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Gauri Nandan Upadhya Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All414
AppellantGauri Nandan Upadhya
RespondentRex
Cases ReferredPort of Calcutta v. Suraj Mull
Excerpt:
- - 5. at the hearing elaborate arguments were addressed to me both by the learned counsel for the applicant as well as by the learned government advocate for the crown. whereas the assassination of mahatma gandhi has revealed the existence of a widespread conspiracy to commit acts of violence, to disturb the public tranquility, and disrupt the machinery of government, and whereas i am satisfied that you gauri nandan upadhya are likely to promote or take part in such acts of violence, disturbance of public tranquility, or disruption of the machinery of government, i. as well as his own in connection therewith. it is, therefore, clearly open to challenge on the ground that it was not made in conformity with the power conferred. it follows that all that this court has to do is to satisfy.....orderwaliullah, j.1. this is an application under section 491, criminal p.c., filed by gauri nandan upadhya, praying that he be brought up before this court and be set at liberty on the ground that his detention is utterly illegal.2. this application was sent by post by the petitioner himself from central jail, banaras, on 18th february 1948. it is stated in it that the applicant is an advocate of this high court and has been practising as such in banaras for the last 23 years. it is further stated that on 3rd february 1948, after a search of his house, the applicant was arrested and was sent to the district jail, banaras, for detention. on 4th february, the applicant submitted from jail an application to the city magistrate but received! no reply from the latter. on 5th february he made.....
Judgment:
ORDER

Waliullah, J.

1. This is an application under Section 491, Criminal P.C., filed by Gauri Nandan Upadhya, praying that he be brought up before this Court and be set at liberty on the ground that his detention is utterly illegal.

2. This application was sent by post by the petitioner himself from Central Jail, Banaras, on 18th February 1948. It is stated in it that the applicant is an advocate of this High Court and has been practising as such in Banaras for the last 23 years. It is further stated that on 3rd February 1948, after a search of his house, the applicant was arrested and was sent to the District Jail, Banaras, for detention. On 4th February, the applicant submitted from jail an application to the City Magistrate but received! no reply from the latter. On 5th February he made a similar application to the Sessions' Judge of Banaras, but again with no result. On 'the evening of the 5th February, he was transferred to the Central Jail, Banaras, and was locked up in a solitary cell. On 6th February 1948, the District Magistrate, Banaras, served upon the applicant, in jail, a notice of an order detaining him for a period of two months under Section 5, U.P. Maintenance of Public Order (Temporary) Act, 1947, (U.P. Act IV of 1947). Thereupon the applicant made a representation in writing to the District Magistrate, Banaras. The contents of this representation are all reproduced in extenso in paragraph 7 of the application filed by the applicant. Finding no relief from his representation aforementioned he has moved this Court by means of this application for an order for his release.

3. On receipt of this application, notice was issued to the Government Advocate. The learned Government Advocate then filed an affidavit-sworn to by Mr. Brahma Singh, Deputy Superintendent of Police (Intelligence), Banaras, along: with a copy of the order under Section 3 and the original notice under Section 5 of the Act. In the affidavit, inter alia, it was stated that on 2nd February 1948, the District Magistrate, Banaras, after considering the case of the applicant, passed an order of detention for two months under Section 3(1)(a), U.P. Maintenance of Pub, lie Order (Temporary) Act, 1947, and that in consequence of this order the applicant was arrested on 3rd February 1948. It is further stated that on 5th February 1948, the grounds on which the order of detention was based were embodied in the notice under Section 5 of the Apt and they were served upon the applicant in jail on 6th February 1948. The affidavit in its last two paragraphs i.e., Nos. 4 and 5, purports to give instances of the activities of the applicant which were alleged to be violent and likely to promote, breach of public peace and disturb communal harmony.

4. On 11th March 1948, when the application came on for hearing before me, Mr. Pandey, the learned Counsel for the applicant, filed an affidavit in support of his application and an affidavit in rejoinder was also filed by the learned Government Advocate.

5. At the hearing elaborate arguments were addressed to me both by the learned Counsel for the applicant as well as by the learned Government Advocate for the Crown.

