tOOS

MAHANTBHAGWANBHAGAT v.

G. N. BHAGAT AND ORS.

January 4, 1972

[J. M. SHELAT, I. D. DuA, H. R. KHANNA AND G. K. MITTER, JJ.)

Crtstom-Mutt-Method of choice of successor to office of mohunt.

Three aspects have to be borne in mind in connection with tho question of succession to the office of a mobunt : (i) if the rounder or endower bus laid down any particular rule of succession, that is to be given effect to; (ii) in the absence of the above the usage of the partic_ular institution is to be followed; and (iii) the party who lays claim to the office on the strength of any suc-h usage must establish it affirmatively.

The fact that the defendant is a trespasser would not entitle the plaintiff to succeed, un- Jes:; he suceeds in proving tb~ particular usage under which he claims.

!1009 E-G]

In a Mourasi mutt the office of the mohunt is hereditary and -~volves. upon a disciple of the existing mohunt who usually nominates him as the successor.

Though generally the senior disciple succeeds, a junior disci ple may succeed if he is found more capable and if he is selected by thelast mohunt as his successor.

Th~ appointment or nomination is done by the rigning mohLmt during his life time or shortly before his death and it is posible for the mohunt to make over the endowment during his lifetime to the mcccssor. [1010 BD, F]

J n the present case, the mutt was a Mourasi mutt and the second respondent was its mohunt.

He nominated the first respondent as his successor by a deed, and by a second deed, surrendered to him his right to the office of mohunt. The appellant claimed the office as the senior disciple on the contention that the devolution to the office was to the senior disciple according to the tenets and customs of the sect which established the mutt.

The trial court decreed the suit but the High Court set aside the decree

Dismissing the appeal to this Court,

HELD : The appellant had not discha:rged the onus which lay on him to substantiate the custom pleaded by him. The documentary evidence, which was ante Jitern motam did not support the appellant's case that invarinbly only the senior disciple was selected.

On the contrary, the entire evidence in the case led to the conclusion that in the matter of nomination of a suCC1!Ssor to the offie of mohunt seniority was not thedecisive factor, but that ability and fficiency in management coupled with a good moral character, adherence to the religious rites practised at the mutt and a spirit of service to the sadhus etc. entered into consideration in the selection of a successOl'. [11)12 A-D]

CrvrL APPELLATE JURISDICTION: Civil Appeal No. 171 ot 1967. .

Appeal lrom the judgm6nt and decree dated April 12. 1966 of the Patna High Court in Appeal from Original Decree No. 445 of 1963.

SUPREME COURT REPORTS [1972] 2 s.c.R.

D. V. Patel and U. P. Singh, for the appellant.

C. B. Agarwala, Umesfz Chandra Sinha, R. Goburdhun and D. Goburdhun, forrespondtmt No. 1.

The Judgment of the Court was delivered by

Mitter, J.

This is an appeal from a judgment of the Patna B High Coui't reversing the decree in favour of the plain1iff-appellant declared to be the duly installed Mahant of Turki Math and of all its subsidiary maths and as such entitJed to possession of the properties covered by the. decree.

The undispu1ed facts are as follows.

In the village of Turki in Not1th Bihar there is a Math or asthal of the Kabirpanthi Bhagatatha Vairagi sect established over a century back. There are asthals subordinate to the principal one at Turki located in .different districts of Bihar. Devolution of the Mahantship has always been from a Guru 1to his Chela.

Defendant No. 2 executed a deed dated December 17, 1951 nominating the first defendant as his successor to the Mahantship and a second deed on september 15, 1952 surrendering his right to the Mahantship in favour of the first defendant with immediate effect.

The suit . of the appellant was launched in 1959 for a declaration that he himself was the duly installed Mahant of saddar asthal Turki in the circumstances mentioned in the plaint, lthat 1he second defendant bad ceased to be the Mahant by his voluntary of retirement and the first defindant being a junior Chela could h3ve no right or claim 1o the Mahan'tship.

As a coro1lary to the above declaration, he also asked-for a decree for recovery of possession of all the properties of the asthal including those which had been purported to be transferred by the first two defendants.

The appellant made a two-fold claim in his plaint.

I1 was 11is case that under the te.nets and the customs of the asthal and

Bhagataha sect of Kabirpanthies, the devolution of the office of Mahantship is always trom a Guru to the senior celebate Chela either on the death of the Mahant for the time .being or by the said Mahani nominating his successor by deed and himseJf retiring from the Mahantship.

In either case, after the deah or retirement of the Mahant for the time being, the snior chela suc- <::eeds to the Mahantship and is duly installed on the Gaddi after the performance of Bhandara in an assemblage of Mahants and sadhus of the sec't and respectable persons of the Jocality at which 1he Chaddar of Mahanthi is bestowed on the new Mahant bv -the Mahfint of Acharya Math Dhanauti in the. District of Saran. !he qs of 1951 anp 1952 bei1ng in violation of the anaient custom of the asthal, the first defendant was never recogpised as or became the Mahant of Turki nor was any Chaddar ceremony

H (

M. B. BHAGAT V. G. N. BHAGAT (Miner, J.) 1007

performed at any requisite ceremony in recognition of such succession.

The appellant had filed a suit in the court of the Subordinate Judge at Muzaffarpur in the year 1953 for declaration of his rights and for setting aside the deeds of 1951 and

1952. After the suit was pending for some time, a compromise was arrived at whereby it was agreed that •the appellant should assume the office of Mahantship and take possession of all the properties of the Math.

The appellant put his signature on a sheet of blank paper for recording the tenus cf settlement.

He had actually assumed the office 'of the Mahant of Turki in April 1954, and an elaborate ceremony was performed on the 16th February 1956 wh.:.; reat he was installed as the Mahant of Turki and given the Chaddar of Mabanti by 'the Acharya of Dhanauti be{ore a big gathering.

A document known as the Surat Hall was prepared regarding the plaintiff's installation. This bore the

signature of innumerable persons.

This was followed by his taking charge of all the properties of the saddar and subordinate asthals.

The first two defendants thereafter dispossessed him and being unsuccessful in proceedings under the Code of Criminal Procedure for securing possession of the math and its properties,

he was com{)elled to file the suit.

Respondenrts 1 and 2 filed a ioint written statement.

They pleaded that the custom and usage of the Turki Math relating

to devolution of Mahantship was for the Mahant for the time being nominating a fit and . proper person as his successor from amongst his Chelas irrespective of his seniority and the person so nominated invariably became the Mahan't on the demise or retirement of the inc_umbent Mahant. A ceremony of installation of the new Mahant on the Gaddi and the bestowing of a Chaddar on him were nat essential for es'tablishing his title to this office in place of the retiring or the deceasing Mahant.

The defendants denied the factum of the installation of the appellant relied on in the plain't.

According to rthem the appellant had .at all times knowledge of the nomination of the first defendant bv the deed of December 17. 1951 and his appointment with imme-- diate effect by the deed of SeP'tember 1 5, 1952. It was on realisa!tion of the weakness of his case that he had approached the defendants for a compromise agreeing to given up his claim in the suit of 1953. He had appended his signature to the petition of compromise in that suit being fully conversant with the terms thereof.

