ANANTA MUKHI, @ ANANTA HARi

STATE OF WEST BENGAL

February 3, 1972

[J. M. SHELAT, H. R. KHANNA AND K. K. MATHEW, JJ.J

West Bengal (Prevention of Violent Activities) Act 1970-Sec. 3 (2) and Sec. 3(3)-Their scope.

Petitioner, through Jail, filed a writ petition under art. 32 for a writ of habeas corpus. He was ordered to be detained u/s. 3 of West Bengai (Prevention of Violent Activities) Act, 1970, with a view to preventing him from acting in any manner prejudicial to the security of the State

or the maintenance of public order. The grounds of detention were tbnt the petitioner along with 50/60 other persons armed with lethal weapons

raided the house of a person on October 4, 1969 ot night and looted cash, ornan1ents etc., and on November 81 1969 at bout 10 p.m., the petitioner along with 20/30 associates armed with lethal weapons, raided the house of another citizen and .kflled his two brothers and looted ornaments etc.

It was contended on behlf of tb.c petitioner that the detaining authority had taken into consideration facts extraneous to Sec. 3 of the Act in making the order of detention and therefore, the said order was illegal

and secondly, that the order of detention showed that the District Magistrate hd not duly applied his mind before making the detention order as the petitioner was detained with a vie\Y to preventing him from acting in any manner prejudicial to the seCutity of the State or the maintenance of public order. According to the petitioner, the detaining authority was not sure as to whether the petitioner \.Vas detained for a.cling in any manner prejudicial to the security of the Stale or whether he was detained from acting in any manner .prejudicial to the maintenance of public order.

Tue District Magistrate could not make n indefinite order by using the word 'or' in the detention order and so the order was bad.

Dismissing the petition,

HELD : (i) Tue activities of the petitioner as mentioned in the grounds of detention were not of an extraneous character but fell within the expression acting in any manner prejudicial to the security of State or the mintenance of public order, as defined in Sub-Section (2) of Section 3 of the Act.

According to the grounds of detention, the petitioner and his associates committed offences punishable with death or imprisonment for life or imprisonment for a term exceeding seven ars or more, and as iuch, the case of the petitioner was covered by Clause (d) of Sub-Section (2) of Section 3 of the Act.

Further, the activities of the petitioner disturbed public order and the petitioner became a terror

to the residents of the locality nd under the circumstances, the District Magistrate was empowered to exercise his powers under Sub-Section (3) of Section 3 of the Act. (395 F]

(ii) The Special definition given in Sub-Section (2) of Section 3 of 1he Act of the expression1 "acting in any manner prejudicial to the security Of the State or the maintenance of public order", ls of comprehensive nature '3nd each one of the activities mentioned in the various clauses of the said sub-section constitutes an act prejudicial to the security of the State or the maintenance of public order. The presence of the \vord "oi"" in the definition itself tends to show that the use of that word in the order is not impermissible and there was no element of casualness or absence of due application of the mind in the moking of the impugned order. [397 DJ

Shelat J. Dissenting: The c"nstruction of the definition in S. 3(2) cannot mean that .any one of the activities enumerated in Clauses (a) tO

(e) would fall under both the grounds, namely, the security of the State and the rnainten3nce of public order.

An act, such as, use of or instigating to use a lethal weopon for the purpose mentioned in Clause (a) (i) or causing insult to the national flag mentioned under Clause ( e) would be a ground of detention, if it either affects, or is likely to fleet adversely either the security of the State or public order depending upon the potentiality and the extent of the act in question.

Such use or instigation or insult to national flag, might affect only public order and on a state-wide potentiality, it might affect adversely even the security of the State.

But irrespeCtive of such reach OF poten tiality, the clause cannot n1ean that such an act in itself and without anything more must be deemed to fall under the mischief of both the kinds.

The result of accepting such a oonstruction would mean that once an 'OCt falls unde'r any one of the clauses (a) to (e), even if it affects or is likely to affect public order only, must also be held to affect or likely to effect the security of the State thus totally wiping off the difference between the two concepts and their respetive are<IS of iolluence and that could not be the intention underlying Sub-Section (2) of Sec. 3. Therefore, it must be held that the use of the disjunctive '<Ir' in the impugned order rendered the order of detention vague and indefinite, indicative of the detaining authority having merely reproduced mechanically the language of S. 3(1) of the Act without applying its mind.properly. [389 D; 390 HJ Jagannath Misra v. State of Orlssa, [1966] 3 S.C.R. 134, discussed and distinguished.

Shyamal Manda/ v. State of West Bengal, A.I.R. 1971 S.C, 2384, referred to,

ORIGINAL JURISDICTION : Writ Petition No. 322 of 1971.

R. K. lain, for the petitioner.

G. L. Mukhoty and G. S. Chatterjee, for the respondent.

ANANTA MUKHI V. WEST BENGAL (She/at, J.) 3 81

J. M. SHELAT, J. gave a dissenting opinion. The Judgment of H. R. KHANNA and K. K.

MATHEW, JJ. was delivered by

KHANNA, J.

Shelat, J.,

The order of detention impugned in this petition is as follows:

"ORDER

~o. 97iC Dated 24-4-71 Whereas I am satisfied with respect to the person known as s:1ri Anania Mukhi, @ Ananta Bari, son of Gobardhan, @ Gurai o.f Antpara, Chakbazir, P. S. Debra, Dt. Midnaporc that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub-section (!) read with sub-section (3) of section 3 of the West Bengal (Prevell'tion of Violent Activities) Act, 1970 !President's Act No. 19 of 1970) make this order directing that the said Shri Ananta Mukhi @Anania Hari be detaind.

Given under my hand and seal of office.

Sd./- District Magistrate

Midnapore"

E The question which falls for determination in this petitlion is whether detention directed by an order which recites that it was made upon satisfaction of the District Magistrate that the person

concerned was acting in a manner prejudicial to the security of the State or the maintenance of public order is an order lawfully made. The argument was that the use of the dis- F junctive 'or', instead of the conjunctive 'and', showed either that the detaining authority was not certain under which of the two grounds, namely, the §_ecurity of the State or the maintenance of public order, he had reached his sub.iective satisfaction, impelling him to consider the petitioner's detention necessary, or that the order was passed mechanically, merely reproducing the language

of sec. 3(1) without any application of. mind as to whether the G acts of the petitioner, actual or anticipated, were prejudicial to the security of the State or the maintenance of public order, or both.

If it was the last, obviously, the order should have used the conjunctive 'and', and not the disjunctive 'or'. To appreciate the contention, it would be necessary to understand the object and the scheme of the Act.

H By a Proclamation, dated March 19, 1970, made under Art. 356 of the Constitution, the President of India, being satisfied that a situation had arisen in which government in West Bengal could

not be carried on in accordance with the provisions of the Constitution, assumed to himself the functions of government of that State and declared that the powers of the State Legislature shall be exercisable by or under the authority of Parliament. In pursuance of the said Proclamation, Parliament enacted, on April

29, 1970, the West Bengal State Legislature \Delegation of Powers) Act, XVII o[ 1970, under sec. 3 of which the State Legislature's power to m:1kc laws was conferred on the President, who was empowered to enact, whether Parliament was in session or not, as President's Act a bill containing such provisions as he considered necessary.

In exercise of the powers contained in Act XVII of 1970, the President enacted the President Act XIX of 1970. Since that ... \ct \Vas enacted in exercise of and in accordance with the powers of the State Legislature, the Act providing for preventive Jotcntion could lo passed in terms and within 11he scope of entry . 3 of I he Con current List in lhe Seventh Schedule to the Constitution. thM is to say, for reasons connected with (a) the security of that State. \ b ). he maintenance of public order, or ( c) the maintenance of supplies. and services essential to 1he community.

Act XIX of 1970 was enacted to "provide for detention with a vie'v to preventing violent activities and for matters connected therewith". Sec. 3, the construction whereof is called for in this petition, by its Jirst sub-section confars power oo make detention orders against certain persons. That sub-section reads as follows :

"The State Government may, if satisfied with respect to any person that with a view to preventing him from acting irr any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such perso11 be detained."

Its second sub-section contain~ a definition of the expression "acting in any manner prejudicial to the secnrity of the State or the m'aintepance of public order" employed in sub-section. (1), and enumerates in. clauses (a) to (e) diverse acts as falling within the said expression. That sub-section reads as follows :

"(2) For the purposes of ob-section (1), the expression "acting in any manner prejducial to the security of the State or the maintenance of public order" means-

(a) using, or instigating any person by words, either spoken or written, or by signs or by

visible representations or otherwise, to use, any lethal weapon- H

(i) to promote or propagate any cause or ideology, the promotion pr propagation of which

ANANTA MUKHI v. WEST BENGAL (Slie/al, J.) 383

(ii)

affects, or is likely to affect, adversely the

security of the State or the maintenance of public order; or

to overthrow or to overawe the Government established by law in India.

Explantaion.-In this clause, ·1cthal weapon" .includes fire-arms, explosive or corrosive subs!· anccs, svords, spears, daggers, bo\VS and arrov.•s; or

< b) committing mischief, within the meaning of sec

tion 425 of the Indian Penal Code, by fac or any exploshic suei_ance on nny proprty of CTovernn1ent or any loc:~I auth0:!t'f or any cornnt~0n owned or controlled by Government or any Uni versity or othr educational ins1il!Jtion or on any

pu0lic building, where the commiswn of such mi; cbief disturbs, or is likely to disturb, public order; or

(C) causiag inw:t to the Indian Nationµ] Fiag or to any other object of public veneration, wheiher by mutilating, damaging, burning, defiling, destroying or other\vise, or instigating any person to do so.

