SHAIK HANIF, GUDMA MAJHI & KAMAL SAHA

STATE OF WEST BENGAL

February 1. 1974

[V. R. KRISHNA IYER AND R. S. $<RKAR!A, JJ.]

Maintenpnce of lnterna/ Security Act-If counter-affidavit to be sworn by the District Magislrate himself and under what circumstances-"Veterati copper wire stealer"-meaning of.

Since the matters are similar, the facts of W.P. No. 1679 of 1973 are as follows:-

The petitioner was arrested u/s. 3, sub section (1) and (2) of the Main- C tenu-nce of Internal Security Act, 197 l. The grounds of detention were that the petitioner, on 3-7-72, alongwith _his associates kept concealed 20 bundles of Telegraph copper wire in.his court-yard under ground with a view to dispose the san1e at an opportune moment. The said telegraph wire were recovered ::in 3-7-72 on the basis of -t, he confession made by his associates. Tho petitioner was, therefore, arrested because he was acting in a manner prejudicial to the nlaintenance of supplies and services essential to the community,

The detcnti_on. order was challenged on various grounds :-Ci) That the D counter-affidavit on behalf of the State of West Bengal was sworn by the Depuly Secretary and not by the District Magistrate, on the basis of whose subjective satisfaction the detention order was made and therefore, it waa illegal.

(ii) From the .counter-affidavit, it was clear that there were "reliable ink:rmmions'' and material other than the solitary ground of detention comn1unic:1ted to the detenn and so, the detenu was unable to make an effective representation. Therefore, the detention order was violative of clause (5) of E Art. 2.2 of the Constitution of India etc.

Allowing the petition:>,

HELD ; ( 1) When a Rule Nisi is issued in a habeas corpus petition, it is incu1nbent i; pon the State to satisfy the court that the detention of the petit:onr was legal and in conformity not only with the mandatory provisions cf Lhe Act, but is also in accord with the requirements of Cl. (5) of Art. 22 of the Constitution. 1262 E] F

N1rm1ja11 Singh v. State of Madhya Pradesh A.I.R. 1972 S.C. 2215, referred to.

f2) Since the Court is precluded from testing the sub; ective satisfaction of the dct<iining authority by objective standards. it is all the more desirable that in response to the Rule Nisi, the counteraffidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjecJive s:.tisfacrion the detention order was made.

If for sufficient reason shown to the satisfaction of the Court that the 3.ffidavit of the person .who passed the 1etcn!ion order could not be furnished, the counter-affidavit should be sworn by so'11e responsible officer who personally dealt with the case in the Govt.

Secretariat elc.

[262 E-F]

In the present case, the deponent did not swear that he had at any rele\a1n tin1e personally dealt with the case of the detenu and secondly, 1hc explanation given for not furnishing the affidavit of the District Magistrate due to his transfer from that District, was far from satisfactory.

Ran; it Dain v. State of West Bengal A.I.R, 1972 S.C. 1753 and J. N. Ro}'

v. Sta:e of West Bengal A, I.R, 1972 S.C. 2143 referred to.

HANtF ETC. v. WEST BENGAL (Sarkaria, I.) 259

(3) The failure to _furnish the counter-affidavit of the Magistrate who passed the. order of detention is an impropriety. However, in most cases, it may not be of much consequence; but in a few cases, for instance. where mala {ides or extraneous considerations are attributed to .the detaining authority, it may, ta.ken in conjunction with other circumstances, assume the shape of a serious infifi'-.iity.

[263 CJ

(4) In the counter-affidavit, it was mentioned that the detenu was a "veteran copper wire stealer'' and there were "reliable informations'' before the District Magistrate. Those reliable informatioris were withheld. The words

"veteran copper wire stealer'' also implied a long course of repetitive thievery of copper-wir~. it is manifest that but fo~ those ''reliable information'' showing that lhe detenu was repeatedly and habitually stealing copper wire, the District fagistrate might not have passed the detention order in question.

Further, from the 'Criminal Biography' supp tied by the State, it was clear that all material prticulars of the ground of detention necessary to enable the detenu to make an effective representation were not communicated to the detenu.

Hence, the impugned order of dtention is violative of Art. 22(5) of the Constitution and therefore, liable to be quashed.

Similarly, the other two petitions were also allowed on the ground that material particulars were not communicated to the detenues and therefore, the , detentions were illegal. [263 G- 264 CJ

ORIGINAL JURISDICTION: Writ Petition Nos. 1679, 1662 and 1681 of 1973.

(Under Article 32 of the Constitution for issue of a writ in the nature of Habeas Corpus.) R. K. Jain, amicus curiae for the Petitioner.

M. M. Kshatriya and G. S. Chatteriee for the Respondent.

E The Judgment of the Court w, as delivered by

SARKARtA J.-This judgment will dispose of all the three petitions above-mentioned under Article 32 of the Constitution of India. It will be convenient to first take up Writ Petition No. 1679 of 1973.

The petitioner Shaik Hanif, aged 40 years, was arrested on February 23, 1973 in pursuance of a detention order, dated February 19, 1973, passed by the District Magistrate, West Dinajpur in West Bengal under sub-s. (I) read with sub-s. (2) of s.3 of the Maintenance of Internal Security Act, 1971 (for short, 'the Act'). On February 19, 1973, the District Magistrate reported about his detention to the State Government whic~ approvd it on March 1, 1973. The detenu made a representation which was rejected by the State Government on April 5, 1973 and forwarded to the Advisory Board for consideration. The Board reported to the State Government on April 24, 1973 that there was sufficient cause for the detention.

Thereupon the Government confirmed the order of detention under s.12(1) of the Act and directed that the detention of the petitioner would continue "till the expiration of 12 months from the date of his detenlion or until the expiry of Defence of India Act of 1971 whichever is later."

The grounds of detention as conveyed to the detenu under H. 8(1), read as under :

SUPREME COURT REPORTS [19741 3 S.C.ll.

"You are being ileiained in pursuance of a detention order ........... on the ground that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the .community, as evidenced by tbo particulars given below :

On 3·7-72 at dead of night you along with your asse>- ciates kept concealed 20 bundles ol Telegraph copper wire weighing 2 qutls. 60 kgs. in your court-yard under earth with a view to dispose of the same in opportune moment.

The said Telegraph copper .wire were recovered on 3-7-72 on the basis of the confeilsion of your associates. The ponce seized those copper wire and arrested your asa<>- ciate but you evaded arrest. This activity of yours serioUSly

affected one of the essential services to the community by disrupting Telegraph facilities to the public and !bus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community.

You are hereby informed that you may make a representation to the State Government against the detention order ....... your case shalt be placed before the Advisory Board within thirty days from the date of your detention under the order.

You are also informed that under Section 11 ...... . (Act 26 of 1971) the Advisory Board, shall if you desi{j: to be heard, hear you in person . .. "

Sd/- "· L. Gupta E 19-2-73.

District Magistrate, West Dinajpur, Balurghat".

In answer to the Rule Nisi issued by this Court, Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal filed the counter-affidavit, explaining that the district Magistrate who passed the order of detention ••is. at present not available Joc

affrming the affidavit as he has been transferred from the said Di• F trict".

Jn para 4 of the affidavit, it is stated :

"It appears from the records that after receiving reliable information relating to the illegal anti-<1ocial and prejudicial activities of the above-nanJ_d detenu-petitioner relating to the maintenance of supplies and services essential to the community, the said District Magistrate of West Dinajpur G passed order of detention against him under the provisions of the sairl Act." In para 7, it is averred :

'.'I further state that it appears from the record that the petitioner is a veteran copper wire stealer. It was. found on 3-7-72 that the petitioner and his associates kept concealed H about 20 b.]l!ldles of telegraph cable wire undergrl>und in the court-yard of his house with a view to dispose the same at opportune moment. The said removal of copper wire from .

the telegraph lines resulted in disruption of telegraph service and he was detained under the said Act".

In paragraph 9 of the affidavit it is inter alia stated that the "statements made in paragraphs 3, 4, 5, 6 and 7 are based on information derived from the records kept in the office of the State Government in its Home Department (Special Section), which .I verily believe to be true."

Mr. R. K. Jain, who assisted the Court as amicus curiae advanced these contetions in support of the petition : ( 1) After the issue of Rule Nisi by this Court, it was incumbent upon the Respondent-State to satisfy the Court about the legality of the detention by producing the affidavit of the District Magistrate who had passed the detention order.