The two :rn!lin issues framed by the trial court and relevant for the disposal of this appeal bear on the custom governing the succession to the MahantshiP of the Turki Math and the right of the incubent Mh"-nt to .nominate a junior Chela in preference to a semor Chela. Issues were al&o frm~ by the trial court as to whether an installation o::remony was an e'isential pre-requisite

to a Mahant's lawfully functioning as such and whether the plaintiff had factually been installed as a Mahant of the Turki Math.

The findings of the trial court were as follows :-

1. From 1899 onwards only senior Chelas had succeeded their Gurus.

1. According to the custom of the Muth the Mahant had the right to nom.itnate his successor and the choice rested upon the senior Chela unless he suffered from any disqualification or was found to be unfit for the office.

The right of nomination was not ab89lute but was subject to the approval of others.

3. An installation ceremony was not essential to complete the title of the Mahant. Such a ceremony had been performed in the case of the plaintiff in 1956 and he became the Maham: of Turki although not in possession of the properties thereof at the

1time of the suit.

The High Court rejected the custom as to succession set up by the plaintiff. . It found-

1. Since the time of the founder, Chaturbhuj Gosala, six Mahants had occupied the office of whom three were descdbed

as junior Chelas by some of the wrtnesses on the defendant's side.

The evidence did not establish that there was an invariable custom of the senior Chela being nominated by the outgoing Mahant.

2. The Mahant in office had an undoubted right to nominate his successor and ordinarily 1the right of appointment was exercised in favour of the senior Chela but the choice was exercised in favour of a celeba1e chela taking into account his all round ability and character.

The second defendant had as a matter of fact nominated one Ganesh Bhagat as his successor even before the deed of nomination of 1951 in favour of 'the first defendant.

This nomination of Ganesh Bhagat was cancelled as he was found to be unfit.

Compared to the plaintiff, the. first defendant was decid•.!dly suprior in learning, ability and conduct : as the main function of the Mahan't was to propagate the Kabirpanthi cult and the maintenance of a peaceful and hannonious atmosphere in the mutt where people were expected to congregate for religious discussion and discourses and other benevolent functions the choice of the first defendant by the second defendant in preference to the plaintiff was not undeserved and must be taken as fm.al.

3. The High Court did not examine the question as to whether an installation ceremony was necessary to perfect the tWe cf Mahantship in view of the concession by counsel for the plaintiff.

Differing from the finding of the trial court, the High Court held that no ceremony of installation of 1he plaintiff had been performed in 1956 as alleged in the plaint.

' A

H .

II'\

M. B. BHAGAT V. G. N. BHAGAT (MlUer, J.) 1009

4. The deeds of nomination and surr:nder in 1951 and 1952 by the first defendant were valid and binding.

The general law as to succession to Mahantship is now well settled by innwnerable decisions of 1the Judicial Committee of the Privy Council and some decisions of this Court. It will be enough to quote some passages from Mukharii's book on the Hindu Law of Religious and Charitable Trusts. The learned author states (third edition, p. 257):

"Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in " particular institution."

"The primary purpose of a Mutt ...... js to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religious instructions to the disciples and followers of the Mutt and try to strengthen tthe doctrines of the particular school or order of which they profess to be adherents."

At page 269 :

"In a Muott. . . . it is the custom or practice of a particular institu1tion which determines as to how a successor is to be appointed."

Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant ( p. 269) :

"The first is that if rthe grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is 1to be followed; and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must establish i't affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving the particular usage under which succession talres place in the

particular institution."

At p. 270:

"Generally speaking, the Mutts are divided inlo three classes aGcording to the different ways in which the heads or superiors are appointed. These three descriptions of Mutts are Mourasi, Panchayati and Hakimi.

In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of 1the existing Mohunt

who moreover usually nominates him as his successor; in the second, the office is elective, the presiding Mohunt , being selected by an assembly of Mohunts. In the third, . !the . appointment of the presiding Mohunt is vested in .the ..ruling power or in the party who has endowed the temple ..... .

. , In a Mourasi Mutt the chela or disciple of the last . Mohunt succeeds 'to the office ...... when there are more . chelas than one, the eldest generally succeeds, but a junior . -chela may succeed if he is found more capable and if he is selected by the laslMohunt as his successor ....... .

~: - • .: • ' - ; • ,; ~ ••

... •• J ··· -·-· . ....... • : • , j. i ~- -· ' . !

~:; i. }~!J.nvtiQP, s Jnstituti9J?.S tlw c~$tp, mj~ tht~~A:pr9; er , to ;.(}lltHlei..J4 cl:Jela.. to s:ucyd, he :must be .appomted 9r ... rioiiiinated by the reigning Mohunt during his life. time , or . .shortly:.before his death and this may be don~ either

.:by a .written declaration or some sort of testamentary document. ln other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either . during the life time of the last Mohunt or when the funeral ceremonies of the latter are performed."

At p. 273 :

.. _,. .• .. , .

. "When the Moht.mt has the right to appoint his successor, he may exercise the right by an act inter vivos or by will.''

At p. 274 :

' i -~ ' .

.~'ln a. Mourashi. Mutt it is possible for the Mohunt , ,, tQ; make .over the endowment during his life time to his chela whom he appoints as a successor."

. At p, 275 :

. "In many cases. whn a successor is appointed by Mohunt, he is installed in office wirth certain' ceremonies.

This cannot be deemed to be essential."

Admittedly Turki was a Mourasi Mutt. The evidence as to · custom adduced in the case is both documentary and oral. The oral evidence which will be noted hereafter is discrepant and mostly of persons who were not disintorested. The documentary evidence undoubtedly furnishes more reliable testimony being ante litem ,;.motam and:brought into existence at a time w.hen .t\le pla.intiff was

not on the scene and when no dispute as to suCcession to Mahantship was raging.

1 i

M. B. BHAGAT v, G. N. BHAGAT (Ml'tter, J.) lOU

The earliest document exhibited in this case is that of 1899 execU'ted by Mahant Lal Bahadur Bhagat in favour of Ram

Bhagat describing him as the seniorchela, able, clever, literate and by all means fit for the Mahantship. Mahant Ram Bhagat in his turn nominated Mahadeo Bhagat as his successor by a deed of November. 1910. Like the document of 1899 this deed also describes dw nominee as able, clever and. fit 1o discharge the duties of the Mahant. Mahadeo Bhagat however is not described as the senior Chela but only as a disciple of the executant. By a deed of August 1937 Mahant Mahadeo Bhagat nominated Narsingh Bhagat, defendant No. 2 as his successor describing the laNer as h!s only disciple worthy, clever and fit in all respects for the { c Oaddi. Bv a document of June 1947 Narsingh Bhagat nominated 'one Ganesh Bhagat as his suc-.; essor to the Gaddi. This nomiira~

tion. was cancelled by Narsingh Bhagat on the ground of unfi'tness of the nominee for the office but mention is made in this document of 1947 ohhe practice and custom relating to the succession to the office of the Mahant. This document goes against the con- •

tention of the plaintiff that by custom the enior Chela was eligible to the office in preference to all others. It recites :

"It has been the practice in the Asthal from the time of my predecessors that the Gadinashin leads a life of Brahmacharya and he does not marry. One Mahanth Gadinashin appoints and nominates his able Bralunachari disciple as Gadinashin and future successor during his life1ime.