Explanation-In 1his clause, "object of public veneratio" includes any portrait or statue of an eminent Indian, installed in a public place as a mark or r>spect to him or to his memory; or (<l) con1n1itting, o:· instigating any perc:; on to co1nmit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances /\cl, 1 908, where the commission of such offence disturbs, or is likely to disturb, public order: or ( e) in the case or a person referred to in clauses (a) to (f) of section 110 of the Code of Crimina I Procedure, 1898, committing any offence punishable with im!)risonment where the commission of such offence disturbs, or is likely to disturb, publi9 order."

Under sub-sec. (1), the satisfaction is regarding the necessity of preventing/the person concerned from acting in any manner prejudicial either to the security of the State or the maintenance

l2~LS87 Sup CI/72

384 SUPllBMll OO'UllT REPORTS [1972] 3 s.c.R.

of public order. As the language of the sub-section stands, such A satisfaction must be in relation to an activity, prejudicial either to the security of the State or the maintenance of public order, or in certain cases even both.

Therefore, before the power of deten • tion can be invoked the detainlng authority nm&t be satisfied that the activity of the person concerned is such that it is either prejudicial 110 the security of the State or the maintenance of public B order or both.

Neitl1cr the expression "security of the State" nor "the main tcnance of public order" has been defined either in this Act or in the Preventive Detention Act, IV of 1950, or the Defence of India Act, 1952 and the Rules made thereunder, which earlier made provision for preventive detention.

Unlike the previous C enactments, sub-sec. (2) of s. 3 in the present Act, however, furnishes a dictionary for the expression "acting in any manner pre judicial to the security of t, he State or the maintenance of public order", and then enumerates in els. (a) to (e) certain categories of acts which would fall under the aforesaid expression. The defini tion, however, does not provide the meaning of the two concepts D "security of the State", or, "public order", and leaves the detaining authority to determine whether an act in question disturbs or is likely to disturb or endanger either of them, or both. It becomes necessary, therefore, to ascertain the connotation of these two concepts as lai<! down in certain judicial pronouncements. Although those pronouncements were under tl1e Preventive Detention Act of E 1950, they would, nevertheless, apply to the present Act also, since by not providing any different definition the legislative authority must be presumed to have used the expressions, security of the State and the maintenance of public order, according to their wellestablished meanings. In Dr. R. M. Lohia v. Bihar( 1), the impuned detention order F was passed under r. 30(1) of the Defence of India Rules, 1962 which required satisfaction of the detaining authority that tlle per son concerned should be prevented from acting in a marmer prejudicial inter alia, to the public safety anthe maintenance of public order.

The order impugned the stated 1hat the authority was satisfied that it was necses to detain the petitioner with a view to prevent him from acting in a marmer pre judicial to "the public safety and maintenance of la\v and order" After considering the earlier decisions on the question as to the meaning of the expressions, 'law and order', 'public order' and 'security of I.he State', Hidayatullah, J., (as he then was) summed up as follows :

"The District Magistrate acted to "maintain law and order" and his order could not be read differently even

(I) (196<] I SC R 709.

ANANTA MUKHI v. WEST BENGAL (She/at, J.) 335

if there was an affidavit the other way. If he thought in terms of "public order" he should have said so in his order, or explained how the error arose. A mere reference-to his earlier note was not sufficient and the two expressions cannot be reconciled by raising an air of simiiitude between them. The contravention of law always affects order but before it can be said to affect public order, it must affect-the community or the public at large.

One has to imagine three concentric circles, the largest representing "law and order"', the next representing "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public or<ler" but not security of the State".

Therfore, by using the ex• pression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

D These observations clearly bring out the distinction between the

three concepts, of law and order, public order and lhe security of the State, and the scope of each of them. The drawing up of imaginary concentric circles helps considerably in delineating the distinction bet.ween one from the other and the area covered by each of them. A similar distinction between the concept of law and order and that of public order was drawn in Pushkar Mukher- E jee v. West Bengal(') by a caution therein that the expression "public order" in sec. 3(1) of the Preventive Detention Act, 1950 did not take in every infraction of law. In was observed that the contravention of any law always affects 'order', but before it can be said to affect 'public order', it must affect the community or the public at large. Mere disturbance of law and order leading to F disorder is not necessarily sufficient for action under the Preven

tive Detention Act, which can only be invoked where there is apprehended a disruption of public order. The true distinction between the three concepts lies, as pointed out in Arun Ghosh v.

West Bengal(2 ), in the degree and extent of the reach of the act in question upon society. Acts similar in nature, but committed G in different contexts and circumstances might cause different reactions. In one case, it might affect the problem of law and order, and in another, though similar in quality, of public order. (sec also Nagendra Nath Monda! v. West Bengal('). An act, such as communicating the defence secrets of a country to an enemy country, while not affecting the maintenance of law and order H or public oriier, would affect adversely the security of the State.

On the other hand, there may be activities which depending upon

(2) [1970) 3 S.C.R, 188

(3) Writ Petition 308 of 1971, decided on 13-1-72.

Af the degree of their effect and potentiality might affect all the three at the same time.

The three concepts have, thus, through a catena of decisions

aquired well undertood meanings, and though in some cases tllcy might overlap to a certam extent, the ruotinction between them is tairly clear. When, therefore, statutes, such as the present one, confer power on an authority to deprive a citizen of his

librty, and bar at the same time any judicial scrutiny into the sufiiciency of reasons for doing so, it is vital that the action depriving such liberty, without the usual trial, must not only comply with the substantive but also the formal requirements of the statuto conferring such power, for, it is the latter which wouk

'.how whether the form1; r have been complied with. If the power, C tl!erefore, is exercised because a certain result, namely, danger to pubiic order or the security of the State,. is apprehended, the de- 1ainin5 authority ought to set out in clear terms both in the ordet and the grounds for detention upo1i which of the two apprehended results, or both, he is satisfied.

Obviously, it would not lie possible, without tht being explicitly set out, for the person D concerned to make a representation, which is the only protection and safeguard given to him under such statutes.

The detaining Quthority has, therefore, to carefully ascertain, in order to reach his requisite satisfaction, whether the activity in ques\ion, whether actual or expected, affects or is likely to aikct any one of the two things, namely, public disorder, or dnger to the security E of the State or both, and state so clearly in the order. It may be that the activity in question might be such that it affects or is likely to affect one or the other, or both at the same time, in which case he can state that his satisfaction was as regards both.

As is clear from the first sub-section of sec. 3, that sub-section confers power to make detention orders against certain persons but its exercise is conditioned by the satisfaction that if not detained, F

the activity of the person concerned, actual or anticipated, will affect prejudicially either the security of the State or the public order, or both. 1be disjunctive 'or', used there, must mean that the required satisfaction is one or the other ground, or even both. But, unlike the earlier Acts, which providd for preventive G detention, the present Act furnishes in the second sub-section of sec. 3 a definition for the expression used in the first sub-section, namely, "acting in any manner prejudicial to tl1e security of the State, or the maintenance of public order", by setting out tertain

catgories of activities which must be accepted as capable of affecting prejudicially the security of State or the public order. Using or instigating a person, orally or in writing, or by signs or verbal representation, or otherwise; to use any lethal weapon either (i) to promote or propagate a cause or ideology, the promotion or

ANANTA MUKHI v. WEST BENGAL (She/at, J.) ",;

propagation of which alfects, as is likely to affet adversciy ti~~

seuruy of the State, or the maintenance of public order, or (11) to overthrow, or overawe the Government established by law would, according to the definition in sub-sec. (2), mean acting in a manner prejudicial to the security of the State or the maintenance of public order. It would seem from cl. (a) that acts of the kind mentioned in sub-cl. (i) would be regarded as prejudicial to public order or security ol the State, as the case may be, while those mentioned in sub-cl. (ii) would he regarded as capable of prejudicial to the security of the State. The language of cl. ( c;! itself suggests that besides the act being of the kind mentioned in sub-cl. (i) the authority must also be satisfied that the act there set out is one that affects, or is likely to affect adversely public order.

Under cl.. (b), committin;.': mischief, as defined in sec. 425 of the Penal Code, by fire or explosive substance on the classes of property specified there, provided again that such mischief disturbs or is likely IP disturb public order, would fall under the definition. CI. (b) thus requires two ingredients, (i) that the act in question is mischief and is . committed by fire or explosive substance on property of the kind set out there, and (ii) the satisfaction of the authority that the mischief is such that it affects or is likely to affect public order. Surely, setting fire to an educational institution, or a public building, reprehensible though it is, could not possibly have been intended to mean putting the security of the State in jeopardy. Ordinarily, it might not perhaps have been considered as an ac~ .Pecessarily disturbing or likely to disturb public order, but sec. 3(2) makes it so, in view of the exU-aordinary

situation then existing in West Bengal, and the background in which the Act was passed. The result is that an activity of the kind set out in cl. (b) would be regarded as a ground for an order under &ub-sec. (1) provided the detaining authority is satisfied that its effect, actual or likely, is disruption of public order. It will be noticed that cl. (b) does not say that the effect of such an activity would prejudicially affect th~ security of the State, and refers only to public order. It is, therefore, manifest that cl. (b) does not intend t11e invoking of the power under sub-sec. 1 on the ground of any apprehension to the security of t11e State.

On the other hand, acts specified in cl. ( c) might affect public order, and in some cases, even the security of ilie State, depending upon their extent and potentiality. An insult to ithe National Flag or any other object of public veneration might result in disturbance of public order, or even security of the State, depending 'upon the circumstances, the degree of veneration for the object in question and other such factors. In such cases, the detainin_g authority would have to ascertain from the facts and circumstances of each case whether the act under consideration was likely. to affect one or the other, or even both. But, cl. ( c) is not in!ended

to mean that every such at must, without anything more, be A deemed to mean affecting both public order and security of the State. .

