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Godavari Shamrao Parulekar Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC1128; (1964)66BOMLR453; 1964CriLJ222; 1965MhLJ78(SC); [1964]6SCR446
ActsPreventive Detention Act, 1950; ;Defence of India Act - Sections 44; Defence of India Rules
AppellantGodavari Shamrao Parulekar
RespondentState of Maharashtra and ors.
Excerpt:
.....by the government and the appellants were released but re-arrested under rule 30 of the defence of india rules- the order of detention was challenged by the appellants- they contended that the detention was illegal, further it was contended that the orders of detention were passed without the satisfaction of the authority concerned regarding their necessity that of the governor- they also contended that there should have been fresh allocation of business by the governor under article 166(3) of the constitution of india- it was held that that the order of detention passed by the state government were valid- as the detention order mentioned both the defence of india and maintenance of public order, such an order could be made on the satisfaction of a minister, who was incharge of both the..........order : 'now, therefore, is exercise of the powers conferred upon it by rule 30 of the defence of india rules, 1962, the government of maharashtra does hereby direct that the said shri shamrao vishnu parulekar be detained. by order and in the name of the governor of maharashtrasd. deputy secretary to government of maharashtra, (home department) sachivalaya, bombay, this 10th day of november, 1962'. 7. the contention of the appellants is that the first part of the order does not say that it is necessary to detain the appellants. the words used in the first part of the order are 'it is necessary to make the following order' and then follows the second part which says that the government directs that the said person be detained. we are of opinion that when the first part says 'it is.....
Judgment:
ORDER

'Whereas the Government of Maharashtra is satisfied with respect to the person known as Shri Shamrao Vishnu Parulekar of Bombay that with a view to preventing him from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of public order, it is necessary to make the following order :

'Now, therefore, is exercise of the powers conferred upon it by rule 30 of the Defence of India Rules, 1962, the Government of Maharashtra does hereby direct that the said Shri Shamrao Vishnu Parulekar be detained.

By order and in the name of the Governor of Maharashtra

Sd. Deputy Secretary to Government of Maharashtra,

(Home Department)

Sachivalaya, Bombay, this 10th day of November, 1962'.

7. The contention of the appellants is that the first part of the order does not say that it is necessary to detain the appellants. The words used in the first part of the order are 'it is necessary to make the following order' and then follows the second part which says that the Government directs that the said person be detained. We are of opinion that when the first part says 'it is necessary to make the following order', it in effect says that 'it is necessary so to do' which is what r. 30 of the Rules requires. Reading the order as a whole, in substance it does say that it is necessary to detain the person with a view to preventing him from acting in a manner prejudicial to the defence of India, etc. In r. 30 the words are 'so to do' while in the order they are 'to make the following order'. The two expressions in our opinion mean the same thing and we cannot accept the argument that the satisfaction necessary under r. 30 of the Rules was not arrived at in these cases by the authority making the order.

8. Then it is urged that as the State Government is equivalent to the Governor, it is the Governor who should be satisfied and not the Home Minister as is the case according to the affidavit filed on behalf of the State Government. The State Government in this connection relies on the Rules of Business, copy of which has been made available to us. These rules have been framed by the Governor under Art. 166 of the Constitution for the more convenient transaction of the business of Government and for the allocation among Ministers of the said business. In the affidavit on behalf of the State Government reliance is placed on item 2(b) of the First Schedule to the Rules of Business dealing with subjects allocated to the Home Department (Special), entry (7) which provides for preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. During the hearing, our attention was drawn to item (1) of the First Schedule to the Rules of Business dealing with subjects allotted to General Administration Department, entry (44), which provides for preventive detention for reasons connected with defence, foreign affairs or the security of India. It is obvious from the Rules of Business that preventive detention has been divided into two parts and allocated to two different departments. Where preventive detention is for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community, it can be dealt with by the Minister in-charge of item 2(b) dealing with subjects allocated to the Home Department (Special); but where the preventive detention is for reasons connected with defence, foreign affairs or the security of India, it can be dealt with by the Minister in-charge of item 1 relating to subjects allotted to the General Administration Department. The detention order in the present cases states that it was made with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of public order. As the detention order mentions both the defence of India and the maintenance of public order, such an order could only be made by a Minister who was in-charge both of them 1 relating to subjects allotted to the General Administration Department and of item 2(b) relating to subjects allotted to Home Department (Special). In the affidavit on behalf of the State the order was sought to be justified on the ground that it was made by the Home Minister in-charge of item 2(b) relating to subjects allocated to the Home Department (Special). We are of opinion that as the detention order was for reasons connected with the defence of India also, it could not be dealt with under item 2(b), entry (7) only which item deals with subjects allocated to the Home Department (Special) and had to be dealt by a Minister who was in-charge of both item 1 relating to subjects allotted to the General Administration Department and item 2(b) relating to subjects allotted to Home Department (Special). In the original affidavit filed on behalf of the State it was however not clear whether the Minister who dealt with these orders was also in-charge of the subjects allotted to the General Administration Department but it was state at the bar that the Minister who dealt with the matter and passed the order on the basis of which the appellants were determined was in-charge not only of item 2(b) relating to subjects allocated to the Home Department (Special) but was also in-charge of item 1 relating to subjects allotted to the General Administration Department. We therefore called upon the State Government to file an affidavit to that effect and an affidavit was filed on December 21, 1963. That affidavit says that the order of November 10, 1962 was passed by the Chief Minister who was at the relevant tome in-charge both of the General Administration Department as well as the Home Department (Special). We have already referred to the terms of the order of detention. That order refers to three reasons as the basis for the order, namely, (i) the defence of India, (ii) the public safety, and (iii) the maintenance of public order. Now preventive detention connected with the defence of India could only be ordered under the Rules of Business by the Minister who was in-charge of the General Administration Department while preventive detention for reasons connected with the maintenance of public order could only be ordered by the Minister in-charge of subjects allocated to the Home Department (Special). The order therefore in the present case could only be made by a Minister who was in-charge both of subjects allocated to the General Administration Department and subjects allotted to the Home Department (Special). In view of the affidavit now filed it appears that the Chief Minister was in-charge of both the departments and in the circumstances he could pass the order under challenge. The contention under this head must therefore fail.