The counter-affidavit of the Deputy Secretary who did not personally deal with the case at any stage, is no substitute !or the affidavit of the District Magistrate on the basis of whose subjective satisfaction, the detention has been effected. The omission to file the counter-affidavit of the District Magistrate coupled with the oth,:r circumstances of the case, shows that the detention order was po;; ed in an utterly casual way, without application of mind and it was therefore, illegal; (2) From the counter-affidavit of the Deputy Secretary, it appears that there were "reliable informations" and material (other than the solitary ground of detention communicated to the detenu) before the detaining authority on the basis of which it was satisfied that .the petitioner was a "veteran copper wire stealer" and had been indulging in "illegal anti-social activities prejudicial to the maintenance of supplies and services essential to the community". Since the nondisclosure of that information or material to the detenu is not sought to be justified under clause ( 6) of Article 22, on the ground of 'ts being facts which the detaining authortiy considers to be against the public interest to disclose, it was incumbent upon the authority to communicate the detenu that information and material in full. Since

this was not done, the detenu was unable to make an effective re" presentation. Tl]e detention order was thus violative of the mandate of clause (5) of Article 22, and liable to be struck down on that score;

(3) The Act is violative of Articles 19 and 21 of the Constitution because its :-

(a) .Section 3 makes no provision for an objective determination of the truth of the allegations that form the basis of action under that section;

(b) Section 8 does not provide for consideration of the representation of the detenu by .an impartial body in accordance with the principles of natural justice;

( c) Section II enables the Advisory Board to base its report on the matetrial received by the Board from the Officer passing the order of detention without the said report being disclosed to tlle detenu and without affording him an opportunity to controvert the contents of the said report;

( d) Sections II and 12 empower the Advisory Board and the A State Government, as the case may be, to take into consideration materials and information without giving the detenu an opportunity to make his submissions with regard to those materials or to adduce evidence to disprove the allegations levelled against him.

(4) (a) The continuance of Emergency in as much as it suspend; Fundamental Rights, indefinitely under an executive fiat is unconstitutional. What the Parliament cannot destroy in exercise of its amendatory powers under Article 368, ll fortiori, th~ President cannot bury by embalming and encasing the same in a Proclamaiion of Emergency.

Fundamental Rights guaranteed under Article 19 arc essential features of the Constitution ana their indefinite suspension under the cloak of Emergency, amounts to their destruction; (b) Jn forming an opm1un as to the necessity of proclaiming Emergency under Article 352 of the Constitution, the President has to act on certain objective facts open to judicial scr'!tiny. The war having ended more than two years ago, there is no justification for continuing the Proclamation of Emergency.

We will take up contentions (I) and (2) together.

As "as pointed out by this Court in Naranjan Singh v. State of

M~.dhya Pradesli,(1) where in a habeas, corpus petition a Ruic Nisi is issued. it is incumbent upon the State to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in clause (5) of Article 22 of the Constitution.

Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards. it is all the more desirable that in response to the Rule Nisi the counter-affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed. If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under s.3 cannot be furnished, the counter-affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer dulv authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.

Jn the instant case, the counter-affidavit of Shri Sukumar Sen Deputy Secretarv. Home. suffers from two infirmities.

Firstly, the deponent does not swear that he had at any relevant time personallv dealt with the case of the detenu.

He has verified the correctnets of the avcrn1cnts in his affidavit on the basis of facts gathered from the official records. Secondlv. the explanation given for not furnishing the affidavit of the District Magistrate who had passed the detention order,

is that the Magistrate has been transferred from that District. The explanation is far from being satisfactory.

---rn:A:.1~~1912-s~. ms.

In Ranjit Dam v,.State of West Bengal,( 1) the reason given for not making the counter-affidavit by the Magistrate himself, who had passed the detention order, was that he had since then been appointed as Secretary of the State Electricity Board. It was held that the reason given was not satisfactory. "Shri Sukumar Sen is incharge of a specially created cell in the Government Secretariat of West Bengal, which maintains the records of all persons detained under the Act. It is true that a similar reason given for not furnishing the affidavit of the Magistrate who passed the impugned order, was accepted by this Court in J. N. Roy v. State of West Bengal,(') and instead, the counteraffidavit of the Secretariat official specially entrusted with detention cases was deemed sufficient. But that was so be<ltllse nothing turned. on it. Nevertheless, the failure to furnish the counter-affidavit of the

Magll; trate. who passed the order of detention, is an impropriety. In most cases, it may not be of much consequence but in a few ca.ses, for instance. where mala {ides or extraneous consideratfuns are attributed to the Magistrate or the detaining authority, it may, taken in conjunction \Vith other circumstances, assume the shape of a serious. infirmity, leading the Court to declare the detention illegal.

In the present case, too, the mere omission to file the affidavit of the District.

Magistrate does not vitiate the detention orders.

But it is a circumstance, among others, in the light of which contention (2) is to be appreciated.

The Act restricts citizens' personal liberty \vhich is a fundamental; right under the Constitution. It has therefore to be construed strictly, as far as possible, in Javour of the citizen and in a manner that does not restrict that right to an extent greater than is necessary to cffec.:tuate that object.

The provisions of the Act have, therefore, to be applied with watchful care and circumspection. lt is the duty of the court to 1 see that the efficacy of the limited yet crucial. safeguards provided in the law of preventive detention is not lost in n1echanical routine, dun casualness and chill indifference on the part of the authorities entrusted with their application. Let us therefore see whether there has been such a careful and strict compliance with the legal procedure in the instant case.

Jn the counter-affidavit, the Deputy Secretary has inter alia stated that the petitioner is a "veteran copper wire stealer" and there were "reliatle informations" before the District Magistrate about his antisociaJ activities prejudicial to the maintenance of supplies and l:iCrvices essential to the community. "Veteran copper wire stealer'' irnplies a long course of repetitive thievery of copper-wire.

No-one is born a knave; it takes time for one to become so.

It is manifest that but for those "reliable informations" showing that the detenu was repeatedly and habitually stealing copper wire, the District Magistrate might not have passed the detention order in question. Those "reliable informations" were withheld.

No privilege under clause (6) of Article 22 has been claimed in respect of them.

Even the main ground viz. that the petitioner is a "veteran copper wire stealer" was not, as such,.

(I) A. I. R. 1972 S. C. 1753.

(2) A.LR. 1972 S.C. 2143.

.communicated to the detenu. The ground intimated was that "you have been acting in a manner prejudicial to the Maintenance of Supplies and Services essential to the community". Only one solitary instance of the recovery of stolen copper-wire from the petitioner's house on 3-7-1972 was conveyed to the detenu.

Learned Counsel for the State has been fair enough to collect and place before us what the Deputy Secretary in his counter-affidavit called "reliable informations" on the basis of which the District Magistrate ordered the detention. In this, under the caption "Criminal Biography", is mentioned inter a/ia, how the petitioner with his associates organised a gang to steal telegraph copper wire systemati- .cally.

From what has been said above, it is clear as day light that all material particulars of the ground .of detention which were necessary to enable .. the detenu to make an effective representation, were not communicated to him.

The impugned order of detention i; thus violative of Article 22(5) of the Constitution, and is liable to be .quashed on that score alone.

In view of the above finding, it is not necessary to decide the .remaining contentions canvassed by Mr. Jain.

Now we take up Writ Petition No. 1662 of 1973.' In this case also, Shri Sukumar Sen, Deputy Secretary in his counter-affidavit .averred that the detenu was a "veteran copper wire stealer" and that the District Magistrate, Burdwan, had passed. the order of the petitioner's detention on receipt of reliable information about the illegal, anti-social and prejudicial activities of the petitioner.

Here also, al! the 'material information' showing or even alleging how the -petitioner was a "veteran copper wire stealer" was not communicated to him.

Only two instances .of theft of electric copper wire which took place on November 6, 1971 and November 25, 1971 were intimated to him.

Learned Counsel for the State has placed for our perusal a copy of History Sheet of the detenu OJI receiving which, the District Magistrate had passed the impugned order of detention.

Among other facts, it is mentioned therein that on November 3, 1973, also, the petitioner alongwith his two associates had committed theft of electric copper wire measuring 125 ft. from the electric poles near Hatgarui and a case under section 379. Penal Code was registered in Polic~ Station Asansol on the same date, relating to this theft. It is further stoled that "from his boyhood the petitioner started mixing up with anti-social elements, wagon-breakers and in course of time, he along with his .associates, indulged in. thefts of iron materials, copper-wire and other forms of crime".

All this matter including that concerning the theft dated November 3, 1973, was admittedly not communicated to the detenu.

Its no111disclosure to the dctenu is not being justified as privileged under Article 22(6}. Thus in this case also, all the material or adequate particulars relatable to the ground intimated, were not conveyed to the detenu. ft is not possible to predicate how far the mind of the detaining authority was influenced in passing the order of detention !by the uncommunlcated material.

By this omission, the petitioner's

HANIF ETC. v. WEST BENGAL (St1rkaria, J.) 265.

constitutional right of making an effective representation was seriously. jeopardised.

In the result the detention of the petitioner (Gudma Majhi) must be held to be illegal.

In Writ Petition No. 1681 of 1973, the ground of detention as. comn1unicated to the petitioner, Kamal Saha, ran as under :

'That on 10-12-1972 at about 19-30 hrs. you and your a'8ociates being armed with daggers put all the passengers to tear of death of a !Ind Class Compartment of 162 Dn. train at New Barrackpore R.S. and committed robbery in respect of one bundle of woollen Shawl containing 90 pieces valued at Rs. 9500/- from Galam Kadar Kashmiri of 96 Ripon Street Calcutta-16, you were subsequently arrested. 44 pieces of shawl valued a Rs. 4500/- were recovered later on. Your action caused panic, confusion and disturbed pub-- lie order then and there, you have thus acted in. a manner preJudicial to the maintenance of public order".