Activities set out in both els. (d) and (e) also require satisfaction of tl!e authority that !hey are such that they have either disturbed or tend to disturb public order. It is again noticeable that B both the clauses omit !he expression "security of the State". Such an omission must mean that those activities have a bearing on and relate to public order, and not to the security of the Sta!e. Subsec. (2), by furnishing a dictionary to the expression "acting in any manner prejudicial to the security of the Sta!e or the maintenance of public order" enables the detaining authority to treat the specific categories of activities set out 1therein as activities capable C of affecting the security of the State or the public order, and to invoke the power if it is satisfied that !heir effect, actual or likely, is adYerse to either, or both of them, depending upon their extent or potentiality. Before, therefore, resorting !O sub-sec. (1), the authority has to be satisfied whether the act or acts alleged against the person concerned fall under one or the other ground, viz., the D security of the State or public disorder or under both. If the authority decides to make the order, it must state in i! whether its satisfaction is on one or the other ground, or both. The mere fact that the acts in question are of any of !he kinds mentioned in els. (a) to (e) of sub-sec. (2) does not mean that they autometically and without anything more mean acting in a manner prejudicial to the E security of the State as well as maintenance of public order. It can mean either one or the other, or even both, depending upon the satisfaction of the authority as to its effect on one or the other or both.

But it wgs said that a construction contrary to the one sugge, led above has been taken in Shyamal Monda/ v. West Bengal(') The impugned order there stated that the District Magistrate was

stisfied that it was necessary that the petitioner should be detained

with a view to prevent him from aoting in any manner prejudicial LO the securitv of the Sta!e or th~ maintenance of public order.

The grounds for detention served on the detenu, as set out at page 674 of the rePort, show that !he acts alleged against him and in respect of which the District Magistrate thought it necessary to detain him were (a) an attack on a passenger train by the petitioner and his associates, armed with bombs and explosives, with

a view to catcl) their rivals, obviously political rivals, and to kill them, which iniu:ed some innocent passengers, (b) attack and a'sault on !he guard of another train by the petitioner and his associates who were again armed with bombs and daggers, and H

(c) an &tack bv the petitioner and his associate.q, similarly armed.

(I) [19711 2 S.C.C. 672.

ANANTA MUKH! v. WEST BENGAL (She/al, J.) 389

on a police. partY at a railway station. All the three grounds men tioned the District Magistrate's conclusion that in each case there was disturbance of public order and panic and terror amongst the passengers. There was clearly no reference to any danger or apprehension to the security of the State as the dimensions of the

act~ alleged were confined to the respeC'tive local areas, namely, 1he named railway station. The contention rais-d was that the acts alleged against the detenu had no bearing on the security of the State, and that the order contained, therefore, extraJl"..ous and irrelevant maters, namely, the apprehension to the security of the State, over which, by the very nature of the acts attributed to the petitioner, and the conclusion stated by the District Magistrate in each of the grounds, he could never have reached his satisfaction.

The contention was repelled on the ground "that the act itself furnishes a dictionary meaning for the two expressions and a perusal of clauses (a) to (e) clearly shows tha! any of the matters referred to therein will be both "prejudicial to the security of the State or ilie maintennce of public order". With great respect, such a construction of the definition in sec. 3(2) would mean that any one of the activities enumerated in els. (a) to (e) would fall under both the grounds, namely, the security of the State and the maintenance of public order, and therefore, it would not be necessary for 1he detainine: authority to ascertain for his satisfaction whether the

;, ct for which he considers detention necessary is of the type or category which is or tends to be prejudicial to the security of 'lhe State or the maintenance of public order. In other words, any one of the a.cts set out in els. (a) to (e) must be regarded as preiudicial to both fae security of the State and the maintenance of

ut-!ic order.

If that is 'the meaning which is to be attributed to the definition ; n sec. 3(2), the detention order, read in the light of the grounds of detention served on the petitioner there would appear to be not in accord with the realities.

For instance, an attack on a train with the object of seiring political rivals and to eliminate them would, without doubt, be one that creates public disorder, but such public disorcter affects persons in the area in which i't is disturbed.

So far as the first ground was concerned, the attack was on a train.

In the two Qther grounds, the areas affected were two railway stations. Would it, in the light of these confines, be realistic to

390.

SUPREME COURT REPORTS [1972] 3 S.C.ll.

A say that the three alleged acts were such that they placed the security of the State of West Bengal in danger, or had even the tendency to do so ? Further, each of the grounds of detention, a> framed by the District Magistrate himself, contained his conclusio11 that in each case there was disturbance of public order. Ob viously, the satisfaction which he had reached was 1hat the alleged B acts were SJ!Ch that they disturbed or tended to disturb public order. Could such acts, which even according to the District Magistrate himself led to public disorder in a particular area, be said to have led to his satisfaction that they affected or tended to affect adversely the security of the whole State as well as 1he C maintenance of public order ?

If such !l construction of s. 3(2) were ito be accepted, it must lead to the result 1hat every activity falling under any of the clauses

(a) to (e) !!lUSt be said to be one which actually affects or tends D to affect both the security of the State as well as public order. ln that case des_!ruction of a private school, however, small in size, or an oflioe of a village officer, once it fall within sec. 425 of the Penal Code, or committing or instigating an offence falling und.~~

cl. ( d), qr cl. (e) affecting or tending to affect public order mus'': also be regarded as affecting or tending to affect the security of the I!

State and also as leading to the satisfaotion of the detaining authority that it ds or is likely to do.

What sub-sec. (2) of sec. 3 does is that it considors any one of the activi'!.ies there enumerated as adversely affecting or likelv to affect either the security of the State or public order, and bars a challene !hat by its very nature it could not possibly lead anv reasonable person to the satisfaction required by sub-sec. ( 1). U; e of or instigating to use a lethal weapon for the purpose mentionecl in cl. (a) (i) would be a ground for detention if it either affects c:· is likely to affect adversely either the security of the State or public order, depending upon the potentiality and the extent of the act in question. Such use or instigation confined to a small number

of persons or area might affect only public order. On a State-wide potentiality, it might affect advrsely even the security of the Stllle.

Indeed, such a distinction is expressed in sub-els. (i) and (ii) of H

cl. (a) itself, The same can be said of all other activities set out in the other clauses. Under cl. ( c), causing insult to the national

ANANTA MUKH! v. WEST BENGAL (Khanna, J.) 391

flag or any other object of public veneration is regarded by that clause as acting in a manner prejudicial to the security of the State

or the maintenance of public order depending upon the circumstances, the reach or the potentiality of the act in question. Such an insult on a vast scale simultaneousiy commi'lted might have the B effect of creating an upsurge in the whole State and thus affect the security of the State, let alone the public order. Bll't, irrespective of such potentiality, the clause cannot mean that such an act by itself and without anyithing more must be deemed to fall under the mischief of both the kinds: The result of accepting such a con- C struotion would mean that once an act falls under any of the clauses

(a) to ( e), even if it affects or is likely to affect public order only must also be held to affect or likely to affect the security of the State, thus, otally wiping off l!he difference between the two coucepts and their respective areas of influence. That could not be the intention underlying sub-sec. (2) of sec. 3. Taking all these !D circumstances into account 1together with the language of sub-sec. (2), the conclusion must be that the detaining authority must arrive at and express its satisfaction thirt the detenu's activities, actual or likely in future, were such that they would affect either

the security of the State or the public order or in some cases, by reason of their reach. even both.

In this view, the construction urged by counsel for the petitioner has to be accepted and it must be held that the use of the disjunctive 'or' in the impugned order rendered ithe order of detention vague and indefinite, indicath•~. of the detaining authority having merely reproduced mechanically the language of sec. 3 (1) of the Act. The detention, therefore, has to be held to be bad.

The petition consequently must be accepted and the petitioner be held entitled to his liberty forthwith.

Order accordingly.

Khamlll, J. This is a petition through jail under article 32 of the Constitution of India for the issuance of a writ of habeas corpus by Anania Mukhi alias Ananta Hari who has been ordered to be detained under section 3 of West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970), hereinafter referred to as the Act.

The order of detention which was made against the petitioner A reads as under :

ORDER No. 97/C Dated 24-4-71 Whereas I. am satisfied with respect to the person known as Shn Ananta Mukhi @ Ananta Hari son of Gobardhan @ Gurai of Antpara, Chakbazir, P. S.

Deba, Dt., Midnapore that with a view to preventing h1!11 from acting in any manner prejudicial to the s.ecnty of the State or the maintenance of public order, 1t 1s necessary so to do, I therefore in exercise of the powers conferred by sub-section ( 1) read with sub-section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19 of 1970) make this order directing that the

said Shri Ananta Mukhi @ Ananta Harl be detained.

Given under my hand and Seal of office.

Sd/- District Magistrate Midnapore

Soon after the detention order, the petitioner was found to be •lbsconding.

He was arrested on May 5, 1971 and was served with the order of detention along with the ground of detention and the vernacular translation thereof on the same day.

On ,\pril 26, 1971 the District Magistrate of :\1idnapore reported to E the. State Government about the making of the detention order

rlgainst the petitioner together with the grounds of detention and other necessary particulars.

The said report and particulars were considered by the State Government and ori May 4, 1971 the detention order was approved by the State Government. On the same day the State Government submitted a report to the

Centrd Government together with the grounds of detention and 0ther necessary particulars.

The case of the petitioner was place<l by the State Government before the Advisory Board on June 3, 1971.