6. Learned Counsel for the applicant has contended in the first place that the notice served upon the applicant did not comply with the mandatory provisions of Section 5 of the Act inasmuch as the grounds on which the order of detention was made were not adequately specified in the notice, nor were other particulars, necessary for enabling the applicant to make a representation against the order, embodied in it. The original notice under Section 5 of the Act served upon the applicant is on the record. It reads thus:

Whereas the assassination of Mahatma Gandhi has revealed the existence of a widespread conspiracy to commit acts of violence, to disturb the public tranquility, and disrupt the machinery of Government, and whereas I am satisfied that you Gauri Nandan Upadhya are likely to promote or take part in such acts of violence, disturbance of public tranquility, or disruption of the machinery of Government, I.A.R. Sinclair Day, District Magistrate, Banaras, have therefore passed an order under Section 3 for your detention for a period of two months, with a view to preventing you from acting in any manner prejudicial to the public safety or the maintenance of public order and tranquility.

You are hereby informed that you may make any representation in writing against the said order.

Sd/-

A.R. Sinclair Day,

District Magistrate, Banaras,

February 5, 1948.

On the back of this notice there is an endorsement by the applicant himself in these words:

Received copy of the order. G.N. Upadhya. 6-2-48. 11 A.M.

7. As admitted by the applicant in paragraph 7 of the application, he submitted his representation to the District Magistrate which is reproduced in extenso in his application. It is significant that nowhere in his representation, which is a detailed document, does the applicant make any complaint, directly or indirectly, that the information supplied to him by means of the notice under Section 5 of the Act was not sufficient to enable him to make a proper representation. In the representation the applicant has attempted to explain the part which he played in the activities of the R.S.S. Banaras, which, according to him, were all iii support of and in favour of, the maintenance law and order. He has tried to defend the activities of the R.S.S. as well as his own in connection therewith. The point, however, which this Court has to consider is not whether the materials in possession of the District Magistrate when he passed the order of detention were or were not such as actually justified the order of detention. It seems to me that the sufficiency or insufficiency of materials, or evidence, was a matter for the authority which passed the order of detention under Section 3. It is not a matter which can be scrutinized or enquired into by a Court of law. Section 15, U.P. Maintenance of Public Order (Temporary) Act, 1947, provides:

No order made in exercise of any power conferred by or under this Act or any rule made thereunder shall be called in question in any Court.

8. It is assumed here that the order is made in exercise of the power conferred. It is, therefore, clearly open to challenge on the ground that it was not made in conformity with the power conferred. It follows that all that this Court has to do is to satisfy itself on the question whether the order complained of is an order made in conformity with the power conferred' by and under this Act. Reference may be made hereto the case in Emperor v. Shibnath Banerji . Dealing with Section 16(1), Defence of India Act, which provided:

16.(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

their Lordships said that it assumes that, the order is made in exercise of the power conferred, which clearly meant that the order was open to challenge on the ground that it was not. made in conformity with the power conferred.

9. To the same effect is the decision of a Full Bench of this Court in Harish Chander v. Emperor : AIR1943All277 . Dealing with an order under Rule 26, Defence of India Rules, where the language was very similar to that employed by Section 3(1), U.P. Maintenance of Public Order (Temporary) Act, 1947, the Full Bench observed at page 337:

In the consideration of this question' (whether the order of detention was illegal or improper) 'all that this Court has to see is whether or not the detention is in conformity with the dictates of law, but it is not within the province of this Court to embark on an enquiry as to whether the enactment under which a person is detained is a proper and well advised legislation .... It is, however, clear that, in cases in which, even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment or amounts to an abuse of the powers given to the executive by the legislature, it is the duty of this Court to step in and to order that the person detained be set at liberty.

Again, dealing with Section 2, Defence of India Act, by which the Central Government was authorised to frame rules, the Full Bench observed at p. 337:

The discretion wasted in the Central Government is absolute an unfettered, the exercise of that discretion, even though capricious or perverse, cannot' be questioned in any Court of law Rex v. Secy. of State for Home Affairs (1941) 1 K.B. 72; Liversidge v. Sir John Anderson (1942) 1942 A.C. 206 and Greene v. Secy. of State for Home Affairs (1942) 1942 A.C. 284. The powers conferred on this Court by Section 491, Criminal P.C., for interference with such an order were, however, fully recognized.

10. It is not disputed that the Provincial Government, under Section 11 of the Act, has delegated its power of making an order of detention under Section 3(1)(a) of the Act to all District Magistrates. The District Magistrate of Banaras was, therefore, fully competent to make an order of detention of the applicant for two months as he has done. And in the order of detention itself the District Magistrate has made it clear that he was exercising the delegated authority.