In Pora 7 of counter-affidavit, Shri Sukumar Sen, Deputy Secretary stated :

" .... that it appears from the records that tho petitioner 1s a veteran Railway Criminal. and was indulging in cnmmitt~ ing robbery in running sub-urban trains. It appcors that on 10-12-1972 at about 19-30 hours the petitioner and his associates armed with daggers, committed robbery in a III class Railway Compartment ...... "

The history-sheet communicated by the Superintendent of Police to the detaining authority states that "he formed and organised a gang and started <; Pmmitting robbery in Sealdah Bongaon Railway Section.

This gang is so desperate that no body of the locality resists them, even if they commit robbery and. other offences even in their very presence. They always move with deadly weapons such as pype-guns, daggers. bombs etc. by which they intimidate the local people."

Thereafter, instances of two robberies committed by him along with his associates. on January 30, 1972 and August 1, 1972, are mentioned.

The particulars of any past crime committed by him, which were necessary for showing how he was a veteran railway criminal, were not communicated to the detenu.

In respect of the uncommunicated material, ncr privilege under Art. 22(6) was claimed.

SUPRE.'\IE COURT REPORTS

[ 1974] 3 S.C.R.

fn the absence of those material particulars, the detenu could not A .exercise his constitutional. right of making an effective representation.

Jn oter words, the grounds communicated to the petitioner suffered from vagueness.

For the reasons aforesaid, all the three petitions are allowed ond the petitioner in each of them is directed to be set at liberty forthwith.

Nothing in this judgment, however, shall preclude the State Gov, rnment/District Magistrate. if so advised, from passing fresh orders of the detention of the petitioners or any of them, after full and meticulous compliance with the procedure prescribed by Jaw.

s.c.

Petitions allowed. c

SHAIK HANIF, GUDMA MAJHI & KAMAL SAHA

STATE OF WEST BENGAL

February 1. 1974

V. R. KRISHNA IYER

s. 3

the State of West Bengal

Art. 2

Constitution of India

Art. 22

Art. 22(5)

Article 32

R. K. Jain

M. M. Kshatriya

G. S. Chatteriee

SARKARtA

Article 32

Constitution of India

Shaik Hanif

February 23, 1973

February 19, 1973

March 1, 1973

April 5, 1973

April 24, 1973

Defence of India Act

Section 11

Sukumar Sen

R. K. Jain

Article 22

Article 22

Articles 19 and 21

Section 3

Section 8

Parliament

Article 368

Article 19

Article 352

Article 22

Article 166

Sukumar Sen

Government Secretariat of West Bengal

Article 22

Article 22(5)

Jain

District Magistrate, Burdwan

November 6, 1971

November 25, 1971

November 3, 1973

Hatgarui

section 379

Penal Code

Asansol

Gudma Majhi

Kamal Saha

New Barrackpore R.S.

January 30, 1972

August 1, 1972

Art. 22(6)


PHIROZE BAMANJI DESAI

CHANDRAKANT M. PATEL & ORS.

February 4, 1974

[P. N. BHAGWAT! AND P. K. GOSWAMI, JJ.]

f!on1bay. Rents Hotel and Lodging Hollse Rates (Control) Act (57 of 19' I), Sections 13( l)fg), 13(2) and 29(3 )-ReaJonable and bona/ide require- 1nent of preniises for personal use and occupation-Juridical possession of other pren1ises

1by landlord-Whether can be1 taken into account in determining need of landlord.

Bon1ba)' Rents, Hotel and Lodging House Rates (Control) Act, Sec. 29(3) Rev(sional p"wers of the High Court--Scope-Hig.h Court can interfere only if tfiere is n1iscarriage of justice due to n1istake I of law-Finding of lower court a_f to bona fide require1ne111 and greater hardship to Jandlord-lnter- Jerence by High Coutt by reappreciating evidence not pennissible.

The appellant was the owner of -two bungalows, called "'Truth Bungalow'' and ''Hill Bungalow''

1 in. Navsari, South Gujarat. The Truth Bungalow consisted of only one tenement \Yith a separate room on the ground floor which was in the possession of the <1.ppell<int, The rest of the Truth Bungalow wl:iiCh had been let out to a tenant who subsequently surrendered possession was given on leave-and-licence to one B in 1967.

The Hill Bungalow consisteJ of two tenements, one on the ground fioOI' and the other on the first floor.

The first floor is occupied by S, the mother of the appellant since the last seyeral years.

She was paying a sum of Rs. 50/- p.m. to the appellant for the occupation of the first floor.

The ground floor of the Hill Bungalow was let out by the appellant to one M in 1957 at a rent of Rs. 65/- p.m.

M died in September 1966 leaving behind him his widow, respondent No. 5, his son, Resp. No. 1 and his daughter, respondent No. 2.

Sometime prior to the death of M respondent Nos. 3 and 4 together with the members or their respective families had come to reside in the ground floor pren1ise.;;, After the death of M they continued to stay with respondent No. 1, Respondent Nos. 2 and 5, however, left the ground floor premises and went away from Navsari soon after the death of M. Th! l!Ppellant by a notice elated 15-10-1966 terminated the tenancy of respondent Nos. 1, 2 and 5. on the ground that they had unlawfully sub-let the ground floor premises to respondents Nos. 3 and 4 within the meaning of sec. 13(1)(e) of the Act.

However. the respondents failed to hand over vacant possession of the ground floor prernises to the appellant. Therefore, on 18-1-1967, the appellant filed a suit for e\iction under sec. 13( l)(e) of the Act. The appel !ant was carrying on his profession as an Architect and Consulting Engineer in Bombay since 1960, \\hen he retired from Army SerVice.

He lived in a flat in Bombay for \\hich he paid Rs. 475/- p.m. The principal area of his work in the earlv stages of hi" career was Rombay and South Gujarat but by

bout the middle of I96!l, hie; work in Bombay practicalJy dwindled to nil find his profesc; ionnl r!Cti,-ities became confined almost exc!usively to South Gnj:i-::at.

The appellant accordingly decided to settle down in Navsarj which was bis natiYe place where hie; mother was living for last several yenr<J and frotn where he would be able to carry on his profession conveniently. cccnonically and \\ith ad\'ar.tage.

The appellant accordingly at, nended the .J:?laint in lhe pendinc. suit with the ]eave of the Court introducing an add1t1onal ground that he reasonably t•nd bD.":.1 fide required the groun~ floor premises for his personal use and occupation and was, therefore, entitled . to recover possession u/s 13(l)(g) of the Act. Respondent N.o~. 2 .and S did not contest the suit of the appellant as they \Vere not residing tn the groun:l floor premises and the main aefen:e \Vas on behalf of respondent Nos. 1, 3 nnd 4,

who denied the allegations made in the plaint and disputed .the grounds on which possession was sought to be iecovered by the appellant.

The trial Court on consideration of the evidence led on behalf of the appellant and respondent nos. 1,3 and 4, took the view that the appellant had not established that respondents nos. 3 a)ld 4 were sub-tenants of respondent no.1 and, therefore, the appellant was not entitled to recover possession of the ground floor prernises on the ground of unlawful sub-letting.

However, the trial court held that the evidence on record was sufficient to establish that the appellant reasonably and bona tide required the ground floor premises for personal use and occupation and it WJS also dear from the evidence that greater hardship would not be caused to respondent nos. 1, 2 and 5 by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The trial Court passed a decree for eviction against the respondents.

On appeal by the respondents. nos. 1 to 4. to the Distnct Cl)urt, the District Judge confirmed the decree for eviction anQ. dismissed the appeal.

This led to the filing of Revision Application before the High Court u/s 29(3) of the Act, The High Court intedered with the findings of the District Judge on both the questions, namely, reasonable and bona fide requirement for personal use and occuption as also greater hardship and held on reappreciation of the evidence that the appellant had failed to establish that he reasonably and bona fide required the ground floor premL'; es for his personal use and occupation and in any event, greajer hardship would be caused to respondent no. 1 by passing a decree for eviction than by refusing to pass it. The High Court accordingly set aside the decree for eviction and dismissed the suit of the appe11ant.

On appeal by special leave to this Court, the appellant contendeJ that in reversing the findings of the District Judge on the aforesaid questions, the High Court exceeded its jurisdiction u/s 29(3), since both these tindings were tinding~ of fact which did not suffer from any mistake of law and the jurbdiction of the High Court under that section was limited only to exam1n1ng whether the decision of the District Judge was "according to law''.

HELD : ( 1) The High Court was. on the evidence of record, in error in reversing the findings of fact recorded by the District Judge.

For the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what was necessary to be considered wa" not whether the appeliant ¥.'as juridically in possession of the Truth Bungalow but whether the Truth Bang:alow was available to the appellant for occupation so that he could not be said to need the ground Hoor premises. If the Truth Bungalow was in occupation of B on leave an.ct licence, it was obviously not available to the appellant for occupation and 1t could not be taken into account for negativing the need of the appellant for the round floor premises.

The finding of the District Judge on the question of reasonable and bona fide requirement was clearly one of fact.

The Dist. Judge did not misdirect himself in regard to the true meaning of the word "require" in sec. 13(1) (g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to ''require" the premises for his own use and occupation.