In the meanwhile, on May 20, 1971 the StatE Government received a representation of the petitioner dated \fay 13, 1971. The s~.'.~ representation was considered by the

State GoY('r; iment and was rejected as per order dated June 2. l 971.

The representation of the petitioner was then forwarded to th(; Advisory Board.

The Advisory Board after considering

the material before it, including the representation of the petitioner and after hearing him in person, sent its report to the State Government on July 8, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the deten- H tion of the petitioner.

By an order dated July 16, 1971 the State Government confinned the order of detention of th". re-:itioner.

ANANTA MUKHI v. WEST BENGAL (Khanna, J.) 393

The petition has been resisted by the respondents and the affidavit of Shri Manoranjan Dey, Assistant Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.

We have heard Mr. R. K. Jain who has argued the case llmicus curiae on behalf of the petitioner and Mr. G. L. Mu]>hoti

on behalf of the State.

One of the contentions advanced by Mr. Jain is that the detaining authority has taken into consideration facts extraneous to section 3 of the Act in making the order of detention, and therefore the said order is illegal. In this respect we find that in the grounds of detention which were supplied to the petitioner under sub-section ( 1) of section 8 of the Act, the following particulars were mentioned :

"(1) That on 4-10-69, at about 21-30 hrs., you along with 50/60 Naxalite supporters being am1ed with lethal weapons raided the house of Shri Pulin Bihari Manda! of Bhuiyabasan, P. S. Debra in order to kill him. The house owner somehow managed to save his life. You and your associates then looted cash, ornaments, utensils and other properties worth about Rs. 10, 000 from the house.

(2) That on 8-11-69, at about 20.00 hrs., you along with 20/22 Naxalite workers a1n1ed with lethal weapons raided the house of Shri Bistu Pada Bhuiya of Radhakantapur, P. S. Debra and killed his two brothers named Madan Bhuiya and Kshudiram Bhuiya by sharp cutting weapons. You and your associates also looted ornaments and other articles from the house."

lt would appear from the above that according to the grounds of detention, the petitioner along with 50 / 60 other persons armed with lethal weapons raided the house of Pulin Bihari Mandal cm October 4, 1969 at night time and looted cash, ornaments, utensils and other properties worth Rs. 10,000 from the house.

It is further alleged that on November 8, 1969 at about 10 p.m. 1he petitioner along with 20 /22 associates armed with lethal weapons raided the house of Bistu Pada Bhuiya of Radhakanta, pur and killed his two brothers Madan Bhuiya and Kshu,:iram Bhuiya by sharp cutting weapons and also looted m;!)amentE md other articles from the house. The above facts would sho\, that the case against the petitioner was covered by clause ( d) of subsection (2) of section 3 of the Act. Sub-sections (1) and (2) of section 3 of the Act read as under :

"(!) The State Government may, if satisfied with

espect to any person that with a view to preventing

him from acting in any manner prejudicial to the security of the State or the maintepance of public order, it is necessary so rto do, make an order directing that such person be detained.

(2) For the purposes of sub-section (1), the expression "acting in any manner prejudicial to thesecurity of the State or the maintenance of public order" means-

(a) using, or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon- ( i) to promote or propagate any cause or ideology, the promotion or propagation of which affects, or is likely to affect, adversely the security of the State or the maintenance of public order; or

(ii) to overthrow or to overawe the Govern- D ment established by law in India.

Explanation.-In this clause, 'lethal weapon" includes fire-arms, explosive or corrosive substances. swords, spears) daggers, bo\vs and arrows; or

(b) committing mischief, withm the meaning of section 425 of the Indian Penal Code, by fire or any .explosive substance on any property of Government or any local authority or any corporation owned or -controlled by Government or any University or other educational institution or on any public building. where the commission of such mischief disturbs, or is likely to disturb, public order; or .

(c) causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so.

Explanation.-In this clause, "object of public veneration" includes any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory; or

(d) committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where

ANANTA MUKHI v. WEST BENGAL (Khanna, J.) 39;:

the commission of such offence disturbs, or is likely to disturb, public order; or

( e) in the case of a person referred to in clauses

(a) to {f) of Section 110 of the Code of Criminal Procedure, 1898, committing any offence punishable with imprisonment where the commission of such offence disturbs, or is likely to disturb, public order."

The firstallegation discloses that the petitioner and his associate:; were guilty of dacoity, while the second allegation sh9ws that at the time of the. commission of the offence of dacoity, the petitioner and his associates also murdered two persons.

As such, according to the grounds of detention, the petitioner and his associatc1 committed offences punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more. The aforesaid activities of the petitioner, according to the affidavit of Shri Manoranjan Dey, disturbed public order and the petitioner became a terror to the residents of the locality. We see no cogent ground to take a different view. It is obYious that when such a large number of persons, who were stated to be Naxalite workers, armed with lethal weapons commit the offence of dacoity and dacoity with murder, such offences disturb or are likely to disturb public order. According to sub-

ect!on (1) of section 3 of the Act, the State Government may, if so satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the securi!:y of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.

Sub-section ( 3) empowers a District Magistrate to exercise the powers, if so satisfied, conferred by sub-section ( 1).

The activities of the petitioner as mentioned in the grounds of detention, in our opinion, show that they were not of an extraneous character but fell within the expression "acting in any manner prejudicial to the security of State or the maintenance of public order" as defined in sub-section (2) of section 3 of the Act.

The second submission of Mr. Jain is that the order of deten- :ion made by the District Magistrate shows that he has not d?'Y applied his mind before making the detention order, as accordmg to the order the petitioner was detained "with a view to pr:venting him from actino in any manner prejudicial to the secunty of 1he State or the mintenance of public order". It is urged that the District Magistrate should have specified in the order. as !O

whether it was necessary to detain the petitioner from actmg 1!1

any manner prejudicial to the security of the State or whether 1t

was necessary to detain him from acting in any manner pr.:judicial to the maintenance of public order. The District Magistrate, according to the learned counsel, could have also, if fact; so warranted, passed an order for detention of the petitioner cu both the above grounds but he could not make an indefinite order by using the word "or" in the same and stating that it was necessary to detain the petitioner with a view to preventing him from acting in any manner "prejudicial to the security of the State or the maintenance of public order".

The. order, it i~ stated, is a mechanical reproduction of the statute and shows that there. was not due application of the mind before the orda was made.

The above contention has been resisted by Mr. Mukhoti and in our opinion, is not well founded.

We have reproduced sub lieCtion (2) of section 3 of the Act earlier and it would appear therefrom that a comprehensive definition has been given of the .expression "acting in any manner prejudicial to the security of

the State or the maintenance of public order''.

The definition shows that the whole thing has been clubbed together and no separate definitions have been given, one in respect of "acting in any manner prejudicial to the security of the State" and an other in resptct of "acting in any manner prejudicial to the main

tenance of public order".

The various acts which have been specified in the different clauses of sub-section (2) of section 3 fall within the compendious expression "acting in any manner prejudicial to the security of the State or the maintenance of public order", and it would not, in our opinion, introduce a.a

infirmity in the detention order if it is stated therein that it iJ; necessary to detain a detenu with a view to prevent him frorr. acting in any manner prejudicial to the security of the Stat~ or .the maintenance of public order. .

It is no doubt true that if a statute mentions different grounds for the detention of a person, the order detention should specify distinctly the ground or grounds for which the detenu has bee:i ordered to be detained and it would not be permissibk to state that the detenu has been ordered to be detained for ground (a) "or" ground (b). The use of the word "or" woulc .show in cases falling under such a statute, an element of casualness in the making of the order as held by this Court in the case of Jagannath Misra v. State of Orissa.( 1) The detenu in that case had been ordered to be detained under rule 30 ( 1 )( b) o: the Defence of India Rules, 1962 and according to the order of detention, the order had been made with a view to preventing the detenu "from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance m

(t) tt966] 3 s.c.R. 134,

ANANTA MUKlll v. WEST BENGAL (Khanna,!.) 397

A public order, India's relations with foreign powers, 1he mainten

ance of peaceful conditions in any part of India or the efficien conduct of military operations".

This Court observed :

"There is anotner aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or" in such a case makes no sense. In the present order however we find that the disjunctive "or" has been used, showing that the order is more or less a copy of s.3(2)(15) without any application of the mind or the authority concerned to the grounds which apply in the present case.··

D The above principle would, however, not apply in the case of a

person ordered to be detained under the Act with which we are

dealing because of the special definition given in sub-section (2) of section 3 of the Act of the expression "acting in any nianaer prejudicial to the security of the State or the maintenance of public order". According to the definition, each one of the activities mentioned in the various clauses of the said sub-section constitute.; an act "prejudicial to the security of the State or the maintenance of public order". The presence of the word "or" in the definition itself tends to show that the use of that word in the order is not impermissible and there was no element of casualness or absence of due application of the mind in the making of

the impugned order. ·

In the case of Dr. Ram:Manohar Lohia v. State of Bihar.and Ors. (1}, this Court while expounding the words "maintenanc c:A.

public order'', observed :

G "one has to imagine three concentric circles : Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State."

The above observations were relied upon by this Court in the H subsequent case of Madhu Limave v. Sub-Divisional Magistrate, Monghyr and Ors. (2) and it was observed : ----· -

0) (1966] I S.C.R. 71YJ.

(2) [1970) J S.C.R. 746.

398 SlTl>llEME COI JHT RE l'OH.1 S fl 9721 3 S.C.R.

''The expression 'public or<lcr' includes absence of all acts which arc a daqgcr to the security of the State Jnd also acts which arc comprchen<le<l by the expression 'order publiquc' explained above but not acts which disturb only the serenity oE others."

ln 1the case of State of West Bengal v. As/wk Dey & Ors. etc. etc. (Cr. Apptal No. 217 to 223 of 1971 decided on November 19,

1971) while delaling with different claus.es :of section 3, this Court observed :

"That, disturbance of public order in a State n1ay in turn prejudicially affect its security, is also undeniable.