11. The question remains whether the District Magistrate has complied with the provisions of the Act. Learned Counsel has greatly stressed the point that the contents of the above-mentioned 'notice' were not sufficient to comply with the requirements of Section 5. It seems to me that all that Section 5 requires is that the grounds, or reasons, on which the order of detention is based should be communicated to the detenu and, in addition to the grounds, such other particulars as may be considered by the officer or authority passing the order of detention to be necessary to enable the detenu to make his representation against the order to proper authorities should also be communicated to him. The sufficiency or insufficiency of other particulars necessary for enabling the detenu to make his representation has been left by the legislature to the sole discretion' of the officer, or authority concerned. The grounds as set out in the notice in the present case might certainly have been more fully expressed, but in the absence of any specific provision in the Act itself, it is difficult to lay down a hard and fast rule about this matter. Obviously, the object which the legislature has in view is that the detenu should know what it is that is alleged against him. As mentioned above, in the present case, the applicant on the very next day of the service of the notice on him in jail made a very full and detailed representation to the District Magistrate. He made no complaint of any sort or kind that he had not got sufficient particulars about the allegations made against him on which the orders of detention proceeded. The representations made by the applicant to the District Magistrate show that he knew full well the grounds on which the order of detention was based. It seems to me, therefore, that in this case the provisions of Section 5 were complied with and there was no formal defect in the notice served under Section 5 of the Act.

12. In this connection learned Counsel has invited my attention to the case in Emperor Sumer Singh : AIR1948All78 . In that case it was held:

The object behind Section 5 is that if the person arrested is supplied with the information giving the cause of his arrest, he may be able to satisfy the district authorities that the information received by them was incorrect.

13. On the facts of that case, it was' held that the information supplied by the District Magistrate really afforded no information whatsoever to the applicant. In view of this finding it was directed by the learned Judge that the applicant should be supplied afresh with the information as required by the section. This case is clearly distinguishable from the present case on facts. It appears that no representation was actually made in that case for the simple reason that grounds sufficient to enable the detenu to make his representation were not supplied to him. There is no analogy between that case and the present one as indicated by me above.

14. The next point urged by the learned Counsel is that there is no competent affidavit of the District Magistrate himself placed before the Court which would show that he was 'satisfied' with respect to the applicant that it was necessary to pass an order of detention for preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order or communal harmony. Learned Counsel has contended that the affidavit filed by Mr. Brahma Singh, Deputy Superintendent of Police, to the effect that the District Magistrate had satisfied himself about the necessity of passing the order of detention against the applicant before he actually did so was not enough to show that the District Magistrate was in fact 'satisfied.' It seems to me, however, that the recital' in the order of the detention to the effect that the District Magistrate was satisfied with respect to the applicant that with a view to preventing him from acting in any manner prejudicial to the public safety...it was necessary to make the order of detention, in the absence of any evidence to the contrary would be enough to show that the District Magistrate was so satisfied. In addition to the 'recital' in the order, there is the affidavit of Mr. Brahma Singh to prove this fact. It is well established that the executive authority is the sole judge of the sufficiency of grounds on which an order of detention is based. Such an order can certainly be attacked but it can be attacked only on the ground that the provisions of the enactment; in question have not been strictly complied with. Reference may be made here to the case in Emperor v. Sibnath Banerji . The Court was considering the validity of an order under Rule 26, Defence of India Rules. It was held:

The Court cannot investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been satisfied. But whenever powers of this kind or indeed other special statutory powers are conferred, they must, to the extent to which specific provision has been made in the statute conferring the powers, be exercised by the authority and in the manner specified in the statute and in strict conformity with the provisions thereof and. the Court can see whether this is done.

15. The learned Judges in this connection referred to the presumption which arises under Section 114, ill. (e), Evidence Act, i.e., that judicial and official acts have been regularly performed. They also referred to the case in Liversidge v. Sir John Anderson (1942) 1942 A.C. 206 and Greene v. Secy. of State for Home Affairs (1942) 1942 A.C. 284, where the question was whether the Home Secretary 'had reasonable cause to believe' that certain persons were of hostile origin or associations, and that by reason thereof it was necessary to exercise control over them. In Liversidge v. Sir John Anderson (1942) 1942 A.C. 206 it was held by the House of Lords:

Where the Secretary of State, acting in good faith under Reg. 18 B of the Defence (General) Regulations, 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary to exercise control over him and directs that that person be detained, a Court of law cannot inquire whether in fact the Secretary of State has reasonable grounds for his belief. The matter is one for the executive discretion of the Secretary of State.

