S.C.R.

SUPREME COURT REPORTS

RAJA BRAJA SUNDAR DEB

ti.

MONI BEHARA AND OTHERS

[MEHAR CHAND MAHAJAN, MuKHERJEA and

CHANDRASEKHARA AIYAR JJ.]

Fisheries-Fisherm; n of particular villages allowed to fish for .several years by zemindar-Acqu1stion of right to fish-Presump- Jion of lost grant-Prescription-Adverse possession-Proceedings .under s. 145, Cr. P. C., effect of.

A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, ' there being no ascretainable g(antes.

The doctrine of lost grant originated as a technical device to enable title to be made hy prescription despite the impossibility -of proving immemorial user and since it originated in grant, .its -owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant.

Where all that appeared from the evidence was that the fishermen who were residents of certain villages had been . for a long time exercising the right of fishing in certain rivers which flowed through a zemindari with the consent of some of the zemindars : Held, that the fishermen residing in these villages cannot be treated as a corporate body or a kind of unit in whose favour a lost grant could be presumed or who could acquire a :right to fish either by adverse possession or by prescription.

Where, however, there were proceedings under section 145 of the Criminal Procedure Code between the zemindars and certain :fishermen and the Magistrate found that the fishermen were in possession of the disputed fishery and he directed the issue of an order declaring their possession until victed therefrom in due course of law and forbidding all disturbance of such possession until such eviction, and no steps were taken by the zcmindars to set aside the order of the Magistrate within three years as required by article 47 of the Limitation Act : Held, that so far as the fishermen who were parties to the proceedings under section} 45, the order of the Magistrate had become final and they were entitled to remain in possession of the fishery.

An exclusive right of fishing in a given place means that no other person has a co-extensive right with the claimant of the

righ~ The mere fact that some other person has a right to a

parncular class of fish in the fishery or that another person is

March 21;

&jaBr41a Sumlar Deb

Moni Beluzra

and Others.

Mahajan].

entitled to fish at a certain, time of the year docs not destroy the right of exclusive fishing in any manner

C1VIL

APPELLATE JuRISDICTION : Civil Appeal No. 42 of 1948.

Appeal against the judgment and decree dated the 21st April, 1943, of the High Court of Judicature at Patna (Faz! Ali C. J. and S. C. Chatterji J.) in First Appeal No. 17 of 1939 arising out of decree dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit No. 62 of 1936.

Manohar Lal (G. P. Das, with him) for the appellant.

B. N. Das (Sir Kant Mahanti, with him) for the respondents.

1951, March 27. The Judgment of the Court was delivered by

MAHAJAN J.-The dispute in this appeal is between the fishermen residing in nine villages of Killa Marichpur, a permanently settled zamindari in the Puri Collectorate (Orissa State) and the Raja of Aul, the owner of seven annas, seven pies, and ten karants share in the zamindari.

The other shares in the zamindari are defendants 19 to 29.

Within the ambit of the estate flows "Devi Nadi," with its several branches and tributaries. Three fisheries "Madhurdia,"· "Marichpurdia" and "Maladia" appertain to this estate.

The controversy in this appeal concerns die fishery known as the "Madhurdia" fishery.

In the year 1936, three suits, Nos. 62, 63 and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of themselves and other fishermen residing in the nine villages of Killa Marichpur for a declaration in respect of his rights in the three above mentioned fisheries. All these suits were decided in his favour by the trial court.

The defendants, preferred no appe:il in suits 63 and 64, with the result that the controversy regarding the two fisheries involved in these two suits stands concluded by the decision of the trial court. In suit No. 62 of 1936, however, the

defendants preferred an appeal to the High Court and it was partially allowed. The decree of the trial Judge in favour of the' plaintiff was modified and it was held that the defendants had exclusive rights as tenants at will to . fish in this fishery during the Hilsa season (Margasir to Baisakh) and that the plaintiff was not entitled to a declaration or an injunction in respect of that period. The plaintiff thereupon obt; Uned leave to appeal to His Majesty in Council and that appeal is now before us for decision.

It was alleged in the pl:iint that the proprietors of Marichpur zamindari are the exclusive owners . of the fishery in question and have all along been exerc1smg their right of catching fish in the same sometimes by employing fishermen and 5ometimes by letting out the fishery to them, that the plaintiff has ever since his acquisition of the .zamindari interest been the owner in khas possession of the fishery right according to his share in the zamindari, that the defendants-fishermen were never in possession of the d fishery, nor have they anv right to it, that in the yea.r 1918 they started proceedings under section 145, Criminal Procedure Code, to create evidence of their possession but in spite of those proceedings the plaintiff continued to be in possession of the fishery and has been catching fish by employing fishermen, that by taking advantage of the fact that there are several co-sharers in the zamindari and there is mismanagement of the estate, the defendants wrongfully and unlawfully trespassed on the fishery from time to time between May, 1933, and November, 1933, and disturbed the plaintiff in the enjoyment of his right and have caused loss to him and his co-sharers by catching large quantity of fish without any leave or licence. On these allegations, the plaintiff claimed a declaration to the effect that defendants 1 to 18 in their personal and representative capacity have no right or title in the fishery known as "Madhurdia" fishery or to the fishery in the southern portion of the area recorded as the iver block; Risilo and Husgarh. :Prayer was also made fr the grant of a perpetual injunction restraining the defendants from

Raja Broja Sundar Deb

Mani Belwra

and Others.

Mahajan].

Raja Brqja Sundar Deb

Mani Behara and Othns.

Mahqjan].

fishing in the above fishery and in the above mentioned blocks and for the award of a sum of money by way of damages and on account of price of Ii.sh.

The defendants contested the allegations made in the plaint and asserted thai: the fishermen of Killa Marichpur including the principal defendants and their ancestors, about 846 persons in all, have all along remained in undisturbed actual physical possession of the fishery known as "Charkhatia" alias "Madhurdia" fishery on a fixed annual rental of Rs. 135-7-0, and have a right to remain in possession in perpetuity on payment of that rent ; that they have acquired this right in all possible ways, i.e., by grant, custom, adverse possession and easement.

On these plcadi!lgs of the parties the trial Judge framed as many as nine issues, the material ones being issues 6 an.d 7, which are in these terms :-

"6. Has the plaintiff any title to the disputed fishery ?

7. Have the defendants Nos. 1 to 18 acquired any right, by adverse possession, prescription or custom"?

The trial Judge on these issues hdd that the defendants neither in their personal nor in their representative capacity had any right or title in the fishery in question and issued a permanent injunction against them from fishing in it. The claim for damages was disallowed. It was obserVed by the learned Judgi:: that the defendants did not claim the right to catch all the Ii.sh found in the fishery but that they had confined their claim in respect to Hilsa Ii.sh only during the Hilsa season between the months of Margasir and Baisakh (November to April) and that as regards the other varieties of Ii.sh found in these waters during the rest of the year they did not assert any right to catch Ii.sh.

He also observed that the defendants did not deny that the plainrilf was the owner of the zamindari and as such owner of the soil and of the waters of the fishery, hut that they claimed a subordinate right, i.e., the right of fishing in e

waters belonging to the plaintiff and his co-sharers during the Hilsa season to the exclusion of the plaintiff and his co-sharers.

In view of these contentions the onus was laid on the defendants to prove their permanent right of fishing in these waters by grant, custom, prescription or adverse possession and it was held that the defendants failed to discharge the onus that rested on them.

Acquisition of the right by grant, prescription and adverse possession was held not provable in law in favour of an indeterminate and fluctuating body of persons.

The claim for permanent tenancy in the fishery was negatived on the ground that there was no evidence to show that the tenancy came by descent to these 846 persons from the persons who actually took it in the year 1842, or that it was obtained from all the sixteen anna landlords, or that there was any fixity of rent. It was funher said that there was no cenainty as to who were the owners of the right, as to the local area over which the right was to be exercised, as to the measure of the right and of the periods during which the right could be exercised and that in these circumstances the defendants' claim could not be upheld. The defendants' contention that under article 47 of the Indian Limitation Act the plaintiff had lost his right was held unsustainable and the plea of custom was ruled out on the ground that the custom alleged would be of an unreasonable kind.

All the questions raised in the trial court exceotin~ the question of custom were canvassed by the defendants before the High Court.

The High Court in a judgment, by no means clear or satisfact.ory, reached the conclusion that the defendants since the time of their predecessors had all along been fishinrr in the disputed fishery as of right under a lost rant and that the plaintiff'-s story that he had been in enjovment of the fishery was not true and that the defendants' right to fish in the disputed fisherv was established. One would have thought that in view of this finding the plaintiff's suit would have been dismissed

RajaBrda Sundor Deb

Mani Bthara

and Others.