After the death of his Guru, the rightful disciple becomes heir and Gadinashin of the Asthal of the Sadar Nath at Turki. I the executant thought it proper to make over the management of the property .. under a will, according to previous cus'l:om and appoint Ganesh Bhagat as my successor." r .

This was followed by a description of the nominee as literate, able .and efficient. The document of December 1951 by N arsingh

Bhagai in favour of Giriia Nandan Bhagat, the first defendant,

. describes the nominee as fit and qualified in all respects to be lfhe

Mahant and recites the custom as in 1the case of Ganesh Bhagat.

The trial Judge's view that the nominations if 1899, 1910 and

1937. being invariably in favour of the senior disciple went a long way 1o establish the custom relied on by the plaintiff was nlYt accpted by the High Court. Apparently the trial Judge was of the vtew that Mahadeo Bhagat who became the Mahant in 1910 was

the only disciple of Ram Bhagat and it was therefore not feH necessary to mention him as the senior chela.

Quite a number of defendants' witnesses made statements to the effect hat 'Ram Bhagat h'ad a number of Chelas. The trial Judge obviously overlooked the statement of the plaintiff in his cross-examination 1hat

101:!

SUPREME COURT REPORTS

[1972] 2 S.C.R.

Ram Gossai had 5 or 6 Chelas and he himself had seen all of them. A fairly larp; e number of witnesses stated tha~ the .qualifi cations for a person's nomination t~ :be Mahantship dt~ not depend only on seniority but on dbdtty to. manage! cehbacy, adherence to religious principles and a habtt of serv10g sadhus, fakirs and visitors besides a good moral character.

Some even

suggesd that it was the ablest Chela who was made the Mabant.

Making due allowance for the witness-;:s who cme to support. the case of the party examining them, the oral teston:y unque3tlOn ably leads us to hold that in the matter of nommatton ci a successor to the Mahantship seniority was not the decisive factor but that ability and efficiency in management coupled wi'th a ,~::ood moral character a.nd adherence to the religious rites practised at

the mutt and a spirit of servico;: to sadhus etc. all entered into con sideration in the selection of a successor by a Mahant. This con I elusion is fortified by the documents exhibited.

As already noted they do nat support the plaintiffs version that invariably the senior Chela was selecred. In our view the document executed by Narsingh Bhagat in favour of Ganesh Bhagat sets out the custom as to succession fairly accurately.

TI1e argumerrt :dvano!d on behalf of the appellant that the plaintiff was installed as the Mahant of Turki in 1956 before a wide athering of sadhus and respectable persons at which the Chaddar ceremony was performed does not mrit any elaborate or serious consideration.

As noted already, the tdat court did not take the view that the performance of the Chaddar ceremony was an essential pre-requisite to a person becoming a Mahant and before the Hi:!h Court counsel for the plaintiff expressly gave up that point.

Althou~ the trial court found in favour of the plaintift that such a eremony had ctually been performed, the High Court came on different concluson .. One of the reasons which prompted

he HtJ!h Court to take tlus Vh!W was that the document evidencinr the installation ceremony l'>tyled the Surat Hall had not en produced in any court or law before the institution of the suit of 1959 although liti,11.ation in respect of the properties of the mutt and the plaintiffs riJilit to possession were being canvassed before courts of Jaw.

Th~: Jlieh Court also relied on the f:ct that a respectable :1nd reliable witness like the Mahant of <he Ach:uya Mutt dl!nied havin, l! siJ,!ned thi~ document Ex. 1 and no attempt

wns mad.e o!' bch:lf or the P)intiff to controvert the said denio! hv ex:Jmm::rtton .or a handwntmg expert. Relinnce was 3tso

pla~d by the Htgh Court on th>! fact that the plaintiff who filed n

pe!lho~ under ss. 107 and 145 Cr. P.C. against the first defendant

and 1other' on 8th December. 1956 de!>cribed himself as the !"fohant of <; hanwa. Math and made no reference in the ctition

ttelf to the.tnstallahon ceremony nt Turki. The Hi, l!..h Cort :ls<' did nnt 1-ehevc the plaintiff's version thnt he had sined a blnnk

c .

:i i

f j I . ' t

M. B. BHAGAT v. G. N. BHAGAT (Mit.ter, J.) 1013

sh\!et of paper to be used as a compromise petition in the earlier

suit filed by him and nothin.2 has been shown to us as to why w.:! should take a different view.

In the result we hold that the phintifT was unable to discharge the onus Mti.ch lay on him to substantiate the custom as to suc<:es- B sion pleaded in his plaint He also failed t-o establish 1hat he had in fact been installed as the Mahant of the said Ma'lh. The appenl fails and is dismissed with costs.

V.P.S.

Appeal dismissed c

17-736 Sup CJ172

MAHANTBHAGWANBHAGAT v

G. N. BHAGAT AND ORS

January 4, 1972

M. SHELAT

I. D. DuA

H. R. KHANNA

G. K. MITTER, JJ.

Patna High Court

D. V. Patel

U. P. Singh

C. B. Agarwala

Umesfz Chandra Sinha

R. Goburdhun

D. Goburdhun

Mitter

Patna B High Coui't

Turki

Kabirpanthi Bhagatatha Vairagi

Bihar

september 15, 1952

Mahant

Bhandara

M. B. BHAGAT

G. N. BHAGAT

16th February 1956

Mabanti

Dhanauti

Code of Criminal Procedure

Turki

Chaturbhuj Gosala

Ganesh Bhagat

MlUer

Mukharii

Mohunt

Mahant Lal Bahadur Bhagat

Ram

Bhagat

Mahant Ram Bhagat

Mahadeo Bhagat

Mahant Mahadeo Bhagat

Narsingh Bhagat

Narsingh Bhagat

Mahanth Gadinashin

Gadinashin

N arsingh

Bhagai

Giriia Nandan Bhagat

Ram Bhagat

Ram Gossai

Chela

ss. 107 and 145


MC)HD. MAQBOOL DAMNOO

v .. .STATE OF JAMi\IU AND KASHMIR

January, 5, 197'<.--

[S. M. SIKRI, C.J., J. M. SHELAT,

1. D. DUA, H. R. KHANNA

AND G. K. MITTER, JJ.] B

Com•1itu1ion of Jammu and KWihmir (olh Amendment) Act, 1965l'ruvullng }or appointnU.tnt of <iovernor in pJa,:e uf :>adar-i-J:{iyc.sat_J

Validity .of amendment in view o} /;, xpJa11u11on to Amel<' 3700) of t; onslltllltWn oj lntlia still re)ernng to Sadar-i~Kiyasat as Head of State-

Assent of Goyernor of Ja1nnzu anct Kashuiir 10 Preventive JJetention .t \Amendment) Ac/, 1%7 wlle1/1er resul<s in rulid law-Amendment of C Art. 367 Uf Cu11stitutio11 Of India tu tile enect I/Jal reference to Sadar-i- 'Riyasat shall be read as re/eren1.:e to Goveruur whc:ther amounts to a1nendmem of A:rl. 370\1) by backdoor-l'roviso to sectio11 8(1) of De1en1ion Act WIJef/ier suiJers jrv11i excesive delegalivn-Proviso whether bad because it cunftcts with section 103 of Constitution of Jammu and Kaslunir- Whether detention order violates .Art. 21 and 22 of Com1it11tio11-Whether

detention bad b_ecause detaining autliority had noi applied its mind- Whether order of detention served and executed in accordanc:e with law.