16. The decision of the House of Lords in Emperor Sumer Singh : AIR1948All78 may be summed up thus:

Acting under Regulation 18B, para (1) of the Defence (General) Regulations, 1939, the Home Secretary made an order for the detention of the appellant, stating therein that he did so because he had reasonable cause to believe the appellant to be a person of 'hostile associations and that by reason thereof it was necessary to exercise control over him:

Held, that the production of the Home Secretary's order, the authenticity and good faith of which were not impugned, constituted a complete answer to an application by the appellant for a writ of habeas corpus and no affidavit by the Home Secretary justifying his cause of belief was necessary.

17. It is, therefore, well settled that the question whether the Secretary of State has reasonable cause to believe etc. is a matter for the executive discretion of the Secretary of State concerned and the Court is not entitled to investigate the grounds on which the Secretary of State has come to believe the persons concerned to be of hostile associations, or to believe that by reason of such associations it was necessary to exercise control over them.

18. The House of Lords in the above mentioned cases applied the well known presumption omnia esse rite acta to the order of detension. The corresponding expression in Rule 26, Defence of India Rules is 'if it is satisfied' and in Section 3(1) of the U.P. Act iv of 1947 it is, 'if satisfied.' Obviously the expression in both these enactments vests absolute discretion in the official or authority concerned.

19. Reference might also be made here to the case in Harkishan Das v. Emperor ('44) 31 A.I.R. 1944 Lah. 33. In this case the Full Bench was considering the question of the validity of an order passed under Rule 26, Defence' of India Rules. The learned Judges referred to illustration (e) of Section 114, Evidence Act, which runs thus:

The Court may presume that judicial and official acts have been regularly performed. It was held that the Court can make a presumption as to the personal satisfaction of the Governor from the terms of the order itself when the order is regular on the face of it and unobjectionable in any way, but whether a presumption should or should not be made must depend upon the particular circumstances of each case.

20. Subsequently when the case in Emperor v. Sibnath Banerji went in appeal to the Privy Council, the Judicial Committee endorsed the view of the Federal Court so far as the question of presumption from the recital contained in the order of detention was concerned. Their Lordships of the Judicial Committee in Emperor v. Shibnath Banerji observed thus at page 161

Their Lordships agree with the statement by the learned Chief Justice of the Federal Court, viz : 'It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the 'recital is not accurate.'

21. Similarly, in Harish Chander v. Emperor : AIR1943All277 , a Full Bench of this Court which was dealing with an order under Rule 26, Defence of India Rules, after making a reference to Section 16(1), Defence of India Act, observed at page 337:

It follows that once the executive has bona fide passed an order under Rule 26, the Courts are debarred from enquiring into the propriety or otherwise of such an order. In other words, if a person is detained in pursuance of an order under Rule 26, neither this nor any other Court has the jurisdiction to launch an enquiry for the determination of the question whether or not the circumstances specified in that Rule did exist so as to justify the order of detention.

22. The next and most important contention of the learned Counsel is that the U.P. Maintenance of Public Order (Temporary) Act, 1947, (U.P. Act IV of 1947) which came into force on 28th February 1947 remained in force for a period of one year only and that the purported extension of the life of this Act by means of resolution to that effect passed by the legislature had no sanction in law. The argument of the learned Counsel proceeds thus : Section 1, Sub-clause 4 of the Act provides that the duration of the Act may be extended beyond the period of 'one year by a resolution to that effect passed by the legislature. This provision, according to the learned counsel, it was not competent to the Provincial Legislature to make. He has contended that the proper procedure for the extension of the life of the Act could be nothing short of the normal procedure for new legislation. He contends that the Provincial Legislature was not competent to lay down a new method of legislation inconsistent with the procedure laid down for legislation by the Constitution Act. He has vehemently contended that legislation by resolution is a complete stranger to the method of legislation prescribed by the Constitution Act. In this connection he has invited my attention to what Dicey says in his Law of the Constitution, 9th Edition, 1941, p. 53. In effect it is stated there that a resolution of neither house of Parliament has the force of law. To the same effect is the statement of law by Crazies on Statute Law, 4th Edn. p. 55. This, however, does not in any way help the argument of the learned Counsel for the simple reason that under the English Constitution a resolution of either house of Parliament as such, has not the effect of a statute and consequently it is not law. The position in the Constitution Act of India is very much the same. But, to my mind, the position is fundamentally altered if such a resolution is passed in pursuance of the provisions of a statute passed by a competent legislature. The legislature which passed the U.P. Maintenance of Public Order (Temporary) Act of 1947 was fully competent to pass this Act. This much is conceded by the learned Counsel also. In Section 1, Sub-section (4), the Legislature has made provision for the extension of the life of the Act by means of a resolution passed by the Legislature.