[274 CJ

It is not enough that the landlord should merely desire to use and occupy the premises, What is necessary is that he shou.ld need thef!l for his own use and occupation. _ This was the correct test applied by the D1stt.

Judge fo the facts found by him. Therefore, it was not competent f'!r th~ Htg~ Court in the exercise of its re,•isional power under sec. 29(3) to 1ntertcre with thts findi11p br reappreciating the evidenc~. The High <; ourt\i 1e,1p11r<>.isal of the

; vidence JH':ri substitution of its own finding~ of fact 1n place vf .tat reached by the D:-'1.-..ct Jadge was clearly cntside the scope of the rev1s1onal power U/'i 29(3). [274 E}

'l"l:e Hi,.h Court can interfere with the decision of the lower court u/s 29(3} only~ if there is mis-carriage of justice due to mistake of law. e HW1 <.:ourt cannot re-assess value of_ the evidence and interfere with a finding

G '

of fact merely because it thinks that the appreciation of the evidence by the lower court is wrong and the lower Court should have reached a different conclusion of fact from what it did.

L273 F]

Hari Shankar v. Rao Girdharilal Choudhury [1962] Supp, 1 S.C.R. 933, Bt>II & Clo. Ltd. v. Waman Hemraj [1938] 40 Bom, L. R. 125 and Puranchand V. Motilal [!963] Supp. 2 s.C.R. 906 relied on.

(2) On the question of greater hardsip, the District Judge decided against the respondents on the view that as soon as the landlord establishes that he rcsasonbly and bona fide requires the premises for his own use and occupation, the burden of proving the greater hardship by passing a decree for eviction than refusing to pass it is on the tenant and if the tenant fails to discharge this burden by producing proper evidence, a decree for eviction must go against him. This view in regard to the burden of proof is not correct law.

[276 CJ

Kelly v. Goodwin,"'[1947] All Engl. Report g10, distinguished.

1.\1/s. Central Tobacco Co. v. Chandra Prakash, Civil Appeal No. 1175/69 dated 23-4-69, followed.

The High Court was consequently justified in interfering with th~ finding ret:orded by the District Judge on the question of greater hardship and arriving at its own finding on the basis of the correct principle laid down: by this Court.

But the High Court fell into an error in appreciating the evidence and coming to the conclusion that greater hardship would be causea to respondent No.

I by passing a decree for eviction than by refusing to pass it. There was no evident:e to support this finding by the High Court. The evidence was entirely the other way.

[277 C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2208 of 1972.

(Appeal by Special Leave from the Judgment and Order dated the 3rd Apiil. 1972 of the Gujarat High Court in Civil Revision Application No. 325 of 1970).

R. M. Mehta, S. K. Dholakia and R. C. Bhatia, for the Appellant.

C. S. Rao, for the Respondent.

The Judgmfnt of the Court was delivered by

BHAGWATI, J.

This appeal, by special leave, arises out of a suit filed by the appellant to recover possession of certain premises from the respondents.

In order to appreciate the contention that has been raised in the appeal, it is necessary to notice the facts giving rise to the appeal in some detail.

The appellant is the owner of two bungalows in Navsari, a town G situate in South Gujarat.

One bungalow is known by the name of Truth Bungalow while the other is known by the name of Hill Ilungalow.

The Truth Bungalow consists of only one tenement with a separate room on the ground floor.

It was common ground between the parties and that appears clearly from the evidence and h•s also been found by the High Court as well as the lower courts, that this separate room on the ground floor of the Truth Bungalow was at all material H times in the possession of the appellant.

The rest of the Truth Bungalow was, some two and a half to three years prior to the recording of the evidence, let out to a tenant, but after a period of about one year and a quarter the tenant surrendered possession and thereafter it was ·- .. 5-L954Sup,.C.L/74 0

givn by the appellant to one Dr. 'Bharucha on leave anu licence on payment of compensation of Rs. 50/- per month.

The appellant in his evidence could not stale precisely when this leave and liccn:.:e was granted by him. lfe said that it was given in January 1966 or it n1av be in January 1967.

We shall, foi the purpose of this appeal, proceed on th~ basis that it 1, vas given in January 1967, for that would bt: Ji1ore favourable to the respondent than taking January J 966 as the time when _it \Vas granted.

Dr. Bharucha was thus in occupation o[ the Truth Ilungalow, barring the ground floor ioon1 in the possession of the appellant, from January 1967 on leave and licence from the appellant.

The Hill Bungalow consists of two tenanments; one on the ground lloor and the other on the first floor.

The first floor is occupied by Suonabai, the 1nother of the appellant since the last several years. Si1c is an old lady, aged about 82 years at the time of giving evidence but. as the evidence shows, age docs not seem to have withered a\vuy her interest in life.

There was some controversy before the lo\·; cr courts as to whether in respect of the lirst floor occupied by her, Soonobai ,-,,.:; a tenant or a Jiccncee of the appellant. The lower courts held that she

a tenant, while the High Court took the view that she was• a Jicencee.

We shall presently examine this controversy but one thing may be made clear at this stage namely, that Soonabai was paying a sum .of Rs. 50/-

pcr month to the appell•nt for the occupation of the first fl<1or 4n.:J receipts in respect of such payments were produced by the appellant. The ground floor of the Hill Bungalow was let out by the appellant to one Mahendra Prasad as far back as 1957 at a rent of Rs: 65/- per month.

Mahendra Prasad died in September 1966 leaving him surviving as his legal representatives his widow the fifth respondent. his son the first respondent and his daughter the second respondent.

Sometime prior to the death of Mahendra Prasad, respondents 3 and 4 together with the members of their respective families had come to reside in the gtounJ floor premises and after the death of Mahendra Pr,1sad, they continued to stay With the first respondent.

The second and the fifth respondents, however, left the ground floor premises and went. away front Navsari soon after the death of Mahendra Prasad.

The appellant, by a. notice dated 15th October, 1966, terminated the tenancy of respondents I, 2 and 5 on the ground that they had unlawfully sub-Jet the ground floor premises to respondents 3 and 4.

Though the tenancy in respect of the first floor premises was thus terminated by the appellant, the respondents failed to hand over vacant possession of the ground floor premises to the appellant and the appellant was accordingly constrained to file regular suit No. 26 of 1967 in the co!lrt of the Civil Judge, Senior Division, Navsari on 18th January 1967. -The

ground on which possession was souglit by the appellant in the plaint as originally framed was unwawful sub-letting by respondent> I, 2 and 5 to respondents 3 and 4 which is a ground of eviction under s. 13 (I)-

( e) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the Bombay Rent Act).

The appellant was-carrying on hls nrafession as archi.tect and consu 1ting engineer in Bombay since 1960 when he retired from Army <ervice.

He lived in a flat in Bombay for which he paid a rent of Rs. 475 /- per

Y'.'

month, The principal area of work in the early stages of his professional career was Bombay and South Gujarat but by abodt .tile middle of 1968 his v.ork in Bombay practically dwindled to nil and his professional activities became confined almost exclusively to South Gujarat. The appellant found that in the circumstances tbl'r<; was no point in his continumg to hw in Hombay and pay a hi!lh .rent of Rs. 475/- per month which was a serious drain on his purse.

The appellant accordingly decided 10 settle down in Navsari which was his native place, where his mother was living for the last several years und from where he would be able to carry on his profession convenie01iy, economically and with advantage.

Now, the suit filed by the appellant against the respondents for possession of the ground floor premises was already pending and the appellant, therefore, with the leave of the Court, amended the plaint in that suit introducing an additional ground that the appellant reasonably and bona. fide required the ground floor premises for his personal use and occupation and was, therefore, entitled to recover possession under s. 13 ( 1) (g) of the Bombay Rent Act. .

Respondents 2 and 5 did not contest the suit of the appellant as they were not residing in the ground floor premises and the main defence was on behaH of 1es11ondents 1, 3 and 4 who denied the allegations made in the plaint and ilisputed the grounds on which possession was sought to be recovered by the appellant.

The trial court, on consideration of the evidence led on bhalf of the appellant and respondnts 1, 3 and 4, took the view that, though respondents 3 and 4 together with the members of their respective families were residing in the ground floor premises with the first respondent, it was not established by the appellant that they were subtenants of the first respondent and the appelant was, therefore, not entitled to recoverpossession of the ground floor premises on the ground of unlawful sub-letting.

However, so far as the ground of reasonable and bona fide requirement for personal use and occupation was concerned, the trial court held that the evidence Cil record was sufficient to establish that the appellant reasonably and bonu fide required the ground floor premises for personal use and occupation and it\ was 11lso clear from the evidence that greater hardship wuuld not be caµsed to respondents 1, 2 and 5 by passing a decree for eviction than wliat would be caused to the appelant by refusing to pass it.

The trial cutlet accordingly passed a d.ecree for eviction against the re; pondcnts.

Respondents 1 to 4 being aggrieved by the decree for eviction preferred an appeal in the District Curt, Bulsar.

The District Judge, who heard the appeal, found himself in complete agreement with the conclusions reached by the trial court and he accordingly confirme<J t.he

decree for eviction and dismissed the apneal.