Under the Explanation to Article 370(1) as originally enac,'ted the Gowrnment of the State of Jammu and Kashmir meant the person for the time being reco&nised by the President of 1ndia as Maharaja of Jammu and Kashmir acting on the advice of his Council of Ministers. In 1952 the Constituent Assembly oi the State resolved that the Maharaja ohall be replaced by an elected head of the State designated as the Sadar-i- Riyasat. Conse'luential ahangcs were made in Article 370(i) of the Constitution of India and in the Explanation to the Arlicle the Government of the State of Jammu and Kashmir was defined to mean the person for the time being recognised as the Sadar-i-Riyasat o1 Jammu and Kashmir acting on the advice of the Council of Ministers. By the Constitution. of Jammu and Kashmir (6th Amendment Act) 1965 which receiyed the assent of the Sadar-i-Riyasat the Constitution of Jammu and Kashmir provided for the appointment of a Governor in place of Sadar-i-Riyasat.

No consequential change was made in Art. 370(1) of the Constitution of

India, but Article 367 was amended to the effect that references to the Sadar-i-Riyasat of Jammu and Kashmir shall be construed as reference to the Governor of J ammu and Kashmir and reference to the Government of the said St'lte shall be constrncd as including references to the Governor of J ammu and Kashn1ir acting on the ad...-ice of his Council of Minist-ers. lhe Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 (J & K Act 8 of 1967) alter being passed bv the Legislative Assembly _received the assent of the Governor of Jammu anJ Kashmir.

The petitioner was detained under the provisions of this Act by the order of the District Magistrate .dated June 24. 1970. In a writ petition under article 32 of the Constitution the petitim"r contended (i) that the hmmu and Kashmir Preventive Detention (Amendment) Act. 1967 was invalid as it was not assented to by thr.! Sadar-i-Riyasat \Vho alone was mentioned as Head of the State in the Explanation to Article 370( I); (ii) that the proviso inserted by "'ction 4( 2) in sub-section (I) of Section 8 of the Detention Act was bad because it suffcrred from excessi\"e delegation;

(iii) that the<e had been violation of Articles 21 and 22 of the Constitution: (iv) that '3t any rate. the proviso was bad because it conflicted with Section !03 of the Constitution of Jammu and Kashmir; (v) that the

/" '

M. M. DAMNOO V. J. & K. STATE 1015

detention order was bad because the detaining authority had not applied its mind; and (vi) that the order of detention was bad because it was not served or executed in accordance with law.

HELD: (i) (a) The essential feature o'f Article 370 sub-clause (1) (b) and ( d) is the peo, ssity of concurrence of the State Government or te consultation of the State Government. What the State Government rs

at a particular time bas to be determined in the context of the Constitution of Jammu and Kashmir.. The Explanation did no more than recognise the constitutional provision as it existed on that d".lte and the Explanation as substituted from November 17, 1952 also did not more than recognise the constitutional provision in the State. Therefore, there IS no difficulty in holding that Article 370(1) (b J and Article 370(1) (dJ place no limitation on the framing and amendment of the Constitution of Jammu and Kashmir. If there is a limitation it must be found in the Constitution of the State.

Section 147 of the Constitution of Jammu and Kashmir itself provides that under that sec'tion the Indian Constitution cannot be amended. [1025 F-G]

(b) The Explanation to Art. 370(1) had ceased to operate because there was no longer any Sadar-i-Riyasat of Jammu and Kashmir. If the definition contained in the Explanation cannot apply to the words 'Government of the State' the meaning given in Article 367 ( 4) as amend- 41' ed will have to be given to it. If this meaning is given it is quite clear that the Governor is competent to give the concurrence, stipulated in Article 370 and perform other functions laid clown by the Jammu and Kashmir Constitution. [1026 B-C]

Sampar Prakal'h v. State of Jammu and Kashmir, [1969] 2 S.C.R. 365; re1erred to.

{.c) The contention that section 147 of the Constitution of Jammu and Kashmir contemplates perpetual existence of Sadar-i-Riyasat because this section expressly bars the Assembly from amending any provision of Art. i47 and one of the provisions continued in. this section is that the assent 1:0 the amendment of the Constitµtion must be given by the Sadari-Riyasat, cannot be accepted. The Constitution itself contains section 18 whicl{ provides that unless the context otherwise requires the General Clauses Act, Samvat 1977 shall applv for the. interpretation of this Constitutioji as it applies for the interpretation of the Act of the State legislature, By "irtue of this Act the Governor is the rnco'8sor to the Sadar-i-Riyasat.

He -would be entitled to exercise all the powers of the Sad".lf-i-Riyasat.

Thtfre is no doubt that he is the sucossor. It is. quite clear from section's 26,... 27 and 28 of the Jammu and Kashmir Constitution that the Sadar-i- Riyasat is really the name given to the Head of the State. Under the said Constitution as amended the head of the State is designated as the Gover-

- i:ror.

Sub-section (2) of section 26 as amended vests the executive powers gf the State in hirrt The Governor is not elected as was the Sadar-i- .· Riyasat, but tm mode of appointment would not make him anv the Jess a successor to the Sadar-i-Riyasat.

Both are heads of the State. [1026 D-

1027 CJ

(d) The rule laid down in Golaknath's case was not attracted to the facts of the present case. It is not as if State Government has been made irresponsible to the legislature or its fundamental character as a responsible government is altered.

Just as a change in the designation of the head of the government was earlier brought about b<\< the introduction o~ the. offic~ of .Saclar-i-Riyasat, so too a change had been brought about m hrs dergna!ton, from that of Sadar-i-Riyasat to the Governor.

That was necessitated bv reason of the Governor having been substituted

SUPREME COURT REPORT~

[1972 J 2 S.C.R.

in place of Sadar-i-Riyasat. There is no question of such hange being one in the character of that government from a democratic to a non democratic system. [1027 G-1028 BJ

Golaknath v. State of Pun; ab, [1967J 2 S.C.R. 762; distinguished.

(e) Clauses (a) and (bl of article 367(4) as substituted by C.O. 74 of 1965 (The Constitution Application to Jammu and K .. hmir) B Second Amendment Order, 1965 cannot be said to be an amendment of Article 370 ( 1) by back door. The Explanation had become otiose and

references to the Sadar-i-Riyasat in other parts of the Constitution bad also become otiose. There were two alternatives, first, either to leave the courts to interpret the words "Government of the State" and give it its legal meaning or secondly to give legal meaning in a definition clause.