Mahajan]

RojaBrq.ia Sund"' D, b v.

Mani Be!wro

and Others

Mahajan].

but this did not happen. The High Court proceeded to find that though from the evidence it appeared that the right was being exercised by the defendants or their predecessors from a very long time, that is to say, from the year 1842, yet there . was no evidence to iutisfy the inference that they had got a permanent right. The defendants' plea, therefore, that they were permanent tenants of the fishery in dispute was not upheld.

As regards the defendants' contention that the plaintiff was bound by the order passed in proceedings under section 145, Criminal Procedure Code, it was found that he not having challenged that order within the prescribed period, his right to khas possession of the disputed fishery except to the extent of five pice share was extinguished under section 28 of the Limitation Act but that his proprietary right subsisted as it was never denied. It was funher held that the plaintiff's right to khas possession of this fishery was also extinguished by operation of anicle 144 of the Indian Limitation Act.

Plaintiff's evidence that he had been catching fish during the Hilsa season by employing other fishermen was disbelieved and it was held that the defendants had been exercising exclusive right to fish in the disputed fishery during the Hilsa season adversely to the plaintiff and the other co-sharers for more than twelve years.

In spite of these findings the High Coun reached the somewhat strange conclusion that the defendants acquired by adverse possession a mere tenancy at will and that it could be determined by the entire body of landlords and the plaintiff being only a co-sharer could not bring the present suit in his own behalf and it had not the effect of determining the tenancy and hence the plaintiff could not be granted the declaration and the injunction restraining the defendants from fishing during the Hilsa season.

As regards the point raised by the plaintiff that by reason of the change in the course of the river the fishery . in. dispute was not the same regarding which an order was made under section 145 proceedings or in which the defendants have been exercising their right, it was held that this contention was without force because

the river was identical and the channels, whether old or new, which comprise the Madhurdia or Charikhati fishery, have always formed one. connected sheet of water and that fishing in different parts of such a connected sheet of water comprised in the same fishery can hardly be said to be a separate act of aggression so as to disturb the continuity or extent of adverse possession and that the fishermen though a fluctuating body, have unity of interest and possession and could not be described as several independent trespassers.

As a result of these findings the decree of the trial Judge was modified and the plaintiff was given a permanent injunction restraining the principal defendants from fishing in the disputed fishery except during the Hilsa season (Margasir to Baisakh) during which the defendants were declared to have exclusive right of fishing.

Ast the decision of the . Hig1i Court no appeal was preferred by the defendants though tliey had only been found to be in possession _l)f the fishery in the status of mere tenants at will. The plaintiff challenged this decision and contested the finding that the defendants wee lawfully in possession of the fishery and could exercise their right of fishing during the Hilsa season exclusively.

The real grievance of the plaintiff seems to be that by the decision under appeal the High Court has declared a fluctuating body of persons tenants at will, and that such a tenancy cannot be determined as its constitution is liable to vary with each birth and death and with influx or efflux of fishermen to and from these villages. It was argued that the High Court has erroneously found that the defendants were in possession of the fishery and were in enjoyment of the fishing right under a lost grant and that the plaintiff's right to khas possession of the fishery had been extinguished by operation of articles 47 and 144 of the Limitation Act read with section 28 of the Act. It was contended that from the evidence placed on the record the only correct conclusion to draw was that from time to time some fishermen were allowed to fish in these waters by a number of landlords

RajaBraia Surular D•b

Moni Behara . and Othn's.

MahaianJ.

Ra_; a Broja Sundar Deb

Moni Behara

and Others.

Mo.haj,,, n].

on payment of rent but that the prdent defendants were not the descendants of those fishermen who were occasionally granted leave to fish and that those isolated acts of letting the fishery were not connected with one another and from these it could not be inferred that the defendants or their predecessors were in continuous possession of the fishery on payment of a fixed rent and that the present defendants were mere trespassers and had no right to fish in the disputed fishery.

It was further contended that no title of any kind could be presumed to exist in the defendants to the fishery in suit and on the basis of a lost grant as in this case there was no capable grantee and that even title by adverse possession or prescription could not be acquired by them as they form an indeterminate and Auctuating body of persons. As regards the finding of the High Court that the plaintiff's suit was barred by article 47 of the Limitation Act and his title to khas • possession was extinguished by operation of the provisions of section 28 of the Indian Limitation Act, it was contended that the proceedings that took place in the year 1918 were wrongly labelled under section 145, Criminal Procedure Code, and that in substance the order made in tho5e proceedings fell within the ambit of section 147 of the Code and therefore article 47 had no application to the case and the plaintiff was not bound to bring his suit within three years of that order to enforce his right. It was further contended that the order could only benefit the parties impleaded in those proceedings and the other defendants could not derive any assistance from it, that in any case the order could not bind the plaintiff to the extent of the share purchased by him from co-sharers not made parties in those proceedings and that the river having changed its course in the year 1925, the fishery as it stood in 1918 was no longer in existence and in the substituted fishery the plaintiff's right could not be held to have been extinguished by the effect of the order made in section 145, Criminal Procedure Code proceedings.

The learned counsel for the respondents contended that the defendants had in the status of

tenants an exclusive right to fish in the fishery and were entitled to remain in enjoyment of it on payment of a fixed rent of Rs. 135-7-0 in perpetuity, that the plaintiff's right of fishing in the fishery during Hilsa season had become extinguished by operation of article 47 and article 144 of the Indian Limitation Act.

It was denied that by a change in the course of the river, if any, the defendants' right had in any way been affected. In order to appreciate the respective contentions of the parties it is necessary to state a few facts which emerge from the documentary evidence produced in the case.

The State of Orissa came under ihe British rule in the year 1803. A revenue settlement of the State was made in 1904-05.

From the village note prepared during the settlement, it appears that Killa Marichpur was originally owned by one Padmalav Mangaraj and that during the time of his great grandson Balabhadra Mangaraj the estate was sold in auction for satisfaction of debts incurred by him and was purchased by (1) Mohan Bhagat, (2) Chakradhar Mahapatra, and (3) the ancestors of one Haziran Nisa Bibi in equal shares.

From the jamabandi of the year 1842 (Exhibit C) it appears that the jalkor income of Killa Marichpur zamindari at that time was Rs. B5-7-0, and this was being realised from Hari Behera and Brundu Anukul Singh, two fishermen. It is not clear from this document in what status they were paying this amount and what was the nature of their tenancy.

Exhibit A is a kabuliyat of the year 1845 by Brundu Anukul Singh and Hari Behera in favour of Babu Mohan Bhagat and Bibi Mobarak Nisa, and it shows that these two fishermen took a lease of the fishing right in Devi river on payment of Rs. 135 as rent, from the landlords.

It was stated therein that these fishermen will catch fish from these waters according to former custom and will pay "machidia sarbara" of Rs. 135 in accordance with the instalments.

There is no indication in the kabuliyat that these two persons were executing it in a representative capacity or that the lease taken by them was of a permanent character or

RajaBf!ia Sundar Dlb

Marti.Btluwa

and Othm

Mahqjaa J,

Raja BroJa .Sundar Deb

v. ..Mani Behara

and Others.

Mahajan].

that the rent payable was not liable to enhanceent in the future. It was contended on behalf of the defendants that these two persons executed the kabuliyat in a representative capacity and on behalf of all the fishermen who originally resided in four villages of Killa Marichpur and who subsequently came to reside in the nine villages mentioned in the plaint.

The only evidence placed on the record in support of the suggestion and relied upon by the High Court is the statement of D. \V. 11 who was born some time in the year 1873, about 28 years after the execution of the kabuliyat, and who has no special means of knowledge to depose as to the relationship of persons mentioned in the kabuliyat with the defendants in the present case or to know the capacity of persons who executed the kabuliyat.

It is not possible, therefore, to hold that the kabuliyat was executed in a representative capacity by these two -persons and on behalf of all the persons interested in the presenc controversy.

There is no evidence on the record to prove the .state of affairs of this fishery between the years 1845 and

1873. Reliance . was placed bv the defendants on a number of rent receipts produced by them in evidence.

The first of these is dated 30th .March, 1873, and was executed by one of the Mahapatra co-sharers on account of the instalment of fishery rent of "Charkbati" paid through Hari Behera and Rama Behera in the sum of Rs. 8-12-0.

All the co-sharers were not parties to this receipt and it is not stated what was the total rent payable for the whole fishery. On the 11th May, 1875, another receipt was executed by Bibi Masudannisa and others, co-share.rs of five anna four pies in the zamindari in favour of Hari Behera and Ananta Hehera and others for a sum of Rs. 18.