23. It is not the argument of the learned Counsel that the provincial legislature would not have been fully competent to provide for the continuance of the Act for a period longer than one year. Indeed, it has been conceded in argument that the legislature could have made the Act permanent if it thought fit to do so. But the contention raised by the learned Counsel attacks the procedure indicated by the legislature for extension of the life of the Act in Sub-section (4) of Section 1. Learned Counsel has con-tended that the extension of the life of the Act by a resolution passed by the legislature is, tantamount to an authorisation of 'legislation' merely by a resolution of the two houses of the legislature and this, according to the contention of the learned counsel, amounts to supersession of the legislative procedure enacted by the Constitution Act itself. To my mind, there is no substance in this contention. By making this provision for the continuance of the Act by means of a resolution to that effect passed by the two houses of the legislature, the provincial legislature has not in any sense superseded the normal legislative procedure provided by the Constitution Act. This temporary Act was passed to meet the situation existing at the time. The legislature in the first instance provided for the continuance of the Act for one year only, but apparently it was felt that circumstances, which had necessitated the enactment of this temporary Act, might easily persist even at the expiry of one year. For such an event provision was made in anticipation that the temporary Act might be continued beyond the initial period of one year provided the two houses of the legislature recognised the necessity for it and thought fit to pass a resolution to that effect. Instead of going through the normal procedure of passing a new Act, the legislature in anticipation legalised a simpler method of continuing the Act to meet the continued emergency.

24. Instances of similar provisions in temporary Acts passed by the provincial legislature of the United Provinces are to be found in U.P. Act iv of 1937 (The United Provinces Stay of Proceedings (Revenue Courts) Act, 1937 where provision was made in Section 1, Sub-section (2) that the Provincial Government might from time to time by notification in the gazette extend the operation of Section 2 of that Act for such further period or periods not exceeding six months in the aggregate as it might deem fit. To the same effect is the Temporary Postponement of Execution of Decrees Act (U.P. Act x of 1937) where similar provision is made with regard to the postponement of execution of certain decrees of civil Courts against agriculturists.

25. The provisions of Section 1 Sub-section (4), U.P. Maintenance of Public Order (Temporary) Act, 1947, do not, in my judgment, create a new legislative power. Such provisions result in the nomination of an authority which may in certain contingencies keep alive the enactment. Such a provision does not, in any way, violate either the provisions of the Constitution Act or any principle of Constitutional Law. In the well known case in Emperor v. Burah ('79) 4 Cal. 172, their Lordships of the Privy Council after examining the scope of the authority possessed' by the Imperial and the Provincial Legislatures have expressed themselves thus at page 182:

Where plenary powers of legislation exist as to particular subject, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally, Legislation, conditional on the use particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persona in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it : and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. It certainly used no words to exclude it.

26. In short, therefore, the provisions of Sub-section (4) of Section 1 may amount to what is known as conditional legislation rather than delegated legislation. And to my mind such conditional legislation is merely a corollary of the plenary powers of legislation.

27. In England, as mentioned above, a resolution of neither house of Parliament has the force of law, but legislation by means of a resolution of both houses of Parliament passed under the authority of a statute is perfectly permissible. In this connection reference might be made to Chalmers and Asquith on Constitutional Law, 1936, 5th Edn. p. 98, where dealing with the topic of 'Legislation by 'resolution of Parliament passed under a statute,' the learned authors state the proposition thus:

There have been rare instances lately of legislation by resolution of both houses, such resolutions, of course, resting ultimately on statutory powers.

They have made reference to the Church of England Assembly (Powers) Act, 1919 and the Emergency Powers Act, 1920, as instances of statutes under which a resolution, either a resolution by both houses of Parliament or a proclamation by the King,' has the result of extending the operation of an Act.