What bas been done is that by adding clauses (aa) and (b) a definition is supplied which th., Courts would have in any event given. [1028 D-EJ C

Accordingly, it must held that the amendin2 Act was validly assented to by the Governor. [1028 G]

(2) The Jammu and Kashmir Preventive Detention (Amendment) •Act, 1967 did not delegate any legislative powers to anybody. It con fers executive. powers on the detaining authority by the insertion of the proviso to section 8 to direct that the person detained may be informed that it should be against public interests to communicate to him the grounds on which the detention order had been made. When the detain

ing authority chooses to so direct it cannot be said that the detainin.2 authority is exercising any legislative power. [1028 H-1029 A]

(3) The detention cpuld not be said to be in violation of Articles 21 and 22 of the Constitution because they were excluded by Article 35(c) of the Constitution. [I 029 BJ

( 4) The order expressly directed that the petitioner be detained in Central Jail Srinagar and a copy of the Order was endorsed to the Deputy Superintendent of Police, as required by S. 4 of the Detention Act.

Section 75(i) Cr. P.C. !lad been complied with as the order was in Miting and had been signed by the detaining authority.

Section 76 Cr. P.C. had ne application to the case because it applies only when the Court directs that security be taken. f1029 C-E)

( 5) The contention that the proviso to section 8 inserted by the Jammu and Kashmir Preventive Detention (Amendment) Act. 1967 was in conflict with section 103 of the Jammu and Kashmir Constitution could not be accepted. It is quite clear that the Legislature has no riht to directly amend section 103 nor has it the power to make the exercise by the High Court of its jurisdiction under s. 103 illusory. But it cannot be held that the proviso is ultra vires because the proviso and the Act do not bar the High Court or this Court from looking into the validity of the detention. The High Court and this Court are free to exercise the jurisdiction by calling upon the State ht appropriate case to produce before it the grounds of detention and other material in order to satisfy itself that the detenp was being detained in accordance with law.

From the file produced before the High Court bv the State the grounds on which detenu has been detained were shown to have relevance to the security of the State and it could not be said that the detaining authoritv had not applied its mind to the facts of the case. [1029 F-1030 G] ·

Prem Chand Gar11 v. Excise Commissioner U.P., [1963] Suppl. l S.C.R.

~85; A: K. Gopa/an v. The State of Madras, [1950] S.C.R. 8·8 referred to.

ORIGINAL JURISDICTION: Writ Petition No. 144 of 1971.

Under Article 32 of the Constitution of India for a writ in the B nature of habeas corpus.

R. K. Garg, S. C. Agarwal, A. K. Gupta and R. K. Jain for the petitioner. '

Ishwar Si1agh Bakshi, Advocate-General for the State of Jammu and Kashmir, M. C. Chag/a, R. N. Sachthey and S. K. Dho/akia, c for the respondent. .

!lliren Defor the Attorney-General for India; R. N. Sachthev and Ram Panjwani, Advocates, with him. ·

The Judgment of the Court was delivered by

Sikri, C.1. This is a petition under Art. 32 of the Constitution challenging the detention of the petitioner under the J ammu and Kashmir Preventive Detention Act, 1964 (J. & K. Act XIIl of 1964 )-hereinafter reierred to as the Act.

On June 24, 1970, th'e District Magistrate of Baramula passed the impugned detention order in the following terms :

"OFFICE OF THE DISTRICT

MAGISTRATE,

BARAMULLA

ORDER

No. PDA/IMB/81 Dated 24-6-1970

Whereas I, S. S. Rizvi, District Magistrate, Baramula, ain satisfied that with a view to preventing Mohammad Maqb!ool Damnoo s/s Ghulam Mohi-un-Din Damnoo alias Madha Joo r/o Sangrampora from acting in any manner prejudicial to the security of the State, it is necessary so to do;

Now, therefore, in exercise of the powers conferred by Section 3 (2) read with section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, S. S. Rizvi, District Magistrate, Baramulla hereby direct that the said Mohammad Maqbool Damnoo be detained in the Cn tral Jail Srinagar, subject to such conditions as to mamtenance, discipline and punishment for breaches of discipli:ne as have been specified in the J & K Detenus General Order, 1968.

No. Con/826-30 Dated 24-6-1970

Sd/- District Magistrate, Baramulla.

Copy forwarded :-

1. Sbri Abdul Majid Lone. Dy. S.P. Sopore in duplicate for execution ol the order as provided by section 4 of the J & K Preventive Deiention Act, 1964.

Notice of the order shall be given to Mohammad Maqbool Damnoo by reading over the same to him and one copy duly executed, returned to this office.

On the same date, the District Magistrate passed an order under s. 8, read with s. 13-A of the Act directing that the petitioner be informed that it was against the public interest to disclose to him the grounds on which his detention was based. On E July 11, 1970, the Government having considered the order of detention, the report of the District Magistrate, the grounds on which tbe order had been. made, and other particulars baring on the matter approved the said detention order.

The petitioner sent an application to this Court dated April F 10, 1971 requesting that he be produced before this Court so as to enable him to file an appropriate writ challenging his detention.

This Court on May 11, 1971 directed that th}s application be treated as writ petition under art. 32 of the Constituiton and directed issue of rule nisi.

The Court further directed that the petitioner be produced before it two days before the hearing of G the petition.

• The State filed an affidavit in reply.

The petitioner then filed the foi:mal writ petition through an advocate on July 27, 1971.

The State agam filed an affidavit in reply.

On an application having been made for permitting to raise additional grounds the .Court allowed the petitioner to file a comprehensive amended petition. On October 9, 1971, thi: amended writ petition was filed ltll this .Court. The State filed another affidavit in reply.

Mr. Garg, who appeared on behalf of the petitioner, raised the following points before us : ( 1) that the J ammu & Kashmir Preventive Detention (Amendment) Act, 1967 (J&K Act VIII of 1967 )-hereinafter referred to as the Amending Actwas invalid as it was not assented to by the Sadar-i- Riyasat;

(2) that the proviso inserted by s. 4(2) in sub-s. ( 1) of s. 8 is bad because it suffers from excessive delegation;

(3) there has been violation oi Art. 21 and Art. 22 of the Constitution; ( 4) at any rate, the proviso is bad because it conflicts with s. 103 of the Cqnstitution of J ammu & Kashmir; ( 5) that the detention order is bad because the detaining authority has not applied its mind; and ( 6) that the order of detention is bad because it was not served or execu'ted in accordance with law. ln support of his first contention the learned counsel urged that under Art. 3 70 of the Indian Constitution the only authority which is recognised as 'the Government of the State of Jammu & Kashmir is the Sadar-i-Riyasat, Article 370 contemplates that the Sadar-i-Riyasat would be •the head of th>~ State of Jammu and Kashmir and the Jammu and Kashmir Assembly had no power to abolish the office of the Sadar-i-Riyasat.

He further urged that s. 14 7 of the Constitution of Jammu and Kashmir also contemplates that the Sadar-i-Riyasat shall exist and be the head of 'the State.

He urged that the only possible way of getting .rid of the Sadar-i-Riyasat would be the amendment of the Constitution of India as applied to Jammu and Kashmir.

The learned Attorney-General, who appeared on behalf of the Government of India, and Mr. Chagla, who appeared for the State, contended that the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, which had received the assent of the Sadar-i-Riyasat, validly amended the Constitution of Jammu & Kashmir and validly provided for the appointment of a Governor in place of the Sadar-i-Riyasat, and therefore, the Govemor was competent to give assent to the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967.

H In order to appreciate the points raised before us it is necessary to give a brief history of the various constitutional changes which took place in the State of Jammu and Kashmir.