It seems that different co-sharers were giving permission to different persons to fish in the fishery on payment of certain sums of money. There is no evidence whatsoever connecting the receipt of 1873 given by two co-sharers to two persons with the receipt given by another set of co-sharers to these two persons and it is not possible to

say that these payments were made towards a fixed

rent of Rs. 135-7-0 payable for the whole fishery.

The state of affairs of this fishery between 1876 to 1893 remains shrouded in mystery as no evidence for that period has been filed on the record. On the 1st May, 1894, Mohan Bhagat's descendant gave a receipt to Pandab Behera and Phagu Behera for Rs. 10, which was to be set off against fishery rent.

It is difficult to connect this receipt with the other receipts or to treat it as evidence in .support of the defendants' case of a permanent tenancy.

Similar receipts by different co-sharers in favour of different persons were executed on the 1st May, 1895, 5th May, 1896, 9th May, 1897, and 22nd October, 1899 ; but in' none of those receipts is any mention made of any fixed rental of Rs. 135-7-0 for the fishery in respect of the whole year and payable. to all the landlords. A printed rent receipt on behalf of one of the proprietors to Hurshi Behera and Agani Bchera of village Alsahi was given on the 22nd October, 1899.

The receipt relates to payment of tw:elv.e annas as arrears of fishery rent and in the receipt it is stated, that the cash rent payable was Rs. 150. This receipt, if it relates to the rent payable to all the co-sharers, is inconsistent with th~ defendants' case that the fishery had been leased out from time immemorial on a fixed rent of Rs. 135-7-0.

On the 23rd August, 1902, a receipt was given on behalf of nine anna seven pie co-sharers in the zamindari to Maguni Behera and Ram Behera of Kalia Kona and to Sapani Behera of some other village in the sum of Rs. 83-12,11 stating that the amount of total. rent of which Rs. 83-12-11 w:as the fractional share of these landlords was a sum of Rs. 135-7-0.

It was contended on behalf of the defendants that the sum of Rs. 135-7-0 mentioned in this receipt was the identical amount that was. men. tione<l in the jamabandi of 1842 as P,?yable to the zamindars as income of the jalker and from this entry an inference should be drawn that the fishery had been continuously leased for this sum from 1842 to the date of this receipt. The coincidence reli!!d upon undoubtedly exists, but on that basis it is not possible to draw the inference suggested as such an inference . would be

RajaBraja Sundar Deb v.

Mani Beharac

and Othns.

Mahajan J ..

liq/a Jhqja -Swuiar 1"6

Mofti &hara

""'1 Otiw1.

Ma/14ian].

of a conjectural nature. All these receipts are consist cnt with the contention of the plaintiff that from time to time different co-sharers permitted different fishermen to fish in the fishery on payment of a certain rental. A receipt similar to the one above mentioned was also executed on the 5th March, 1906, by certain co-sharers owning eight pies in the zamindari in favour of some fishermen, the annual rent being Rs. 135-7-0.

The "Remarks Column" states that i~ the rent is more than mentioned therein, the further amourtt due would be made good. Same remarks arc applicable to this receipt as to the previous one.

The next rent receipt is dated 19th April, 1907, and is for a sum of Rs. 168-6-0.

No inference either way can be drawn from this receipt. On the 21st June, 1912, a receipt was given in favour of twelve persons in respect of rent for the year 1317. The receipt was given by the nine anna seven pie co-sharer in the zamindari but it is not clear how this amount was made up. On the 4th February, 1914, a receipt was given by an eight pie co-sharer in the zamindari to 174 persons, aescribed as tenants and residing in different villages of the zamindari for a sum of Rs. 5-13-0 as rent for the year 1319.

The entry in the "Remarks" column is similar to the receipt above mentioned. The amount of annual rent is mentioned as Rs. 135-7-0 and it is stated that it is being paid in accordance with a decree of court No. 181.

It is difficult to connect this receipt with the other documents previously discussed.

Another receipt dated 30th March, 1914, was given by nine anna seven pie co-sharers in the fishery to twelve persons for the year

1320. It seems to us that these occasional receipts given to different persons by different sets of co-sharers can lead to no definite conclusion in regard to the rights of the parties. They are consistent with the case argued on behalf of the plaintiff that by leave and licence a number of fishermen used to fish in the waters from time to time and they do not necessarily lead to the inference of the existence of a permanent tenancy of the fishery in favour of the defendants on a fixed rent of Rs. 135-7-0.

" '

By a registered deed dated 24th May, 1914, the plaintiff for the first time acquired an eight pie interest in the zamindari in the name of Smt.

Mahisthali Patamahadei, his wife, from one Balaram Das Bhagat, .a descendant of Mohan Bhagat.

Subsequently he in his own name and sometimes in the name of the Rani purchased some further shares in the zarnindari and eventually became the owner of seven anna seven pie .and ten kranth share in it. The acquisition of interest by the plaintiff (Raja of Aul) in the zamindari coincides with the period of the first world war, the .aftermath, of which was a rise in prices.

Fish which was a cheap commodity and brought no appreciable income to the fishermen or to the owners became a s111urce of considerable income and this circumstance led to disputes between the owners of the fishery and the fishermen.

A number of letters of the years 1914 to 1918 have been proved on behalf of the plaintiff :showing that he was deriving income from this fishery.

Similar letters for subsequent periods have also been proved but no regular accounts of the income so realized were produced in the case. The enhanced income of the fishery created a scramble for its possession between the landlords and the fishermen and there was an apprehension of a breach of pc; tce which resulted in proceedings under section 145, Criminal Procedure Code. A report was made to the police on the 11th February, 1918, that a dispute had arisen which was likely to cause a breach of the peace between the landlords of Killa Marichpur and twelve fishermen in regard to the possession of Charikhati fisheries in Debi

river. The Magistrate on receipt of the police repotl issued notice to the parties for the 19th February, 1918, and decided the case on. the 10th June, 1918.

From his order it appears that notice was given to all concerned and they were irivited to put their respective claims as regards the facts of the actual possession of the fishery in dispute before him. On behalf of certain co-sharers evidence was led to prove that they were in possession of the fishery through one Sundari Behera and other fishermen numbering about 100. The Rani

&ija Bri a Sundar 'Eb

Moni Be/UJra

and Othlrs •

Mahajan],_

114fer Brqja Sund"' Deb v.

MOllilhhara

and Olhtrt.

Ma!iqjanJ.

of Aul who had then eight pie interest in the zamindari as benamidar of her husband led evidence to establish that she was in possession of the fishery through fishermen employed by her agent.

Ram Behera, Hrushi Behera and other fishermen of the second party, twelve in number, led evidence to show that. they were in possession of the fishery on payment of rent and that the owners of the. zamindari had never been in actual possession of the fishery.. The Magistrate found that this contention was true. He disbelieved the story of the witnesses produced by the Rani of Aul, and also rejected the testimony of the witnesses produced by othc1 owners. Some Aul fishermen were produced on behalf of the Rani but their evidence was also not accepted. The same kind of documentary evidence that has been placed on this record on behalf of the plaintiff wn also placed before the Magistrate but it was not acceptea by him. From these proceedings, it further appears that all the sixteen anna owners of Killa Marichpur issued a notice to the. second party, the fishermen, for surrendering possession of the fishery with effect from September, 1917, but after service of notice they took no legal steps to eject them from possession of the fishery ; on the other hand, they took the law into their own hands and made attempts to take forcible possession of the fishery. These attempts, however, were unsuccessful. The result of these proceedings was that the Magistarte found that the fishermen (the second party) were in possession of the disputed fishery and he directd the issue of an order declaring their possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. This order indicates that though all the landlords were not named as parties in the case, yet all of them had notice of the proceedings and all of them were actually interested in turning out the fishermen from possession by forcible means, and notice had been given to them on behalf of all of them.

It also appears from those proceedings that though one dozen people were named as second party in the case there were certain other persons also interested in the

fishery along with them, but it is difficult to ascertain their nwnber, names and addresses from these proceedings. Evidence has been led on behalf of the plaintiff to prove that afrer the determination of these proceeding5 the plaintiff has been deriving income from this fishery by leasing }}is right through the agency of fishermen of Aul. The High Court has not placed any reliance on this evidence and, in our opinion, rightly.

It is not possible to believe that after a successful fight in the criminal court, the fishermen would have allowed the men of the Raja or of the Rani to fish in these waters during the Hilsa season.

Both parties led oral evidence to prove that each party exercised exclusive right of fishing during Hilsa season in the fishery.

We have been taken through the evidence and after examining it, have reached the conclusion that it is of an unsatisfactory character and valuable rights cannot be decided on its footing. No steps were taken by the landlords to question the order of the Magistrate within three years from its date as required by article 47 of the Limitation Act.

