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K.T.K. Thangamani (Detenu, Central Jail) Salem and anr. Vs. the Chief Secretary, Government of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 333 and 334 of 1963
Judge
Reported inAIR1965Mad225; 1965CriLJ714
ActsDefence of India Act, 1962 - Sections 3(2)(15) and 44; Defence of India Ordinance, 1962; Constitution of India - Articles 14, 21, 22, 352(1) and 359(I); Defence of India Rules, 1962 - Rule 30(1) and 30(4); Defence of India Act, 1939
AppellantK.T.K. Thangamani (Detenu, Central Jail) Salem and anr.
RespondentThe Chief Secretary, Government of Madras and anr.
Cases ReferredLila Vati Bai v. State of Bombay
Excerpt:
constitution of india, article 226--defence of india act (li of 1962), section 44--whether directory or mandatory--scope of jurisdiction of high court in writs ; ordinarily, there is no justiciable right of a detenu to question either his order of detention or the terms and restrictions imposed under the defence of india rules by virtue of any alleged violation of section 44 of the defence of india act (li of 1962) in the court of the land. the legislature did not intend section 44 to the mandatory in the sense, that an infringement of it immediately renders the order made under the act or rules, invalid and void ipso facto. the directive in section 44 is merely advisory and directory in character, and infringement of the same does not carry with it any justiciable right whatsoever...... (1) on 26th october 1962, the president of india proclaimed the existence of a state of emergency under art. 352(1) of the constitution. on the same date, the defence of india ordinance iv of 1962 was promulgated. on 22nd and 23rd november 1962 orders were passed under rule 30(1)(b) and rule 30(4) of the defence of india rules, 1962, directing the detention of the two writ petitioners sri k. t. k. thangamani (w. p. 333 of 1963) and sri ananda nambiar (w. p. 334 of 1963), because the government were satisfied under s. 3(2)(15)(i) of the defence of india act, 51 of 1962, that these persons were likely to act "in a manner prejudicial to the defence of india and civil defence", and that their apprehension and detention were hence necessary in the interests of the state. these persons were.....
Judgment:
(1) On 26th October 1962, the President of India proclaimed the existence of a state of emergency under Art. 352(1) of the Constitution. On the same date, the Defence of India Ordinance IV of 1962 was promulgated. On 22nd and 23rd November 1962 orders were passed under rule 30(1)(b) and rule 30(4) of the Defence of India Rules, 1962, directing the detention of the two writ petitioners Sri K. T. K. Thangamani (W. P. 333 of 1963) and Sri Ananda Nambiar (W. P. 334 of 1963), because the government were satisfied under S. 3(2)(15)(i) of the Defence of India Act, 51 of 1962, that these persons were likely to act "in a manner prejudicial to the Defence of India and Civil Defence", and that their apprehension and detention were hence necessary in the interests of the State. These persons were allocated as detenus to the Salem Central Jail, and it is from such detention that they have preferred these petitions to this court.

(2) Both the petitioners raise almost identical grounds, praying for the cancellation of certain restrictions imposed on them in several respects, for the production by the Government of the rules framed for such detention, and allied reliefs; in addition, Sri K. T. K. Thangamani prays that he should be permitted to attend that meetings of the Madras Dock Labour Board on such terms as to parole as may be imposed by this court; and Sri K. Ananda Nambiar prays that he may be permitted, as a Member of Parliament, to attend the session of the Lok Sabha. We might add that in their respective affidavits, both the petitioners have claimed that they were not seeking for any orders of release per se, in view of the limitations that the Defence of India Act has put on the courts. Both the affidavits refer to S. 44 of the Act, which is dealt with by us in detail later. The counter-affidavit of the State, common to both the writ petitions, deserves reference for its somewhat elaborate treatment of the issues raised by these petitioners. According to the contentions of the government, though instructions have been issued with regard to the rules for the maintenance of detenus. (G. O. No. 214 Public (general B) Dept., dated 11-2-1963), those instructions were intended for official use alone, and their publication might be prejudicial. But Government are always willing to deal with any particular request of any detenu, in accordance with these uniform and common rules. S. 44 is directory and advisory in nature, and the provisions thereof have no application to individual orders. The restrictions are essential for the very purpose of the emergency, and the relaxation of them might defeat those public interests which have necessitated the detention of the petitioners. This consideration will particularly apply, for instance, to any terms of parole permitting Sri K. T. K. Thangamani to attend the meeting of the Madras Dock Labour Board, or Sri Ananda Nambiar to attend the session of the Lok Sabha. Finally, since some reference was made in the affidavits to the detention of the petitioners at Salem Central Jail, Government have submitted that the allocation of all arrested detenus, as manly as 107 in Madras State, to several Central jails was made purely on the basis of security and available facilities; there was nothing punitive intended by such a measure.

(3) As the writ petitions were argued before us, both by the learned Advocate General for State, the petitioners themselves in person, and Sri Mohan Kumaramangalam who agreed to appear as amicus curiae, in order to stress certain features of the contentions raised on behalf of the petitioners, it became evident that matters of far greater constitutional import than the relatively limited questions of the relaxation of specific terms or rules, appearing in the affidavits, were really involved in these cases. For this reason, we shall deal only incidentally with particular terms or restrictions and, in this judgment, we shall be primarily concerned with the wider issues of constitutional significance, that have emerged from the arguments.

(4) It is first of all necessary, for this purpose, to set forth somewhat in extenso the specific provisions that concern us, both in the Defence of India Act, Act 35 of 1939, and the Defence of India Rules framed under the Act, the Defence of India Act 51 of 1962 and the Defence of India Rules, 1962. We have already referred to Article 352(1) of the Constitution wander which the Emergency was proclaimed by the President. Article 358 of the Constitution states that while a proclamation of Emergency was in operation, "Nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would, but for the provisions contained in that Part, he competent to make or to take". Under Art. 359(I) of the Constitution, the President has power to suspend the enforcement of any of the rights conferred by Part III during the Emergency, and for the period. In exercise of this power, on 3-11-1962, a Notification was issued by the President (G. S. R. 1462) declaring that the right of any person to move any court for the enforcement of the rights conferred by Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period of the Emergency "if such person has been deprived of any such right under the Defence of India Ordinance, 1962, as we have already seen, the State has power to direct the apprehension and detention in custody of any person whom the relevant authority "suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State....."It is of some significance to note that under the Defence of India Act, 1939, almost identical language was used in S. 2(2)(x) but the reference was to the "defence of British India".. Under S. 3(1) of the 1962 Act, the Government have power to make rules for such purposes, and the same power was enunciated under S. 2(1)j of the earlier Act.

(5) Sections 44 and 45(1) of the Defence of India Act, 1962 which almost exactly correspond to sections 15 and 16(1) of the 1939 Act, a matter of some importance in interpreting the case law on the subject, run as follow:

Section 44 states: "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".

Section 45(1) declares:

"No order made in exercise of any power conferred by or under this Act shall be called in question in any court".

We may next pass on to the rules promulgated under the Act, namely, the Defence of India Rules, 1962. Rule 30(1) gives the State the power, 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 it was necessary to do so, to make an order (Rule 30(1)(b) "directing that he be detained". Under Rule 30(4), such person "shall be liable to be detained in such place, and under such conditions as to maintenance, discipline.......as the Central or the State Government, as the case may be, may from time to time determine". Again, it is of interest to note that under The Defence of India Rules framed under the earlier Act of 1939, Rule 26(1) enunciated a very similar power, and Rule 26(1)(b) empowered the authority to make an order of detention. Rule 26(5) corresponded to the present Rule 30(4). With reference to one case of some importance in the cited decisions, we may also conveniently note here that under Rule 129(1) of the rules framed under the 1939 Act, and empowered police officer could arrest and detain any person who was likely to commit prejudicial activities, if that officer "reasonably suspects" that person of so acting, or being about to act. Under Rule 75-A of the 1939 rules, the Government were invested with special powers with regard to requisition of property, again a matter of some relevance in the context of certain cases cited before us.

(6) The following are the main issues of constitutional import that have emerged during the arguments, in this setting or events and the relevant enactments and regulations, commencing with the Proclamation of Emergency on 26-10-1962, under Art. 352(1) of our Constitution.

Firstly: Assuming that, by the combined effect of Arts. 358 and 359(1) read with G. S. R. 1462, that we have earlier referred to, not merely are the rights of subject affected in the mode specified to move this court for infringement of Arts. 14, 21, and 22 of the Constitution suspended, but also the right of any subject to arraign any law as in violation of Art. 19, nevertheless, could a detenu move this court for a scrutiny of the grounds of his detention, as a justiciable right because of any alleged violation by the State of S. 44 of the Defence of India Act, 1962?

Secondly: Is S. 44 of the Act mandatory in its character, or merely declaratory? Can it apply in specific orders relating to the activities of a named individual or particular property, or is it intend to apply only, as the learned Advocate General has contended, to general orders affecting the life of the community or a section thereof, or a category of property? What is the relationship between S. 44, and the taking away of the jurisdiction of courts under S. 45(1) of the Act? Can any alleged infringement of S. 44 be canvassed as a justiciable right (a) with regard to the order of detention itself under S. 3(2)(150(i), and (b) with regard to the terms of detention or the place of detention under rules 30(1)(b) and 30(4) o f the defence of India Rules, 1962?

Thirdly: Can the propriety of any detention order or of any terms and conditions, be canvassed as a justiciable right in the limited categories of (i) where the authority acts beyond the ambit of the given power and (ii) where the order, or the term or condition, is sought to be shown to be 'colourable' or mala fide?

Fourthly: Is Section 45(1) of the Act not binding upon this court, because of its overfeeding powers under Art. 226 of the Constitution? Under Art. 226 of the Constitution, can this court interfere either with regard to the detention of a person, or with regard to any term or condition of detention, notwithstanding S. 45(1) of the Defence of India Act 51 of 1962, and the proclamation of Emergency together with the concomitant elements of the suspension of Art. 19 (Art. 358) and Arts. 14, 21 and 22 (Art. 359(1)) that we have earlier referred to?

(7) Of these issues, we may first conveniently take up the issues relating to the juxtaposition of Sections 44 and 45(1) of the Defence of India Act, 1962, and the extent to which S. 44 is mandatory and therefore involves a justiciable right or is merely directory and hence controlled by S. 45(1), which in its turn takes away the jurisdiction of courts to question any order of detention or any terms or conditions imposed under the rules. As far as the Emergency itself is concerned, there is really no difficulty. The relevant Articles 352(1), 358 and 359(1) are there, and we have furnished details of the action taken by the authorities under those Articles. To the extent to which certain Fundamental Rights have been thereby suspended, they cannot be agitated in courts. For instance, no court could pronounce a legislation, subsequent to the Emergency, as involution of Art. 19, and therefore void. No court could permit the enforcement of rights, by any affected subject, under Arts. 14, 21 and 22 with regard to any state of facts addressing after the Emergency, and related to the action of authorities under the Defence of India Ordinance or Act. But, subject to these limitations, the powers of the Courts have not been taken away, and Art. 226 of the Constitution is available to the subject, for redress, within its proper scope. Since Ss. 44 and 45(1) of the 1962 Act correspond to Ss. 15 and 16(1) of the earlier act of 1939, we shall now proceed to take note of two streams of case-law, the first relating directly to the juxtaposition of those sections and the powers of court thereunder, and the second, relating to that issue only obliquely and by inference; in the latter class of cases, as we shall presently see, the actual conflict was not really resolved.