H. H.

SUPREME COURT REPC!RTS

the Maharaja of Jammu & Kashmir, in a letter dated Octor 26, 1947, addressed to His Excellency the Governor-General of India, offered to accede to the Dominion of India.. On October 27, 194 7, tlie Governor-General accepted the offer and made certain stipulations with which we are not concerned.

On March 5, 1948, H. H. the Maharaja of Jammu & Kashmir issued a proclamation forming a responsible Govt. of a Council of Ministers headed by the Prime Minister which was to take steps to constitute a National Assembly based on adult franchise to form a separate Constitution for the State.

On June 20, 1949 Maharaja Sir Hari Singh entrusted his legjsJative, executive and judicial functions to his son, Yuvraj Karatll Singh for a temporary period~

On November 25, 1949 a proclamation was issued by Yuvraj Karan Singh directing that the Constitution of India to be adopted by the Constituent Assembly of India be adopted by the Constituent Assembly in so far as it was applicable in Jammu and Kashmir in order to govern the relationship of the State and the contemplated Union of India.

The Constitution of India was adopted on November 26, 1949 1md on the same date certain provisions came into force and the remaining provisions came into force on January 26, 1950.

Article 370 of the Constitution dealt with the relationship of the State of Jammu & Kashmir with the Union of India.

Article 370 reads as follows :

370. (1) Notwithstanding anything in this Const:itution,-

(a) the provision of article 23 8 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of arliament to make laws for the F said State shall be limited to--

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the Presiden~ to correspond to matters specified in the Instrument of Accession G governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for tha~ State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of R f the . State, the President may by order specify.

Explanation-For the purposes of this article the Government of the State means the person for the time being recognised by the President as the Maharaj a of J ammu and Kas\lmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's proclamation dated the fifth day of March, 1948;

(c) the provisions of article (1) and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such excptions and modifications as the President may by order specify :

Provided that no such order which relates to the matters specified in the Instrument of Accession of the Sta~ referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State;

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly. for such decision as it may take thereon.

(3) Notwithstanding anything in the foreg0ing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify :

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

On January 26, 1950 the Constitution (Application to Jammu and Kashmir) Order, 1950 was made by the President. On April

~O, 1_95 L the Maharaj a ?f Jammu & Kashmir issued a proclamation m pursuance of which the Constituent Assembly of Jammu and Kashmir was convened on November 5, 1951. On June 10,

1952 the Basic Principles Committee of Jammu and Kaslun!r Constituent Assembly submitted 1Jhe interim report to the Constituent Assembly and recommended that :-

(a) the form of the future constitution of Jammu & Kashmir shall be wholly democratic,

( b) the institution of hereditary Rulership shall be terminated, and

( c) the office of the Head of .the State shall be elective.

The <;:onstituent Assembly by a resolution adopted these recommendations. The following part of the resolution is rele".ant : c

"Now, therefore, in pursuance of the resolution, dated the 12th June, 1952, and having considered the report of the Drafting Committee, this Assembly resolves:

1. (i) that the Head of the State shall be tihe person recognised by the President of Union on the recommendations of the Legislative Assembly of the State;

(ii) he shall hold office during the pleasure of the President;

(iii) he may, by writing under his hand, addressed to the President resign his office;

(iv) subject to the foregoing provisions, the Head of the State shall hold office for a term. of five years from the date he .enters upon his office;

Provided that he shall, notwithstanding the expiration .of his 11erm, contim,1e to' hold the office until his successor enters upon his office;

2. that the recommendation of the Legislative Assembly of the State in respect of the recognition of the Head of the State specified in sub-para (i) of paragraph 1, shall be made by election; ...

4 .• that the Head of the State shall be designated as the

Sadat-i-Riyasat.

On November 15, 1952, the President made Order No. C.O. 44 to the following effect :

"In exercise of the powers conferred by this article (art. 370) the Presidenn, on the recommendation of the Constituent Assembly of the State of J arnmu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the Explanation in cl. (1) thereof, the following Explanation is substituted, namely :-

"Explanation.-F or the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office."

D On May 14, 1954, in exercise of the powers conferred by cl. ( 1) of art. 370 of the Constitution, the President with the concurrence of the Government of the State of Jammu and Kashmir. made the Constitution (Application to Jammu and Kashmir) Order,

1954. It superseded the Constitution (Application to Jammu and Kashmir) Order, 1950. It applied various provisions of the Indian .E Constitution to the State of Jammu and Kashmir. Under Art. 35, after clause (b) the following clause ( c) was added :

"(c) no law with respect to preventive detention made by the Legislature of the State of J ammu & Kashmir, whether before or after the commencement of the ConstiliUtion (Application to Jammu and Kashmir) Order. 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall .. to the extent of such inconsistency, cease to have effect on the expiration of five years from th7 commencement of the said Qrder, except as respects thmgs done or omitted to be done before the expiration thereof."

We may notice two other applications. Under art. 361, after

cl. (4) the following clause was added, namely:

"(5) The provisions of this article shall apply. in relation to the Sadar-i-Riyasat of Jarnmu and Kashmir as they apply in relation to a Rajpramukh, but without prejudice to the provisions of the Constitution of that ~~" .

To art. 367 was added the following clause, namely :-

"( 4) For the purposes of this Constitution as it applies in relation to rhe State of Jammu and Kashmir- ( a) reference to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;

(b) references to the Govemment of the said State shall be construed as including references to the Sadari-Riyasat acting on the advice of his Council of Ministers ......... "

To art. 368 was added the following proviso:

"Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370."

We may mention that, as far as the State of Jammu and Kashmir was concerned, some entries in t'he Union List were modified, entry 97 was omitted, and the State List and the Concurrent List were omitted.

On November 17, 1956 the Jammu and Kashmir Constitution was adopted. Some sections came into force on that date and the remaining sections cme into force on January 26. 1957.

On November 6, 1957 Karan Singh was elected Sadar-i-Riyasat for the second time. On October 31, 1962, Karan Singh was elected Sadar-i-Riyasat for the third time.

On April 10, 1965 Jarnmu and Kashmir Constitution (Sixth Amendment) Act, 1965 received the assent of the Sadar-i-Riyasat.

On November 24, 1965, the President, in exercise of the powers conferred by clause (1) of art. 370 of the Constitution, with the concurrence of 11he Government of the State of Jammu. and Kashmir, made the Constitution (Application to Jammu and Kashmir) Second Amendment Order,

1965. Under this Order, for sub-cl. (b) of cl. (4) of art. 367 the following clauses were inserted :

"( aa) references to the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the, Council of Ministers of the State for the time being in office, shall be construed as references to the -Governor of Jammu & Kashmir;

'(b) references to the Government of the said State shall be construed as including references' to the Gov~-

f I II

\;' H

nor of Jammu and Kashmir acting on the advice of his Council of Ministers;

Provided that in respect of any period prior to the 10th day of April, 1965, such references shall be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers."

I 025'

The main point of dispute between the parties is the position, and importance of the Explanation in art. 370 of the Constitution.

According to the .Attorney-General this is a mere definition inserted for the purpose of the article in accordance with the constiWtional conditions prevailing at that time.

According to Mr.