This le~ to tlie filing of a revision application before the High Court under s. 29. <u'i-s. (3) of the Bombay Rent Act. The High .Court in revision interfered with the findings of the District Judge on both the questions, nnmcly, reasonable and bona fide requirement for personal use anrl occuoathin as als.o greater hardship and held. on an aoprcciation of the evidc"rc. that the appi; llant had failed to es'.abli<h tht he reasonablv anrl hn''" de required the ground floor premises for hts own use and occupation and

in any event the evidence showed that greater hardship would he caused to the first respondent by passing a decree for eviction than by refusing to pass it.

The High Court, accordingly, set aside the decree for eviction and dismissed the suit of the appellant.

Hence the present appeal by special leave obtained from this Court. .

The main ground on which the appellant attacked the judgment of the High Court was that in reversing the findings of the District Judge on the question of reasonable and bona fide requirement for personal use anJ occupation as also on the question of greater hardship, the High Court exceeded its jurisdiction under s. 29, subs. (3), since both these findings were findings of fact which did not suffer from any mistake of law and the jurisdiction of the High Court under that section was limited only to examining whether the decision of the District Judge was "according to law". The High Court, it was contended, could not interfere under s. 29, sub-s .. (3) with findings of fact recorded by the District Judge unless it could be shown that they disc!OBed an error of law in arriving at them, which according to the appellant, was not the position in the present case.

This contention raises a question as to the true scope and ambit of the revisional jurisdiction of the Higl) Court under s. 29, sub-s. (3). Fortunately this question is not devoid of authority. There are sections in other rent control legislations couched in identical language and they have received judicial interpretation at ti)e hands of this Court.

The first decision to which we may refer in this connection is Hari Shankar v. Rao Girdhllrilal Chaudlwry('). The secfion which fell for consideration in this case was s. 35, sub-s. (!) of the Delhi and Ajmet Rent Control Act, 1952 which was in the same terms as s. 29, sub-s. (3) of our Act.

Section 34 of the Delhi and Ajmer Rent Control Act, 1952 corresponded to our subss. (I) and (2) of s. 29.

Explaining the scops of s. 35, snb-s. (I) in the context of s. 34, Hidayatullah, J., (as he then was) said on behalf of the majority of the Court :

"Section 35 is undoubtedly worded in general terms, but it does not create right to have the case reheard, as was supposed by the learned Judge.

Section 35 follows s. 34, where a right of appeal is conferred; but the second subsection of that section says that no second appeal shall lie. . . . .

The phrase "according to Iilw" refers to the decision as a w'1ole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be accbrding to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which s. 115 is limited. But it must not be overlooked that the section-in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit-is controlled by the openine words. where it says that tho High Court may send for the record of the case to satisfy itself that the decision is "according to kl\\···.

It s!an; s to rca;;0n that

(l) [1962] Supp. I S. C. R. 933.

P. B. DllSA:I V. C. M. PATEL (Bhagwati, /.) 273

if It was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal."

Then the learned Judge quoted in extenso the following observations of Beaumont, C.J., in Bell & Co. Ltd. v. Waman Hemrai( 1) in relation to s. 25 of the Provincial Small Causes Courts Act which was almost in the same terms ass. 35, sub-section (1) :

"The object of s. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.

The section does not enumerate the cases in which the Court may interfere in revision, as does s. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exbasutive definition of the circumstances which may jusiify such interference; but instances which readily occur to the mind .are cases in which the Court which made .the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a burden of proof has been heard, or the burden of proof has been placed on the wrong shoulders.

Whe1ever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to Jaw, then the court can interfere.

But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."

and recorded that these observations had the full concurrence of the majority for whom he was speaking. This view was reaftirmed by Subba Rao, J., (as he then was) speaking on behalf of this Court in Puranchand v. Moti/al('), where the same section 35, sub-s.

(1) of the Delhi and Ajmer Rent Control Act again came up for consideration.

The scheme and language of s. 29, sub-s. (3) of our Act being identical with that of s. 35, sub-s. (1) of the Delhi and Ajmer Rent Control Act, 1952, the same view must also govern the interpretation of s. 29, sub-s. (3) of our Act. The High Court can, therefore, interfere with the decision of the lower court under s. 29, sub-s. (3). only if there is . miscarriage of justice due to a mistake of law.

The High Court canot reassess the value of the evidence and interfere with a finding oi fact merely because it thinks that the appreciation of the evidence by the lower court is wrong and the lower court should have reached a different conclusion of fact from what it did : in other W•)rds, the High Court cannot reappreciate the evidence and substitute its own conclusions of fact in place of those reached by the lower court. Bearing in mind this limited scope and ambit of the revisional power of the High Court .under s. 29, subs (3) we may now proceed to consider whether the High Court acted within its jurisdiction in setting aside the

decision of the District Judge.

(1) [1938] 40 ,!lorn. L. R. 125

(2) [19631 Supp. 2 S. C. R. 906.

Now the decision of the District Judge was based on two findings recorded by him in favour of the appellant.

One was that the appellant reasonably and bonti fide required the ground tloor premises for his own use and occupation, and the other was that greater hardship would be caused to the first respondent by passing a decree. for eviction than what would be caused to the appellant by refusing to pass it. Both these findings were interefered with by the High Cotirt and the que~ tion is whether the High Court was within its power in doing so. Taking up first for consideration the finding that the appellant reasonably and bona fide required the ground floor premises for his own use and occupation, it may be pointed out straight away that this finding was clearly one of fact.

The District Judge did not misdirect himself in regard to the true meaning of the word 'requires' in s. 13(1) (gy and iliterpreted

it correctly to mean that there must be an element of need before a landlord 'can be said to 'require' premises for bis o\vn use and occupation. It is not enough that the landlord should mrely desire to use and occupy the premises.

What is necessary is that' he should need them for his own use and occupation.

This was the llorrect test applied by the District Judge to the facts found by him. lf he had applied a wrong test on a misconstruction of the word 'requires', the finding recorded by him would have been vitiated by an errQr of law.

But the correct test having been applied, the finding of the District Jugc that the appellant reasonably and bona {Uk requife4 the ground floor premises for his own use and occupation was unquestionably a finding of fact and it was not competent to the High Court, in the exercise of its revisional power under s. 29, sub-s. (3), to interfere' with this finding by reappreciating the evidence.

But, though such an exercise was not permissible, the High Court embarked on a reappraisal of the evidence and iaking th.e view that the finding of fact reached by the District Judge was not correct, substlluttd its_ own finding of fact in place of ihat reached by the Distric:t J'udge.

That was clearly outside the scope and ambit of ihe revisional power of the High Court under s. 29, sub-s. (3).

But even apart from acting outside the limits of its rtvisional power under s. 29, subs. (3), the High Court '!)'as, in our opinion, OD the evidence on record, in error in reversing the finding of fact recorded by the District Judge.

So fat as the first tloor of the Hill Bungalow was concerned it was admittedly in the possession of Soonabai, ihe mother of the appellent.

The District Judge held. agreoing with the view taken by the trial court, that Soi>nabai was a tenant of the appellant paying a relit of Rs. SOIper month.

The High Court observed that this view taken by the District Judge was contrary to the evidence on record and relied for this purpose on a statement made by the appellant in cross examination that what his mother paid was compensation and not rent. It is true that this statement was made by ihe appellant in cross examination, but DO undue reliance can be placed on •uch statement made by a lay man who WOl,\ld not ordinanly be expected to recognize the fine distinction between compensation and rent, which has continually baffled even lawyers and judges. when we find that there was at least one rent receipt produced by Soonabai which clearly showed that what was being paid by her was rent and not compensation.

There was here documentary evidence in ihe s\lape of rent

receipt •s against oral imperfectly understood admission made by the

appellant, which supported the view taken by the Oistrict j uag,: that Soonabai was a tenant and not a licencee uf the appellant and the High Court was in error in upsetting this view taken by the Dhi..rict Judge.

Now, if Soonabai was a tenant of the appellant, she could tell the .appellant rhar she would continue to live on the first floor alone as 'he

had been doing and would not allow the appellant together with his wife and children to live with her on a permanern basis.

That was the mode of life to which Soonabai was accustomed for tho Ja3t several years and even if it were possible tor the appellant to impose himself together with his wife and children on her on the first floor, he xightly. and legitimately did not choose to do so and that could not Ix: regarded as unreasonable on his part.

The High Court then proceeded to c<., nsider the availability of the Truth Bungalow and observed that since the Truth Bungalow was given on leave and licence to Dr. Bharucha, it was in the possession of the appellant and largely on the basis of this view the High Court came to the conclusion that the requirement of the appellant for the ground floor premises was not reasonable and bonafide. Now, it is true that when premises are given on leave and licence, the licensor continues, from a juridical point of view, to be in possession of the premises and tl; le licencee is merely given occupation, and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr. Bharucba, was in the possession of the appellant. But for the purpose of determining whether the requirement of the appellant for the ground floor pren1ises was .reasonable and bonafid~. what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether tb Truth Bungalow was available to the appellant for occupation so that he could not be said .to need the ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and 1iccnc~, it was obviously not available to the appellant for occupation and it could not be taken into acconnt for negativing the need of the appellant for the ground floor premises. The aopellant could not obtain for himself the occupation of the Truth Bilngalow unless he terminated the leave and licence of Dr. Bharchau and compelled him to vacate the occupation of the Truth Bungalow. That might involve a long litigation with Dr. Bharucha. As against that, a suit for eviction was already pending against the respondents in respect of the ground floor premises and it would certainly be more reasonable to pursue that litigation rather than to start a new one. Besides, the appellant chose to have possession of the ground floor premises because he wanted to be near his mother who was living on the first floor. It is tmo that one room on the ground floor of Truth Bungalow was in possession of the appellant, but that could hardlv ho sufficient for his accommodation.