Fairly close and rational nexus between these clauses and the maintenance of public order and security of the State of West Bengal is writ large on the face of these clauses."

It would-follow from the above that though all activities prejudi- : cial to the security of the State and those which are prejudicial

to -the nlaintenance of public order. are not identical, because of close nexus between maintenance of public order and security of State, there is bound to be some overlapping. As the expressions "acts prejudicial to the maintenance of public order" and

"acts prejudicial to the security of the State" have not been separately defined but have been put together in the same definition with the disjunctive "or" in between them, the use of the word "or" in the detention order would not, in our opinion, so adversely affect the. said order as may justify the quashing of that order.

We are fortified in. the above conclusion--by a recent decision of th\s Court in the case of Shyµmal Monda! v. State of West Bengal(1). In that case too the impugned order of detention

stated that the District Magistrate- was satisfied that it was necess::iry. that the ptitioner should be - detained with a view to prevent hiin fro~ acting n any n1anner prejudkial to the security of the State or the n1aintenance of public order as provided by section 3 (1) of the At. Argument was advanced 'on behalf of t11c: deteri~ that i_hc. order' of etention ,. was illeg::U

inasmuch as the petitioner ha<l not been informed asto how his ...__

(1) .\.I.It: (1971) s.c. 2384.

ANANTA MUKHI v. WEST BENGAL (Khanna, J,) .399

activity was prejudicial to the security of the State. It was pointed out that as both the matters, namely,. the maintenance Gf public order and the security of the State had been mentioned in the order of detention, it must be taken that the detaining authority had taken into account extraneous and irrelevant matters in passing the order of detention. It was further submitted that it was not clear whether the detaining authority passed the order to prevent the detenu from acting in any manner prejudicial to the security of the State or for maintenance of public order.

The above contentions were repelled by this C Court and reliance was placed upon the definition given in subsection (2) of section 3 of the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order". It was observed :

"It will be seen that the Act itself furnishes a dictionary meaning for the two expressions and a perusal of clauses (a) to ( e) clearly shows that any of the matters referred to therein will be both "prejutlicial to the security of the State or the maintenance of public order.

We are not inclined to accept the contention on behalf of the petitioner that it is only sub-clause ( 1) of clause (a) of section 3(2) which deals with the matters, _which adversely affects the security of the State.

In fact that very sub-clause refers to the matters mentioned therein as affecting the security of the State or the maintenance of public order.

Therefore, in this case the grounds of detention cannot be held to be. vague nor can the order of detention be held to be invalid on the .. g_round .. that.-thepetitioner must have been detairied only to prevent him from acting i!Pally manner prejudicial to the maintenance of public order and not to the security of the State."

Although an attempt was made to assail the correctness of the above view, we find, for reasons stated earlier, no cogent

13-Ls87SupCI/72

ground to take a different view. The result is that the petition A fails and is dismissed.

ORDER

In view of the opinion of the majority the Writ Petition is dismissed. B . s.c.

Petition dismissed .

ANANTA MUKHI, @ ANANTA HARi

STATE OF WEST BENGAL

February 3, 1972

M. SHELAT

H. R. KHANNA

K. K. MATHEW, JJ

Prevention of Violent Act

Sec. 3

Sec. 3(3)

art. 32

s. 3

Prevention of Violent Act

Sec. 3

Section 3

Section 3

Section 3

Section 3

Shelat

S. 3(2)

Sec. 3

S. 3(1)

[1966] 3 S.C.R. 134

R. K. lain

G. L. Mukhoty

G. S. Chatterjee

K. K.

MATHEW

KHANNA

P. S. Debra

section 3

Ananta Mukhi @Anania Hari

sec. 3(1)

March 19, 1970

Art. 356

India

West Bengal

Parliament

April

29, 1970

sec. 3

President Act XIX of 1970

Seventh Schedule

Sec. 3

Indian Penal Code

Arms Act, 1959

section 110

Code of Crimina I Procedure, 1898

Act or in the Preventive Detention Act

Defence of India Act, 1952

s. 3

Preventive Detention Act

Defence of India Rules, 1962

Hidayatullah

sec. 3(1)

Preventive Detention Act, 1950

sec. 3

sec. 3

sec. 425

Penal Code

sec. 3(2)

sec. 1

sec. 3(2)

sec. 3(2)

SUPREME COURT REPORTS [1972] 3 S.C.ll

State of West Bengal

s. 3(2)

sec. 425

Penal Code

sec. 3

flag

sec. 3

sec. 3

Khamlll

article 32

Constitution of India

Anania Mukhi alias Ananta Hari

section 3

Prevention of Violent Act

Ananta Mukhi @ Ananta Hari

Gobardhan @ Gurai

Antpara

Midnapore

section 3

Prevention of Violent Act

Ananta Mukhi @ Ananta Harl

May 4, 1971

June 3, 1971

May 20, 1971

June 2. l 971

8, 1971

July 16, 1971

Manoranjan Dey

R. K. Jain

G. L. Mu]>hoti

Jain

section 3

section 8

Pulin Bihari Manda

Bhuiyabasan

P. S. Debra

Bistu Pada Bhuiya

Radhakantapur

Madan Bhuiya

Kshudiram Bhuiya

Pulin Bihari Mandal

October 4, 1969

November 8, 1969

Radhakanta

section 3

section 3

section 425

Indian Penal Code

Arms Act, 1959

Explosive Substances Act, 1908

Section 110

Code of Criminal Procedure, 1898

Manoranjan Dey

section 3

section 3

Mukhoti

section 3

section 3

Defence of India Rules, 1962

section 3

November 19,

1971

section 3

section 3

section 3

section 3(2)


RAM KRISHNA PAUL

TIIE GOVT. 011 WEST BENGAL & ORS.

February 3, 1972

[J. M. SHELAT, H. R. KHANNA AND K. K. MATHEW, JJ.]

West Bengal (Prevention of Violent Activities) A.ct, 1970, s. 3- Grounds of detention--One of the grounds extraneous in character.

Order of detention would be vitiated.

The petitioner was deiained under section 6 of the West Bengal Pree vention of Violent Activitiea Act, 1970. One of the grounds of detention

which was supplied to the petitioner umler sul>-section ( 1) of section 8 was. that .he alongwith his associates werit to a pharmacy po&ng himself

as a purchaser of medicine '311d demanded money from the oWDllt" of the pharmacy in the name of collection. towards party fund and out of fear the owner delivered Rs. 10/· to him. Quashing the order ot detention,

D HELD : (i) The around doe& not fall under any ot the c:lausea of 1. 3 setting out the cireum1tance1 under which a pehon can be ordered to be detoined and is therefore extraneous in character.

(ii) There is no allegation in. the ground that the.petitioner had put any person in fear of any injury to that person ot to anyi other. Ai such it cannot be said that the petitioner was guilty Of extortion. Intentionally putting " person in fear of injury to himlelf or any other is a -•ry E ingredient of the offence of extortion. [403 BJ

(iii) There is nothing to show that the District Magistrate wouid lia~ passed the order of detention of the petitionel" in case he was not indllt!nced by the facts mentioned in the ground. Therefore, the extraneous nature of even one of the grounds of detention would vitiate the order of deten tion. [403 DJ

F OR1GINAL JUltISDICTION : Writ Petition No. 307 or 1971.

Under articlo 32 of tho Constitution of India for 'II writ in the nature of habtas corpus.

R. K. lain, for the pe.titioaer

G. L. Mukhoty and G. S. Chatter/11, lot th~ re1pondent.

The Judgment of the Court was delivered by

Khanna, l. This is a petition through jail under article '.• 2 of the Constitution of India for the issuance of a writ of habtas cor H pus by Ram Krishna Paul who has been ordered to be detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's.Act No. 19 of 1970), hereinafter referred to as the Act.

The order of detention was made against the petitioner under A 111b-section ( 1 ) read with sub-section ( 3) of section 3 of the Aot by the District Magistrate, Murshidabad on January 27, 1971.

According to the order of detention, the District Magistrate was satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing his

JI. detention. The petitioner in pursuance of the detention order was

arrested on January 28, 1971 and was served with the same day with the ground of detention together with vernacular translation thereof. Report about the making of the detention order was sent ' by the District Magistrate to the late Government along with the

ounds of detention and other particulars on January 27, 1971.

The report and the particulars were considered by the State Gov- C ernment and the orr of detention was approved by the said Government on February 5, 1971. The same day the State Government submitted a report to the Central Government together with the grounds of detention and other particulars. On February 18, 1971 the State Government in its Home Department received representation dated February 15, 1971 sent by the petitioner. The D said representation after consideration was rejected by the State Government on March 23, 1971. In the meanwhile, on February 25, 1971 the State Government placed the case relating to the petitioner befpre the Advisory Board. The representation made by the. petitioner was sent by the State Government to the Board on March 23, 1971- The Advisory Board after hearing the petitioner, sen(its report to the State GGvernment on April 5, 1971.

E Opinion was expressed in i!s report by the Advisory Board that there was sufficient cause for the detention of the petitioner. The State Gover:mnent confirmed the order of detention of1he petitioner on May 31, 1971. The confirmation order was. communicated to the petitioner as per memorandum dated June. 10, 1971.

The petition was resisted by the respondents and the affidavit of Shri Manoranian Dev, Assistant Secretary, Home (Special) Department, Government of West Bengal was filed in opposition to the petition.