(8) Of the second class, we might immediately refer to Vimalabai Deshpande v. Crown, ILR (1945) Nag 6: (AIR 1945 Nag 8) a judgment of Bose and Sen JJ. The matter was taken up in appeal to the Judicial Committee, and dealt with in King Emperor v. Vimalabai Deshpande, ILR (1946) Nag 651: (AIR 1946 PC 123). That was an instance of action taken by a police officer for arrest and detention of a person suspected of prejudicial activity, under Rule 129(1) of the Defence of India Rules 1939, that we have earlier referred to. The question whether the detention order per se was justiciable, in the sense that the affected person could canvas the subjective satisfaction of the authority authorising the detention, was naturally decided in the case. On the contrary, the Judicial Committee, as earlier the Judges of the Nagpur High Court, stressed the vital difference between Rule 26(1) and Rule 129(1), which relates to the empowered police officer. In the latter instance, the police officer must" reasonably suspect" and hence it is not purely a subjective satisfaction; the Courts have the power to ascertain the circumstances. But, with regard to satisfaction of Government under Rule 26, there was no such qualification or restriction. The Judicial Committee also followed the English case in Shearer v. Shields, 1914 AC 808 and held that the police officer or constable making the arrest must show, as a matter of burden of proof, that his suspicions were reasonable.

(9) We may next turn to Surajprasad v. Yeshwanta, ILR (1944) Nag 629: (AIR 1944 Nag 221) an instance in which Bose J. had occasion to consider the juxtaposition between Ss. 15 and 16(1) of Act 35 of 1939, but, again, without the necessity for a resolution of the central issues or conflict. The learned Judge held that the rules drawn up under sub-rules 5 and 5A of Rule 26 of the Defence of India Rules, could not be the "order" contemplated by Ss. 2 and 16 of the 1939 Act, and that the High Court had therefore jurisdiction to go into the propriety of orders framed only in accordance with such rules. The matter related to the refusal by Government to permit the personal attendance of a detenu in court and the learned Judge observed:

"It is difficult to see how public safety and the like are likely to be endangered if a man is permitted to attend court under escort and conduct his case. The hearing could be in camera if Government so desires".

The learned Judge also held that where the refusal of Government was due to bad faith, the court could always proceed into the question, and grant the required relief. As we shall see later, mala fides, as a category apart, has always been held as a ground justifying there exerciser of jurisdiction by courts, however strict the bar might be otherwise.

(10) The question again came up with specific reference to Ss. 15 and 16 of 1939 Act, in the Lahore High Court in the Lahore electric Supply Co. Ltd., Lahore v. Province of Punjab, ILR (1943) 24 Lah 617:(AIR 1943 Lah 41) (FB). That was a case of requisition of an electric supply undertaking under Rule 75A of the Defence of India Rules. It had to be noted, with reference to the summary or arguments preceding the text of the judgment, that Mr. Mehrchand Majahan, then learned counsel for the appellant underrating, argued before the Full Bench that the court was competent to enquire whether the limits of S.15 had been exceeded or not. But, actually, that point was not decided by the judgment. Young C. J. held that while Government no doubt had some information concerning the possible sabotage of the works of the Lahore Electricity Supply Co. Ltd., certain other weighty reasons compelled him to conclude that the order was not due to that cause, but was made for a collateral object, and was not bona fide. Further, certain terms imposed by the Government in their order, rendered that order bad as a whole and ultra vires of Rule 75A of the rules.

(11) The point, however, is not bare of authority altogether. The juxtaposition of Ss. 15 and 16(1) of the 1939 Act had to be considered with reference to a petition under the Specific Relief Act, by a Bench of this court consisting of Leach C. J. and Lakshmana Rao J. in Kewalram v. Collector of Madras, ILR (1944) Mad 826: (AIR 1944 Mad 285). That related to the requisition, under the circumstances set forth in the judgment, of a private bungalow under Rule 75A of the Defence of India Rules. It is note-worthy that the appeal was from the judgment of Bell J. in exercise of the Ordinary Original Civil Jurisdiction (Appn. No. 2670 of 1943) and that S. 45 of the Specific Relief Act 1 of 1877 had been invoked. This has some significance, in the context of what we shall later discuss about the powers of this court under Art. 226 of the Constitution. After having held that the power of requisition was not exercised mala fide, Leach C. J. pointed out that the court would have jurisdiction only in the two instances of and exercise of power outside the lawful authority conferred, or and exercise of it which really amounts to and abuse, namely, it is "colorable" or mala fide. Otherwise S. 15 of the 1939 act was really directory, and not mandatory in character, and has to be read along with S. 16(1) of the Act. the question had to be also considered in Tan Bug Taim v. Collector of Bombay, ILR (1946) Bom 517: (AIR 1946 Bom 216) Bhagwati J. took a view directly opposed to the view of the Bench of this court in Kewalram's case, ILR (1944) Mad 826: (AIR 1944 Mad 285) which was cited before him. The learned Judge observed at p. 602 (of ILR Bom): (at pp. 252-253 of AIR):--

"I am not prepared to hold the provisions of S. 15 of the Defence of India Act are not mandatory but are merely directory or recommendatory. The language of S. 15 of the Defence of India Act is very clear on the point. It provides that the authority or person acting in pursuance of the Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purposes therein mentioned. Though the question whether the interference with the ordinary avocations of life and the enjoyment of property is in a particular case as little as may be consonant with the purposes therein mentioned, may have to be determined by the authority or person who is passing the order in the exercise of the powers vested in him...... the provisions of S. 15 of the Defence of India Act are nonetheless mandatory. They have got to be complied with. I cannot accept the argument which was advanced by the Advocate general that S. 15 of the Defence of India Act merely contained recommendations or instructions for the guidance of the authority or the person acting in pursuance of the act....." In Juggilal Kamalapat v. Collector of Bombay, ILR (1946) Bom 636L (AIR 1946 Bom 280) the learned Judge (Bhagwati J.) referred to his own earlier decision just cited, and re-affirmed his view.

(12) In a certain sense, it might appear that this matter need not be further discussed, since the judgment in Kewalram's case, ILR (1944) Mad 826 : (AIR 1944 Mad 285) is by a Bench of this court. Our power and duty, in case we come to a contrary opinion, can only be to make a reference to a Full Bench. But, for two important reasons, we are proceeding into this matter. as an extensive discussion. The first is that Kewalram's case, ILR (1944) Mad 826 : (AIR 1944 Mad 285) related to the powers of this court in the matter of the issue of prerogative writs, prior to the enactment of the Constitution and Art. 226 hereof. Our powers are now far wider, and, in the absence of any modification or suspension of Art 226, are of an overriding character with regard to any specific enactment of Parliament. Secondly, we are of the view that particularly as Kewalram's case, ILR (1944) Mad 826: (AIR 1944 Mad 285) contains little or no discussion of the relevant principles or criteria upon which this matter should be assessed, it is essential in the interests of justice to embark on a scrutiny of this vital aspect.

(13) The question whether a particular provision of law is merely directory or is mandatory in character, has, of course, come up repeatedly before courts in this country and elsewhere. At the outset, it must be made clear that the true character of the test depends upon the consequences of one conclusion or the other, and not merely upon some vague argument that the provision appears to be more intended to guide or to make a recommendation to the concerned authority, then to constrain the authority to act in a particular way. It is obvious, for instance, that a directive principle, such as that embodied in S. 44 of the Defence of India Act, is not the less binding upon the government because it is directory in character, assuming it to be so. As the learned advocate general has rightly and fairly stressed, the Government can neglect or flout such a solemn injunction laid upon the executive authorities by the legislature, only at peril. The true test is not this; the test is whether the declaration of a particular order as violative of S. 44, renders it ipso facto null and void, or merely renders the concerned authority object to correction or discipline for having flouted an enactment. The matter has been put in the following terse form in Maxwell on "The Interpretation of Statutes" 10th Edn page 381 (11th Edn p. 369).

"The neglect of them (directory provisions) may be penal, indeed, but it does not affect the validity of the act done in disregard of them".

Another important point is that, though the question whether a statute is mandatory or merely directory depends on the intention of the legislature, as could be gleaned from the language used, it is not the language which is conclusive, or all important. This is very clear from a passage in Crawford on "The Construction of Statutes" 1940 Edn page 516:

"The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other".

The use of the word "shall" is not necessarily conclusive and, with respect, we must differ from Bhagwati J. in ILR (1944) Bom 517: (AIR 1946 Bom 216) on third point. The Supreme Court observed in H. V. Kamath v. Ishaque that an enactment may be in form

mandatory, in substance directory in nature. the use of the word "shall" is not conclusive. In the passage in Crawford earlier referred to also, it is no doubt stressed that the use of the word "shall" prima facie supports an inference of the mandatory nature of the statute, but the court has to ascertain the real intention of the legislature. At page 520 (Crawford) the matter is put in the following form:

'Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice verso".

In state of U. P. v. Baburam, , an extensive

clarification by Subba Rao J. of the principle of construction, and the mode of its application, will be found. In Collector of Monghyr v. Keshav Prasad, Ayyangar J. had occasion to refer to the same principle of construction and the Supreme Court observed:

"The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve."

The learned Advocate General has pressed two vital arguments in support of his thesis that S. 44 is directory and not mandatory, besides the reliance upon Kewalram's case, ILR (1944) Mad 826: (AIR 1944 Mad 285) and the dicta in the Supreme Court decisions that we have referred to, as also the passages from Crawford and Maxwell. According to the learned advocate General, the very scheme of the Act, that is, the juxtaposition of Ss. 44 and 45(1), provides a clue to the true intendment of the legislature. had the legislature intended that the principle of S. 44 should form the basis of a justiciable right, at the instance of an aggrieved party, then S. 45(1) of the Act, rendering the relevant orders of authority outside the jurisdiction of the courts and not liable to be questioned therein, would have no meaning. Again, by the very nature of the principle enunciated, S. 44 could not be mandatory. It relates merely to a degree to which an order of detention, or terms of restriction, should be rendered compatible with the ordinary avocations of life and enjoyment of property. In other words, the concerned authority has to decide, not in terms of specific abidance or disobedience to the mandate of the legislature, but in terms of highest approximation to a relative standard or principle. It could never have been intended that this clothes the subject affected by the order, with a justifiable right. as one of us had occasion to point out, during the course of arguments, the construction of S. 44 as mandatory in character cannot have consequences merely limited to the restrictions or terms imposed on the detains by virtue of Rules 30(1)(b) and 30(4) of the Defence of India Rules. It must be equally open to the subject to question the propriety of the order of detention itself. But inevitably, this may involve the disclosure, by the Government, of information, which disclosure may conceivably prejudice the public safety. Another argument of the learned Advocate General is that, again, by its very character, S. 44 could not be intended to apply to individual instances of detention of named persons, terms imposed upon them, acts of requisition of particular property etc. Such orders will literally interfere with the ordinary avocations of life or rights of enjoyment of property, and hence the principle was intended to relate solely to general orders affecting the community, or a section thereof, or general categories of property. the learned Advocate General seeks to reinforce this argument by the citation of passages from the judgments of Kania C. J. at pp. 101 106 (of SCR): (at pp. 35-37 of AIR)Sastri J. page 192 (of SCR): (at p. 69 of AIR) Das J. pp. 292, 303 and 304 (of SCR): (at pp. 108, 112 and 113) and also of Mahajan, Mukherjea and Fazl Ali JJ. in A. K. Gopalan v. State, .

(14) We do not think it necessary to cite all those passages from Gopalan's case, again here. One or two brief extracts will suffice to show the basis of the learned Advocate General's contention. For instance, as observed by Kania C. J. at p. 101 (of SCR): (at p. 35 of AIR):

"If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms etc., the question whether that legislation is saved by the relevant saving clause of Art. 19 will as rise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses I abridged, the question of the application of Art. 19 does not arise".

As observed by Sastri J. at p. 192 (of SCR): (at p. 69 of AIR):

".......Article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free............ a construction which would bring within Art. 19 imprisonment in punishment a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision."

The matter was put by Das J. in an inclusive form, if we may say so with great respect, at p 804(of SCR): (at p. 113 of AIR):

"There can be no doubt that a detention as a result of lawful conviction must necessarily impair the fundamental personal rights guaranteed by Art. 19(1) far beyond what is permissible under clauses (2) to (6) of that Article, and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed".