The High Court also observed that one room on the ground floor of the Hill Bungalow _was in th~ possession of the appellant, but this observation seems to be contrarx to the evidence on record. There was only one garage on the ground floor of the Hill Bungalow and that garage was, according to the appellant, in the joint possession of the appellant and the fust respondent.

while according to the respondents, it was exclusively in the possession of the first respondent. It was nobody's case that this garage was in the exclusive possession of the appellant. Moreover, it was only a garage and not. a room and it could not be availed by the appellant for his occupation. It will, therefore, be seen that the evidence on record was sufficient to show that the requirement of the ground floor premises by the appellant was reasonable and bonafide and the High Court was in error ill taking a contrary view and disturbing the finding recorded by the District Judge. ·

So far as the finding on the question of greater hardship is concerned, the District Judge decided against the respondents on the view that as soon as the landlord establishes that he reasonably and honafide requires the premises for his own use and occupation. the burden of proving that greater hardship .wouJd be caused by passing a decree for eviction than by refusing to pass it is on the tenant and if the tenant fails to discharge this burden by producing proper evidence, a decree for eviction must go against him .. This view in regard to the hurden of proof, no doubt, prevailed at one time in various High Courts on the basis of the decision of the Court of Appeal in England in Kelly v.

Goodwin(') but it can no longer be regarded as correct after the decision of this Court in M/s. Central Tobacco Co. v.

Chandra Prakash(').

This Court speaking through Mitter, J., pointed out in that case, while discussing s. 21 ( 4) of the Mysore Rent Control Act; 1961, and what was said there must apply equally in relation to s. 13(2) of the Bombay Rent Act, which is in identical terms:-

"We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he is relieved of all further obligation under s. 21 sub-s. ( 4) and that once the landlord's need is accepted by the court all further evidence must be adduced by the tenant if he claims protection under the Act.

Each party must adduce evidence to show what hardship would be caused to him by the granting or refusal of the decree and it will be for the court to determine whether the suffering of the tenant, in case a decree was made, would be rnOrc than that of the landlord by its refusal.

The whole object of the Act is to provide for the control of rents and evictions, for the leasing of buildings etc. and s. 21 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. Cl. (h) of s. 21 contains one of such grounds, namely, that the premises are reasonably and bonafide required by the landlord for occupation by himself. The onus of proof of this is certainly on the landlord. We see no sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenants making it obligatory on him to show that greater hardship

(I) [19471 All Eng. Report 810.

(2) Civil Appeal 1175 of 1969, date 23-4-1969.

would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all relevant evidence before the court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect.

It is only after shifting such evide, nce that the court must form its conclusion on consideration of all the circumstances of the of the case as to whether greater hardship would be caused by passing. the decree than by refusing to pass it."

It is, therefore, clear that the District Judge placed the burden of proof wrongly on the respondents and the finding of fact arrived at by him on the question of greater hardship was vitiated by a mistake of law.

The High Court was consequently justified in interfering with the finding recorded by the District Judge and arriving at its own finding on the basis of the correct principle laid down by this Court.

But the High Court, in our opinion, fell into an error in appreciating the evidence and coming to the conclusion that greater hardship would be caused to the first respondent by passing a decree for eviction than by refusing to pass it. There was no evidence at all to support this finding reached by the High Court. The evidence was entirely the other way. The appellant stated in his evidence that he would suffer considerable harship both financial and in the way of his profession if he was denied possession of the ground floor premises. This was true because the entire field of work of the appellant was now confined to South Gujarat and it was obvious that he would be able to. carry on his profession conveniently, economically and with advantage, if he could live in Navsari which is situate in South Gujarat. Moreover, in view of the shift in his field of work from Bombay to South Gujarat, it was unnecesary for the appellant to continue to live in Bombay and pay a high rent of Rs. 475/- per month _which was a serious drain on his purse. There can, therefore, be no doubt that if a decre for eviction were not passed in his favour, the appellant would suffer real hardship. Now, as against this evidence on the part of the appellant, no evidence at all was led on behalf of the respondents to show that the !st respondent would suffer any hardship if a decree for eviction were passed against him. The evidence, thus, was only in one direction and it unquestionably established that greater hardship would not be caused to the first respondent by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The High Court was, therefore, clearly wrong in reversing this finding of fact recorded by the District Judge.

It is, therefore, clear that the High Court was in error in setting aside the decree for eviction passed against the respondents. We would

accordingly allow tho appeal. set aside the judgment of the High Court and restore the decreefor eviction passd against the respondents. V./e may, however, point out that in the course of the hearing before us the learned counsel on behalf of the appellant made an offer that the appellant \Vould b.:: ,.,.-; Hing io ,£:i\\~ one roon1 on the ground floor of the Truth .Bungalo\v which is in his possession to the first respondent on a rent of Rs. 15 - per llll'llth. ii the first respondent accepts this offer within a. per~'Jd of thre::: n1::'!nti1s from today. We, therefore. dirct that if the first respondent expresses his willingness to take this roo:n on rent from the appellant at the rate of Rs. 15 per month within a period of three months from today, the appellant shall let it out to the 1st respondent at the rent of R,. I Sfper month. There will be no order as to costs all throughout.

S.B.W.

Appeal allowed.

PHIROZE BAMANJI DESAI

CHANDRAKANT M. PATEL & ORS

February 4, 1974

P. K. GOSWAMI, JJ.

Sections 13( l)

Sec. 29(3)

Navsari

M. Th! l!Ppellant

sec. 13(1)(e)

sec. 13( l)(e)

Bombay

Navsarj

s 13(l)(g)

s 29(3)

s 29(3)

sec. 13(1)

sec. 29(3) to 1

R. M. Mehta

S. K. Dholakia

R. C. Bhatia

C. S. Rao

BHAGWATI

Bharucha

Suonabai

Soonobai

Soonabai

Mahendra Prasad

Mahendra Prasad

Mahendra Pr,1sad

18th January 1967

s. 13

South Gujarat

Navsari

s. 13

s. 29

s. 29

s. 29

s. 29

s. 35

Delhi and Ajmet Rent Control Act, 1952

s. 29

Section 34

Delhi and Ajmer Rent Control Act, 1952

s. 29

s. 35

s. 34

Hidayatullah

Section 35

Section 35

s. 34

Iilw

s. 115

Beaumont

s. 25

s. 25

s. 115

the Code of Civil Procedure

Subba Rao

section 35

Delhi and Ajmer Rent Control Act

s. 29

s. 35

Delhi and Ajmer Rent Control Act, 1952

s. 29

s. 29

s. 29

s. 13(1)

s. 29

s. 29

s. 29

Soonabai

Soi

nabai

Bharucba

Truth Bilngalow

Bharchau

England

Mitter

s. 21

s. 13(2)

s. 21

s. 21

s. 21


KANU SANYAL

DIST. MAGISTRATE, DARJEELING & ORS.

February 5, 1974

[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.J

Constitution of India, 1950, Art. 32-Petition for the issue of writ of habeas corpus-Date with reference to which legality of detention 1nay be tested.

Priso11ers (Attendant:e in Courts) Act, 1955 s. b and its proviso-Scope of.

The petitioner was remanded to the District Jail, Darjeeling, in connection with certain offences. Thereafter, two charge sheets were filed against him and others for various offences under the I.P.C., which were triable exclusively by a Sessions Court, before the Special Magistrate, Visakhapatnam, '.fhe Special Magistrate issued a warrant for the production of the petitioner in his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, and the officer in charge of the Dt. Jail Darjeeling, sent the petitioner to the Court of. the Special Magistrate, Visakhapatnam. The petitioner was then remanded to t.he Central Jail. Visakhapatnam, pending the disposal of the committal proceedings.