28. In view of these authorities, learned Counsel for the applicant had to concede that it is within the legislative competence of the Provincial Legislature to nominate an external authority to extend the operation of an Act. But, according to him, that can extend only to an external authority of an executive character and does not comprehend the 'Legislature,' i.e. the two houses of the legislature. No authority was, however, cited nor have I been able to lay my hands on any authority in support of this pro-position. On principle I see no justification for putting such an arbitrary limit.

29. In this connection learned Counsel for the applicant has raised a subsidiary point. It has been contended that the words 'the legislature' in the expression, 'a resolution to that 'effect' is passed by the legislature' in Sub-section (4) of Section 1 of the Act, must be construed to include not only the two houses of the legislature, but also the Governor of the province. In this connection, learned Counsel has invited my attention to Section 60, Constitution Act, wherein the constitution of the provincial legislatures is indicated. The question, however, is whether the expression 'the legislature' as used in Sub-section (4) of Section 1 comprehends not only the two houses of the legislature but also the Governor of the province. To my mind, on a proper interpretation of the expression, in the context in which it occurs, it is clear that the resolution to be passed for extension of the life of the Act must be a resolution passed by the two houses of the legislature alone. The Governor of the province is in no sense a party to the passing of the resolution. He either assents to or dissents from a resolution passed by the legislature. Section 60, Constitution Act, merely indicates the scheme of the composition of the provincial legislature wherein the Governor undoubtedly figures as one of the three organs in a province with a bicameral legislature.

30. Again, learned Counsel has contended that the scheme of legislation as indicated in the Constitution Act from Section 73 onwards shows that the legislative powers cannot be 'delegated'. There is here, in my judgment, no question of a 'delegation' of legislative power either. The provincial legislature, while passing the U.P. Maintenance of Public Order (Temporary) Act, 1947, in anticipation made provision for the continuance of the Act, and such provision for contemplated extension of the life of the Act must, like the rest of the provisions of Act Iv of 1947, be deemed to have been considered by the legislature when the Act was passed in 1947. It seems to me that if a competent legislature, after full deliberation, passes an Act and therein makes a provision for the possible contingency of the extension of the life of the Act, it does not violate any principle or provision of the Constitution Act. It is true that the sphere of the activity of the provincial legislature is limited by the provisions of the Constitution Act and if it travels outside the limits of the Constitution Act, the enactment passed by it will be deemed to be ultra vires and as such of no effect in the eye of law. Within its own sphere the legislature, as has been repeatedly held, is 'supreme.' Further, I find no provision in the Constitution Act itself which would disable the provincial legislature from making a provision such as the one in Section 1(4) of the Act, nor do I see any principle of the Constitutional law which is violated by the procedure adopted. The question, whether provisions of Sub-section (4) of Section 1 are intra vires or ultra vires of the provincial legislature, in my judgment, does not depend on considerations of jurisprudence or policy. It depends simply on examining the language of the Constitution Act and on comparing the legislative authority conferred on the provincial legislature with the provisions of the enactment by which it purports to exercise that authority. As said above, I do not find any provision in the Constitution Act, nor has the learned Counsel been able to point to any provision, which would militate against the exercise of the power such as is exhibited in Sub-section (4) of Section 1.

31. This question may be approached from yet another point of view. Entry 1 of list II (Provincial Legislative List) refers inter alia to 'detention for reasons connected with the maintenance of public order; persons subjected to such detention :' It follows, therefore, that the provincial legislature was fully competent to pass the Maintenance of Public Order Act, 1947. Indeed learned Counsel has raised no contention challenging the validity of Act IV of 1947 on that ground. That the Indian Legislatures within their own spheres have plenary powers of legislation as large and of the same nature as those of Parliament itself is well established. Reference may be made to the case in Bhola Prasad v. Emperor ('42) 29 A.I.R. 1942 F.C. 17. At page 20 the learned Judges of the Federal Court observed:

We must again refer to the fundamental proposition enunciated in Emperor v. Burah ('79) 4 Cal. 172, that Indian legislatures within their own spheres have plenary powers of legislation as large and of the same nature as those of Parliament itself that was true in 1878 it cannot be less true in 1942.' (Italics are mine.) 'Every intendment ought therefore to be made in favour of a legislature which is exercising the powers conferred on it. Its enactments ought not to be subjected to the minute scrutiny which may be appropriate to an examination of the by-laws of a body exercising only delegated powers, nor is the generality of its power to legislate on a particular subject to be cut down by the arbitrary introduction of farfetched and impertinent limitations.