The landlords, how~ ever, refused to receive any rent from these persons after the termination of the proceedings and they have been depositing it in court under the provisions of the Orissa Tenancy Act.

The last purchase by the Raja of Aul of some interest in the zamindari was made in the year 1935 and having acquired by this date a substantial interest in it and having discovered that the fishery was a paying proposition, he brought this suit in the year 1936 on the allegations set out above and asserted that since about three years the defendants had started disturb.. ing his possession of the fishery in dispute.

In the circumstances mentioned above this assertion cannot be taken seriously.

In order to get out of the effects of the proceedings urider section 145, Criminal Procedure Code, he alleged that he had been in possession of the fishery in spite of the proceedings taken under that section and that his possession had only been disturbed recently. The evidence on this point was 2-62 S. C. India/58

R4fa Br<!fo; SOllrttlar D11>

M""i lhltllrt1 tl1ld Oth1r1.

Moluija11J.

Riga Br1!i4 Su"'1ar Ih6

rejected by the High Court and we sec no reason to disagree with that finding.

It is now convenient to consider the different points canvassed before us by the learned counsel appearing on behalf of the parties. We find it difficult to uphold the view of the High Court that the defendants were in possession of the disputed fishery under a lost gant.

This doctrine has no application to the case of inhabitants of particular loc; ilities seeking to establish rights of user to some piece of land or water. As pointed out by Lord Radcliffe in Lakshmidhar Misra V. Rangalal ( 1) the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees. Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla V. Kiamatulla(•) wherein the law on this subject has been examined in some detail. In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed. Aft, r an examination of a number of English and Indian cases it was held that no lost grant could be presumed in favour of a Buetuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom.

The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or clBux of fishermen to or from these villages. From the evidence of D. V•!. 11 it appears that formerly the Kouts (fishermen) claiming the right to fish were residents of four villages, then some of them shifted to other villages on account of their

(1) A.l.R. 1950 P.C. 56. (•) A.l.R. 1937 Cal. •45.

houses being washed away, and settled themselves in -other villages. At the time of the suit they were residing in nine villages. He further deposed that during the last ten or twelve years there were 600 bohanias and that their families increased, their present number being 846. It is in evidence that since this evidence was given their number has gone up to 1500. From the documentary evidence it appears that up to the year 1918 their number was not very large. Only .twelve persons were impleaded in the section 145, Criminal Procedure Code, proceedings and it was said that there were som~ more interested. The maximum number given in one or two receipts is 174.

It is again not possible to hold that the fishermen residing in these villages arc a corporate body and that being fishermen by profession it has the effect of incorporating them. We find ourselves unable to sub- :Scribe to the view of the High Court that the defendants constitute some kind of a unit simply because they are a body having a common interest to fish in this fishery; unless the defendants-fishermen form a corporate body, or it is found that a trust was created for their benefit, such a body of persons could acquire no right by the doctrine of lost grant. A right to fish from the fishery based on mere inhabitancy is capable of an increase almost indefinite and if the right exists in a body which might increase in number it would necessarily lead to the destruction of the subject matter of the grantt Moreover, there could not be a valid grant to a body so incapable of succession in any reasonable sense of the word, so as to confer a right upon each succeeding inhabitant.

For the reasons given above, the defendants' right to remain in possession of the fishery on the basis of ::i lost grant or on the basis of prescription or adverse possession stands negatived.

All that appears from the evidence is that a number of fishermen from time to time have been. exercising the right of fishing with the leave and licence of some of the owners. This is not sufficient for the acquisition of the right either by

Raja Braja Sundar Dt~

Mani Bthara

and Others.

Mahajan J.

Raja BraJa $uNlar D16

v. • "ttni Bthara .JIUi 0th,,,.

-'lfalugan ]_.

adverse possession or by prescription. finding can be given in their favour as does not establish that they have been formly the same amount of rent .

[1951}

Further, no the evidence paying uni-

The next finding of the High Court that the landlords have lost their right to khas possession of the fishery in dispute by reason of the operation of article 47 of the Indian Limitation Act is, in our opinion, sound.

The High Court, however, was not right in holding that the order made in the section 145, Criminal Procedure Code, proceedings was not binding on the plaintiff to the extent of five pies share. Its true scope and effect do not seem to have been fully appreciated.

The order appears to have been made after nqtice to :ill the landlords and was brought about by reason of the action of all of them and binds the full sixteen a1llla interest in the zamindari. In clear and unambiguous terms the Magistrate declared that the second party were in exclusive possession of the disputed fishery and that the landlords had no right to disturb their possession and they were directed to being a suit to establish their right to possession. This they failed to do with the result that the order became final and the right of the landlords to get into possession of the fishery became extinguished.

This order therefore affirmed the defendants' possession of the fishery on payment of a certain rental. This right, however, can only be exercised by those who were parties to the section 145, Criminal Procedure Code, proceedings or their successors in interest.

It was argued by the learned counsel for the appellant that the proceedings that took place in the year 1918 were in substance under section 147, Criminal Procedure Code, and were wrongly labelled under section 145 of the Code.

We are not able to accede to this contention because the dispute raised in the year 1918 related to possession of the fishery itself and was a dispute concerning any water or the boundaries thereof in the language of section 145, Criminal Procedure Code. Sub-section 2 of section 145 provides that for the purpose of the section the expression "land or water" includes fisheries. It

was then argued that in any case the benefit of the order made under section 145, Criminal Procedure Code,

could only be taken by the persons in whose favour that order was made ani:l that it could not operate for the benefit of all the 846 fishermen represented by the eighteen defendants or in favour ·, of all fishermen who would oome to reside in these nine villages in times to come. In our opinion, this contention bas force and the High Court was in error in holding otherwise.

There is no evidence whatsoever to show that besides the twelve persons mentioned as second party in the section 145, Criminal Procedure Code, proceedings who else was represented by them and we are therefore bound to hold that the benefit of that order can only be given to those defendants who arc . represented by those twelve persons.

The learned counsel for the appellant gave us a list of the persons who were parties in Section 145 proceedings and of those out of the <lefendants who stand in their shoes.

According to this list, defendants 1, 2, 3, 5, 6 7, 9 and 12 are the persons who themselves or through their predecessors in interest were parties in the former case arid are entitled to the benefit of the result of those proceedings. All the other defendants, whether impleaded' personally in this suit or in a representative capacity, or those whom they represent, are not entitled to take advantage <>f those proceedings. The result therefore is that the <lefcndants above mentioned only are entitled to remain in possession of . the fishery on payment of a rent of Rs. 135-7-0 per annum till it is enhanced in due course of law or for good cause they lose their right to remain in possession of the fishery. In an earlier litigation it has been decided that the right to possession of the fishery for fishing during Hilsa season is not assignable or transferable, it however can be enjoyed by the heirs and successors.

The contention that there has been a change in the

ourse of the river and that the fishery now in , dispute is not the same fishery which was in dispute on the proceedings of 1918 cannot be sustained.

We see no reason to differ from the view of the High Court,

RajaBroja Sundar D•b

Mooi Behara

and Othtrs.

Mahajan J,

RajaBrl.Jia S.Niar Di•

Moni Bl/wo

and Ot!Ws.

• Vahaju].

that the change in the course of the river has not in any way affected the defendants' possession as the channels. whether old or new, which comprise the Madhurdia or Charkhati fishery form one connected sheet of water.

It is well settled that the fish follow the course of the river and the fishermen follow the fish .

It was then argued that an exclusive right of fishing. could not be acquired in respect of a particular kind. of fish and during any particular season. This argument is not tenable in view of section 145, Criminal .Procedure Code,. proceedings. Moreover an exclusive: right of fishing in a given place means that no other person has a coextensive right with the claimant of the: right. The niere fact that some other person has a right to a particular class of fish in the fishery or that another person is entitled to fish at a, certain time of the year does not destroy die right of exclusive fishing . in any manner (Vide Halsbury's Laws of England,.

Hailsham Edn., Vol. 15, para. 59).

The result is that . the appeal is allowed partially. the decree of the.

High . Court is modified and the: plaintiff's suit for a declaration and injunction is decreed as follows :-'- ·

(i) It is declared that the plaintiff is entitled to fish in the disputed fishery except during the Hilsa season ( Margasir to Daisakh) during which season defendants l, 2, 3, 5, 6, 7, 9 and 12 have an. exclusive right of fishing in the fishery in respect. to Hilsa fish which right they can exercise either personally or with the help of other fishermen, on payment of a rent of Rs. 135-7-0 per year till it is enhanced in due course ?f law o~ for food cause they lose their right to remain m possess10n o the fishery ;· .