9. The next argument is that there is no order of allocation made by the Governor under Art. 166 of the Constitution after the passing of the Defence of India Ordinance and the Rules framed thereunder and therefore the allocation of business by the Rules of Business which were enforced by an order of the Governor dated May 1, 1960 would not be of any effect in allocating the subject of preventive detention arising under the Defence of India Ordinance Act and the Rules to the Minister and the Governor should have passed the order of detention himself. We are of opinion that there is no force in this contention. Allocation of business under Art. 166(2) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made; it is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the center and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws. Therefore, when allocation of business is made it is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all contingencies which may arise for the exercise of the executive power. Such allocation may be made even in advance of legislation made by Parliament to be available whenever Parliaments makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule. It was therefore in our opinion not necessary that there should have been an allocation made by the Governor under Art. 166(3) of the power to detain under the Defence of India Ordinance, Act and Rules after they were passed; it will be enough if the allocation of the subject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three Lists in the Seven Schedule and if such allocation already exists, it may be taken advantage of if and when laws are passed. Preventive detention is provided for in List I, item 9, for reasons connected with defence, foreign affairs and the security of India, and in item 3 of List III for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. The allocation of business made under Art. 166 is in pursuance of these entries in the three List in the Seventh Schedule and would be available to be used whenever any law relating to these entries is made and power is conferred on the State Government to act under that law. The contention of the appellants that fresh allocation should have been made under Art. 166(3) by the Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail.

10. Lastly reliance is placed on Sections 40 and 44 of the Defence of India Act. Section 40 gives power to the Central Government to delegate its powers under the Act or the Rules to any officer or authority subordinate to the Central Government or to any State Government or any officer or authority subordinate to such Government or to any other authority, and the argument is that before the State Government can exercise the power conferred by r. 30, there has to be a delegation by the Central Government. This argument in our opinion is misconceived. It is true that s. 40 gives authority to the Central Government to delegate its power under the Act or the Rules to the State Government and others. But no delegation under that section is required for the exercise of the power under r. 30 by the State Government, for r. 30 itself lays down that the power therein can be exercised by the Central Government or the State Government. No further delegation therefore was necessary in favour of the State Government in so far as the exercise of power under r. 30 is concerned.

11. Next it is urged that the order of detention does not show that s. 44 was kept in mind when it was made. Section 44 lays down that 'any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence'. It is urged that an order of detention necessarily interferes completely with the ordinary avocation of life of the person detained and therefore before such an order could be made, s. 44 should be borne in mind. Therefore the order of detention is to be made when it is the only way of carrying out the purposes of the Act, for s. 44 provides that there should be as little interference with the ordinary avocations of life as possible under the Act. The argument further is that r. 30(1) provides as many as eight clauses which provide for the regulation of conduct of an individual and clause (b) relating to detention, which amounts to complete interference with the avocation of life of the detenu could only be resorted to in view of s. 44 when it is shown that no other way of regulating the conduct of the person detained as provided in the other clauses of r. 30(1) would meet the needs of the situation. So it is urged that unless the order shows on the face of it that the State Government thought that the detention was the only mode in which the purposes of the Act and the Rules could be carries out, the order would be bad in view of s. 44 of the Act. We are of opinion that there is no force in this contention. It is true that s. 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules; but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of r. 30(1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of clause (b) of r. 30(1). In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government though was necessary to adopt in order to meet the situation. It will then be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to s. 44. No such thing has been shown in the present cases and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that s. 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State.

12. The appeals therefore fail and are hereby dismissed.

13. Appeals dismissed


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