After hearing Mr. R. K. Jain who argued the matter amicus G curiae on behalf of the petitioner and Mr. G. L. Mukhoti on behalf of the IJ<Spondents on January 13, 1972, we directed that, for reasons to recorded later, the petitioner should be set at liberty.

We now preed to give reasons in support of our decision.

Although a number of submissions were made on behalf of the petitioner at the hearing, , it is, in our opinion, not necessary •to deal with all of them as the detention order is liable to. be quashed because one Qf the grounds for the deiention of the petitioner was

R. K. PAUL v. WEST BENGAL (Khanna, I.) 403

A .extraneous and did not in law justify the making of the detention , order.

The grounds of detention which were supplied to the peti- tioner under sub-section (1) of section 8 of the Act read as under:.

"(1) That on 8-12-70 at about 20.00 hours you along wi!h your associates went to Jnanada Pharmacy in

Berhllll), P9~ town posing yourself a purchaser of medicine and demanded money from the owner of the Pharmacy in the name of collection towards party fund. Out

of fear, the owner of the pharmacy delivered Rs. 10/ - to vou.

(2) That on 18-12-70 at about 20.00 hours you along with your associates had been to Punjab Dastra- Iaya, Khagra, P. S. Berhampore and demanded Rs. 1001from the shop.keeper at the point of dagger on the plea of collecting donation towards the party fUnd. Putting

the owner of the shop in fear of .instant death, you induced him to deliver up an amount of Rs. 100/ - then .and there.

(3) That on 22-10-70 at about 19.30 hours you along with your associates had been to Jnanada Pharmacy, Berhampore town and demanded Rs. 2501from the owner of the Pharmacy at the point of dagger putiing him in fear of instant death. The owner of the Pharmacy was spared on payment of Rs. 501forthwith. You and VQ!!r associates went away fixing 26-12-70 for paymem of the remaining amount.

(4) That on 26-12-70 at about 20.00 hours. you along with yout associates came to J nanada Pharmacy, Berhampore and realised Rs. 201from the owner of . the Pharmacy at the point of dagger putting him in fear of instant death."

The various circU)llstances under which a person can be G ordered to be detained have been set out in the different clauses of section 3 of the Act. Ground No. 1 supplied to the petitioner, in our opinion, does not fall under any of those clauses. According "to Mr. Mukhoti the facts set out in ground No. 1 would show tliat the petitioner received Rs. JO/- from the 'owner of Jnanada Pharmacy as a result of extortion. Extortion has been defined in H section 383 of the Indian Penal Code as under :

"Whoever intentionally p11ts any person in fear of .any injury to tha1 person, or to any other, and thereby

dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion."

It would appear from the above definition that before a person can be guilty of extortion, he should intentionally put any person in fear of injury, to that person or to any other, and thereby in duce that person so put in fear to deliver to any person some property, valuable security or anything signed or sealed which may be converted into valuable securi!y. Intentionally putting a person in fear of injury to himself or any other is, thus, a necessarv ingredient of the offence of extortion. In ground No. 1, however, there is no allegation that the petitioner had put any person in fear of any injury, to that person or to any other. As such, it can.!lot .be s_aid that the petitioner was guilty of extortion.

We thus find that ground No. 1 was of an extraneous character and did not justify an order of detention. There is also nothing to show that the District Magistrate would have passed an order of detention of the petitioner in case he was not influenced by facts given in groynd No. 1. The extraneous nature of even one of the grounds of de!tention would, in our opinion, vitiate the order of detention.

We, therefore, quash the order of detention of the petitioner.

K.B.N.

RAM KRISHNA PAUL

TIIE GOVT. 011 WEST BENGAL & ORS

February 3, 1972

M. SHELAT

H. R. KHANNA

K. K. MATHEW, JJ.

Prevention of Violent Act

s. 3

section 6

section 8

Constitution of India

R. K. lain

G. L. Mukhoty

G. S. Chatter/11

Khanna

Constitution of India

section 3

Prevention of Violent Act

section 3

January 27, 1971

February 5, 1971

Central Government

February 18, 1971

February 15, 1971

March 23, 1971

February 25, 1971

March 23, 1971-

April 5, 1971

Manoranian Dev

R. K. Jain

G. L. Mukhoti

section 8

Khagra

P. S. Berhampore

Berhampore

J nanada Pharmacy, Berhampore

section 3

Mukhoti

Jnanada Pharmacy

section 383

Indian Penal Code

K.B.N.


DAUD AHMED

DISTRICT MAGISTRATE, ALLAHABAD & ORS.

February 4, 1972

[S. M. Snw, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.]

U.P. (TempOl1'ary) Control of Rent and Eviction Act, 1947, ss. 3, second proviso and 1-Scope of.

Natural Justice-"-Duty of inquire whether alternative accommodation exists before requisitioning premises,

1be petitionei' owned premises which were in the oqcupe.tion of a tenant. The tenant vacated the premisea and delivered posse8Sion to the petitioner who moved into actu"1 occupation and informed the. au!lioritiea: Thereafter, the District Magistrate pasied an order of requisition of theae premises, without any enquiry as to whether the petitioner had any othot' alternative accommodation, and the petitioner challenaed the order.

Allowing the petition,

HELD : ( J) The petitioner was in &ctual residenoe of the requisitioned premises and his occupation was not unlawful. Section 7 of the Act does not contain any impediment or bar to the landlord takihg possession Of E the premises after the tenant has vacated. [408 B-G]

(2) The sec.ond proviso to s. 3 of the Act, therefore, applies, and under th&t proviso, the District Magistrate had to form an opinicin that alternative accommodation for the person in occupation existed' Alternative accmnmodation will have to be alternative to the accommodation of which the person was in actual occupation. The existence of !Ill alterna tive accommodation is a mattei' of fact and the opinion is to be formed on certain facts. That is, the District Magistrate had to hold en inquiry to rtain the facts in order 'to arrive at the opinion that there exlated alternative accommodation.

It will not be correct to say that without holdin.11 such an lnquiiy or aivina an opportunity to the person in occupa. tion the District Ma91strate can ascertain as to whether such alte1119tive accommodation exltts. [409 A.C, GH; 410 A-DJ

A. K. Kralpak v. Union of India, [1970] I S.C.R. 457, followed.

OiuGINAL JURISDICTION : Writ Petition No. 244 of 1971.

Under article 32 of the Constitution of India for enforcement of the Fundamental Rights.

V. M. Tarkunde, K. L. Hathi and P. C. Kapur, for the petitioner.

G. N. Dikshit and 0. P. Rana, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by- A

Ray, J.

This is a wdt petition challenging the order dated 11 July, 1971 made by the Dist.riot Magistrate, Allahabad under section 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947 (hereinafter referred to as the Requisition Act) whereby the petitioner's premises 1-A Beli Road, Allahabad was requisitioned B for the residene of Mr. Jul!tice D. S. Mathur for a period of "three years or earlier if the purpose is exhausted".

The order further recited "I am fur.her satisfied that the said accommodation is not being occupied by any tenant and the owner C who is said to be in possession of the same is living in his own house No. 1011108 Katra Bakhtiari, Allahabad and so no alternative accommodation shall have to be provided to him".

The petitioner owns premises 1-A Beli Road, Allahabad here- .· inafter called the Beli Road premises.

Prior to the impeached .0 order the Beli Road premises had been in the occupation of Mr.

Justice Oak Qf the Allahabad High Court since the year 1955 and p.rior thereto from the year 1950 when he was the District Judg.!, Allahabad.

The petitioner was Jiving at 1011108 Katra Bakhtiari, Al!aha- E. bad. That house is alleged to be situated in a very congested-area

and is unhygenic because of iis situation near a municipal drain.

The petitioner further alleged that the health of the members of the petitioner's family suffered because of the condition of the house.

According to the petitioner, the house also required reconstruction which would cost approximately Rs. 40,000.

Mr. Justice Oak retired as Chief Justice of Allahabad High Court in the month of May, 1971. The petitioner in the month of November, 1970 made an application to the District Magistrate under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (herei11after called the Eviotion Act) for release of the Beli G Road premises in his favour after the same would be vacated by Mr. Justice Oak. The application was under Rule 6 of the Rules under the Eviction Act. It was made in view of the fact that the Chief Justice of Allahabad High Court would retire in the month of May, 1971. The petitfoner also gave an undertaking that he H would vacate the other house 101I108 Katra Bakhtiari and the same could be allotted to any other person. By an order dated 3

May, 1971 the Di&trict Magistrate rejected the application of the petitioner. It may be stated here rthat the Chief Justice of Allahabad had rec; Qmmended the petitioner's application for release of the accommodation.

The petitioner thereafter filed a representation under seotion 7-F of the Eviction Act against the order of refusal to release the accommodation. The State Government on 6 May, 1971 further stayed all proceedins for allotment in respect of Beli Road premises. After the Chief Justice of Allahabad vacated the premises in the month of May, 1971 ho~ delivered possession to the petitioner who moved into the premises and was then in actual occupation of the Beli Road premises. The petitioner infom1ed the Rent Controller and Eviotion Officer, Allahabad that the Chief Justice of Allahabad had vacated the Boli Road premises and given possession thereof to the petitioner and the petitioner was in occupation ot the same.

On 8 July, 1971 the DiS'trict Magistrate passed an order of requisition of the Beli Road premises. This order is challenged on these grounqs., First, no notice of enquiry was given to the petitioner nor W!lS any enquiry made whether suitable alternative accommodation eXisted for the needs of 1he petitioner. Secondly, no provision was made for suitable alternative accommodation of the petitioner because the petitioner had stated that the accommodation at 1011108 Katra Bakhtiari was not fit for habitation and that is why the petitioner's whole family was residing at 1-A, Beli Road, A!lahaad. Thirdly, it was said that the petitioner had a fundamental right to hold property and he was deprived of it without being heard and without being given an opportunity of redressing his grievances before the property was requisitioned.