(ii) The defendants are restrained. ftom interfering with his right of fishing during the months during which the defendants named above have not the exclusive right of fishing;

(iii) That defendants other than defendants I, 2, 3, 5, 6, 7, 9 and 12 have no right of any kind whatsoever

.RAM SINGH

"· THE STATE Of DELHI AND ANOTHER

BALRAJ KHANNA

t'.

THE ST ATE OF DELHI AND ANOTHER

RAM NATH KALIA.

• t'.

THE ST ATE OF DELHI AND ANOTHER

[SHRI HARILAL KANIA c. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S. R. DAs and VIVIAN BosE JJ.J

Constitution of lnaia, Arts. 19(1) & (2), 22 (5)-Freedom of speech-Preventive detention to prevent speeches with a view to maintain public ordei-Omission to state objectionable passages ill grounds supplied-Legality of detention.

The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the petitioners under s. 3 of the Preventive Detention Act, 1950.

The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making sucft speeches it is necessary to make the said order." The petitioners contended that under the Constitution the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of

Jfpil, 6.

RAJA BRAJA SUNDAR DEB

MONI BEHARA AND OTHERS

MEHAR CHAND MAHAJAN

MuKHERJEA

CHANDRASEKHARA AIYAR JJ.

s. 145

section 145

article 47

Limitation Act

Moni Beluzra

Mahajan

Faz! Ali

S. C. Chatterji

Manohar Lal

G. P. Das

B. N. Das

Kant Mahanti

MAHAJAN

Killa Marichpur

Baisakh

section 145

Criminal Procedure Code

Raja Brqja Sundar Deb

article 47

Limitation Act

RajaBrda Sundor Deb

Mani Bthara

Mani Be!wro

section 145

Criminal Procedure Code

section 28

Limitation Act

Limitation Act

section 145

Baisakh

articles 47 and 144

Limitation Act

section 28

MahaianJ.

Moni Behara

Mo.haj

article 47

Limitation Act

section 28

Limitation Act

section 145

Criminal Procedure Code

section 147

article 47

section 145

Criminal Procedure Code

article 47

article 144

Limitation Act

State of Orissa

Killa Marichpur

Padmalav Mangaraj

Balabhadra Mangaraj

Mohan Bhagat

Chakradhar Mahapatra

Haziran Nisa Bibi

Killa Marichpur zamindari

Hari Behera

Brundu Anukul Singh

Babu Mohan Bhagat

Bibi Mobarak Nisa

RajaBf!ia Sundar Dlb

Marti.Btluwa

Mahqjaa

Raja BroJa .Sundar Deb

Mani Behara

30th .March, 1873

Rama Behera

11th May, 1875

Bibi Masudannisa

Ananta Hehera

1st May, 1894

Pandab Behera

Phagu Behera

1st May, 1895

5th May, 1896

9th May, 1897

22nd October, 1899

Hurshi Behera

Agani Bchera

Alsahi

23rd August, 1902

Maguni Behera

Ram Behera

Kalia Kona

Sapani Behera

Mahajan

Mofti

5th March, 1906

19th April, 1907

21st June, 1912

30th March, 1914

24th May, 1914

Mahisthali Patamahadei

Balaram Das Bhagat

section 145

Criminal Procedure Code

11th February, 1918

Debi

10th June, 1918

Sundari Behera

MOllilhhara

Ram Behera

Hrushi Behera

Rani

article 47

Limitation Act

section 145

Criminal Procedure Code

Radcliffe

Calcutta High Court

section 145

Criminal Procedure Code

Raja Braja Sundar

Raja BraJa $uNlar

ttni Bthara

article 47

Limitation Act

section 145

Criminal Procedure Code

section 145

Criminal Procedure Code

section 147

Criminal Procedure Code

section 145

section 145

Criminal Procedure Code

section 2

section 145

section 145

Criminal Procedure Code

section 145

Criminal Procedure Code

Section 145

RajaBroja Sundar

section 145

England

.RAM SINGH

STATE Of DELHI

ST ATE OF DELHI

HARILAL KANIA

PATANJALI SASTRI

MEHR CHAND MAHAJAN

S. R. DAs

VIVIAN BosE

Arts. 19(1)

District Magistrate of Delhi

s. 3

Preventive Detention Act, 1950

13th and 15th August, 1950

Delhi

Mussalmans

Jfpil


S.C.R.

SUPREME COURT REPORTS

.RAM SINGH

"· THE STATE Of DELHI AND ANOTHER

BALRAJ KHANNA

t'.

THE ST ATE OF DELHI AND ANOTHER

RAM NATH KALIA.

• t'.

THE ST ATE OF DELHI AND ANOTHER

[SHRI HARILAL KANIA c. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S. R. DAs and VIVIAN BosE JJ.J

Constitution of lnaia, Arts. 19(1) & (2), 22 (5)-Freedom of speech-Preventive detention to prevent speeches with a view to maintain public ordei-Omission to state objectionable passages ill grounds supplied-Legality of detention.

The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the petitioners under s. 3 of the Preventive Detention Act, 1950.

The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making sucft speeches it is necessary to make the said order." The petitioners contended that under the Constitution the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of

Jfpil, 6.

11 ... s • .,. ""' 011wr, ...

TIN Stalt ef

D1lhi and

Another.

speech guaranieed by Art. 19 (1) and that the grounds commuI; i. cated were too vague and inde6nitc to enable them Io make a representation and the provisions of Art. 22 (5) of the Constiiution were not complied with, and their detention was therefore ultra virtt and illegal :

Held by the Full Court (KANIA C. J., PATANJ.UI SASTRI, Mm• CHAND MAHAJAN, S. R. D.u am!

VIVIAN Bos. JI.) th.at though personal liberty is suffi.cicnrly comprehensive to include the freedoms enumerated in Art. 19 (1) and its deprivation would result in the extinction of rho~ -freedoms, the Constitution has treated these civil liberties as disinct fundamental rights an<l made separate provisions in Arts. 19, 21 and 22 as to Ihe 1imit:>- tioos and conditions subject to which alone they could be taken a\vay or abridged. Consequently, c\'Cn though a law which restricts freedom of speech ::ind cxprcsion \vhich i.s not <lirected solely ag:iinst the undermining of the .o; ecurity of the State or its ovcrthro\\· but is concerned gcncrlly in the interests of public order 111ay not fall within the reservation of cl. (2) of Art. 19 and may therefore be void, :in orJcr of preventive detention cannot be held to be invali<l merely bc, ause the detention is n1ade with a view to prevent the making of spe<:ches prejudicial to the maintenance of public order.

The decisions in Rrij Bl1ushan and Anotller v. Tiie Stale of De/Iii ( 1 ) and Romesh Thapparv. TheS111te Madra1(1) arc not inconsistent with. the decision in A .. 1'.. Gopalan

v. Tiie S1111e(1 ). .

Held per

KANIA C. J., PATANjAl.I SAsTRI and S. R. DAS JJ. (Mum CHAND MAHAJAN and BosE JJ. dissenting)-As the time and place at which the speeches \Vere alleged to haye heen made and their general nature and effect, namely, that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated, they were not too vague or indefinite to enable the petitioners to 1nake an effective representation and the detention cannot be held to be illegal on the ground that Art. 22 ( 5) was not complied with.

Per MEuR CHAND M.<HAJ AN and BoSE JI. (contra )-In the absence of any indication in the grounds as to the nature of the \.Vords used by the petitioners in their speeches, fron1 which an inference has been drawn against them, the petitioners would not be able fully to exercise their fundamental right of making a representation and as there were no such indic..1tions in the grounds supplied.

JhcrC \Vas a noncompliancc with the provisions of cl.

(5) of, Art. 22 and the detention was illegal.

The State of Bombay v. Atma Ram Sridhar Vaidya(') applied.

Oa1c1NAL

JURISDICTION : Petitions Nos. 21, 22 and 44 of 1951.

(I) [I950] S.C.R. 6o5.

(•) (1950] S.C.R. 594.

(3) [ 1950] S.C.R. 88.

(4) [1951] S.C.R. 167.

Applications under Art. 32 of the Constitution praying for the issue of writs in the nature of habeas Corpus.

Hardaylll Hardy for the petitioners in Petitions Nos. 21 and 22.

Gopal Singh for the petitioner in Petition No. 44.

• S. M. Sikri for the respondents. 1951.

April. 6.

The following judgments were delivered.

PATANJALI SAsTRl J.-These three petitions have been presented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus for release of the petitioners who are respectively the President, Vice- President and Secretary of the Hindu Mahasabha of the Delhi State.