In a petition for the issue of a writ of habeas corpus, the petitioner contended that his initial detention in the Dt. Jail, Darjeeling, was illegal, because, (l)(a) it was violative of Art. 22(1), (b) the concerned Magistrace in Darjeeling had no jurisdiction to try the Offences in connection with which be was detained in Darjeeling and hence could not order detention beyond 15 days; 3.nd (2) the officer In charge of the Dt. Jail, Darjeeling should have refused to comply with the warrant for production issued by the Special Magistrate, Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance in Courts) Act. •

HELD: ( 1) As regards the earliest date With reference to which the legality of detention challenged iri.- a habeas corpus proceeding may be - exa~ .mined, there are 3 views, namely, (a) that it is the date on which the application for habeas corpus is made to the Court, (b) that it is the date of the return, and (c) that it is the date of hearing. Whichever be the correct view, the earliest of the dates would be the date of filing of the application for habeas corpus. In the present case, the application was filed after the petitioner was ordered to be detained in the jail at Visakhapatnam. Assuming that there was some infirmity_ in the detention in the jail at Darjeeling, that cannot irlvalidate the subsequent detention of the petitioner in the jail at Visakhapatnam. The legality of the detention at Visakbapatnam has. to be judged on its owp. merits. Therefore, it is unnecessary to examine the' legality of the detention of the petitioner in the jail at Darjeeling. [283 D-284 CJ

(2) Under s. 3(1) of the Prisoners (Attendance in Courts) Act, the order contemplated is an order by a civil or criminal court, for the production of a detained person for. giving evidence.

But the order contemplated, by s. 3(2) is an . order of prqduction of a person for answering a charge in a criminal court. Under s. 5, when an order of production is made under s. 3(1) or (2), tJie officer in charge of a prison shall cause the detained Person to be taken to the court where his attendance is required. Under s. 6, such officer shall -abstain 'from complying with the order of production in certain circumstances. 1'.he pi'oviso to the sCctio'n carves out an exception if the 3 conditions foi' its applicability, laid down in the proviso, are satisfied. _The first con~ dition is that order of production should be by a criminal court and the nd is that tlfe detained person should not be unfit to be removed, and the

!bird is that the plaoc where the evidence of the detained person is required A 1s not more than S miles from the priso.n where he is confined.

(285 A-0]

In the present case, the first two conditions are satisfied. The 3rd condi- 1ion can have nO application where an order is made by a criminal court under '8. 3(2) requiring production for answering a charge.

The fulfilment ot the first two conditions would, in such a case, be sufficient to attract the appli cability of the Proviso, and to take the case out of s. 6. Therefore, the officer in charge of the jail at Darjeeling waS bound to send the petitioner B to the Co.urt at Visakhapatnam and he acted according to law.

The subsequent detention in the jail at Visakhapatnam pending trial must be held-to be valid and a writ of habeas corpus cannot be granted where a person is committed to jail custody by a competent court by an Order which, prima facie, does not appear to be without jurisdiction or wholly illegal.

[285 H-286 G]

B~ R, Rao v. State of Ori.na, A.I.R. 1971 S.C.· 2197, followed.

ORIGINAL JUR:ISDICTION: Writ Petition No. 205 of 1973.

Under Article 32 of the Constitution of India for issue of a writ in the nature of babeas corpus.

N. H. Hingorani, for the petitioner.

P. K. Chatterjee, Sukumar Basu and G. S. Chatterjee, for respon. dents Nos. 1-5.

P. Ram Reddy and I'. P. Rao, for respondent No. 6.

B. D. Sharma and S. P. Nayar, for respondent No. 7.

The Judgment of the Court was delivered by E

BHAGWAT!, I .. This is a writ petition by the petitioner under Art. 32 of the Constitution challenging the legality of his detention h1 the Central Jail, Vizakhapatnam and praying for a writ of hebeas corpus for setting him at liberty forthwith.

The petitioner is one of the acknowiedged leaders of the Naxalite movement which originated in the area within Naxalbari, Kharabari and Phansidewa police sta- F lions in Siliguri Sub-DiVision of Darjeeling District of West Bengal some ten years ago.

The movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic process.

The petitioner, as one of the top leaders of this movement, was engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually on 19th G August; 1970 the petitioner was arrested by the police alongwith some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time Of the arrest. Phansidewa PS case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under s.5 of the Explosive Substances Act, s. 25(1) (a) of the Arms Act and ss. 120B, 121A, 122, H 309 and 402 of the Indian Penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th June, 1967. under s. 412 read with s. 34 of the Indian Penal

Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, 'i.e., !9th August, 1970, the petitioner was produced before the Sub- Divisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling, The petitioner was accordingly produced before the Sub-Divisional Magistrate Darjeeling from time to time and orders of remand were passed by the Sub-Divisional Magistrate, Darjeeling at the interval of every fourteen days since the investigation in P.S. Case No. 28 dated 29th June, 1967 and P.S.

Case No. 3., dated 19th August, 1970 was not complete. It appears that on 16th January, 1970 first information report in respect of certain criminal offences alleged to have been committed by the petitioner and a large number of other co-conspirators was lodged in Parvathipurillll police station and after the completion of the investigation, two chargesheets were filed against the petitioner and other 139 accused in the Court of the Special Magistrate, Visakhapatnam on I; Zth October, 1970 charging them with offences under s. 120B read with ss. 302, 395, 397, 121, 122, 123, and 124A of the Indian Penal Code.

The offences charged under these two chargesheets were triable exclusively by the Court of Sessions, and therefore, inquiry proceedings under Ch. XVlll of the Cods of Criminal Procedure were initiated by the Special Magistrate, Visakhapatnam. Since the !'Otitioner, who was accused No. 138 in thee two criminal cases, which were numbered as P.R.C. Nos. 1 and 2 of 1971, was under remand in the District Jail, Darjeeling pending investigation of the two Phansidewa P.S.

cases, the Special Magistrat~, Visakhapatnam issued on 30th May, 1972 a warrant for production of the petitioner in .his Court under s. 3, sub-s, (2) of the Prisoners (Attendance in Courts) Act, 1955.

The officet in-charge of the District Jail, Darjeeling, in obedience to this warrant for production, sent the petitioner to the Court of the Special Magistrate, Visakhapatnam on 14th June, 1972 and imme diately on arrival, the .petitioner was produced In the court of the

pecial Judge, Visakhapatnam on 17th June, 1972. The petitioner was remanded by. the Special Judge, Visakhapatnam from time to time pending tho disposal of the committal proceedings and pursuant to the orders of remand, the petitioner was detained in the Central Jail, VisakhapatniUll.

On 6th January, 1973, whilst under detention in the Central Jail Visakhapatriam, the petitioner preferred a writ petition under Art'.

3 2 of the Constitution in this Court challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habaas corpus. The District Magi•-

trate, Darjeeling, the Sub-Divisional Judicial Magistrates, Si!iguri, Kurseon and Darjeeling, the State of West Bengal, the Superintendent Central Jail, Visakhapatnarn and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the uetitionr 1;1eed not be produced in person. The District Magistrate, Dar1eelmg and the State of West Bengal filed their return to the rule

ni>i on 19th April, 1973 and the Superinlendent of Central Jail, Visakhapatnam filed his return to foe rule m'si on ! Ith May, 1973. When the writ petitiJn reached he:•r.ng, counsel appearing on behalf of the petitioner rai:; ed a contention that the writ petition could not be heard by the Court unless the petitioner \Vas produced in person and his argument was that once rule nisi was issued, the Co~1rt was b:Jund. to order production of the petitioner. Since this contention raised an important question of law affecting the practice of the Court while dealing With petitions for a writ of habeas corpus, the Division Bench hearing the writ petition refrrred this question for decision by the Constitution Bench. The writ petition was thereafter placed before the Constitution Bench and by a judgment delivered by the Constitution Bench on 11th September, 1973, it was held that it was competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi, and the rule nisi could be heard without requiring the body of the person detained to be brought before the Court.

On this view being taken by the Constitution Bench, the writ petition again came back to the Division Bench for final disposal. In the meantime the committal proceedings which were being held by the Special Judge, Visakhapatnam against the petitioner and his other associates concluded and by an order dated 12th July, 1973 the petitioner and 66 other accused were commited to the court of Sessions to stand their trial for various offences.

The trial of this Sessions Case, being Sessions Case No. 46 of 1973, is still pending against the petitioner in the Court of the Second Additional Sessions Judge, Visakhapatnam and the petitioner is under detention in the Central Jail, Viskhapatnam pursuant to the orders made by the Second Additional Sessions Judge, Visakhapatnam pending trial.

The learned counsel appearing on behalf of the potitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows :

A The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by cl (iJ of Art. 22 of the Constitution;

B. The Sub-Divisional Magistrate, Darjeeling h.ad no jurisdiction to try the two Phansidewa P.S. cases against the petitioner and he could not, therefore, authorise the detention of •h~ petitioner urtdcr s. 157 of the Code of Criminal Procedure for a term exoeeding fifteen days in the whole.

It was only the Sub Divisional Magistrate Siliguri who had jurisdiction to try the two Phansidewa P.S. cases and he alone could remand the petitioner to custody after the expiration of tic initial ncriod of fifteen davs under s. 344 of the Code of Criminal Procedure. The orclers of remand under which the petitioner was dcttiined in the District Jail; Darjeeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in ; the Disttict Court, Darjeeling was, therefore illegal.

C. The officer in charge of the District Jail, Darjeeling was bound to abstain from compiying with the warrant for production issued by the Special Judge, Visakhapatnam by reason of s. 6 of the Prisoners (Attendance in Courts) Act, l 955 and the production of the petitioner before the Special J ndge, Visakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Visakhapatnam were consequently without the authority of law.

Re : Grounds A and H.

These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail. Darjeeling.

We think i; unnecessary to decide them.

It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court.