The entire controversy in this case turns on the second proviso to section 3 of the Requisi1tion Act. The first proviso is not set out because it is not material. The relevant provisions in section 3 are as follows :-

"Power of requisition :-If in the opinion of the District Magisirate it is necessary to requisition any accommodation. for any public purpose he may' by ordor in writing, requisition such accommodation and may direct that the possession thereof shall be delivered to him within such period as may be specified in the order;

provided that the period so specified shall not be less A than 15 days from the date of the service of the order;

Provided further that no accommodation which is in the actual occupation of any person shall be requisitioned unless the District Magistrate is further of the B opjnion that suitable alternative accommodation exists for his needs or has been provided to him".

Counsel on behalf of the State contended that the proviso was not applicable inasmuch as the requisitioned premises was no! in the actual OQcupation of the petitioner. That submission is unacceptable. The affidavit evidence of the petitioner is that the peti- C tioner was in occupation of the Beli Road premises after Chief Justice Oak had vacated the premises. The State did not deny the fact of occupation of the Beli Road premises by the peititioner.

The impeached order of requisition also recited that the petitioner was said to Qe in possession of the Beli Road premises. The Stale however contended it to be unlawful occupation. It is indisput- D able that the petitioner was in possession of the Beli Road premises~ Chief Justice Oak vacated the premises in the month of May,

1971. The petitioner was the owner. Chief Justice Oak therefore surrendered possession to the owner who accepted it. The petitioner went in!o actual residence at the Beli ltoad premises.

Counsel on behalf of the State relied on section 7 of the Eviction Act in support of the contention that the District Magistrate was to control letting of premises and unless an order was made by the DistJice!. Magistra~~ the petitioner could not get into possession. That is totally misreading section 7 of the Eviction Act.

Section 7 indicates that both the landlord and the tenant shall give

notice of the vacancy of the premises after accommodation becomes vacant by the' tenant ceasinii; to occupy or the tenant vacatinii; it or when there. is release from requisition.

Section 7 (2) states that 1the District Mastrate may require a landlord to allot or not o allot to any person any occupation which is or has fallen vacant. Section 7 does not contain any impediment and bar to the landlord takinii; possession of the premises after the tenant ha< vacated. The petitioner informed the District Magistrate that the premises had been vacated and that the petitioner moved into the premises particularly because the other house where the petitioner had been staying with his family was unhygenic and in dilapidated condition. It is also noticeable that the petitioner made an application under rule 6 of the Eviction Act to the District Magistrate to permit the petitioner to occupy the premises for his personal occupation inasmuch as it was needed by the petitioner. Therefore the petitioner could not be said to be in unlawful occupation.

I!'

The petitioner was in actual occupation of the premises. The question therefore is wlwther the second proviso to section 3 of the Requisition Act required that any notice of enquiry was to be given to the petitioner or that any enquiry was to be made by the District Magistrate as to whether suitable alternative accommodation existed for the petitioner or whether alternative accommodation should be provided. On behalf of the State it was submitted that the opinion of the District Magistrate that alternative accommodation existed or had been provided was the subjective opinion of the District Magistrate. The District Magistrate could not form an opinion by imagination. Opinion is to be formed on certain facts. The existence of an alternative accommodation is a matter of fact. The District Magistrate had to form an opinion that alternative accommodation existed. This could not be done without ascertainment of facts and investigation into the question.

The application of the doctrine of audi altarem partem to the exercise of any statutory power depends primarily on the purpose and provisions of the Act Thi~ Court in A. K. Kraipak & Ors. etc. v. Union of India & Ors., [1970) 1 S.C.R. 457 in dealing with the preparation of a selection list for appointment of officers to the Indian Fore.!_! Service said that one of the purposes of the rule of naturaf justice was ito prevent miscarriage of justice. The principle of natural justice has been applicable to administrative enquiries or quasi judicial enquiries. It is the natiire of the power and the I circumstances and conditions under which it is exercW-.d that will occasion thiinvocation of the principle of natural justice. Deprivation of property.affects rights of a person. If under the Requisiiion Act the. netitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accolllmodation '

for the petiiioner or the District Magistrate was to provide alternative accommodation. The pditioner had made specific request

to remain in occupation of the Beli Road premises on !he 2round that the other house was inadequate and insanitary. The District Magistrate corild decide only after due enquiry and investigation on ma!erials whether any alternative accommodation ex:isted.

Alternative accommodation will have to be alternative to the accommodatio_n of which the petiiion.er is in actual occupation. It is incomprehensible as to how the District Magistrate could in 'the order of requisition state the fact that because the petitioner was living in the other house no alternative accommodation was to beprovided.

The existence of alternative accommodation is something the having of which can be ascertained. It will not be correct to say that without holding an enquiry and giving an opportunity to the-

Pctitiqner in that behalf the District Magistrate will be in a position to ascertain as to whether alternative accommodation for the petitioner exists The existence of an alternative accommodation is a controversy which has to be determined by the District MaRistrait!l. The determination is necessary for correcting or con- . tradicting any relevant statement prejudicial to the view expre.ssed .either by the District Magistrate or the petitioner. That is why the principle of audi a/tarem partem is attracted. The opinion as to alternative accommodation is not an impersonal obligation. It is a determination of a fact. The District Magistrate has to arrive at the opinion on the existence of facts by holding an enquiry and not on turning the idea within himself withou't giving th.e' petitioner any say in the matter.

The District Magistrate did not hold an enquiry and failed to comply with the principles .of naitural justice by finding out the requisite condition to the exercise of his powers that alternative accommodation existed for :he petitionor.

The order of reauisition is illegal and unwarranted.

For these reasons, the petitioner is entitled to succeed. There will be an order quashing the order of requisition of the Beli Road premises. The petitioner is entitled to costs.

V.P.S.

Petition allowed.

DAUD AHMED

DISTRICT MAGISTRATE, ALLAHABAD & ORS

February 4, 1972

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ.

Control of Rent and Eviction Act, 1947

ss. 3

Section 7

s. 3

article 32

Constitution of India

V. M. Tarkunde

K. L. Hathi

P. C. Kapur

G. N. Dikshit

. P. Rana

Ray

section 3

Accommodation Requisition Act, 1947

Allahabad

Jul!tice D. S. Mathur

Oak

Allahabad High Court

Control of Rent and Eviction Act, 1947

6 May, 1971

8 July, 1971

A!lahaad

section 3

section 3

Oak

section 7

section 7

Section 7

Section 7

Section 7

section 3

[1970) 1 S.C.R. 457


:}- E

ISHWAR DAS MALHOTRA

UNION OF INDIA AND OTHERS

February 8, 1972

[S. M. $Il(RJ, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.J

Jammu and Kammir (Extension of Laws) Act; 1956, Ss. 1 & 2- Notification by Cen.tral Govern1nent appointing November 1, 1956, as date of coining into force of £.'(tension Act to Jammu and Kashmir-Exten

sion of Delhi Special Police Establishment Act 1946 in the Schedule of

£tension Act to Jan1n1u and Kashmir-Constitution (Seventh Amendment) Act, 1956-Ef!ect of.

By ti>! Constitution (Application to J ammu & Kashmir) Order, 1954,. one of the entries on which Parliament could make laws was Entry 8!> of List I -of the Seventh Schedule, dealing With 'Extension of the powers

and jurisdiction of members of a police force belonging to 'any State 1 to any area outside that Stte'. The Jammu and Kashmir (Extension of Laws) Act, 1956, (El'tension Act) received the President's assent on September 25, 1956. Section I (2) provides that it shall .come into force on such date as the Central Government may, by notification in the Official Gazette appoint.

By a notification ted October 10, 1956, November 1, 1956 was appointed as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir. Tlie effect of the notification and s. 2 of the Act was that the Delhi Speei"1 Police Establishment Act, 1946, (the impugned Act) which was one of the Act& mentioned in the Sc'.hedule to the Extension Act, came into force in the State from November 1, 1956.

On the same day the Constitution (Seventh Amendment) Act, 1956, came into force and Delhi ceased to be a part C State and became Union Territory,

On the question whether the impugned Act not validly extended to. the State of Janunu and Kashmir, because, Delhi ceased to be a Part C

State on November 1, 1956,

HELD : (I) When the Extension Act was passed, Parliament had the competence to extend the impugned Act to the State of Jrunmu and Kashmir, because; the Delhi Special Police. establishment was a police force belonging to n Part C State. Assuming Parliament_ qeased to have the power as from November 1, 1956, the Central Government could validly issue the notification under s. I (2) appointing the date from whjch

the Extension Act would come into force, and as soon as this 'W:l"S done, by virtue of s. 2, the impugned Act came into force in the State, {414 B-EJ

State of Asam v. Brhvian Kurkalang, A.I.R. 1972 S.C. 223, followed.

(2) The general plrinciple that the executive power ccrreSpcinds to the legislative power, in An. 73, of the Constitution is subject to exceptiollJ.

The executive power to ex-te a valid Jaw does not deae if power fu make that law has ceased to exist. (415 B-DJ .

(3) In so far. as the impugned legislation is a law with respect to Entry 80, even if there was repugnancy it must override any laws repugnant thereto in Jammu and Kashmir. (415 D-EJ

(4) There is nothing in s. 1(2) of the Extension Act which makes it obligatory that the notification should issue simult:Uleously with the date of the coming into force of the Act.

On the contrary, the notification must ordinarily issue earliei' than the date of the coming into force of the law.