The petitioners were arrested on 22nd August, 1950, by order of the District Magistrate, Delhi, made under

sub.section

(2) read with clause (a) sub.clause (i) of sub.section (1) of section 3 of the Preventive Detention Act, 1950 (hereinafter referred to as the Act). The order ran as follows :

"Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I, Rameshwar Dayal, District Magistrate, Delhi, hereby order the detention of. . . . . . . . . . . . . . under sub-section (2) of section 3 (1) (a) (ii) of the Preventive Detention Act. Given under my seal and signature".

The grounds of detention communicated to the petitioners were in identical terms, save as to the -dates on which the speeches were said to have been

made, and read thus :

"In pursuance of section 7 of the Preventive Detention Act you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you arc that your speeches generally in the past and particularly on .... August,

R.,,, SinJ; h and 01htrs

Tiu S1au of

Delhi and

Anolhtr.

Palanjali Saslri].

Ram s; nth

and Others

The State of

Delhi and

Atwth, r.

Pata!Jjali Sostri J.

1950, at public meetings in Delhi 'has been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order".

The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitutiop, but the petitions were dismissed. It appears to have been contended before the learned Judges (Khosla and Falshaw JJ.) who heard those petitions that although this Court held in A. K. Gopalan v. The State of Madras (') chat the provisions of section 3 of the Act were constitutional and valid, detention under chat section was ultra vires and illegal where, as here, it was based on the ground of making speeches prejudicial to the security of the Seate or the maintenance of public order. This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another v. The State of Delhi ( 1) and Ramesh Thappar v. The State of Madras (•). This contention was rejected on the ground that no such proviso could be read into section 3 on the strength of the later decisions referred co above which related to a different point, viz. the scope of authorised restrictions on the right to freedom of speech conferred by article 19 (1).

Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived to be an "anomaly" -while a State Government should not be allowed co interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre-censorship of news, the Government shoul<l, for the same object, be entitled to place a person under preventive detention which is "even greater restriction on personal liberty than any restriction on a newspaper ever could be".

This distinction appeared to the learned Judge to be illogical, and he thought that there was "an apparent conflict" between the decisions of this Court in Go pal an' s case ( 1 ) and the other cases, which could only be resolved by this Court. "k

(1) [1950] S. C.R. 88.

(1) (1950] S. C.R. 594

(1) (1950] S. C.R. 605.

would be well" the learned Judge concluded "if the point were raised in this form at an early date in the Supreme Court".

No wonder that, after this encouragement, the petitioners have preferred these petitions raising the . same contention before us. On behalf of the petitioners Mr. Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be considered to be prejudicial to the maintenance of public order, for maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Court in the Cross-Roads( 1 ) and the Organizer(•) cases.

It is true that in those cases this Court decided by a majority of 5 to 1 that "unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause (2) of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order". But it will he noticed that the statutory provisions which were there declared void and unconstitutional. authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre-censorship on the publication of a journal.

No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalan's case (' }, the Court is called upon to adjudge the legality of the detention of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order.

Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19

(1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which

<:l fl950] S.C.R. 594.

(') [1950] S C.R. 88.

( .J [I 950] S. C.R. 605.

Ram Sititlr altd Othns

TMStat•q/

D•lhi Md

AINl!w.

Palanjali

Sastri ].

19!tl

llam Sin1A

and Other1

T/1' Stah ef

Delhi and

.Anothtr.

Patanja/i

.Sostri ].

alone they could be taken away or abridged. The interpretation. of these articles and their correlation were elaborately dealt wich by the full Court in Gopalan's case('). The question arose whether section 3 of the Act was a law imposing restrictions on "the right to. move freely throughout the territory of India" guaranteed under article 19 (1) (d) and, as such, was liable to be tested wl1h reference to its reasonableness under clause (5) of that article.

It was decided by a majority of 5 to 1 that a law which authc>- rises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judged by the criteria indicated in that article but depended on. its compliance with the requirements of articles 21 and 22, and as section 3 satifised those requirements, it was constitutional.

If the learned Judges in the High Court had paid close attention to the Judgments delivered in this 'Court, they would have found that there was nothing illogical in that view and no conflict between the decisions in that case and in the other cases to which reference has bee~ made. The observations of the Chief Justice in Gopalan's case( 1) make the position quite clear :

"As the preventive detention order results in the detention of the applicant in a cell it was contended on his. behalf that the rights specified in article 19

(1) (a), (b), (c), (d), (e), and (g) have been infringed.

It was argued that because of his detention he cannot have a free right to spech as a!Jd where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also, to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.

So considered, the argument must clearly be rejected.

In spite of the saving clauses (2) to (6), permitting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even (') [1950] S.C.R. Jl!I.

ordinary assault, will be illegal. Unless such conc; lusion necessarily follows from the article, it is obvious that such construction should be avoided • - In my opinion such result is clearly not the outcome of the Constitution. The article has to be read without any preconceived notions. So read, it clearly means that the

legislatio~ to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. 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 article 19 will arise. If, however, thelegislation 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 is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the <letenu's life. On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article - 19 (1) generally must fail.

Any other construction put on the article, it seems to me, will be unreasonabka" (1 )

Similar conclusions expressed by the other learned Judges will be found at pages 194, 229, 256 arid 305. It follows that the petitions now before us are governed by the decision in Gopalan' s case ( 1 ), notwithstanding that the petitioner's right under article 19 (1) (a) is abridged as a result of their detention under the Act. The anomaly, if anomaly there be in the resulting position, is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded by this Court by an overwhelming majority in the cases referred to above must now be taken to be settled law, and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re-agitate the points thus settled.

( 1) [1950] S.C.R. 88, 100-101.

Ram Sirl&/t, and Otlier1

The Stale of

Delhi and

..4.ot/rn.

Patanjali

Sastri J~

R.m Si11gh .mu! Olhm ...

The Stal• qf

D•lhi and

.Anolfwr.

Pa1anjali

Sastri J.

Mr. Hardy next contended that, in view of the recent decision of this Court in The State of Bombay v. Atma Ram Sridhar Vaidya (1 ), the grounds of detention communicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their "representations" to the Chief Commissioner, Delhi, and the requirements of clause (5) of article 22 not having thus been complied with, the petitioners were entitled to be set at liberty. According to Mr. Hardy it was not sufficient that the time and place of the alleged speeches and their general effect were indicated, but it was also necessary that the offending passages or at least the gist of them should be commuaicated in order to enable the petitioners to make effective representations.

In the case relied on, this Court, no doubt, held by a majority that, though the first part of article 22 (5), which casts an obligation on the detaining authority to communicate the grounds of the order of detention, would be sufficiently complied with if the "deductions or conclusions of facts from facts" on which the order was based were disclosed, the latter part of the clause, which confers on the person detained the right of making a "representation" against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particulars to enable him to make his representation. It was further held that the suffidency of this "second communication" of particulars was a justiciable issue, the test being whether "it is sufficient to enable the detained person to make a representation which, on being considered, may give relief to the detained person." While the communication of particulars should, subject to a claim of privilege under clause (6), be "as full and adequate as the circumstances permit", it did not, however, follow from clause ( 6) that ''what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclosure." Referring to the use of the term

(1) [1951] S.C.R. 167.

'Vague" in this connection, it was remarked "If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague".

This decision docs not, in our opinion, support the broad proposition contended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should communicate to the person the offendin3 passages or at least the gist of such passages on

pain of having the order quashed if it did not. In the cases now before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect (being such as to excite disaffection between Hindus and Muslims) was also stated. It is difficult to see how the communication of particular passages or their substance-one of the petitioners denied having made any speech on the day specified-was necessary in addition to the particulars already given, to enable the petitioners to make their representations. It should be remembered in this .connection that the Court is not called upon in this class of cases to judge whether or not the speech or speeches in question constituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person constituted an offence under those sections. That is a matter for the detaining authority to be . satisfied about. Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be. made only rn;. fore the executive authorities.

In such circumstances the suggestion that without the communication of the offending passages or . their substance the petitioners were not in a position to make their representations

Rt1tn Sinp mu/ Othns

Tl# Stolt of

Dllhi ad

.4notltn.

Pa14rifoli

Saitti J

Ram Sin&h and Others

The Sta11 of

De/m and

Anot.ln

Potatliali

Sallri].

to the executive authorities sounds unreal and is. devoid of substance. It may be possible to conceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them, but the

pesent cases are not of such peculiar character. On the other hand, cases have come before this Coun where speeches were alleged to have been made after . midnight at secret gatherings of Kisans and workers inciting them to violence, crime and disorder. Such allegations could only be based in most cases on information received by the executive authorities from confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered. To hold that article 22 (5) requires that, wherever detention is grounded on alleged prejudicial speeches, the detaining authority Should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provmons were doubtless primarily intended to be used and where their use would be most legitimate.