Indeed, the argument need not be laboured further. It is indisputable that all orders of preventive detention or detention for likely prejudicial acts, under the Defence of India Act and rules, will seriously impair the pursuit of ordinary avocations of life by any individual, by their very character; similarly, with regard to orders of requisition of property as far as the right to enjoy the property is concerned.

(15) Nevertheless, we do not think that, in final analysis, the distinction sought to be pressed by the learned Advocate General is logically sustainable. We can conceive of instances where orders of this character affect a category of persons, and, nevertheless, it may be equally prejudicial to public safety, to compel the Government to disclose the information upon which such orders were passed, or to render such orders justiciable on the initiative of the persons affected. Further, the very form in which S. 44 is couched, makes it clear that the legislature did realise that individual orders would affect the pursuit of the ordinary avocations of life, or the right to enjoy property. What the legislature has laid down is a form to be followed by the authority; as we stressed earlier, the authority cannot ignore this mandate. The fact that the question of infringement of the form may be a relative question, nevertheless does not necessarily render it one of which the courts cannot take cognizance. A state of intention or motive, a degree of rashness and negligence, are relative questions; but the courts are called upon, every day, to deal with them as questions of fact and to adjudicate upon their existence or otherwise.

(16) On a very careful consideration of this aspect, we are inclined to hold that the legislature did not intend S. 44 to be mandatory, in the sense that an infringement of it immediately renders the order made under the Act, or rules, invalid and void ipso facto. There are several weighty reasons against such a construction, though, undoubtedly, Mr. Kumaramangalam is justified in stressing the observations of the Federal Court in Keshav Talpade v. Emperor, AIR 1943 RC 1 to the effect that, even during an emergency, the courts of law are still not absolved of the duty of seeing that the executive Government does not seek to exercise powers, in excess of those which the legislature thought it fit to confer on the executive. However, it is noteworthy that the very court, in that decision, cited with approval the dicta of Lord Macmillan in Liversidge v. Sir John Anderson, 1942 AC 206 to the effect that courts should interpret emergency legislation so as to 'promote rather than to defeat its efficacy for the defence of the realm". In our view, the most important consideration is that the legislature equally enacted S. 45(1) in juxtaposition with S. 44, and that provision is meaningless if the intendment had been that non-compliance with S. 44 would be per se justiciable in courts. Further as we had occasion to stress this earlier, no logical distinction can really be maintained between the order of detention itself, and any order imposing terms and conditions of detention or specifying the place of detention. but, if the property of an order of detention could be canvassed, in the context of S. 44 it would necessarily compel the government to disclose information which may be prejudicial to the security of the country, particularly during an emergency. This difficulty was discussed by Rajagopalan OCJ in Muthuramalinga Thevar v. State of Madras, ILR (1958) Mad 692: (AIR 1958 Mad 425) and it may he in the interests of security that certain grounds have to be withheld as confidential even from the court, as that will necessarily imply disclosure to the knowledge of the affected parties also. The resolution of the difficulty suggested by Bose J. in ILR (1944) Nag 629:(AIR 1944 Nag 221) namely, hearing in camera, may not be adequate.

(17) With regard to the arguments that the grounds of detention should be explicit, and that they were not furnished to the concerned detenu, we may point out that this may rightly be subject to a limitation, in the interests of public security; see the dicta in Puranlal Lakhanpal v. Union of India, and In Lawrence D'Souza v. State of Bombay, (S) which was followed in the former

decision.

(18) We are therefore of the view that, ordinarily, there is no justiciable right of a detenu to question either his order of detention, or the terms and restrictions imposed under the Defence of India Rules by virtue of any alleged violation of S. 44, in the courts of the land. Section 44 is directory in the sense that even if and infringement is established, the order is not ipso facto void; that can be the only construction compatible with section 45(1). But this does not necessarily imply that the courts are wholly without power, either with regard to a detention order itself, or with regard to the terms and restrictions imposed, the place of detention or other allied matters. These could be canvassed in appropriate proceedings on two main bases or grounds. The first of these is that the concerned authority has exceeded the ambit of its power conferred by the legislature. That is, where the particular authority has no such power, or the power is not given in respect of certain class of persons or categories of property, and it is purported to be exercised, the courts can certainly strike down the order as ultra vires. Decently, there is always the saving clause of a "colourable" exercise of the power or an exercise of it lacking bona fides, and animated by some ulterior object, shown to the satisfaction of court. The question whether, even apart from these two grounds, the High Court proceed into this matter because of the overriding powers of this court under Art. 226 of the Constitution, is a separate question, that will be dealt with immediately after noticing certain decisions of the United Kingdom, cited by the learned Advocate General.

(19) This constellation of decisions in the United Kingdom stemming from the famous 1942 AC 206 has to be interpreted throughout bearing in mind one radical distinction between constitutional law in the United Kingdom, and the law in this country. As far as the United Kingdom is concerned, sovereignty of the Parliament is absolute. The Constitution being unwritten, there are no theoretical limits conceivable to legislative supremacy, in the absence of formulated Fundamental Rights embodied in a written Constitution. The task of courts in that country can only be to interpret enacted law, in the light of this unqualified supremacy. But courts here have a very different function to perform. The Parliament itself is subject, in its law-making power, to the Constitution, and, as pointed out by Kania C. J. in In re Art. 143 Constitution of India and Delhi Laws Act 1912, AIR 1951 SC 332 the courts can always strike down a particular legislative measure as infringing any Article of the Constitution, inclusive of Art. 226. The decisions relied on by the learned Advocate General are, generally stated these. Point of Ayr Collieries Ltd. v. Lloyd George, 1943-2 All ER 546; Carltona Ltd. v. Commr. of Works, 1943-2 All ER 560; Commr. of Customs and Excise v. Cure and Deeley Ltd., 1961-3 All ER 641; Demetriades v. Glasgow Corporation, 1951-1 All ER 457; Nakkuda Ali v. Jayaratne, 1951 AC 66; Earl Fitzwilliams Wentworth Estate Co. v. Minister of Housing and Local Government, 1952 AC 362; confirming Earl Fitzwilliams Wentworth Estates Co. v. Minster of Town and Country Planning, (1951) 2 KB 284 and Attorney General for Canada v. Hallet and Carey Ltd., 1952 AC 427. A few dicta will be sufficient to show that in all these cases, the supremacy of Parliament was kept in mind by courts, and the powers of interference by court, where Parliament has delegated unfettered discretion to a Minister or other administrative body, were confined to the two categories (i) act patently in excess of conferred authority; and (ii) want of bonafides. To this effect Lord Greene M. R. observed in Point of Ayr Collieries Ltd. v. Lloyd George, 1943-2 All ER 546 and similarly in 1943-2 All ER 560. He said at p. 564:

"All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature, and to see that those powers are exercised in good faith".

An instructive and learned review, if we may say so with respect, of the entire case law by Sachs J. will be found in (1961) 3 All ER 641. Also see the dicta of Lord Normand in (1951) 1 All ER 457. In 1951 AC 66 the court held that the administrative authority need not even regulate his decision or action, by analogy to judicial rule. In S. A. De Smith's Judicial Review of administrative Action 1959 Den. pages 244 and 245, a discussion of this entire aspect will be found under the heading "Where the competent authority is empowered to take such action or to impose such conditions as it thinks fit in relation to a subject-matter". It is however stressed in the passage that the decision must not be such "as no reasonable authority could ever have reached."

(20) Sri Mohan Kumaramangalam points out that even this interpretation of Ss. 44 and 45(1) of the Defence of India Act 1962, and this restriction of the power of courts, ordinarily speaking, to instances of patent transgressions of statutory power or to colourable acts, would not affect the larger question of the overriding powers of this court under A. 226 of the Constitution. According to him, the subjective test laid down in 1942 AC 206 has not been followed by the Supreme Court of Burma, and he has referred to an Article in "Journal of the International Commission of Jurists" 1961 at page 11, and also to Tinsa Mau Naing v. Commr. of Police, Rangoon, 1950 Bur L R (S C) 17. But whatever the case might be in other countries, as far as third country is concerned, it has to be held that the juxtaposition of Ss. 44 and 45(1) renders feasible only the construction that S. 44 is directory, and that the detenu has no justiciable right to canvass the propriety of the order of detention, or the terms of detention per se.

(21) As far as any colourable exercise of power is concerned, it could always be canvassed in this country, in any court, where mala fides can be demonstrated to exist. In the United Kingdom, even upon this factor, a different view has sometimes been taken. for instance in Smith v. East Block Rural District Council, 1956 AC 736 Viscount Simonds sought to maintain a distinction between bad faith or fraud relating to acts of individuals, and the validity of the order itself (compulsory purchase order). "It is no part of my present duty to attack or defend such a provision of an Act of Parliament".

(22) The learned advocate General, however, contends that this view of Ss. 44 and 45(1) of the Defence of India Act, 1962 that we have outlined above, cannot be affected even by our overriding powers under Art. 226 of the Constitution. According to him, this follows from Kewalram's case. ILR (1944) Mad 826: (AIR 1944 Mad 285); as the petition in that case was also under S. 45 of the Specific Relief Act, and Art. 225 of the Constitution preserves the prior writ powers of the High Courts of Madras, Bombay and Calcutta. But we have no doubt at all that this argument cannot be accepted. There is ample authority to show that Art. 226 is not controlled by Art. 225, and that no provision like S. 45(1) of the Defence of India Act, 1962, can take away the overriding powers of interference of this court under Art. 226 of the Constitution. The real question is not this, but whether, in the exercise of our powers under Art. 226 of the Constitution, we would permit an aggrieved party to canvass the propriety of the order of detention per se, or of the terms and restrictions, where there is no question of exceeding statutory authority or lack of bona fides, and no other ground which would justify interference, upon the principle of writ jurisdiction, is established to the satisfaction of this court.

(23) This aspect of the matter can be quite tersely dealt with, since the authorities are very clear, and overwhelming in their import. In Sree Meenakshi Mills Ltd. v. Provincial Textile Commissioner, Madras, 52 Bom LR 12: (AIR 1949 PC 307); the Judicial Committee had occasion to point out the very limited nature of the earlier writ jurisdiction of the High Courts of Bombay, Calcutta and Madras, with regard to the issue of prerogative writs, in the context of S. 45 of the Specific Relief Act. The matter was fully dealt with by the Supreme Court in K. S. Rashid and Son v. I. T. I. Commission, , Mukherjea J. pointed out that, prior to the Constitution, the powers of issuing prerogative writs were confined not merely to certain High Courts, but were also within very rigid and defined limits. Art. 226 confers upon all the High Courts new and very wide powers, subject alone to the two limitations of territorial jurisdiction, and the availability of the person or authority upon whom the writ issues within such territory. Again, the matter has been fully considered in two decisions of this court, with regard to provisions of ousting the jurisdiction of Civil Courts analogous to S 45(1) of the Defence of India Act, 1962. Subba Rao J. pointed out in Pushpam v. State of Madras, ;

that "so long Art. 226 stands in the Constitution, neither the Parliament nor the legislature of a State can make laws depriving or limiting the power of the High Court to issue writs". The same learned Judge affirmed that Art. 226 was not controlled by Art. 225, and that the Parliament could not competently make a law in derogation of the provisions of Art. 226 in Sethuraja v. Board of Revenue, . The matter has been concluded and set at rest now, by the observations of their Lordships of the Supreme Court in In re Kerala Education Bill, 1959 SCR 995: (AIR 1958 SC 956). The power conferred under Art. 226 as well as the jurisdiction must be construed as wide and overriding, and could not be affected by the provision of a specific enactment seeking, in effect, to curtail the exercise of such a power.