This Court speaking through Wanchoo, J., {as he then was) said in A. K. Gopala11 v.

Government of India( 1) :. "It is well settled that in dealing with the petition for habeas .corpus the Court is to soc whether the detention on the date on which tile application is made to the Court is legal, if nothing more has intervened betw, en the date of the application and the date or hearing".

Jn two early decisions of this Cou.rt, however, namely, Naranjan Singh v. State of Punjab(') and Ram Narain Singh

v. State of Delhi(') a slightly different view was expressed and that view was reiterated by this Court in B. K Rao v. State of Orissa(') where it was said : "In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the retnrn and not with reference to the institution of the proceedings". And yet in another decision of this Court in Talib Husain v. State of Jammu &

Kashmir(') Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing".

Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest meltl!ure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three vieV.S is accepted as correct, for it is clear that, whichever be the correct view, the earliest da•e with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not. to quote the words of Mr. Justice Dua in B. R. Ran v. State nf

Ori.'<a.(1 ) "concerned with a date prior to the initiatiOn of the proceed.

(I) [1966]2 S. C.R. 427 f2) [1952] S. C.R. 395

(3) [1953] S. C.R. 652

(4) A. I. R. 1971 S. C. 2197

(5) A. I. R. 1971 S. C. 62

ings for a writ of habeas corpus". Now th~ writ petition in the present case was filed on 6th January, 1973 and on that date the petitioner was in detention in the Central Jail, Visakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls fqr consideration is whether the detention of the petitioner in the Central Jail, Visakhapatnam is legal or not.

Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Visakhapatnam. See para 7 of the judgment of this Court in B. R. Rao v. State of Orissa,(4). The legality of the detention of the petitioner in the Central Jail, Visakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of !!founds A and B and decline to decide them.

Re : Ground 'C'

The only question which, therefore, requires to be considered is whether the detention of the petitioner in the Central Jail, Visakhapatnam is illegal. Now the legality of this detention is challenged on the ground that by reason of s .. 6 of the Prisoners (Attendance in Courts) Act, 1955 the officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for•production issued by the Special Magistrate, Visakhapatnam and was not entitled to send the petitioner to the Court of Special Magistrate, Visakhapatnam in compliance with such warrant for production. This ground is wholly without substance. It overlooks the Proviso to s. 6 of the Act. In .order to arrive at a proper interpretation of s. 6 with the Proviso, it is necessary to have a look at ss. 3 and 5 as well.

Sub-s. (I) of s. 3 provides that any civil or criminal court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it, make an order in the form set forth in the First Schedule, directed to the officer in charge of the prison. It is clear from this sub-section as well as the form set out in the First Schedule that the order contemplated by this subsection

is an order for production of a person detained in any prison for giving evidence and. such an order may be made by a civil court or a criminal court. Section 3, sub-s. (2) provides for a different sitnation. It says that any criminal court may, if a charge of an offence against a person confined in any prison is made or pending before it make an order in the form set forth in the seco'nd Schedule directed to the omccr in charge of the prison. The order contemplated in this sub-section-and that is evident also from the form ser forlh in the Second Schedule--is an order of production for answering a charge and exhypothesi that can only be by a criminal court.

The warrant for production in the present case was under s. 3, sub-s. (2) as the petitioner was admittedly required to be produced before the Special

Magistrate, Visakhapatnam for answering the charges against him.

A_,

K. SANYAL v. DIST. MAGISTRATE (Bhagw(lti, J.) 285

Now, when an order of production is made under sub-s. ( 1) or sub-s.

(2) oLs. 3, what is to happen? That is provided irr s. 5 which says that upon delivery of such order of productiQn to the officer in charge of the prison, that officer shall cause the person named in the order to be taken to the Court in which his attendance is required so as to be present in the Court at the time mentioned in the order. The main part of s. 6, however, sets out certain circumstances in which the offi cer in cuarge of the prison shall abstain from complying With the order of production. It reads :

"6. Officer in charge of prison when to abstain from carrying out order-Where the person in respect of whom an order is made undet , section 3-

( a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; or

(b) is under committal for trial; or

( c) is under remand pending trial or pending a preliminary investigation; or

(d) is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is confined; the officer in charge of the prison shall abstain from carry~ ing out the order and shall send to the Court from which the order had been issued a statement of reasons for so abstaining : "

But there is a proviso to this section which carves out an exception in the following terms :

"Provided that such officer as aforesaid shall not abstain where-

(i) the order has been made by a criminal Court; and

(ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is not declared in accordance with the rules made in this behalf to bo unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; and

(iii) the place, where the evidence of the person named in the order is required is not more than fives miles distant from the prison in which he is confuied."

Now there can be no dispute that the petitioner in respect of whom the warrant for production was issued by the Special Magistrate, Visa• 6--L954Sup.C. 1./74

khapatnam under s. 3, sub-s. ( 2) was under remand pending preliminary investiga_tion in the two Phansid.ewa PS cases, and therefore, under the main provision in s. 6, the officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production. unless, of-course, the Proviso was applicable.

The Proviso lays down three conditions for its appl_icabi!ity.

The two conditions set out in els. (il. and (ii) were admittedly satisfied.

The only guestion could be about the condition in cl. (iii), but that condition has obviously no application in case of an order of production under sub-s. (2) of s. 3.

Clause (iii) posits an order of production for giving evide11ce made under sub-s. ( lJ of s. 3. t is only where such an order of production is made that the condition in

cl. (iii) can apply. It can have no application where an order is made by a criminal court under sub-section (2) of s. 3 requiring produetio11 for answering a charge. In such a case, the condition in l. (iii) would be wholly jnapproJ?iate and wold not ave to ?• sal!sfied.

The fulfilment of the cond1l!ons set out m els. (I) and (11) would in that case be sufficient to attract the applicability of the Proviso. Here the warrant for production was admittedly issued under sub-s. (2) of s. 3 and therefore the only requirement for bringing the Proviso into operation waz the fnlfilment of the conditions set out in els. ( i) and (ii) . These two conditions were clearly satisfied and the Proviso was accordingly attracted and it took the case out of the main provisio11 in s. 6.

The officer in charge of the Dislrict Jail, Darjeeling was, therefore, bound to send the petitioner to the Court of the Special Magistrate.

Visakhapatnam in compliance with the warrant for production and he acted according to law in doing so.

The production of the petitioner before the Special Judge, Visakhapatnam, conld not, . therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnarn, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid.

This Court pointed QUt in B. R. Rao v. State of Or4'sa( 4) that a writ of habeas corpus cannot be granted "where a person is committed to jail custody by a competent court by an order wbich prima 'facie does not appear to be without jurisdicition or wholly illegal".

The prese.nt case is clearly covered by these obse_rvations and the petitioner is not entitled to a writ of habetM corpus to free him from detention.

The writ petition is accordingly dismissed and the rule nisi is discharged.

V.P.S.

Petition disnzissed.

" G

KANU SANYAL

DIST. MAGISTRATE, DARJEELING & ORS

February 5, 1974

P. N. BHAGWATI

P. K. GOSWAMI, JJ

Constitution of India

Art. 32

I.P.C

Special Magistrate, Visakhapatnam

s. 3(2)

Central Jail. Visakhapatnam

Dt. Jail, Darjeeling

Art. 22(1)

Darjeeling

s. 6

Prisoners (Attendance in Courts) Act

Visakhapatnam

Visakbapatnam

s. 3(1)

Prisoners (Attendance in Courts) Act

s. 3(2)

s. 5

s. 3(1)

s. 6

s. 6

Article 32

Constitution of India

N. H. Hingorani

P. K. Chatterjee

Sukumar Basu

G. S. Chatterjee

P. Ram Reddy

I'. P. Rao

B. D. Sharma

S. P. Nayar

Art. 32

19th G August; 1970

Phansidewa police station

Phansidewa PS

19th August, 1970

Explosive Substances Act

s. 25(1)

Arms Act

ss. 120B, 121A, 122

Indian Penal Code

29th June, 1967

s. 412

s. 34

Sub-Divisional Magistrate Darjeeling

16th January, 1970

Parvathipurillll police station

I; Zth October, 1970

s. 120B

ss. 302, 395, 397, 121, 122, 123

Indian Penal Code

District Jail, Darjeeling

30th May, 1972

s. 3

State of West Bengal

West Bengal

District Magistrate, Dar1eelmg

19th April, 1973

Constitution Bench

11th September, 1973

12th July, 1973

Art. 22

Sub-Divisional Magistrate, Darjeeling

s. 157

Code of Criminal Procedure

Sub Divisional Magistrate Siliguri

s. 344

Code of Criminal Procedure

Disttict Court, Darjeeling

s. 6

Prisoners (Attendance in Courts) Act

Special J ndge, Visakhapatnam

District Jail. Darjeeling

Wanchoo

Dua

England

India

District Jail, Darjeeling

s. 6

s. 6

ss. 3 and 5

s. 3

First Schedule

First Schedule

Section 3

Second Schedule

s. 3

Special

Magistrate, Visakhapatnam

s. 5

s. 6

section 3

s. 3

s. 6

s. 3

s. 3

s. 3

s. 3

s. 6