Garg, this is the king"pin of the whole relationship between the Vnion of India and the State of Jammu and Kashmir. According to him neither the Jammu and Kashmir Assembly nor the President were competent to impair the functioning of the Sadar-i- Rivasat and insofar as the Constitution of Jammu and Kashmir (Si°xth Amendment) Act, 1965 replaced the Sadar-i-Riyasat by the Governor it is ultra-vires. According to him, either there has to be an amendment of the Constitution of India under art. 368 and art. 370{3) or a fresh Constituent Assembly has to be convened to amend the Explanation.

He said that if the text of the Constitution is explicit, effect must be given to it and it is not the duty of the Courts to improve upon the Constitution because the constitution-makers had not anticipated such a change.

It seems to us that the essential feature of art. 370, sub-clauses l(b) and (d) is the necessity of concurrence of the State Government or the consultation of the State Government.

What the Stak Government is at a particular time has to be determined in the context of the Constitution of Jammu and Kashmir. The Explanation did no more t; han recognise the constitutional position as it existed on that date and the Explanation, as substituted from November 17, 1952, also did no more than recognise the constitutional position in the Statll.

We have, therefore, no difficulty in holding that art. 370(l)(b) and art. 370(1)(d) place no limitation on the framing or amendment of the Constitution of Jammu anrl Kashmir.

Tf there is a limitation it must be found in the Constitution of the State. Section 147 of the Constitution of Jammu and 'Kashmir itself provides that under that section the Indian Constitution cannot be amended.

The learned counsel, relying on Sampat Prakash v. State of Jammu and Kashmir( 1) contended that the only way of modifying art. 370 is specified in art. 370(3) itself. He said that this was

(I) [19681 2 S.C.R.365.

expressly laid down by this Court in the decision just referred to.

We are not concerned with the question whether art. .3 70 ( 3) can now be utilised to ameJJd the provisions of art. 370(1) and (2), and therefore we do not press any opinion on that point. We are now not .concerned with an amendment of art. 370(1). We are concerned with thesituation where the explanation ceased to operate. It had ceased to operate because there is no longer any Sadar-i-Riyasat of Jammu and Kashmir. If the definition contained in the Explanation cannot apply to the words "government of the State" then the meaning given in art. 367 ( 4), as amended, will have to be given to it. If this meaning is given, it is quite clear that the Governor is competent to give the concurrence stipulated in l!rt. 370 and perform other functions laid down by the .Jam mu and Kashmir Constitution.

The learned Counsel for the petitioner drew our attention to s. 147 of the Constitution of Jammu and Kashmir. He said that even this section contemplates the perpetual existence of the Sadari-Riyasat because this section expressly bars the Assembly from amending any provision of art. 14 7 and one of the provisions contained in this section is that the assent to an amendment of the Constitution must be given by the Sadar-i-Riyasat. It is true that s. 14 7 provides that "an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly, and when the Bill is passed in each House by a majority of not less than two-thirds of the total membership of that House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given to the Bill,' the Constitu- . tion shall stand amended in accordance with the terms of the Bill." But the Constitution itself contains s. 158 which provides that "unless the context otherwise requires the General Clauses Act, S.

1977, shall apply for the interpretation of this Constitution as it applies for the interpretation <:Jf an Act of the State Legislature." The General Clauses. Act contains s. 18 which reads :

"18. In any Act made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of .any functionaries or of corporations having perpetual succession.

G to express its relation to the functionaries or corporations."

By virtue of this Act, if the Governor is the successor to the Sadari-Riyasat, he would be entitled to exercise all the powers of the sadar-i-Riyasat. There is no doubt that he is the successor. The original constitution, by s. 26, provided :

 "26(1). The Head of the State shall be designated as the Sadar-i-Riyasat.

(2) The executive power of the

l c t

~· H

State shall be vested in the Sadar-i-Riyasat and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution .. ,, ....

Section 27 provided for the election of the Sadar-i-Riyasat aud s. 28 for the term of office.

It is quite clear from these provisions that the Sadar-i-Riyasat is really the name given to the head of the State.

Under the State Constitution as amended the Head of the State is designated as the Governor.

Sub-s. (2) of s. 26, as amended, vests the executive powers of the State in him.

It is true that the Governor is not elected as was the Sadar-i- Rivasat. but the mode of appointment would not make him any

th~ less a successor to the Sadar-i-Riyasat.

Both are heads of the State.

Mr. Garg argued that the amendment of ss. 26 and 27 of the Comtitution of Jammu & Kashmir was bad.

In support of his argument. he relied on the following passage in Golaknath v.

State of Punjab(') :

"The next argument is based upon the expression "amendment" in art. 368 of the Constitution and it is contended that the said expression has a positive and a negative content and that in exercise of the power of amendment Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation. If the fundamentals would . be amenable to the ordinary process of amendment with a special majority, the argument proceeds, the institution of the President can be abolished, the parliamen- Wry executive can be removed. the fundamental rights can be abrogated, the concept of federalism can be obliterated and in short - the sovereign democratic republic can be converted into a totalitarian system of go\ern'l'lent.

There is considerable force in this argument." "

Bu: the passage cited by him can hardly be availed of bv him for the re:i 0.on that the amendment impugned by him, in the light of what we have already stated about the nature of the explanation t? Art: 370. of our Constitution, does not bring about any alteration either m the framework or the fundamentals of the Jammu and Kashmir Constitution.

The State Governor still continues to be the head of the Government aided by a council of ministers, and the only change effected is in his designation and the mode

(J) [1967! 2 S.C.R. 762.

-Of his appointment.

It is not as if the State Government, by such .a change, is made irresponsible to the State Legislature, or its fundamental character as a responsible Government is alterad.

Just as a change m the designation of the head of that Government was earlier brought about by the introduction of the office -0f Sadar-i-Riyasat, so too a change had been brought about in his designation from that of Sadar-e-Riyasat to the Governor.

That was necessitated by reason of the Governor having been substituted in place of Sadar-e-Riyasat.

There is no quesfion of such a change being one in the character of that Government from a democratic to a non-dem9cratic system.

A comprehensive argument, which was raised in Golaknath's case and with reforence to which the aforesaid observations were made, was not raised before us, and therefore, we are not required at present to go into it.

Mr. Garg drew our attention to els. (aa) and (b) o.f art. 367(4), as substituted by C.O. 74 of 1965 [The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1965]. We have already set them out above.

He said that this was amendment of art. 370( 1) by the back-door and the President could not exercise these powers under art. 370(1) when he had not purported to exercise these powers under art. 3 70 ( 3). But, as we have already said, the explanation had become otiose and references to the Sadar-i-Riyasat in other parts of the Constitution had also become otiose.

There were two alternatives; first, either to leave the courts to interpret the words "government of the State" and give it its legal meaning, or secondly, to give the legal meaning in a definition clause.

What has been done is that by adding els. ( aa) and (b) a definition is supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of art. 370(1) by the back-door. - If we had regarded this as an amendment to art. 3 70 ( 1), then we would have to consider whether the amendatory powers had been validly exercised or not, but as we have said, we are not concerned with this question.

In conclusion we hold that the Amending Act was validly assented to by the Governor.

Coming to the second point urged by Mr. Garg, we are unable to appreciate how the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 delegates any legislative powers to anybody. It confers executive powers on the detaining authority by the insertion of the proviso to s. 8 to direct that the person detained may be informed that it would be against the public interest to communicate to him the grounds on wh.ich the

<' H

detention order had been made.

