an authority is  invested with power to determine the rights of a person, and cases in which  the  authority  is invested with power to  act  in  a certain  matter, and the exercise of that power affects  the rights  of  a  person.   In the  former,  the  duty  to  act judicially  may readily be inferred.  But whether  a  public authority invested with powers to pass a specified order  is required  to act judicially must depend upon the  scheme  of the  statute which invests him with that power.  The  nature of the authority conferred, the procedure prescribed and the nature  of the powers exercised will determine the  question whether  the public authority is required to act  judicially it  is  not  however  predicated  that  before  a  writ   of certiorari or prohibition may issue the duty to (1)  [1924] 1 K. B. 171. (3) [1951] A. C. 66.                   (2) [1928] 1 K. B. 411. 253 act  judicially must be expressly or  independently  imposed upon the authority called upon to determine the rights of  a citizen.  In the view of the Judicial Committee "if the mere requirement that the Controller must have reasonable grounds of  belief is insufficient to oblige him to act  judicially, there  is nothing else in the context or conditions  of  his jurisdiction that suggests that he must regulate his  action by analogy of judicial rules." The scheme of the  Regulation therefore  negatived according to the Judicial Committee,  a judicial approach. I  am  not concerned in this case with the validity  of  the criticism  by  Lord  Reid  of  the  two  decisions.   It  is sufficient to state for the purpose of this case that  there is no principle or binding authority in support of the  view that  wherever a public authority is invested with power  to make  an order which prejudicially affects the rights of  an individual whatever may be the nature of the power exercised whatever  may be the procedure prescribed, and whatever  may be the nature of the authority conferred, the proceeding  of the  public  authority must be regulated by the  analogy  of rules   governing   judicial   determination   of   disputed questions. The alternative contention that the use of the word "decide" in Rule 30-A (8) compels a judicial approach cannot also  be sustained.   As  pointed  out by Fazl Ali  J.,  in  Advani’s case(1) at p. 642 :               "The  word  "decision" in common  parlance  is               more  or less a neutral expression and it  can               be  used  with reference to  purely  executive               acts  as  well as judicial orders.   The  mere               fact that an executive authority has to decide               something does not make the decision judicial.               It is the manner in which the decision has  to               be arrived at which makes the difference,  and               the real test is: Is there any duty to  decide               judicially ?" Rule  30-A(8)  requires  the  Administrator  to  review   at intervals  of not more than six months the  detention  order and  then  to decide upon such review whether the  order  be continued   or  cancelled.   That  only  imports  that   the Administrator after reviewing the material circumstances has

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to  decide  whether the detention of the  detenu  should  be continued or cancelled.  Undoubtedly, in reviewing the order of detention, the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made. the subsequent developments, which (1) [1950] S. C. R. 621. sup.Cl/65-2 254 have  a  bearing  on the detention of  the  detenu  and  the representation,  if any, made by the detenu.  But  the  rule contemplates  review  of  the detention  order  and  in  the exercise  of  a power to review a condition  of  a  judicial approach is not implied. Counsel  for  the  petitioner said that  the  order  of  the Administrator  dated February 24, 1965 was invalid,  because the  Administrator  had reviewed the  order  confirming  the order  of detention and not the order of detention.  In  the preamble clause there is a reference to a "report for review of  the order, dated the 5th September, 1964 confirming  the detention order" of the petitioner.  But it is difficult  to divorce   the   order  of  detention  from  the   order   of confirmation,   for  without  confirmation  the   order   of detention would have no legal sustenance.  The Rule provides that the order of detention shall forthwith be reported,  if made  by an officer empowered by the Administrator,  to  the Administrator and that the Administrator shall, after taking into  account  an  the circumstances  of  the  case,  either confirm the detention order or cancel it. It is pursuant  to the  detention  order so confirmed, that  a  person  remains detained, and the review which is intended to be made  under Rule  30-A  (8) is of that order which  is  confirmed.   The second paragraph of the order of the Administrator makes  it clear  that  the  detention order of  the  petitioner  shall continue and that detention order is clearly the order  made by   the   District   Magistrate  and   confirmed   by   the Administrator. The petition therefore fails and is dismissed.                     Petition dismissed.  255