In the case of these petitioners, no doubt, the speeches are said to have been made at public meetings, and it is not suggested on behalf of the respondents, that no record was made of the speeches, so that the details asked for could have been furnished. The omission to do 50, for which no reason is disclosed in these proeecdings, is regrettable, as it has given rise to avoidable grievance and complaint. The authorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above :

"In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the pan of the detaining authority in stating the grounds for the order. Instead of giving the information with reasonable details, there

is a deliberate attempt to use the minimum number

Of words in the communication conveying the grounds of detention. In our opinion, this attitude is quite deplorable".

This, however, does not affect our conclusion in these cases that the grounds communicated to the 'petitioners contain sufficient particulars to enable them to make their representations to the authority concerned, and that the requirements of article 22 (5) have thus been complied with.

It is. also urged that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention. Thi1 point is now concluded against the petitioners by the decision of this Court in Ujager Singh v. The State of Punjab ( 1 ) and /agjit Singh v. The State of Punjab ( 1 ) where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders could not be said to be of indefinite duration and unlawful on that ground.

Lastly, it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power, and that the orders of detention were made: "for the collateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do with the maintenance of public order". Allegations: of ma/a fide conduct arc easy to make but not always.

as easy to prove. The District Magistrate has, in hi&. affidavit filed in these proceedings, stated that, from the materials placed before him by persons experienced in investigating matters of this kind, he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he haS; emphatically repudiated the purpose and motive imputed to him. We have thus allegations on the one side and denial on the other, and the petitioners made no attempt to discharge the burden, which undoubtedlv lay upon them, to prove that the District

(r) Petition No r 19 or l950 (~) Petition No. r67of1950.

M5SCI 62 S, C. India/59.

Ram Sint and Others

'If.

Thi Stale of

D1llii and

AllDlher.

Patanjali.

Sastti J.

Ram Sin.fill

and Othm

Thi State OJ ..

Delhi and

Another.

Mahajan],

Magistrate acted ma/a fidt: in issuing the orders of detention.

The petitions are dismissed.

MAHAJAN J.-These three petitions under article 32 of the Constitution of India were presented by Prof.

Ram Singh, Bal Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the Preventive Detention Act, 1950.

The petitioners are respctively. the President, Vice-President and the Secretary of the Delhi State Hindu Mahasabha.

The grounds of detention supplied to them are almost identical. Those furnished to Prof. Ram Singh read as follows :-

"In pursuance of section 7 of the Preventive Detention Act, you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you • are that your speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disa.ffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.

You arc further informed that you are entitled to make a representation against your detention to the State Government, that is, the Chief Commissioner, Delhi."

The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Xhanna only the 15th August, 1950, is metioned as the date on which the public speech was made, and in the case of the third petitioner, it is only the 13th > August, 1950.

Mr. Hardy on behalf of the pet1aoners inter alia -urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not sufficient to enable them to make an effective representation to the State Government against

their detention and that being so, their detention is illegal.

An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners' speeches generally, and particularly those made on the 13th and 15th August, 1950, at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims.

No particulars of the oe:ending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit.

Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the Bth and 15th respectively by the other two. So far as the earlier speeches are concerned, it is not even stated on what occasions, on what dates and during what years were those speeches made or delivered.

After a reference to the dates of the two speeches, the conclusion drawn by the District Magistrate has been mentioned. The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right conferred on the petitioners by article 22 (5) of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this inference is not justified.

After considerable thought I have reached the deci- . sion that these cases fall within the ambit of the decision of this Court in The State of Bombay v. Atma Ram, Shriahar Vaidya ( 1 ). In that case certain general principles applicable to cases of this nature were stated by the learned Chief Justice, who delivered the majority judgment, in the following terms :

(1) That if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must

(1) [195l]S. C.R. 167.

Ram Singh

and Others

The Stauqf

Delhi and

Another.

Mahajan].

Ram Singh

and Other.,

Till Sta11 of

Delhi and

Anotht<.

MaJuij .. ].

be suflicicnt to attain that object. Without getng information suflicient to make a representation against the order of detention it is not possible for the man to make the representation. Indeed, the right will be only illusory but not a real right at all.

(2) That while there is a connection between thccobligation on the pllrt of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make thccrepresentation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. For the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity.

On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22(5) is established he is bound to be released by the court1

(3) That it cannot be disouted that the representation mentioned in the second part of article 22(5) must be one which on being considered may give relief to the detaining person. It was pointed out that in the numerous cases that had been brought to the notice of the court it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order, and that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication convevin~ the grounds of detention and that such an attitude was quite deplorable.

In my opinion, these observations have an apposite application to the grounds furnished to the petitioners in the present cases. The speeches alleged to have been made hy the petitioners were made in public meetings and could not be described as of a confidential nature and no privilege in respect of them was

claimed under article 22 ( 6) of the Constitution. That being, so the material on the basis of which the District Magistrate drew the inference that these speeches . would cause or were likely to ca.use disaffection amongst Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation, which on being considered may give relief to them.

For that purpose either the words used by them or the substance of the speeches should have been communicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that no reasonable person could draw an inference from them that those were likely . to cause hatred and enmity between the two communities. The sufficiency of the material supplied is a justiciable issue, though . the sufficiency of the grounds on which the detaining authority made up his mind is not a justiciable issue.

In my opinion, in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would not be able fully to exercise their fundamental right of making a representation and would not be able to furnish a proper defence to the charge made against them.

Envisaging oneself in the position of a person asked to draw out a '!ritten representation on behalf of the detenus on the materials supplied to them, the effort could not proceed beyond a bare denial of the speeches having been made, or a bald statement that no words were used which could possibly excite disaffection between Hindus and Muslims.

Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody. Without a knowledge of the offending words or passages, or their substance, it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words Used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection

Ram Singh

and OtMrs

v • Thi Stat• of Delhi and

.Anotlrer.

Mahajan].

Ram Singh

arrd Others

The State of Delhi and Another.

Mahajan].

amongst Hindus and Muslims.

The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code.

Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed.

If the words objected to were known, the representation on behalf of the detenus ould easily have been drawn up with the help of judicial precedents and reasoning considered good in those cases. Again, without knowing the substance of the offending words from which the inference has been drawn by the detaining authority it is not even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or concern the propagation of some political creed to which no objection could be taken.

As regards the two speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and Muslims is correct, the detenus were guilty of the offence under section 153A of the Indian Penal Code and could not only have been punished for the offence under that section but could also have been kept out of harm's way for the future by that procedure. A charge sheet under that section or in a trial under section 124A which uses analogous language would have been defective if it did not mention the substance of the speeches alleged to have been made by the person charged. [Vide Chint Ram v.

Emperor (1 ) ; Chidambaram Pillai v. Emperor (•) Mylapore Krishnaswami v. Emperor (").] In some of these cases the charge was in substance similar to the charge here. If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein, a fortiori the material supplied in a preventive

(1) A.I.R. 1931 Lah. 186.

(3) I.LR. 32 Mad, 384.

(2) I.L.R. 32 Mad. 3.

detention case on a similar charge should be regarded as insufficient when a man has not even a right of being heard in person and has merely to defend himself by means of a written representation. It has to be remembered in this connection that the phrase "excite disaffection amongst Hindus and Muslims" is of a very general nature and an inference of this kind may easily have been drawn on material which would not warrant such an inference. No reason whatsoever has been stated in the affidavit of the District Magistrate for not disclosing the words used by the detenus even after this length of time and from which he drew the conclusions on the basis of which he has kept the petitioners under detention for a period well over six months or more.

For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal.

I accordingly order the release of the petitioners. On the other points argued in the case I agree with judgment of Sastri J.

BosE J.-1 agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view. I am of opinion that these petitio'lers should all be released on the ground that their detentions are illegal.

I do not doubt the right of Parliament and of the executive to place restrictions upon a man's freedom.

I fully agree that the fundamental rights conferred bv the Constitution are not absolute.

They are limited.

In some cases the limitations are imposed by the Constitution itself.

In others, Parliament has been given the power to impose further restrictions and in doing so to confer authority on the executive to carry its purpose into effect.

But in every case it is the right> which are fundamental, not the limitations ; and it is the duty of this Court and of all courts in the land to guard and defend these rights jealously.

It is our duty and privilege to see that rights which were

Ram Singh arrd Others

"· The Staie of Delhi and

AMther.

Mahajan].

1~51

Ram Singh ana Others

TMStaitf

.Delhi an

Anothn.

1JoseJ.

intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms ; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.

We are here to preserve intact for the peoples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action •

. It is the right to personal freedom which is affected here : what the Constitution calls the "right to move freely throughout the territory of India." Now I do not for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention.

Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely, the regrettable necessity to do so is to my mind undoubted. The safety of the State, which is paramount, requires it and, in any event, the Constitution allows it but-and this is important-subject to limitations.

