TaxTMI 
TaxTMI 
1952 (3) TMI 32
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounds that it was not in the public interest to disclose further facts. The petitioner moved the High Court of Bombay under article 226 of the Constitution complaining that his detention was illegal and praying that he should be forthwith released. In that application one of the points urged was that the grounds in support of the detention were false, vague and fantastic and that the detention order was made in bad faith. Two affidavits were filed on behalf of the State in support of the detention order. That application was, on April 17, 1951, dismissed by the Bombay High Court. In the meantime, the case of the petitioner was placed before the Advisory Board which on Aprils, 1951, made a report stating that in its opinion there was sufficient cause for the detention of the petitioner. According to the affidavit of Venilal Tribhovandas Dehejia, Secretary to the Government of Bombay, Home Department, filed in answer to the present application, this report of the Advisory Board was placed before the Government and, on April 13, 1951, the Government decided to confirm the order of detention. This decision was, on April 28, 1951, communicated to the District Magistrate, Surat, in a con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he requirements of section 11(1) of the amended Act in that at the time of confirming the detention order it omitted to specify the period during which the detention would continue, and (2) that the order of confirmation is not in proper legal form, in that it is not expressed to be made in the name of the Governor as required by article 166 (1) of -the Constitution. Ground No. 1. The validity of this ground of attack depends on a proper understanding of section 11(1) of the Preventive Detention Act, which, as amended, runs as follows:-- "(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention' order and continue the detention for such period as it thinks fit". The argument is that the sub-section contemplates a decision containing two things, namely, (1) a confirmation of the detention order and (2) a direction for the continuation of the detention. I do not think this argument is sound, for if the intention were that both the things should be included in an order then the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nguage used in the Act. If the intention of Parliament were that the period during which the detention would be continued must be specified then the sub-section 11 (1) would have empowered the appropriate authority to continue the detention for such "period as it thinks fit to specify" instead of "as it thinks fit". Further, the notion that nonspecification of the period will continue the detention for an indefinite period need not oppress us unduly, because the Act itself being of a limited duration such detention must necessarily come to an end on the expiry of the Act. In A.K. Gopalan's case ([1950] S.C.R. 88), Kania C.J. at page 126 said:-- "It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Government thought fit. This may mean an indefinite period. In my opinion, this argument has no substance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound." To the like effect were the follo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecognised that the section, by itself and on its true interpretation, sanctioned an indefinite detention but held that that contingency had been averted by the fact that the Act itself was of a limited duration. It is said that the section should be construed irrespective of whether it occurs in a temporary statute or a permanent one, and it is urged that if the statute were a permanent one the section, on the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J. in the following passage in his judgment in S. Krishnan v. The Static of Madras (suprat) at page 639 with which I concurred "It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rther continuation of the detention after having, in the order of confirmation, once specified the period of detention ? Section 13 of the Act gives power to the appropriate Government to revoke or amend a detention order which must mean the initial order of detention under section 3 of the Act but not an order made under section 11 (1) confirming a detention order or fixing a period of detention. Therefore, the authority to extend the period of detention previously fixed which, in view of our decision, must be held to exist, will have to be derived from the very words "may continue such detention for such period as it thinks fit". It follows, therefore, that the specification of the period of detention does not destroy or abridge the wide over-all power of the appropriate Government to direct the continuation of the detention as long as it thinks fit. If the specification of the period of detention is not at all sacrosanct and the appropriate Government may nevertheless continue the detention as long as'it thinks fit to do so, why is the specification of a period to be regarded as vitally or at all necessary ? So far as the detenu is concerned, his detention Wilt not be any more d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an executive decision, namely. the confirmation of the detention order and contends that the sub-section does not contemplate the making of a formal order. He draws our attention to section 3 of the Act which expressly refers to an order of detention and points out that section 11 (1) does not refer to any order of confirmation. Reference may, however. be made to section 13 which authorises the appropriate Government to revoke or modify the order of detention. In this section also there is no reference to any order of revocation or modification but nevertheless revocation or modification must imply an executive decision. Under section 11 (1), as under section 13, the appropriate Government has to apply its mind and come