32. In view of entry 1 of list II, the provincial legislature was fully competent to deal with legislation regarding preventive detention. No entry in list II is to be read in a restricted sense. Act IV of 1947 as a whole received the assent of the Governor as well as of the Governor-General. It follows, therefore, that the provisions of Sub-section (4) of Section 1 which provided a special machinery for extending the Act beyond the initial period of one year, have also received the assent of the Governor as well as of the Governor-General. Lastly, I may add that the argument of the learned Counsel on this part of the case runs counter to the principle on which the decision of their Lordships of the Privy Council proceeds in Emperor v. Benoari Lal Sarma . In that case their Lordships were dealing with the question of the validity of certain provisions of the Special Criminal Courts Ordinance (Ordinance 2 of 1942). At page 54, their Lordships are reported to have observed:

There is not, of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of Courts should rest with an executive authority and their Lordships are unable to discover any valid reason why the same discretion should not be conferred in India by the law-making authority, whether that authority is the legislature, or the Governor-General, as an exercise of the discretion conferred on the authority to make, laws for the peace, order and good government of India.

33. It seems that the same principle should govern the decision of a question like the one raised in the present case. In my judgment, therefore, the provisions of Section 1, Sub-section (4) were intra vires the provincial legislature.

34. In November and December 1947 both the houses of the provincial legislature passed regulations in favour of the extension of the Act for one year. The U.P. Government Gazette Extraordinary dated 17-3-1948, has notified that such a resolution has been passed by both the houses of the Provincial Legislature. It follows, therefore, that the U.P. Maintenance of Public Order (Temporary) Act, 1947, is still in force.

35. Lastly, learned counsel has raised the contention that the extension of the life of the Act would not by itself extend the life of the authority delegated by the Provincial Government to the District Magistrate under Section 11 of the Act. In my judgment there is no substance in this contention. In any case, it cannot help the applicant. The order of detention which is challenged was passed on 2-2-1948. Admittedly on that date the U.P. Maintenance of Public Order Act, 1947, was in full force, in as much as the initial period of one year had not expired. The delegation of authority by the Provincial Government under Section 11 of the Act to District Magistrates which has been effected on the 1-8-1947 was also in force. The mere fact that after the passing of the order of detention the period of one year expired and the enactment ceased to have any effect would not invalidate the order of detention which ex hypothesis was valid when made. The academic question whether the extension of the life of the Act would itself extend the life of the delegated authority under Section 11 of the Act need not seriously occupy one's attention. But even so far as that question is concerned, the answer to my mind is clear if one beeps in mind Section 24, U.P. General Clauses Act, 1904. This section provides for the continuation of appointments, notifications, order etc., issued and enactments, repealed but re-enacted. In the present case, as I have held above, the extension of the life of an Act by reason of the authority conferred by Section 1, Sub-section (4) has the effect of continuing the Act which would otherwise have expired on the expiry of the year. The position here, to my mini, is such that the principle underlying Section 24, would apply with all the greater force than it would have applied to the case of a simultaneous repeal and re-enactment of an Act. Reference might be made to the case in Chatturbhuj Mahesri v. Harlall Agarwalla : AIR1925Cal335 where a Bench of two learned Judges of the Calcutta High Court while dealing with a notification under the Provincial Insolvency Act held:

Under Section 24, General Clauses Act, 1897, the notification made under the repealed Act would remain in force.

It may be noted in passing that Section 24, General Clauses Act 1897, corresponds to Section 24, U.P. General Clauses Act, 1904, with very slight verbal changes. Similarly, in Commrs. for the Port of Calcutta v. Suraj Mull : AIR1928Cal464 , two learned Judges of the Calcutta High Court were dealing with a notification issued under the Indian Ports Act, 1875. The Indian Ports Act of 1875 was subsequently repealed by the Indian Ports Act of 1889. A provision was made in Section 10 of the later Act to the effect that notifications made under the earlier Act would be deemed to have been made and issued under the later Act. Subsequently the Indian Ports Act of 1889 was repealed by the Indian Ports Act of 1902 and there was no provision in the Act of 1908 about the continuance of notifications issued under the earlier Acts. It was held by the learned Judges that by reason of Section 24, General Clauses Act, 1897, the notifications issued under the Act of 1875 continued in full force.

36. In conclusion, therefore, I am of opinion that there is no substance in any of the contentions raised by the learned Counsel for the applicant. The result, therefore, is that the application is dismissed.


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