(24) Nevertheless, it must be clear that this does not immediately imply that the exercise of such power by this court under Art. 226 will be in derogation of the intendment of the legislature in enacting S. 44 as a directory principle, not as a mandatory one, and in enacting S. 45(1) in juxtaposition to S. 44. On the contrary, what this really implies is that, in addition to the two factors upon which the courts could nevertheless interfere with regard to orders of detention or orders imposing restrictions upon detenus, under the Defence of India Act, namely acts outside the statutory powers or acts lacking bona fides, this court would have the power of interference upon the principle of writ jurisdiction, but within the limits of those principles alone. for instance, this court could interfere, in certiorari, where the order is an error of law apparent on the face of the record; it could interfere, by the issue of an appropriate writ, where a principle of natural justice has been flagrantly violated. But the exercise of writ jurisdiction is always within the limits of the proper recognition by this court of factors relevant to powers delegated to the Executive by the Legislature. Where, for instance, the compulsory disclosure of information by the State even to court, might imperil security, this court will not exercise the writ jurisdiction in a mode that necessitates such a disclosure. We would, therefore, hold in conclusion, that the fact that these petitions purport to be under Art. 226 of the Constitution, does not necessarily imply that the petitioners have truly any justiciable right either to canvass the propriety of the orders of detention per se, or any of the terms and restrictions imposed under the rules, or to seek the relief of relaxation of such terms or restrictions. But, where this Court is satisfied that, on the principles of writ jurisdiction, a particular order has to be set aside or a particular direction given to the Executive, it will not hesitate to do so, because S. 45(1) of the Defence of India Act, 1962 cannot override the powers of the court under Art. 226 of the Constitution. We are not satisfied, in the present instances, that any of the specific grounds raised by these petitioners necessitates interference, as prayed for, by the issue of an appropriate writ, because of any error of law apparent on the face of the record, or the contravention of any principle of natural justice. Until such cause is shown to our satisfaction no writ can issue and these petitions must therefore stand dismissed. There will be no order as to costs. In conclusion, we desire to acknowledge our indebtedness to the learned Advocate General for his research into authorities and able arguments founded upon it, and to Mr. Mohan Kumaramangalam for his able and considerable aid to court as amicus curiae.

Ramamurti, J.

(25) I am in agreement with the order pronounce by my learned brother. In view of the importance of the questions involved and the points arising for decision, I desire to state my reasons and conclusions.

(26) W. P. No. 333 of 1963 is filed by the detenu, K. T. K. Thangamani for directions cancelling the restrictions imposed on him, such as night lock up, licence to have a radio, increase in the number of outgoing and incoming letters, removal of restrictions about interview of persons and also to permit him to attend the meetings of the Madras dock Labour Board on such terms of parole as this court may deem fit to impose. In the affidavit filed in support of this petition, he states that he is a Barrister called to the Bar in 1940, that he was enrolled in the same year, that he was a member of the Parliament from 1957 to 1962, that he is one of the Secretaries of the All India Trade Union Congress, that he is a member of the National Council of the Communist party of India. His complaint is that during all the relevant period when India is involved in the great task of resisting the external aggression by China, he, his party and his followers have been completely supporting the Government in their war efforts, that he participated in the tripartite meeting of the Government, Employers and Workers' Representatives held on 3-11-1962 at Delhi by Mr. G. L. Nanda, Union Minister for Labour as well as the tripartite conference when the Government of Madras held a similar meeting, that he has been fully co-operating in all the efforts taken by the Hon'ble the Chief Minister of Madras, that on account of the petitioner's support and appeal to his party men, he was able to secure a cheque for a substantial amount of Rs. 35,000 for the defence fund and the same was handed over to the Chief Minister on 20-11-1962, when the latter visited Madurai, and that he was taking great and active interest in all the defence measures taken by the State Government and was connected with all the function on 19th and 20th when the Chief Minister visited Madurai. His main complaint is that after the Chief Minister left Madurai at about 5 p.m. on the 20th November, all of a sudden that very same night he was awakened by the Madurai police and arrested and later on detained as a detenu in the Central Jail at Salem. In his affidavit, he has further adverted to the various restrictions which are imposed upon him during his detention in Central jail, particularly to the fact that he was kept inside a separate small locked enclosure as a prisoner, that during night his cell was locked from 8 p.m. to 6 a.m. every day, that in the matter of supply of daily food needs, cash allowance and grant of interviews and allowance of inward and outward correspondence and such other matters serious and unreasonable restrictions have been imposed upon him, and that so far as he is concerned, they were wholly unnecessary to ensure public safety and the Defence of India. In the affidavit he has further stated that he is the Chairman of the Madras Dock Labour Board, he should be permitted to attend its meetings. At the outset it may be mentioned that the detenu is not seeking his release but he only wants that the Government should be directed to relax the various restrictions imposed upon his movement and his residence in the jail.

(27) W. P. 334 of 1963 has been filed by Anandan Nambiar, a member of Parliament, for appropriate directions of this court to direct the Government of Madras to permit the petitioner as a member of the Parliament to attend the current session of the Lok Sabha and also to direct the Government to relax and remove the various restrictions regarding night lockup, censuring of letters, increasing the number of inward and outward correspondence permission to have his own radio set, increase in the monthly allowance and such other amenities. In his affidavit it is alleged that during the entire period after the Chinese act of aggression he and his followers have been co-operating with the Government in their efforts to resist the Chinese aggression, that he has extended his full support to the Government of India in the matter of the defence and safety of India, and that all of a sudden without any justification and contrary to the spirit under lying rule 30 of the Defence of India Rules, he was arrested and detained in the Central Jail at Salem on 1-12-1962. He has stated that as Vice President of the Dakshina Railway Employees Union he has collected substantial sums from railway employees for the defence fund and has secured the support of all the railway employees to maintain transport during the Emergency, and that in any event he must be permitted to attend the Lok Sabha session on parole subject to such terms as the government may impose. It may also be mentioned that regarding his complaints against the several restrictions in jail, the affidavit of Anandan Nambiar is also on the same lines as that of Thangamani.

(28) The deputy Secretary to the Government, Public Department, has filed a common counter affidavit in which he has stated that nothing was done in a spirit of discrimination as against these detenus, that on the other hand 107 persons have been detained under rule 30 in the State of Madras, that they have been distributed among the various jails in the State consistent with the accommodation available, that the restrictions were all imposed in accordance with the instructions of the Government, that rules have been actually framed as regards the conditions under which detenus have to be detained, and that it was only for high reasons of State, which cannot be disclosed that the two petitioners have been detained under the Defence of India Rules, and that if the petitioners are allowed to move with the public and their party men, it will lead to very dangerous results and the very objects of detention would be completely frustrated. As regards the relaxation of the several conditions and restrictions the government have stated that they are only adopting the same uniform rule, that they are strictly following the conditions in respect of each defence prescribed in G. O. 214, and that it is neither possible nor in the interests of the security and defence of India that there should be any relaxation of the conditions as proved for by the petitioners.

(29) Both in their petitions, as well as in the courts of the arguments, the main basis on which the several relieves were prayed for by the petitioners is that S. 44 of the Defence of India Act 51 of 1962 contains a specific directive to the executive authority that any person acting in pursuance of the Act and the rules shall interfere with the ordinary avocation of life and the enjoyment of property as little as possible, consonant with the purpose of ensuring public safety and the Defence of India and the Civil Defence, and that in both the cases having regard to their avocations in life and having regard to the fact that throughout they have been completely co-operating with and supporting the Government in their efforts in resisting the Chinese aggression, their detention and the restrictions imposed upon them, are in direct violation and contrary to the directive contained in S. 44 and therefore they should be declared as void. It may be mentioned that the petitioners do not question the bona fides of the Government.

(30) On the other hand, the contention the government is that the directive contained in S. 44 of the Defence of India Act is merely directory and advisory, and that in any event a violation of the provisions of S. 44 is not justiciable and fit is not a matter in respect of which the petitioners can seek redress under Art. 226 of the Constitution. In view of the importance of these questions in addition to hearing the arguments of the learned Advocate general, and the detenus, we also requested Mr. Mohan Kumaramangalam to assist us as amicus curiae and we are thankful to him for the assistance he has rendered.

(31) Three main questions which arise for determination are: (1)Are the provisos of s. 44 of the Defence of India Act 1962, merely directory and advisory in character; (2) can the propriety of and order of detention or the violation or transgression of the provisions of Rule 30 of the Defence of India Rules be attacked as a jurisdiction of the High Court to issue appropriate writs and directions under Art. 226 of the Constitution any way fettered or controlled by S. 45 of the Defence of India Act.

(32) Before dealing with the above points it is necessary to notice at the outset that by reason of the Proclamation of Emergency under Art. 352(1) of the Constitution, and by reason of the notification issued by the President under Art. 359 of the Constitution, the right of any person to move any court for the enforcement of the rights conferred by Art. 14, 21, and 22 of the Constitution remain suspended during the period of the Emergency. It should also be noticed that under art. 358 of the Constitution while such a Proclamation of Emergency is in operation, the Parliament is entitled to make any law or take any executive action untrammeled and unaffected by the restrictions contained in art. 19 of the constitution, with the result that the three points set out for determination have to be determined mainly with reference to the provisions of the Defence of India Act, Act 51 of 1962, and the rules framed thereunder. The crux of the question therefore is how far do the provisions of the Defence of India Act and the rules framed thereunder permit and sanction and a infringement of a citizen's right of property and personal liberty and in what manner and to what extent redress can be obtained in respect of such infringements.

(33) In order to arrive at a proper decision as to whether the provision in S. 44 is mandatory or directory, it is absolutely necessary to determine the precise scope of the limitation imposed on the court under the saving provision contained in S. 45. In my opinion, Ss. 44 and 45 have got to be read and construed together as they are interconnected and a true interpretation of the scope of S. 44 is not possible if the impact of the provisions of S. 45 is not fully appreciated. It should also be borne in mind that the Defence of India Act of 1962 is an emergency measure and that it has been enacted as the preamble itself shows to provide for special measures to ensure the public safety and interest, the Defence of India and Civil Defence at a time when grave emergency has arisen on account of the threat of external aggression, and that every effort should be made to interpret the provisions of the Defence of India Act and the rules framed thereunder to achieve that purpose and object and any interpretation of any of the provisions of the Act and the rules, which would in any way impede that effort and frustrate that object should be avoided at all events. Sec. 3(2), sub-sec. 15 empowers the Central Government to enact rules for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain suspects on grounds that appear to that authority to be reasonable of being hostile origin of having acted, acting, being about to act or being likely to act in a manner prejudicial to the Defence of India and Civil Defence, etc. Rules 30, 30-A and 30-B have been accordingly framed empowering the Central Government or the State government to detain any person and also impose restrictions on his movements if the Central Government or the State government is satisfied that with respect to the particular person such detention or imposition of restrictions are necessary to prevent him from acting in any manner prejudicial to the Defence of India and Civil Defence, public safety, etc. rule 152 confers powers on any police officer to arrest without any warrant any person who is reasonably suspected of having committed or of committing or of being about to commit a contravention of the several rules specified therein. A reference to rule 152 and a consideration of its scope is not relevant for the purposes of this case except to note the vital difference between the language of rule 30 and that of rule 152. Under rule 152, the police officer must "reasonably suspect" and there can be no doubt about it that it is not a subjective satisfaction and the courts will have undoubted jurisdiction to determine whether the suspicion of the police officer was just and reasonable under the circumstances of a particular case so as to justify the arrest of the person concerned.