When the detaining authority chooses so to direct, it cannot be said that the detaining authority is exercising any legislative power.

In view of this matter it is not necessary to refer to various authorities of this Court where the question of delegation or excessive delegation of legislative powers has been considered.

It is also not necessary to dwell on the third point, namely, violation of arts. 21 and 22 of the Constitution because it is clear that they are excluded by art. 35 ( c) of the Constitution.

Regarding the sixth point that the order of detention was not served or executed in accordance with law, we are unable to find any force in this point. The order expressly directed that the petitioner be detained in the Central jail, Srinagar, and the copy of the order was endorsed to Shri Abdul Majid Lone, Dy. S.P., Sopore, in duplicate, for execution of the order, as provided by s. 4 of the J ammu and Kashmir Preventive Detention Act.

It was urged by Mr. Garg that there is no endorsement below this note, but we are unable to see that the law requires that every copy forwarded should be signed by the detaining authority himself.

There is no doubt that the order was executed as directed.

It was suggested thats. 75(1) of the Criminal Procedure Code was violated, but it seems to us that s. 75 (1) has been clearly complied with inasmuch as the detention order is in writing and has been signed by the detaining authority.

Reference was made to s. 76, Cr. P.C., but this provision has no application.

It only applies when the Court directs that security be takem.

The fourth point is that the proviso to s. 8 inserted by ihe Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 is bad because it is in conflict withs. 103 of the Jammu and Kashmir Constitution. It is quite clear that the legislature has no right to directly amend s. 103, nor has it the power to make the exercise by the High Court of its jurisdiction under s. 103 illusory. (See Prem Chand Garg v.

Excise Commissioner U.P.('), where this Court struck down r. 12, 0. XXXV Suprem~ Court Rules on the ground that it retarded the assertion or vindication of the fundamental rights under art. 32.) Mr. Garg said that it was impossible for the detenu to satisfy the Court that

e had 1?een unlawfully detained because he had been given no Jllformation whatsoever as to the reasons for his detention and to tell him that he had been detained to prevent him from cting in any manner prejudicial to the security of the State is to tell him next to nothing, and it may be that the real grounds on which he had been detained have no relation to the security of the State.

There is some force in what Mr. Garg contends, but

(!) [1963] Suppl. I S.C.R. 885.

we are unable to hold that this proviso is ultra vires because the proviso and the Act do not bar the High Court or this Court from looking into the validity of the detention. It should be remembend that in A. K. Gopa,/.an v. The State of Madras(!) s. 14 of the Preventive Detention Act was struck down.

Kania, CJ., observed on this point at page 130 :

"By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceedings or report of the advisory board which may be declared confidential.

It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not.

I do not mean whether the grounds are suffi. cient or not.

It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circo1mstances or class or classes of cases mentioned in section 12 (1 )(a) or (b)."

But fortunately there is no similar provision in this Act and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law. If it were not so, we would have difficulty in sustaining the proviso.

We have looked into the file produced before us by the State

and we are satisfied that the grounds on which the detenu has been detained have relevance to the security of the State. and with this also fails the fifth point raised by Mr. Garg that the G detaining authority had not applied its mind to the facts of the case.

In the result the petition foils and is dismissed

G.C.

Petition dismissed.

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

L736 Sup Cl/72-2500-21-J-73-GIPF.

MC)HD. MAQBOOL DAMNOO

S. M. SIKRI, C.J.

M. SHELAT

1. D. DUA

H. R. KHANNA

G. K. MITTER, JJ.

Art. 367

section 103

Art. 21 and 22

Article 370(1)

the State of Jammu and Kashmir

Article 370(i)

Constitution of India

Art. 370(1)

Constitution of

Article 367

Sadar-i-Riyasat of Jammu and Kashmir

article 32

Sadar-i-Riyasat \Vho alone

Article 370( I)

Section 8

Articles 21 and 22

M. M. DAMNOO V. J. & K. STATE 1015

Article 370

November 17, 1952

Article 370(1)

Article 370(1)

Section 147

Art. 370(1)

Jammu and Kashmir

Article 367

Article 370

[1969] 2 S.C.R. 365

section 147

section 18

General Clauses Act

s 26

Sadar-i- Riyasat

section 26

Golaknath

Sadar-i-Riyasat

article 367(4)

Article 370

section 8

Articles 21 and 22

Article 35(c)

S. 4

Section 75(i)

Section 76

section 8

section 103

section 103

s. 103

Article 32

Constitution of India

R. K. Garg

A. K. Gupta

R. K. Jain

Ishwar Si1agh Bakshi

M. C. Chag

R. N. Sachthey

S. K. Dho

!lliren Defor

R. N. Sachthev

Ram Panjwani

Sikri

Art. 32

District Magistrate of Baramula

S. S. Rizvi

Mohammad Maqb!ool Damnoo

Section 3

section 5

Mohammad Maqbool Damnoo

Abdul Majid Lone

section 4

Preventive Deiention Act, 1964

s. 8

s. 13

July 11, 1970

April F 10, 1971

May 11, 1971

art. 32

October 9, 1971

Garg

s. 4(2)

s. 8

Art. 21

Art. 22

s. 103

Art. 3

Article 370

Jammu and Kashmir Assembly

s. 14

Constitution of India

Government of India

Chagla

H. H.

Dominion of India

October 27, 194 7

March 5, 1948

H. H. the Maharaja of

Jammu & Kashmir

June 20, 1949

Maharaja Sir Hari Singh

Yuvraj Karatll Singh

November 25, 1949

Yuvraj Karan Singh

Constitution of India

Constitution of India

November 26, 1949

January 26, 1950

Article 370

State of Jammu & Kashmir

Union of India

Article 370

article 23

State of Jammu and Kashmir

Government of R f the . State

Kas\lmir

fifth day of March, 1948

June 10,

1952

12th June, 1952

November 15, 1952

art. 370

17th day of November, 1952

art. 370

Government of the State

May 14, 1954

art. 370

Art. 35

art. 361

art. 367

Sadari-Riyasat

art. 368

State of Jammu and Kashmir

article 370

November 17, 1956

January 26. 1957

November 6, 1957

Karan Singh

October 31, 1962

April 10, 1965

November 24, 1965

art. 370

art. 367

art. 370

Garg

Vnion of India

Constitution of India

art. 368

art. 370

art. 370

art. 370(l)(b)

art. 370(1)(d)

Section 147

art. 370

art. 370(3)

art. 370(1)

art. 370(1)

art. 367

s. 147

art. 14

s. 14

s. 158

General Clauses Act

S.

1977

s. 18

s. 26

Section 27

s. 28

s. 26

ss. 26 and 27

art. 368

Parliament

Sadar-e-Riyasat

art. 367(4)

art. 370( 1)

art. 370(1)

art. 3

art. 370(1)

art. 3

s. 8

arts. 21 and 22

art. 35

Srinagar

Abdul Majid Lone

Sopore

s. 4

Kashmir Preventive Detention Act

s. 75

s. 76

s. 8

s. 103

s. 103

art. 32

s. 14

Kania

section 7

section 12

Supreme Court