So far as the Constitution is concerned, it has given Parliament the powers to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item 3 in List III, and I have no doubt that the legislation sought to be impugned here is intra vires. But I am unable to hold that the executive action . taken in these cases on the strength of that legislation is within the law. The executive has no power to detain except within the four corners of the Constitution and the Act now challenged.

In my opinion, it has not kept itself within those limits.

The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right nor the desire to go behind them.

My brother Mahajan has

set out his view of the law which these cases ltave settled. I respectfully agree with him and will not cover the same ground. But I do wish to say this; I am not prepared to place any narrow or stilted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it. If it were permissible to go behind the Constitution and enquire into the reason for the provisions dealing with the fundamental rights, one would find them bound up with t:Jie history of the fight for personal freedom in this land. But that is not permissible and is irrelevant. What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is "cribbed, cabined and confined". I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights. I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable. But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey, namely to confer the fullest possible degree of .personal liberty upon the subject consistent with the safety and welfare of the State.

My Lord the Chief Justice has pointed out in The State of Bombay v. Atma Ram Shridhar Vaidya (1) that the information supplied to the detenu must be sufficient to enable him to meet the charges contained in the grounds given to him and that without that the right would be illusory. Are the present cases covered by that rule ? I do not think they are. Put at their highest, the grounds set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were.

(r) (1951) S.C.R. 167.

Ram Singh and Others

The Stale of Delhi and

Another.

Bose].

Ram Singh

and Others

The State ef

Delhi and

Another.

Bose].

• "Such as to excite disaffection Muslims and thereby prejudice public order in Delhi."

between Hindus and the maintenance of

I have no quarrel with the details regarding the date and place but I do not consider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars.

Now I fully agree that each case will have to be decided on its own facts so far as this is concerned.

But when weighing the circumstances this must be borne in mind. The detenu has no right of personal appearance before the Advisory Board or other revising authority, nor can be he represented by counsel.

The Board or other authority can deal with his representation without hearing him or anyone on his behalf. Therefore, his only hope of being able to convince the Board lies in the explanation he offers. But how can anyone give a fair explanation of his conduct unless he is told with reasonable plainness what he has done, and in the case of a speech, the words used are everything.

They have been called "verbal acts" in another connection. Now I take it to be established that Government is bound to give a detenu reasonable particulars of the acts complained of when conduct is in question. Why should a differen5 rule obtain when the acts complained of are verbal ?

It was contended in the argument that the man whc make.s the speech is in a position to know what he said and so is not at a disadvantage. But that, in my opinion, is not the point.

He may know what he said but he cannot know what the authorities think he said unless they give him some reasonable inkling of what is in their minds. It has to be remembered that what the Advisory Beard has before it is not necessarily the words employed or even their substance but what the authorities say the man said.

This has to be viewed from two angles. The first is whether the reports handled in to the authorities are correct. Even with the utmost good faith mistakes do

occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B. But unless A knows that that is what happened, it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation.

The next point is this.

When a man is told that his speech excited disaffection and so forth, he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him. If the premises on which the conclusion is based are faulty, the conclusion will be wrong. But even if the premises are correct, the process of reasoning may be at fault.

In either event, no representation of value can be made without a reasonably adequate knowledge of the premises.

Envisage for a moment the position of the Board., In the ordinary course, it would have before it a speech wi'th the offending passages in full, or at any rate the gist of them.

From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based. In most cases, that sort of representation would have very little value. Consider this illustration. Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said nothing objectionable but that unknown to him thepolice, through a perfectly bona fide mistake, had imputed to him certain offensive words used by another speaker.

What would be the value of a detenu saying "I said nothing objectionable" and that is almost all he can say in such a case. He cannot envisage the mistake and say, "Oh yes, that was said, but not by me. It was said by A or B." Consider a second illustration where the detenu had quoted a well known living authority. I can conceive of cases where words in the mouth of A might be considered objectionable by some but would never be . condemned in the mouth of B. It might make a world of difference to

Ram Singh

and Othm

The State of Delhi and

Another.

Bose].

RamSU.gh

and Othtrs

TM State of

.Delhi and ·

Another.

JioSI].

the detenu if he could explain the source of the passages complained of in his speech.

But it might be very difficult for him to envisage the possibility of objection being taken to anything commg from the source from which he quoted.

I am anxious not to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government, but I do conceive it to be our duty to give a construction which, while falling strictly within the ambit of the language used, is yet liberal

and reasonable, just to the detenu, fair to the Government.

And after all, what does a construction such as I seek to make import ? It places no great or impossible strain on the machinery of Government. All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of. the thought, time and energy which the law compels in the case of even the meanest criminal who is arraigned before the Courts of this country. The fact that there is absent in the case of these persons all the usual safeguards, the glare of publicity, the right to know with precision the charge against him, the right to speak in his own defence, is all the more reason why Government should be thoughtful, considerate and kind and should give them the maximum help. In any case, that, in my opinion, is what the Constitution requires and I am not prepared to abate one jot or tittle of its rigours.

My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case. One is Vaidya's case ( 1 ) and the other Lahiri's(' ). In the latter, the point whether the gist of the speech should be given was not considered. It seemed to have been assumed that it need not. But I am unable to accept that as authority for anything beyond the fact that that was not considered necessarv on the facts and in the circumstances of that particular case. As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of

(1) [1951] S.C.R. 167.

(2) Not reported.

what is vague "must vary according to the circumstances of each case." It was also said there that "the conferment of the. right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made."

It was further said- "Ordinaril y, the 'grounds' in the sense of conclusions drawn by the autorities will indicate the kind of prejudicial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him."

This envisages cases in which that would not be enough. It is therefore sufficient for me to say that in a case of this kind, where the matter has to turn on the facts and circumstances of each case, no useful purpose can be served by examining the facts of some other case for use as an analogy. In my opinion, on the facts and circumstances of the present cases, the grounds supplied were insufficient and the gist of the offending passages should have been supplied. The omission to do so invalidates the detention and each of the detenus is entitled to immediate release.

Petitions dismissed.

Agent for the petitioners in Petitions Nos. 21 & 22 : Ganpat Rai.

Agent for the petitioner in Petition No. 44 : V. P. K.

Nambiyar.

Agent for the respondents: P. A. Mehta.

Ram Singl

and Others

The State qf

Delhi and

Another.

Bose].

RAM SINGH

THE STATE Of DELHI AND ANOTHER

SHRI HARILAL KANIA

PATANJALI SASTRI

MEHR CHAND MAHAJAN

S. R. DAs

VIVIAN BosE JJ

Arts. 19(1)

District Magistrate of Delhi

s. 3

Preventive Detention Act, 1950

13th and 15th August, 1950

Art. 19

Art. 22

KANIA C.

PATANJ.UI SASTRI

CHAND MAHAJAN

S. R. D.u am

VIVIAN Bos

Art. 19

Arts. 19, 21 and 22

Art. 19

KANIA

PATANjAl.I SAsTRI

S. R. DAS

Mum CHAND MAHAJAN

BosE

Art. 22

MEuR CHAND M.<HAJ

Art. 22

Art. 32

Hardaylll Hardy

Gopal Singh

S. M. Sikri

PATANJALI SAsTRl

article 32

Constitution of India

22nd August, 1950

section 3

Preventive Detention Act, 1950

Rameshwar Dayal

section 3

section 7

State of

Delhi

Pata!Jjali Sostri

article 226

Khosla

Falshaw

section 3

section 3

article 19

Supreme Court

Hardy

article 19

Gopalan

article 19

article 19

articles 21 and 22

Ram Sititlr

llam Sin1A

section 3

article 19

article 19

articles 21 and 22

section 3

article 19

Indian Penal Code

Penal Code

article 19

article 19

article 19

Ram Sirl&/t

article 22

article 22

section 3

section 124A

section 153A

Indian Penal Code

article 22

article 22

section 12

Ram Sint

Sastti

Ram Sin.fill

Mahajan

MAHAJAN

article 32

Constitution of India

Ram Singh

Bal Raj Khanna

Ram Nath Kalia

Preventive Detention Act, 1950

Delhi State Hindu Mahasabha

Ram Singh

section 7

August 22, 1950

Bal Raj Xhanna

15th August, 1950

13th > August, 1950

article 22

Ram Singh

Ram Singh

MaJuij

article 22(5)

article 22(5)

article 22

State of Delhi

sections 124A and 153A

Indian Penal Code

article 25

section 153A

Indian Penal Code

section 124A

Sastri

Mahajan

Parliament

India

article 246

Vaidya

Lahiri

Ganpat Rai

V. P. K.

Nambiyar

P. A. Mehta

Ram Singl