(34) In rule 30 there is no such qualification and the detention of any person or the imposition of restrictions on his movements as provided in rule 30 can be made if the Central government or the State Government is satisfied subjectively that with respect to any particular person such an order is necessary with a view to prevent him from acting in any manner mentioned therein. The subjective satisfaction that is postulated under rule 30 is general and common in respect of an order that may be passed under any of the sub classes from (a) to (h), and there is no distinction between one clause and another regarding this requirement. The subjective satisfaction which necessitates the detention of a particular person may equally necessitate the imposition of restrictions on his movements with a view to prevent him from acting in any manner prejudicial to the Defence of India, Civil Defence, Public Safety, etc. It is not competent for a detenu to ask the authority concerned to disclose the grounds and reasons as to why an order for detention was made. It is equally not open to a detenu to ask the authority concerned to disclose the reasons as to why the several restrictions on his movements have been imposed. If the directive contained in S. 44 is mandatory giving rise to a justiciable right, when there is an infringement thereof, the Government can justify the order in a court of law only on peril of disclosing all the materials and the facts and by proving how and in what particular manner the public safety and interests, the Defence of India and the Civil Defence have been endangered by the objectionable and subversive activities of a particular detenu. The Government ill be necessarily obliged in a court of law to disclose every material to justify that there has been only a minimum interference with the freedom and liberty of a particular person and the limit has not been exceeded in any manner. Such a view of S. 44 cannot possibly be taken. In the first place it is not only violently opposed to the very scheme of the Act. But it would completely frustrate and defeat its very purpose. An investigation in open court regarding the steps taken by the government would involve a disclosure of the particular danger, the activities of the enemy and the threat to public safety and the Defence of India. It would seriously impede the efforts of the Government in resisting the act of aggression. It is hardly necessary to emphasise that every step taken by the Government in the direction of the objections mentioned in the preamble has to be kept extremely secret and confidential and cannot possibly be made public. How can the Government justify and order in question without divulging all the secrets?

(35) Secondly the question as to how far such restrictions are necessary rests entirely upon the subjective satisfaction of the authority concerned. The authority concerned may be subjectively satisfied that with respect to any particular person his detention and the imposition of certain restrictions upon him are essentially necessary to prevent him from acting in any manner prejudicial to India, having regard to the antecedent activities and conduct of the detenu and apprehensions about this future conduct. A court on the other hand may take an entirely different view of the situation. The fact that the court takes a different view cannot certainly amount to a transgression of the provisions of S. 44 in the sense that the interference with the liberty and freedom of movements of a particular person have exceeded the limit. The limit that is indicated both under S. 44 as well as under rule 30 is the limit that may be subjectively determined by the Government. In such a situation the court cannot possibly hold that there has been a transgression of the provisions of S. 44. It is perfectly clear that the court cannot substitute it s satisfaction in the place of the subjective satisfaction of the government, with the result that whatever may be its views in the matter, it cannot grant any redress and there is no justiciable right. In my opinion it is impossible to fit into the scheme of S. 44 any notion or idea of a justiciable right. It is emphasise this aspect of the matter that S. 45 provides that no order made in exercise of the powers conferred by or under the Act shall be called in question in any court. In my opinion, the provisions of S. 45 taking away the jurisdiction of court in juxtaposition with the provisions contained in S. 44 is decisive and furnishes a clinching answer that the directive in S. 44 is merely advisory and directory in character and an infringement of the same does not carry with it any justiciable right whatsoever. Any other view would make S. 45 absolutely meaningless and useless. As mentioned already, rule 30 does not draw any distinction between an actual order of detention and particular restrictions imposed in the movements and the liberty of the person concerned.

(36) The original set of rules G. S. R. 1813, dated 28-12-1952, providing specially for review of detention orders by the authority concerned. This shows that if a person feels aggrieved that S. 44 has been transgressed his remedy is only to apply to the executive for review or reconsideration of the order.

(37) An examination of the case law which had arisen under the Defence of India Act, 1939 and the rules framed thereunder and the Preventive detention Laws enacted by the central Legislature and the several State Legislatures emphasizes and leads to the same conclusion. It may also be mentioned that Art. 22 of the constitution, particularly sub-cause (6) thereof, which specifies the pattern of law providing for preventive detention, emphasizes the foundation of the test of the subjective satisfaction of the authority concerned and how it is not open to the courts to substitute their own judgment about the necessity and expediency for the detention any person and the necessity and expediency of continuing such a detention. The same view has been taken in England in cases arising under the various regulations issued for the purpose of the defence of the Realm, and it has been held that a citizen has no justiciable right to seek redress against any action taken in connection with the public safety, interest or defence of the country, on the ground that the decision of the Executive is final and a court cannot substitute its view in the matter.

(38) Before discussing the cases in India, it may be useful to refer to a few leading decisions in England relating to regulations made under the powers given by the Emergency Powers Defence Act. On this theory of "subjective satisfaction" considerable light is thrown by the speeches of the several law Lords in the leading case of 1942 A C 206. In that case the relevant regulation, Reg. 18B of the defence (General) Regulations provided as follows:

"Paragraph 1: If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

Paragraph 8: Any person detained in pursuance of this regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorised by the Secretary of State and in accordance with instructions issued by him". One Liversidge filed a suit for damages for false imprisonment on the ground that his detention made by and order of Sir John Anderson as Home Secretary was unlawful. Liversidge applied for particulars of the grounds on which the Home Secretary had reasonable cause to believe that by reason of such hostile association it was necessary to exercise control and impose restriction over the movements of Liversidge. His application was refused by the Judge in Chambers as well as the court of appeal and the matter came up before the House of Lords finally, which ultimately affirmed the decision of the court of appeal, Lord Atkin dissenting. It was held that the court could not compel the Secretary of State to give particulars of the grounds on which he had reasonable cause to believe the plaintiff in that action to be a person of hostile association or that by reason of such hostile association it was necessary to exercise control over the plaintiff. In my opinion the reasons contained in the several passages in the judgments of the several law Lords throw considerable light upon the interpretation of S. 33 of the Defence of India Act. 1962. In that case too the good faith of the detaining authority i.e., the Secretary of State, was not challenged. At page 221 Viscount Maugham has observed as follows:

"Secondly, it is admitted that the Home Secretary can act on hearsay and is not required to obtain and legal evidence in such a case, and clearly is not required to summon the person whom he proposes to detain and to hear his objections to the proposed order. Since the Home Secretary is not acting judicially in such a case, it would be strange if his decision could be questioned in a court of law.

Thirdly, and this is of even greater importance, it is obvious that in many cases he will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed in court without the greatest risk of prejudicing the future efforts of the Secretary of

State in this and like matters for the defence of the realm. a very little consideration will show that the power of the court (under S. 6 of the Act) to give directions for the hearing of proceedings in camera would not prevent confidential matters from leaking out, since such matters would become known to the person detained and to a number of other persons. It deems toe impossible for the court to come to a conclusion adverse to the opinion of the Secretary of the Sate in such a matter."

(38a) Lord Macmillan formulates the rule regarding the court's approach in the matter of interpretation of a wartime measure thus at pages 251-252.

"But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have amending which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace to time measure. The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time."

Lord Wright while dealing with the liberty of the subject has observed at page 260 as follows :

"All the courts today, and not least this House, are as jealous as they have ever been in upholding the liberty of the subject. But that liberty is a liberty confined and controlled by law, whether common law or statute, it is, in Burke's words, a regulated freedom, it is not an abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty."

Reference can also be usefully made to a passage at page 264 indicating that the action of the House Secretary is not judicial but executive:

"The matters specified, except hostile origin and, perhaps hostile associations, are matters of opinion or judgment, not matters of fact. It is essentially a matter of expert and instructed conclusion or suspicion whether or not the acts in which the subject has been concerned were such as to be prejudicial to the public safety or defence of the realm; even more obviously is the belief or decision that by reason thereof it is necessary to exercise control over him a matter of executive description. It is clear that the control is preventive not punitive and that the action is not judicial, but executive. The regulation places on the Secretary a public duty and trust of the gravest national importance. As I understand the regulation, it is a duty which he must discharge on his own responsibility to the utmost of his ability, weighing, on the one hand, the suspect's right to personal liberty, and, on the other hand, the safety of the State in the dire national peril in which during this war it has stood and stands."

Ultimately Lord Wright wound up his speech holding that in the matter of the decision by the Home Secretary no triable issues arises, and that it is for him to decide, and that no outside decision is invoked; nor is the issue within the competence of any court.

(39) Lord Romer, while taking the view that the materials on which the Home Secretary founded his opinion would be wholly irrelevant and could not be enquired into by a court of law, observes as follows at page 279:

"If that person brings an action for false imprisonment or moves for a writ of habeas corpus the Secretary of State may be placed in the dilemma of having to make public information the disclosure of which may imperil the security of this country or of having to refuse to disclose it with the result that the person detained, who may be a dangerous 'fifth columnist' will be released and set at liberty to continue his traitorous activities. For, if the question whether the Secretary of State had reasonable grounds for the belief on which his order was founded is one for a court of law to determine. It is plain that the court must be placed in full possession of all the relevant facts, and if some of those facts are withheld from it, even though it be by reason of public policy, it will have no option but to say that no reasonable grounds for his belief have been shown to exist, and the release of the detained person will follow as a matter of course. The Emergency Powers (Defence) Act, 1939 and the regulation will in that particular case have failed to remedy the mischief against which they were designed." The same view was taken in another decision the same volume Greene v. Secy. of State for Home Affairs, 1942 A. C. 284, affirming the decision of the curt of appealing Rex v. Secy. of State for Home Affairs, Ex parte Greene, 1942-1 K.B 87. In 1942-1 K.B. 87 at p. 98, Scott L. J. while taking the view that he Home Secretary was acting purely as executive has observed as follows:

"The whole regulation deals with a topic which is necessarily of a highly confidential character. It invites a decision, at least as a preliminary to action, by an Executive Minister of the Crown who occupies a position of utmost confidence, who has at his disposal much secret information which ought not to be made public above all, during a war-who is under a duty to keep that information and its sources secret, and, finally, who cannot be compelled in any court to divulge what he considers ought not in the national interest to be divulged. All the King's courts recognise that inhibition and enforce it. The arguments which have been advanced in some of the cases rest expressly or impliedly on a contention that the Home Secretary in making an order is exercising a quasi judicial function, as if he had to b hear both sides before coming to a decision on the preliminary issue. That contentions in my view wrong. His capacity is purely executive, as it is when deciding whether or not to deport an alien, as was pointed out by Lord Reading C. J. in Rex. v. Inspector of Leman Street Police Station, ex parte Venicoff 1920-3 K B 72, 80, and I adopt his words. "The Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act of he public god, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. The responsibility is his."

(40) In 1943-2 ALL ER 546 the question arose under Defence (General) Regulations, reg. 55(4) when in pursuance of the order of the Minister of Fuel and Power the control of an undertaking of the appellant in that case was taken by the Government in the interests of the Defence of the realm and the efficient prosecution of the War and for maintaining supplies and services essential to the community. It was held that the court had no jurisdiction to interfere with the bona fide decision of the Minister, and that he exercise of the executive power under the Regulation cannot be questioned in the courts and can be questioned only in Parliament. The following passage at p. 547 in the judgment of Greene M. R. can be usefully referred to:

"If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of t his character expressed in this particular from of language, it is for the competent authority, whatever Ministry that may be, to decide as to whether or not a case for the exercise of the powers has arisen. It is for the competent authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge the credibility of that evidence. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation, all those matters are placed by Parliament in the hands of the Minister in the belief that he Minster will exercise his powers properly, and in the knowledge that, if he does not do so, he is liable to the criticism of Parliament. One thing is certain, and that is that those matters are not within competence of this court."

In the same volume 1943-2 ALL ER 560, the same view was taken when certain premises were requisitioned under regulation 51 (1) of the Defence (General) Regulations. It was held that when Parliament has committed to the executive the discretion of deciding when an order for the requisition of premises should be made under the regulation and with that discretion, if bona fide exercised, no court could interfere. The relevant statement of law is contained in the judgment of Lord Green at page 563:

"The last point that was taken to this effect that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad fifth-and I may say that there is no such allegation here is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that the authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that hose powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction."

(41) This view that when the authority concerned issues orders or takes action it acts purely in an executive capacity, and that its act is clearly neither judicial nor quasi judicial is reiterated and forcibly brought out in the judgment in Robinson v. Minister of Town and Country Planning, (1947), 1 KB 702. In that case on account of extensive war damage power was conferred on the Minister for Town and Country Planning to pass an order that all or any of he land in a particular area be subjected that it is requisite for the purpose of dealing satisfactorily with the extensive War damages in the area concerned. It was held that he Ministry was under no obligation to reveal the information on which he was acting, and it was not for the court to decide whether the Minister had sufficient material to justify his satisfaction. Lord Greene M. R. observes as follows at page 713.