The notification could have been issued any time after the President had given his assent to t'he Aclt, '3Dd as Soon as the notification was issued, s. 2 came into effect and all the Acts and Ordinances men tioned in the Schedule stood automatically extended and came into force in the State (416 A.CJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. '93 of 1971.

L. M. Singhvi, P. N. Tewari, 0. C. Mathur, l .. B. Dadacharji :and Ravinder Narain, for the appellant.

Niren De, Attorney-General tor India, lagadish Swarup, 'Solicitor-General of India, R. N. Sachthey and R. L. Mehta, for respondents Nos. 1 & 2. /

Advocate-General for the State of lammu and Kashmir and .R.. N. Sachthey, for respondent No. 3.

The Judgment of the Court was delivered by-

Sikri, C; J. This appeal, by special leave, is directed against the judgment of the Janimu & Kashmir High Court holdjng that the Delhi Special Police Establishment Act, 1946, (25 of

1946) was validly exrended to the State of Janimu and Kashmir by the J animu and Kashmir (Extension of Laws) Act, 1956- :hereinafter referred to as the Extension Act.

The High Court decided this question on a reference made by the Special Magis~ trate, under s. 432 of the Code of Criminal Procedure, before whom the challan had been filed under the Ranbir Penal Code on November 29, 1967. The only question involved in this .appeal before us is as to the validity of the aforesaid extension.

In order to appreciate the contentions of the learned coiinsel in this respect, it is necessary to give an account of the constitutional provisions applicable to the State of Jammu and Kashmir.

On January 26, 1950 the Constitution of India came into foree.

In exercise of the powers conferred by cl. (1 ) of art. 3 70 of the Constitution of India, the President, in consultation with the Government of the State of Jammu & Kashmir, made the Constitution (Application to Janimu and Kashmir) Order, 1950. This order was superseded by .another order in 1954. By that order,

ne of the entries on which Parliament could make laws was entry

- F

80 of List I of the Seventh Schedule of the Constitution. This entry reads as follows :

"Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the. State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside the State."

By the Extension Act, which received the assent of the President on September 25, 1956, the Delhi Special Police Establishment Act, 1946, was extended to the State of Jammu and Kashmir in the following manner. Section 1 (2) of the Extension Act provided that "it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." Section 2 provided as follows :

"(l) The Acts and Ordinance mentioned in the Schedule and all rules, orders and regulations made thereunder are hereby extended to and shall be in force in, the State of Jammu and Kashmir.

(2) With effect from the commencement of this Act, the Acts and Ordinance mentioned in the Schedule shall be amended as specified rtherein."

The Schedule which contained the Delhi Special Police Establishment Act, 1946, amended it by omitting the words "except the State of J ammu and Kashmir" from section 1.

A notification was issued appointing November 1, 1956, as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir. The effect of the notification and Sec. 2 mentioned above was that the Delhi Special Police Esta blishment Act, 1946, came into force in the State of Jammu and Kashmir from November 1, 1956.

The Constitution (Seventh Ame"fidment) Act, 1956 also came into force on November 1, 1956. The State of Delhi, which was a part 'C' State immediately before the Seventh Amendment be came a Union Territory.

A new article, art. 372A, was also inserted in the Constitution enabling the President to adapt la\vs in force immediately before the commencement of the Constitution

(Seventh Amendment) Act, 1956.

This article has no application to the State of J ammu and Kashmir and, therefore, any adaptations made by the President

in exercise of the powers under art. 3 72A can have no application to the State of J ammu and Kashmir.

In view of these constitutional changes, it is contended on be half of the appellant, that under entry 80 Parliament could only extend the powers and jurisdiction of members of the Police Force belonging to any State, and as Delhi became a Union Territory and ceased to be a State on November 1, 1956, Parliament had no jurisdiction to extend the Delhi Special Police Establishment Act, 1946 to the State of Jammu and Kashmir.

It seems to us that the impugned Act was validly extended and our reasons for coming to this conclusion are as follows.

When the Extension Act was passed, Parliament had the compe- C tence to extend the impugned Act to the State of Jammu and Kashmir because the Delhi. Special Police Establishment, was a police force belonging to a Part 'C' State.The contention of the learned counsel that because Parliament could not extend the powers and jurisdiction of members of lhe Delhi Special Police Force nfter November I, 1956, assuming it to be correct; dt>es not 9 invalidate the powers exercised earlier. When the Extension Act was passed there is no doubt that the Parliament had the power. \ The fact that the Parliament ceased to have power, as from November I, l 956, does not make any difference.

This Court had occasion to deal with a similar question in State of Assam v. Ka Bchyien. Kurka}ang.(\) In that case, para 19 (b) of Schedule 6, Constitution of India, authorised the Gover nor to make regulations for ihe peace and good government of a district. This power was vested in the Governor till the settiilg up of a District Council for an autonomous district. It w.as .contended that because a District Council had been set up, the Governor could not exercise the pO\ver. u_nder the Regulation and apply Jaws.

The High Court had accepted the contention but this Court reversed the judgment of the High Court, and after referring to J. K. Gas Plant Manufacturing Co. Ltd. v.

King Emperor;(') Ram Kirpa/ v. State of Bihar;(8 ) and Cajee v.

U. Jormanik Siem,(') held that although the power of the Governor to legislate ended when the District Council was cons tituted, the power conferred under the regulation on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the regulation remained on the statute book. The same principle applies here. The Central Governent could validly issue a notification under sub-s. (2) of ... Si; G . .1 appointing the date from which the Act would CQllle into fori; e, and as soon as this notification was made, by virtue of s. 2, the

(1) [19721 S.C.R. 223. (2) [l~47; F, CR. 141. (ll [1970] 1 s.c.R. 2n

(4) ft96tJ 1 s.cn. 1~0.

impugned Act came into force in the State.

The Constitution (Seventh Amendment) Act did not destroy the efficacy of sub-s.

(2) of s. 1. ·

The learned counsel contended that this principle conflicts with the general principle that executive power corresponds to legislative power and it could not have been intended that the extended law should operate when there was no corresponding legislative power. In this connection he referred to art. 73. The general principle is subject to exceptions. Article 73 itself opens with the words "subject to the provisions of this Constitution." This is one of the exceptions envisaged by the Constitution.

Other such exceptions are in art. 277 and art. 372. Although legislative power may not xist to legislate on the subject of existing laws executive power would be exercised under the laws saved by art. 277 and art. 372. No authority has been cited in support of the contention that executive power to execute a valid law ceases to exist if power to make that law has been transferred to another authority or ceases to exist.

It was next contended that the impugned Act was repugnant to and inconsistent with the J anrnm and Kashmir Code of Criminal Procedure and Jamniu and Kashmir Police Act, which were already in existence. before the Delhi Special Police Act, 1946 came into force. But in so far a< the impugned legislation is a bw with respect to entry 80, even if there is repugnancy it mut override any laws repugnant thereto in Jammu and Kashmir.

Art. 246, as applicable to Jammu and Kashmir, reads thus :

"246( l) Notwithstanding anything in clause (2), Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I in the

Seventh Schedule (in this Constitution referred to as the "Union List");

(2) Parliament, and, subject to clause ( l), the Legislative of any State also, have power to make laws with respect to any bf the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

When the ifnpugned Act was extended Parliament had no power to make laws with respect to any items in the Concurrent List, but the impugned law is fully covered by entry 80 and there is no need to rely on the Concurrent list. Therefore, art. 254 can have no application to the present case.

H was also contended that the impugned Act could not have been validly extended by a notification dated October 10, 1956, 13-L887Sup.CI/n

il!lolOCl under the Extension Act which itself came into force only A from November I, 1956. There is nothing in sub-s.(2) of s. I which makes it obligatory that the notification should issue simultaneously with the date of the coming into force of the Act. On the contrary, notification must ordinarily issue earlier than the date of the coming into force of the Jaw. It seems to us clear that the notification could have been issued any time after the B President had given his assent, and as soon as the notification was issued s. 2 came into effect and all the Acts and Ordinance mentioned in the Schedule, stood automatically extended and came into force.

The learned counsel did not press the point regarding art. 1-l of the Constitution.

In the result the appeal fails and is dismissed.

V.P.S.

Appeal dismissed.

E

ISHWAR DAS MALHOTRA

UNION OF INDIA AND OTHERS

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ

Ss. 1 & 2

Seventh Schedule

September 25, 1956

Central Government

October 10, 1956

s. 2

Police Establishment Act, 1946

Parliament

Jrunmu and Kashmir

Delhi Special Police. establishment

November 1, 1956

s. 2

Jammu and Kashmir

s. 1(2)

s. 2

L. M. Singhvi

P. N. Tewari

B. Dadacharji

Ravinder Narain

Niren De

lagadish Swarup

R. N. Sachthey

R. L. Mehta

.R.. N. Sachthey

Sikri

State of Janimu and Kashmir

s. 432

Code of Criminal Procedure

Penal Code

November 29, 1967

State of Jammu and Kashmir

January 26, 1950

Constitution of India

art. 3

Constitution of India

Seventh Schedule

Section 1

Section 2

State of J ammu and Kashmir

section 1

Sec. 2

State of Delhi

art. 372A

State of J ammu and Kashmir

art. 3

Delhi

Delhi. Special Police Establishment

Schedule 6

Constitution of India

s. 2

s. 1

art. 73

Article 73

art. 277

art. 372

art. 277

art. 372

Code of Criminal Procedure

Police Act

Delhi Special Police Act, 1946

Art. 246

Seventh Schedule

Seventh Schedule

art. 254

OCl under the Extension Act

November I, 1956

s. 2

art. 1