to a decision. Whether we call it an order or merely an executive action makes no difference in the legal incidents of the decision. Section 11 (1) plainly requires an executive decision as to whether the detention order should or should not be confirmed. The continuation of the detention as a physical fact automatically follows as a consequence of the decision to confirm the detention order and, for reasons stated above, does not require any further executive deci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. The considerations which weighed with their Lordships of the Federal Court in the case referred to above in the matter of interpretation of section 40 (1) of the 9th Schedule to the Government of India Act, 1935, appear to me to apply with equal cogency to article 166 of the Constitution. The fact that the old provisions have been split up into two clauses in article 166 does not appear to me to make any difference in the meaning of the article. Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rsikka v. The State of Punjab, Petition No. 308 of 1951) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit." It is to be noted that section 3 (1) of the Preventive Detention Act under which the initial order of detention is made is worded differently in this respect and it merely empowers the Central Government or the State Government, as the case may be, to make an order, under the circumstances specified in the section, directing that a person be detained; and nothing is said about the period for which such detention should be directed. It is now settled by a pronouncement (1) of this court that not only it is not necessary for the detaining authority to mention the period of detention when passing the original order under section a (1) of the Preventive Detention Act, but that the order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for consideration before the Advisory Board. The Advisory Boar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the view taken by this court in Chakar Singh v. The State of Punjab(Petition No. 584 of 1951). The question now is whether the omission to state the period of further detention while confirming the detention order under section 11 (1) of the Preventive Detention Act makes the detention illegal ? The point is not free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952. and has only been recently extended to a further period of six months. and no detention under the Act can continue after the date of expiry of the Act, I am inclined to hold that non-specification of the further period in an order under section 11 II) of the Act does not make the order of detention a nullity. If no period is mentioned, the order might be taken to imply that it would continue up to the date of the expiration of the Act itself when all detentions made under it would automatically come to an end. Of course, the appropriate Government is always at liberty to terminate the order of detention earlier, if it considers proper, in exercise of its general powers under section 13 of the Act. I am no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." In the case before us the order confirming the detention purports to be signed by Mr. G.K. Kharkar, for the Secretary to the Government of Bombay, Home Department. The affidavit filed in this case by V.T. Dehejia shows that Mr. Kharkar was then the Assistant Secretary to the Home Department and was authorised under the rules framed under article (3) of the Constitution by the Governor of Bombay to sign orders and instruments for the Government of Bombay. The order admittedly is not expressed to be made in the name of the Governor and if article 166 (1) of the Constitution applies to this case, it certainly does not fulfil the requirement of that provision. To get round this difficulty t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hether the provision of article 166 (1) of the Constitution is imperative in the sense that non-compliance with it would nullify or invalidate an executive action. The clause does not undoubtedly lay down how an executive action of the Government of a State is to be performed; it only prescribes the mode in which such act is to be expressed. The manner of expression is ordinarily a matter of form, but whether a rigid compliance with a form is essential to the validity of an act or not depends upon the intention of the legislature. Various tests have been formulated in various judicial decisions for the purpose of determining whether a mandatory enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is unnecessary for our present purpose to discuss these matters in detail. In my opinion, article 166 of the Constitution which purports to lay down the procedure for regulating business transacted by the Government of a State should be read as a whole. Under clause (a) the Governor is to make rules for the more convenient transaction of such business and for allocation of the same among the Ministers in so far as it does not relate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., pp. 379-80. 634), "where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words as directory only." In the present case the order under section 11 (1) of the Preventive Detention Act purports to be an order of the Government of Bombay and is signed by the officer who was competent to sign according to the rules framed by the Governor under article 166 of the Constitution, and in these circumstances I am unable to hold that the order is a nullity even though it has not been expressed to be made in the name of the Governor. The result is that both the grounds fail and the petition is dismissed. CHANDRASEKHARA AIYAR J. -I concur in the order just now pronounced by my learned brother Mukherjea J. and I have nothing useful to add. MAHAJAN J. -The legality of the detention of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hs unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion Sufficient cause for such detention ............ (5) When any person is detained in pursuance of an order made under any law, providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order." Sections 3, 9, 10, 11 and 13 of the Preventive Detention Act provide as follows:-- "3. The Central Government or the State Government may--(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to ............ it is necessary so to do, make an order directing that such person be detained. "9. In every case where a detention order has been made under this Act, the appropriate Government shall....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atute. It has been held by this Court in Makkan Singh Tarsikha v. State of Punjab, Petition No. 308 of 1951, that fixing of the period of detention in the initial order of detention under section 3 is contrary to the scheme of the Act inasmuch as such a construction tends to prejudice the case of the detenu when placed before the Advisory Board. It was emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. The language employed in section 11 of the Act is different from the language of section 3 and to my mind, this difference indicates a contrary intention. The words "such period as it thinks fit" have the meaning that government has to specify and fix the period of such detention. If these words were construed in the manner suggested by the learned Attorney-General, it will lead to the result that the Preventive Detention Act would authorise detention of a person without specification of the period of such detention at any moment of time, subject of course to the over-all limit fixed for the life of the Act itself, and that the gove....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed as follows:- "The appropriate Government may confirm the detention order". It was on these lines that rule 26 of the Defence of India Rules was drafted and the same was the scheme of Regulation III of 1818. The warrant to the jailer in the regulation directed him to receive the person into custody and to deal with him in conformity with the orders of the Governor-General. The same phraseology could have been employed in section 11. It has been held by this Court in Chakkar Singh v. The State of Punjab (Petition No. 584 of 1951), that the power of the detaining authority under section 11 is not exhausted once it specifies the period of detention but that it can, before the expiration of the period initially fixed, direct the detention of a person to continue for a further period I took this view for the simple reason that it was in accord with the provisions of the General Clauses Act which provide that the authority which has the power to make a certain order or to give a certain direction has also the power before it becomes functus officio to revise and reconsider that order or to amend or to alter it. That ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inue there after the discretionary power could be exercised only subject to that over-all limit." In the same case while upholding the validity of section 11, I made the following observations :-- "It may be pointed out that parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention 'for those detained under this law." The point for decision in that case was whether it was necessary while enacting the Preventive Detention Act to fix a maximum period for the detention of a person as contemplated by article 72 (7) of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it in the language of the section itself. Confirmation of an order already passed can only be by making an order. The section in another part provides for the revocation of an order. Revocation of an order again can only be made by passing an order of revocation and cannot be done by any other process. Section 13 provides not only for revocation of an order but for modification of the order of detention. It is obvious that the modification of an order is only possible by passing a fresh order and not in any other manner. No particular significance can attach to the omission of the words ' 'make an order" in section 11. The word ' 'order" has numerous meanings but the meaning relevant in the present context is "decision". It also means "an authoritative direction or mandate". It cannot be contended that Government can confirm or continue the detention without taking a decision or issuing a direction. Such a decision or direction is tantamount to an order. I am therefore clearly of the view that it is the intention of the law that when the report of the Advisory Board reaches the Government, it has to come to a decision and pass an order in accordance with that decision against the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uage employed in section 11 is found in the provisions of Part IV of the Code of Criminal Procedure relating to prevention of offences. In sections 106 to 110 of this Part the language employed is "a person can be called upon to execute a bond for his good behaviour etc. for such period not exceeding one year or three years as the Magistrate thinks fit to fix." It is not possible to argue that the magistrate can call upon a person to execute a bond without fixing a period for which that bond is to be good, and that in the absence of such determination it has to be presumed that the bond has to be executed for the maximum period mentioned in the section. In my opinion, failure to fix the period for which the bond is to be operative would make the order ineffective. and any default on the part of the person called upon to give the bond would not be punishable. The discretion given to Government by the phrase "as it thinks fit" is limited by the duty imposed on it by the provisions of the section. The next question that falls to be determined and which is of some difficulty, is whether failure to fix the period makes the detention illegal. After considerable thought I have reached ....