"As I have said, no, question is raised as to the propriety of the Minister's conclusion upon this point and I need say nothing more about it. The other class of matter is, in my view, one of opinion and policy as to which the Minister assuming always that he acts bona fide, is the sole judge; namely, he must be satisfied that it is requisite of the purpose of dealing satisfactorily with extensive war damage that all or some part of the land in question should be laid out afresh and redeveloped as a whole. The words 'requisite' and 'satisfactorily' clearly indicate that the question is one of opinion an policy, matters which are peculiarly for the Minister himself to decide. No objective test is possible".

While holding that the Minster was acting only in an executive capacity, the learned Judge makes the following observations at pages 716-717:

"To say that incoming to his decision he is in any sense acting in a quasi judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the inquiry itself must be conducted on what may be described as quasi judicial principles. But this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, that is, the making of the order. The inquiry is only a step in the process of which leads to that result and there is, in my opinion no justification for saying that he executive decision to make the order can be controlled by the courts by reference to the evidence or lack of evidence at the inquiry which is here relied on. Such a theory treats the executive act ' as though it were a judicial decision' (of it the phrase is preferred, a quasi judicial decision) which it most emphatically is not. How can this Minister, who is entrusted by Parliament with the power to make or not to make an executive order according to his judgment and acts bona fide (as he must be assumed to do in the absence of evidence to the contrary) be called upon to justify his decision by proving that he had before him materials sufficient to support it?"

(42) It is unnecessary to refer to other English case, and it is sufficient to refer to the statement of the law in 30 Halsbury page 687, paragraph 1326 (3rd Edn. by Lord Simond):

"Non-interference with exercise of discretionary powers: Where a Minster of the Crown, before pursuing a particular course of action, is required to 'have reasonable cause to believe' certain matters, it is not the function of the courts to act as courts of appeal from the decision made in his discretion by the Minster, provided the decision was made in good faith. The courts will neither inquire into the grounds for the Minister's belief.................nor consider whether there were or were not grounds on which such belief could reasonably beheld. Similarly, where Minister's or others are enjoined to be 'satisfied that it is requisite' satisfied after consultation that it is expedient in the national interest' or 'satisfied that in the public interest it is necessary or expedient' before taking a particular course of action, the matter is one of opinion and policy as to which the minister again assuming that he acts bona fide is the sole judge.

Where public bodies are given a discretion the exercise of powers conferred upon them by statute, the courts will not interfere with the exercise of that discretion so long as it is exercised bona fide and reasonably, nor will the decision of an administrative body he interfered with by the courts if there is anything on which that body could reasonably have come to its conclusion. In exercising their discretionary statutory powers local authorities are under no obligation, in the proper exercise of those powers, to protect the interests of individuals not directly affected by such exercise, unless this is something in the statute by which the powers are conferred to impose that obligation."

So for Indian decisions reference should first be made to the decision of a Full Bench of this court inNarayanaswami Naidu v. Inspector of Police, Mayavaram, ILR (1949) Mad 377 : (AIR 1949 Mad 307) (FB) which dealt with a case of detentions under the Madras Maintenance of Public Order Act, Madras Act I of 1947. In that case it was held that it was not competent of the High Court to all upon the Government or the detaining authority to disclose the information and the materials on which it or he was satisfied as to the necessity for the detention of the person concerned, and that the satisfaction required by the statute is the satisfaction of the Government or the empowered authority, and not the satisfaction of the court and that there was no question of fact which can be submitted to the court for adjudication. After an elaborate discussion of the entire case law, both English and Indian, the law is stated at p. 455 (of ILL Mad) : (at p. 334 of AIR) in the judgment of Govindarajachari J. as follows:

"Negatively, it can be said that he sufficiency of the available material or information to justify the order of detention and the question whether the officer concerned could be said to have reasonable grounds for the issue of the order in question are not matters which are within the cognisance of the court. The satisfaction is the satisfaction of the officer. He is the sole judge, and once the conclusion is reached he was satisfied, the detenu cannot invite the court tot go behind it and dissect the reasons which weighed with the officer ad find out for itself whether the order should have been issued. While the satisfaction of a properly constituted authority, is a condition precedent tot the issue of an order of detention, whether the circumstances called for the issue of such an order is a matter entirely for its consideration and nobody else's."

(43) In Machinder Shivaji v. The King, AIR 1950 FC 129 in a case arising under the C. P. and Berar Public Safety Act, Act 62 of 1948 (where the language was similar) Patanjali Sastri J. as he then was, delivering the judgment of the Federal Court, observed as follows:

"In the present case, S. 21(1)(a), like most other similar enactments, authorised the detention of any person if the Provincial Government is 'satisfied' that he is acting or is likely to act in a manner prejudicial to public safety, order or tranquillity. The language clearly shows that the responsibility for making a detention order rests on the provincial executive, as they alone are entrusted with the duty of maintaining public peace, and it would be a serious derogation from that responsibility if the court were to substitute its judgment for the satisfaction of the executive authority, and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded."

(43a) A Bench of the Bombay High Court in Maganlal v. Govt. of Bombay, in a case arising under the Preventive Detention Act held that it was not open to the court to go into the question whether on the merits the detaining authority had justification to pass the order of detention or to continue the detention. In that case it was contended that the detenu had informed himself as a result of detention in jail for two years and that this reformation aspect he should be taken note of and the detention should not be further continued. While repelling that argument and holding that the sphere is exclusively of the detaining authority and not that of the court the learned Judge observed as follow at page 61:

"In our view, it is entirely for the executive authority, who is the custodian of public order to decide whether a person's being at large is detrimental to the interests of the State, the maintenance of public order etc. Such a question really relates to the governance of the State and is not once for judicial e decision."

In , in a case arising under the Preventive Detention Act, the Supreme Court has held that the decision regarding the period of detention must be with the detaining authority, and that it was not a matter for the court. It was also pointed out that the several provisions in the Preventive Detention Act do not constitute limitation on the executive's direction as regards the detention of the detenu, or the continuation of the detention but it was merely a safeguard against the misuse of power.

(44) In this connection, the significance of the provision Article 226 of the Constitution may be noted. It specifically provides that even a peace time legislation on preventive detention can empower the authority making the order of detention to refuse to disclose the facts which such authority to refuse to disclose the facts which such authority considers against public interests to disclose. The position is a fortiori in the case of an emergency legislation conceived in the interests of the maintenance of public order and the defence of the realm.

(45) It only remains to deal with the decisions in which the scope of Ss. 15 and 16 of the Defence of India Act of 1939 and Rule 26 of the rules framed there under, corresponding to Ss. 44 and 45 of the Defence of India Act, 1962, and Rule 30 (1) (b) of the Rules frame there under, came up for consideration.

(46) In ILR (1944) Mad 826: (AIR 1944 Mad 285), the house of he appellant was requisitioned for the residence of the Collector, Madras, and the appellant's complaint was that here were other houses available and no attempt was made t prove that the requisition of the appellant's house was necessary for the residence of the Collector, that in the matter of requisition of the house, there has been a violation of the provisions of S. 15 of the Defence of India Act, 1939, and that, therefore, the order of requisition should be quashed. The Bench consisting of Leach C. J. and Lakshmana Rao, J. held that S. 15 was directory and must be read in conjunction with S. 16 and that in view of S. 16 the validity or the correctness of the order of requisition passed by the Government cannot be questioned. Even though there is no detailed discussion this Bench decisions direct authority for the position that S. 15 is not mandatory but only directory, and that it should be read conjointly with S. 16. If the provision contained in S. 15 is mandatory the order of requisition would have been quashed as being illegal and void.

(47) In ILR (1943) Lah 617: AIR 1943 Lah 41), the scope of Ss. 15 and 16 came up for consideration before the Full Bench in connection with the requisition or acquisition of an undertaking of the Lahore Electric Supply Co., under R. 75(a) read with R. 81 of the rules framed under the Defence of India Act, 1939. The learned Judges held that an undertaking like the Electric Supply Co., which is a going concern cannot form the subject matter of acquisition order. They were also inclined to take the view that the order of requisition was not bona fide one but was prompted by collateral and ulterior motives. An injunction was accordingly issued against the Government from implementing the order of requisition. From the judgment of Young, C. J. it appears that the learned counsel for the undertaking had raised the objection that S. 15 of the Defence of India Act was not a mere admonition but was a statutory limitation of the powers conferred upon the Government under he various provisions of the Act. Even though the order or requisition was held to be invalid for other reasons Young, C. J. did not accept the contention of the learned counsel for the Electric Supply Co., that S. 15 was a statutory limitation of the powers conferred by the Act, The learned Judge observed at p. 642 (of ILR Lah) : (at p. 46 of AIR) as follows:

"While I cannot hold that S. 15 of the Defence of India Act is a statutory limitation of the powers conferred by the Act I do not think that it can be used as a guide in considering whether the powers invoked by Government were exercised bona fide or not. It appears to me that the action of Government, tested by the principles laid down in S. 15 goes far beyond anything which could be considered consonant with the 'purpose of ensuring the public safety and interest and the defence of British India'."

With all respect to the learned Judge, it is difficult to reconcile the earlier portion of the extract with what follows latter. If according to the learned Judge, S. 15 was not a statutory limitation of the powers conferred by the Act, no further question would arise as it is to for the Court to test whether the requisition has exceeded the limit of the purpose of ensuring the public safety and interests and the defence of British India. This satisfaction is the satisfaction of the Government and not of the Court. If the Provincial Government is of the opinion that it is expedient to requisition the electricity undertaking, for the maintenance of supplies essential to the community, with great respect to the earned Judge, it is not competent to the Court to hold that the requisition is to for the purpose of ensuring he public safety and interests and the defence of British India. While adverting to the avowed purpose of requisition is not for the purpose of requisition by the Government the learned Judge has omitted reference to the important portion of the rule, rule 75(a), "Or for maintaining supplies and services essential to the life of the community................" In fact it is this purpose which in that case was the foundation for the order of requisition made by the Government, the preamble of which as extracted in the judgment reads as follows:

"Whereas in the opinion of the Provincial Government it is expedient so to do for the maintenance of supplies essential to the life of the community":

In view of this I find it difficult to understand or appreciate this decisions enunciating any principle and so it is not of much assistance. It has also got to be noticed that in case the learned Judges held that the order of requisition not passed for bona fide reasons of apprehensions of possible sabotage of the works of the Electric Supply Company but for certain collateral purposes.

(48) The are two judgments of Bhagwati. J. of the Bombay High Court in which the learned Judge has taken the view that S. 15 of the Defence of India Act, 1939 is mandatory in character and that a complaint by a citizen that while taking action under the Defence of India Act and the rules the executive has transgressed the directive contained in S. 15 is justiciable. Both the judgments appear to have been delivered by the learned Judge on the same day, 9-8-1945. The first judgment delivered by the learned Judges reported in AIR 1946 Bom 216 : ILR (1946) from

517. This is followed in his later judgment, AIR 1946 Bom 280 : ILR (1946) Bom 636. The first case arose under R. 75(a) of the rules framed under the Defence of India Act, 1939, in relation to the requisition of a restaurant with fittings and fixtures. In the premises in question the business of a restaurant was carried on and after some correspondence between the Government and the proprietors of the restaurant an urgent order was passed by the Government of India Rules, requisitioning the building or the purpose of the Royal Indian Navy and directing possession there of wholes be delivered to the Commander of the Navy forthwith. This order was passed on 16-2-1945. The learned Judge took the view that S. 2(2) (xxiv) and R. 75(a) providing for requisition of properties ultra vires on the ground that the same was not covered by any of the Entries in the Lists, and that a notification under S. 104 of the Government of India Act, conferring powers on the Central Legislature was necessary for clothing the Government with powers of requisition. On behalf of the applicant, (the proprietor of the restaurant), it was also contended that the Government in the matter of this requisition completely ignored the provisions of S.15, that no attempt whatsoever was made to interfere with the enjoyment of property as little as maybe consonant with the purpose of ensuring the public safety and interest and the defence of British India as enjoined in S. 15, and that the conduct of the Government, considered in the light of the prior correspondence between the parties, clearly, showed that here was no justification whatsoever to take possession of the restaurant with all its fixtures and fittings and also for directing the occupier to hand over possession of the premises forthwith, and that the order was passed in utter and flagrant disregard of the provisions of S. 15, and therefore, was void, illegal and inoperative in law. The learned Judge accepted this contention, holding that S. 15 was clearly mandatory. In the second case, AIR 1946 Bom 280 : ILR (1946) Bom 636, a flat in premises known as Ganga Bihar at Marine Drive in Bombay was requisitioned and the owner of the plot was directed to hand over possession of the same to the Superintending Engineer, Western Circle, Central P. W. D., for the purpose of providing accommodation to the officers of the Central P. W. D. It was for the efficient prosecution of the war as alleged in the order of requisition itself, which undoubtedly was a public purpose. The complaint of the owner was that the order of requisition was in violation S. 15 of the Defence of India Act, that the were many and numerous large bungalows in the occupation of various persons in Bombay who might not and do not require those bungalows which the Government could have easily requisitioned for ht purpose, instead of disturbing the petitioner, that the Government themselves have put up a number of sheds and quarters on very large piece of land wherein the officers of the Central PWD could be accommodated and that here was no justification for the order of requisition in question. In the owner also raised other legal objections.

(49) On the facts of the case, the learned Judge found that the petitioners had failed to substantiate their contention that the order of requisition was passed in flagrant violation of the provisions of S. 15 of the Defence of India Act. The other legal and more substantial contention related to the question as to whether the order of quasi-judicial act. The learned judge was of the view that the Government while gathering materials with a view to determine whether or not the requisition was necessary was acting in a judicial manner and exercising judicial functions in the sense that the Government was deciding on the materials before it as though there was a 'proposal and an opposition', these being the main attributes of a judicial enquiry.

(50) It is in this background of the learned Judge's view, that, while taking action under the Defence of India Act, the Government was exercising judicial functions, a that we have to examine the reasoning of the learned Judge that the directive contained in S. 15 of the Defence of India Act is mandatory and not directory. The discussion of the learned Judge on this portion of the case is contained at pages 251 to 253 in the first case, AIR 1946 Bom 216, and at pages 284, 285, 292, 296 and 297 in the latter case, AIR 1946 Bom 280. The attention of the learned Judge was drawn to the Full Bench decision of the Lahore High Court in ILR (1943) Lah 617 : (AIR 1944 Mad 285). But the learned Judge took the view that S. 15 was mandatory. On a careful consideration of the several new aspects of the view represented by the learned Advocate General, we are, with great respect to Bhagwati J., unable to concur with his view.

(51) In our view, the learned Judge has not properly appreciated the precise scope of S. 16 and its real impact upon the provision in S. 15. We are again, with great respect to the learned Judge, unable to share his view that the Government while exercising its powers under the various rules under the Defence of India Act, particularly in the matter of detention or in the matter of acquisition requisition of property for a public purpose and for the efficient prosecution of the war or public safety and defence of India was exercising judicial or quasi judicial functions. In the second case AIR 1946 Bom 280 : ILR (1946) Bom 636 the learned Judge observes as follows at pp. 296-297 :

"This was the power evidently given to the respondent for the purpose of gathering all requisite materials in order to enable him to determine from the point of view of the Government whether a requisition order should be made by him in respect of a particular property. This was also the power given to him tog gather all requisite materials which would enable him to determine from the point of view of the subject, viz., the owner of the property, whether with in the terms of S. 15 of the Defence of India Act, the proposed action of his in requisitioning the property would 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 wand the interest and the defence of British India. In the matter of the gathering of these materials, he was empowered not only to question any person or persons concerned with the property but also to enter upon the premises and inspect the same, and satisfy himself as to the pros and cons of the proposed order of requisition................The determination of this question involved a proposal to requisition of the property from the point of view of the subject whose property was sought to be requisitioned. the respondent had before him the materials which he had gathered by reason of he inquiries n the premises which he made, though such materials might have been gathered by him in any way he thought best; the duty was laid down upon him under the terms of Rule 75A Defence of India Rules, and S. 15 Defence of India Act to act in the exercise of a right or duty to decide; and, in the matter of the issue of the requisition order on those materials and under those circumstances he was certainly exercising a judicial function in the sense that he was deciding on the material before him as between a proposal and an opposition, with the result that the act which he was doing in the matter of the issue of requisition order in question was a judicial act within the meaning of the extended sense of the term."

A reference to the passages extracted from Liversidge's case, 1942 AC 206 earlier and the other English cases will make it clear that when the Government takes action and issues orders under the several rules of the Defence of India Act, it is performing only an executive act. it is unnecessary to refer to those passages over again in this context. Reference may however be made to the judgment of the Supreme Court in Province of Bombay v. Khushaldas, in which under the Bombay Land Requisition Ordinance, a building known as "Paradise" at Warden Road was requisitioned for being allotted to a refugee in the course of the Government's scheme of providing accommodation for refugees. The question arose whether this order of requisition of the Government was a judicial or quasi judicial act or merely an executive act. The majority consisting of Kania C. J., Fazl Ali, Patanjali Sastri and Das JJ. held that the order of requisition was only an executive act, and that here was no judicial or quasi judicial element in the same. That case no doubt dealt with two aspects of the matter : (a) whether the decision of the Government that a particular purpose is a public purpose is justifiable and (b) whether the action of the Government requisitioning property for an incontrovertible public purpose was a judicial act or an executive act. We are not concerned with the first aspect of the matter which forms the subject of discussion and decision in that case as well as in the subsequent decisions of the Supreme Court. We are only concerned with the second aspect as that alone is germane for our discussion. Touching that portion of the case after reviewing the relevant English decisions, Kania C. J. observed at p. 225 as follows :

"When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective act and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari".

After an examination of the entire case law, particularly the cases in England arising under the Defence Regulations, Fazl Ali J. at p. 281 summed up the position as follows :

"In that case and other similar cases, it was held that the Parliament had completely entrusted to the executive the discretion of deciding where it would be necessary or expedient to requisition land in the interests of public safety, the defence of the realm, etc., and therefore with that discretion if bona fide exercised no court could interfere. It is clear that the relevant provisions under which those case have been decided refer to matters such as interest of public safety, defence of the realm, efficient prosecution of the war etc., of which the executive authorities alone could be the best judges". Das J. expressed his views in the matter at p. 256 as follows :

"On a proper construction of S. 3 of the Bombay Ordinance V (5) of 1947, there can be no doubt that that section left it to the Provincial Government to form its own opinion on the entire mater, namely, whether it was necessary or expedient to requisition may land for a public purpose and to act upon that opinion. So construed, the formation of opinion on the whole matter and the act founded thereon was nothing but a purely administrative (i.e., executive) act. If the acts were done in good faith and with in the four corners of the Ordinance, the court cannot interfere with it in any proceeding and far less by the prerogative writs of certiorari or prohibition. If there be any hardship the appeal of the subject must be to the Legislature and not to the court."

(52) In our opinion, it is inconceivable that a justifiable right can inhere in a party to question the validity of the act of an opponent when the opponent's act is unchallengeable in a court of law. Such a right is wholly unworkable and illusory as there is no effective means by which it can be questioned in a court and a proper decision rendered. As Scott L. J., observed in 1942-1 K.B. 87 at p. 99 "even if the issue could properly be brought before a court, it will be futile to ask the court to decide it unless the material evidence could also be brought before it and of hat the impossibility seems to me self evident."

(53) With great respect to Bhagwati J. we are unable to agree with him as he has not applied the proper rule of interpretation of statutes in determining whether a particular provision in a statute is mandatory or directory. At p. 369, Maxwell on Interpretation of Statutes, 11th Edn. the law is stated as follows :

"On the other hand, where the prescriptions of a statue 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, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions from the guidance and Government of those on whom the duty is imposed, or, in other words, as director only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time".

(54) While sating the law that the statute should be regarded as directory if there is no invalidating consequence attached to the provisions the learned author observes at page 364 as follows :

"It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the questions in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage tot hose guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded."

(55) In Howard v. Bodington, 1877-2 PD 203 at p. 211 Lord Penzance has observed as follows:

"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provisional to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory".

The leading decision in England is that reported in Montreal Street Railway Co. v. Normandin, 1917 AC 170 at p. 174 : (AIR 1917 PC 142 at p. 144) the law is stated as follows :

"It is necessary to consider the principles which have been adopted in construing statues of this character, and the authorities so far as there are any of the particular question arising here. The question whether provisions in a statue are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and hat in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn. 596, and following pages. 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 he same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of the acts done".

It is unnecessary to refer to the case law in detail. It is sufficient if reference is made to the recent judgments of the Supreme Court cited by the learned Advocate General.

(56) In , the question arose whether the procedure

prescribed by para 456 of the U.P. Police Regulation, read with the Police Act was directory or mandatory and on the facts of that case the majority took the view that that provision was mandatory. Dealing with the rule of interpretation Subba Rao J. delivering the judgment on behalf of the majority stated the law thus at page 765:

"The relevant rules of interpretation may be briefly stated thus : When a statue uses the word 'shall' prima facie, it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statue, and the consequences which would follow from construing it the one ways or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided the circumstance namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions, is or is not visited by some penalty the serious or trivial consequences that flow therefrom and, above all, whether the object of the legislation will be defeated or furthered".

In that case the learned Judge held that the provision was mandatory on the ground that the setting aside of the order of dismissal of the police officer concerned will not affect the public in general and no great inconvenience would ensue. It is important to notice that the learned Judge stated that in ascertaining the intention, it is necessary to notice whether the statue provides for a contingency of non-compliance with the provision and whether the non-compliance is not visited with some penalty.

(57) Rajagopala Aiyangar J. in , has observed that the question whether a provision is mandatory or directory should be decided after considering amongst other things the purpose for which the requirement has been provided, particularly, in the context of the other provisions of the Act and the general scheme thereof.

(58) In State of U.P. v. Manbodhan Lal, (8) the law has been stated as follows :

"The use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid".

In that case the question arose whether the provisions in Art. 320(3) which provides that the Union Public Service Commission should be consulted in all disciplinary matters affecting a person serving under the Government of India is a directory or mandatory one. It was held that having regard to the scheme and object underlying that provision and the consequence flowing from a violation thereof, the provision was only directory. At p. 917 the question is formulated as allows :

"The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320(3)(c) It does not, either in express terms or by implication provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government".

In my opinion, the perspective of approach indicated in the above decision and the principles laid down therein are clearly applicable to the instant case.

(59) From an examination of the above cases it emerges that the two main consideration for regarding a rule as directory are (1) absence of any provision for the contingency of a particular rule not being complied with or followed ; and (2) serious general inconvenience and prejudice tot he general public would result if the act in question is declared invalid for non-compliance with he particular rule. In the instant case S. 45 contains a specific provision for the consequence of non-compliance of S. 44. Far from deciding that any act done in violation of S. 44 would be deemed to be invalid or void, section 45 provides just the contrary, i.e., that no order made in exercise of any power conferred by or under this Act shall be called in question in any court. Such a provisions, in my opinion, is hardly reconcilable with the view that S. 44 is mandatory. The second consideration is clearly in favour of holding that S. 44 is simply directory. If any act to be declared null and void, it will result in serious prejudice to the public and cause considerable dislocation and seriously interfere with the war efforts taken by the Government in the matter of the defence of India and the public safety besides completely defeating and frustrating the very purpose and object of the enactment.

(60) There is one other important aspect of the matter touching the scope of S. 45 throwing light authority concerned compiles with the directive in S. 44 no protection or saving as in S. 45 at all is necessary in regard to that action. On the other hand, if the authority concerned is guilty of fraudulent execs of the power or its misuse for a collateral purpose opposed to the object and purpose of the enactment that act will be invalid, and it is settled law that to such a situation the saving in S. 45 will not apply and the legality of such acts can certainly be called in question is any court. In other words, in the earlier situation the saving clause in S. 45 prohibiting right of suit is unnecessary while in the latter situation such prohibition is S. 45 becomes unavailing to the executive. Therefore it is perfectly clear that it is only for the intermediate class of cases, i.e., where the authorities concerned have acted contrary to the provisions of S. 44 that the saving or the restriction in S. 45 really comes into play or serves any useful purpose. In my opinion S. 45 has been enacted just to meet the intermediate situation and takes away the right to seek redress in a court of law.

(61) There is one other consideration which points to the same conclusion. An examination of the rules framed under the Defence of India Act conferring powers of various kinds upon the executive shows that no notice is intended to be given to the party affected of the proposed action, substantially adopting the pattern of the Regulations framed in England under the Defence of the Realm Act. In Rex v. Leman Street Police Station Inspector, Venicoff Ex Parte, 1920-3 KB Earl of Reading C. J. Observed at p. 79 as follows:

"But in dealing with a regulation such as that with which we are now concerned the value of the order would be considerably impaired if it could be made only after holding an inquiry, because it might very well be that the person against whom it was intended to make a deportation order would, the moment he had notice of that intention, take care not to present himself and would take steps to evade apprehension. I therefore come to the conclusion that the Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act for the public good, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. The responsibility is his. It was also contended that if upon the true construction of Art, 12 the Home Secretary is not bound to hold an inquiry, the article is ultra vires, because it is against natural justice. I cannot agree, for the reasons I have already expressed. As soon as we come to the conclusion that this is an executive act left to the Home Secretary and is not the act of a judicial tribunal, the argument fails. In the exceptional circumstances of emergency that had arisen and led to the passing of this legislation Parliament considered that the matter should be left to the decision of an executive officer instead of to the ordinary tribunals. This has been discussed in a number of cases, and in particular in Rex v. Halliday, 1917 AC 260 and it is sufficient to say that this emergency the executive to act quickly did not impose upon the executive the obligation to hold an inquiry. Parliament so enacted deliberately".

(62) The same view was taken in Hutton v. Attorney General, 1927-1 Ch 427 at p. 439, Liversidge case, 1942 AC 206 at p. 221 and Smith on Judicial Review of Administrative actions, pp. 119-120. The purpose of conferring upon the executive large powers in time of War to detain security suspects would completely be frustrated if those suspects were entitled to prior notice of its intentions. If therefore action is taken or power is exercised by the executive in a context relaxing the audi alteram partem rule, it is difficult to hold that the directive in S. 44 should be deemed to be mandatory.

(63) In the Full Bench case in ILR (1949) Mad 377 : (AIR 1949 Mad 307) the corresponding provision in the Madras Maintenance of Public Order Act I of 1947 was in these terms :

"Section 16 (1) No order made, in exercise of any power conferred by or under this Act or deemed to have been made under this Act by virtue of S. 19 shall be called in questioning any court.

(3) Where any such order as is referred to in sub-sec (1) purports to have been made and is signed by any authority in exercise of any power conferred by or under this Act, a Court shall, within the meaning of the Indian Evidence Act, 1872, presume that such order was so made by such authority."

(64) The Full Bench held that if an officer or Government authority passes an order of detention being satisfied on the materials placed before him or if that such an order is necessary with reference to a detenu, a writ of habeas corpus cold not be issued under S. 491 Crl. P. C. by reasons of S. 16 of the said Act. The exceptions that are recognised are cases like fraudulent exercise of the power, mistaken identity etc. and not the sufficiency of the materials considered by the Government or the reasonableness of the restrictions imposed.

(65) The only point that remains for consideration is whether the powers conferred on the High Court and its jurisdiction to issue appropriate writs and directions under Art. 226 of the Constitution are in any way fettered and controlled by S. 45 of the Defence of India Act. Dealing with S. 16 of the Act of 1939 (corresponding to S. 45 of the present Act) the Privy Council in Emperor v. Sibnath Banerji, (1945) 2 Mad LJ 325 : (AIR 1945 PC 156) has held that he jurisdiction of the High Court to investigate into the validity of the order of detention made under Rule 26 of the Defence of India Rules was not taken away by S. 16 (1) on the ground that S. 16(1) assumes that the order was made in the exercise of the power, and that it clearly leaves it I open to challenge on the ground that it was not made unconformity with the power conferred. There is of course always the saving whatever there is a colourable or fraudulent exercise of the power or where it is prompted and animated by some collateral or ulterior object. All the courts in India have uniformly taken the view that a fraudulent exercise of the power will be open to attack notwithstanding the saving provision in S. 16 91). A different note was struck in 1956 AC 736 and the view appears to have been taken that even a fraudulent exercise of the power might be saved by a similar provision. That decision arose under the Acquisition of Land (Authorisation of Procedure) Act, 1946, which contained a provision to the effect that a compulsory purchase order under the statute "shall not be questioned in any legal proceedings whatsoever". The view of the majority was that the saving provision would apply even in respect of an order made in bad faith and for collateral purposes. It is unnecessary to consider the reasonings in that decision as it is opposed to the judgments of the various courts in India as well as the Privy Council arising under similar provisions. Further in the latest judgment of the Supreme Court in Smt. Somawanti v. State of Punjab, the Supreme Court after referring to 1956 AC 736 held that if there was a fraud or mala fide exercise of the power that saving clause will not apply and that they were not prepared to go so far as the Home of Lords in 1956 AC 736.

(66) Leaving out of account the exceptional cases of fraud and mala fides we have to consider the effect of S. 45 of the jurisdiction and powers of the High Court under Art. 226 of the Constitution. In other words, the question maybe formulated in this manner : If there is a justifiable right on the ground that S. 44 is mandatory can the right of the citizen to seek redress in the High Court under Art. 226 be taken away by S. 45 ILR (1949) Mad 377 : (AIR 1949 Mad 307) was a case where a special ordinance was enacted taking away the power of the High Court under S. 491 Cr. P. C. to release a person wrongfully detained i.e., in substance taking away the power of the High Court to issue a writ of habeas corpus. The Full Bench held that having regard to the ambit of the legislative power of the State Legislature the High Court's power to order the release of the detenu under S. 491 has been taken away. But that decision cannot apply after the advent of he Constitution. Article 226 confers upon all the High Courts, very wide powers subject only to the limitation of territorial jurisdiction and its powers cannot be taken away or curtailed by any legislation short of an amendment of the Constitution. Any law which seeks to take away and restrict the jurisdiction of the High Court will be clearly entitled to exercise is powers under Art. 226 free form the fetters imposed directly or indirectly.

(67) IN , the question arose whether S. 351 of the

Madras District Municipalities Act which prohibits all courts from granting a permanent or temporary injunction with regard to the preparation and publication of electoral rolls or arrangement or the conduct of any election took away the power of the High Court under Art. 226 to issue a writ of certiorari. Subba Rao J. holding that he power of the High Court to issue the writ will not be affected in any manner by S. 351 of the District Municipalities Act observed as follows.

"This section obviously cannot affect the power of the High Court to issue suitable writs under Art. 226 of the Constitution of India. Under Art. 245 of the Constitution, the power of the Parliament or the Legislature of a State to make laws is subject to the provisions of the Constitution. So long Art. 226 stands in the Constitution neither the Parliament nor the Legislature of a State can make laws depriving or limiting the power of the High Court to issue writs. I therefore hold that the provisions of S. 351 B madras District Municipalities Act cannot in any way affect the power of the High Court to issue writs in suitable cases".

In the question arose under the Madras Hereditary

Village Offices Act. There again Subba Rao J. held that Art. 245 dealing with the power of the Parliament to enact laws is made expressly subject to the provisions of the Constitution and therefore necessarily subject to the provisions of Arts. 226 and 227 with the result that the Parliament cannot make any law in derogation of the provisions of Art. 226. On this aspect the learned Judge has followed the view exposed by Venkatarama Aiyar, J., in a Bench decision sitting with him dealing with a case under the Representation of the People Act.

(68) In Ponnuswami v. Returning Officer, Namakkal, WP No. 746 of 1959 (Mad) the question arose as to how far S. 179 of the Representation of the People Act, which provides that no court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed by this Act in connection with an election took away the power of the High Court to issue a writ under Art. 226 Venkatarama Aiyar J. (sitting with Subba Rao J.) in his judgment has held that S. 170 will not in any manner affect the powers of the High Court under Art. 226.

(69) In AIR 1958 SC 956 one of the questions referred to the Supreme Court, Question No. 4, raised the question as to how far Clause 33 of the Kerala Education Bill would offence Art. 226 of the Constitution. Clause 33 of the Bill provided that no court shall grant any temporary injection or interim order restraining any proceeding that may be taken under the provisions of the Bill. The Supreme Court gave the answer that clause 33 cannot in any way affect the powers of the High Court under Art. 226.

(70) In I. C. Navigation and Rly. Co. v. Their workmen, the question arose with reference to the power of the Supreme Court under Art. 13. The case arose under the Industrial Disputes Act and it was held that S. 17(2) which provides that the award shall become final and shall not be called I questioning any court in any manner as laid down in the Constitution, and that that saving clause cannot affect the power of the Supreme Court under Art.

326. In my opinion, the principle of this decision applies equally to the jurisdiction and the powers of the High Court under Art. 226 of the Constitution.

(71) But it does not follow from this that the High Court will issue a writ regardless of the scheme of the particular Act and the nature of the orders passed thereunder. If, as already mentioned, the scheme of the Act is that the decision of the executive should be final and no justifiable right is created. Art. 226 cannot be invoked for converting an executive act into a judicial or quasi-judicial act aspect other matter was adverted to in a decision of the Supreme Court in Lila Vati Bai v. State of Bombay (S) , arising under the Act

provided that if a building had been vacant continuously for a period of six months, the State Government may requisition that for the purpose of State or for any other public purpose, if in its opinion, it is necessary or expedient so to do. The Supreme Court held that the powers of the Supreme Court under Art. 32 or the powers of the High Court under Act. 226 cannot extend to the reopening of a finding by the State Government under S. 5 of the Bombay Land Requisition Act that the owner of a building was continuously absent for a period of six months. The Supreme Court held that he order of the Government of the Government under S. 6 of the Bombay Act is not in the nature of an order in a judicial proceeding between the Government on the one side ad the other parties on the other, and that the order of requisition was purely an executive act, which cannot be interfered with under Art. 32 or Art. 226. In fact the learned Advocate General fairly conceded that if on a proper reading of the relevant sections of the Defence of India Act and the rules framed under, it should be held that a subject has a justifiable right for which redress can be obtained in a court of law, the jurisdiction granting the particular relief cannot be taken away merely because there is a separate provision in the Act that no orders passed under the Act can be questioned in a court of law. But his submission is that the real question is not whether the powers of the High Court under Art. 226 of the Constitution have been taken away or curtailed but whether a subject has got a right to seek redress in a civil court. In other words, if a citizen has no right of redress in a civil court, there being no justifiable right, Art. 226 cannot improve the position.

(72) The two detenus in the two petitions have not attacked the bona fides of the Government. Their only complaint is that during all the relevant period they have been co-operating with the Government in its war efforts and there was no justification for the Government to detain them or impose the several restrictions. We have to necessarily take it that the Government took every aspect into consideration and despite anything that has been claimed to have been done by the detenus the Government were satisfied that such an order of detention was called for in the interests of the defence and public safety. As mentioned already, the limitations on our jurisdiction with regard to the order of the detention equally apply with regard to the several restrictions imposed upon the movement and freedom of the petitioners. For all the reasons mentioned above, these petitions are dismissed.

(73) In conclusion, we desire to express our thanks to the learned Advocate General for the able assistance he has rendered and to Mr. Mohan Kumaramangalam for his bale argument and assistance as amicus curiae.

(74) Petition dismissed.


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