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PETITIONER:

BOPPANNA VENKATESWARALOO AND OTHERS

Vs.

RESPONDENT:

SUPERINTENDENT, CENTRAL JAIL,HYDERABAD STATE.UNION OF INDIA-

DATE OF JUDGMENT:

24/11/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

DAS, SUDHI RANJAN

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 49 1953 SCR 905

CITATOR INFO :

D 1971 SC2081 (4)

ACT:

Preventive Detention (Second Amendment) Act (XLI of 1952),

s. 11-A-Act passed on 22nd August, 1952-Brought into force

on 30th September, 1952-Detention expiring on 30th

September, 1952 -Order on 22nd September, 1952, extending

detention upto 31st December, 1952 --Validity of order of

extension-General Clauses Act (X of 1897), s. 22-Act LXI of

1952, s. 11-A (2), applicability of.

HEADNOTE:

The petitioner was served with an order of detention on the

20th October, 1951, and, after a reference to the Advisory

Board, the Government confirmed the detention and specified

31st March, 1952, as the date up to which the detention was

to continue, On the 20th March, 1952, the detention was

extended till the 30th September, 1952, and on the 22nd

September, 1952, the detention was again extended up to the

31st December, 1952. It was contended on behalf of the

petitioner that the Government bad no power on 22nd

September, 1952, to extend the detention beyond the 1st

October, 1952, as the Preventive Detention (Second Amend-

ment) Act of 1952, even though it had received the assent of

the

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President in August 1952, came into force only on the 30th

September, 1952 :

Held, (i) that the order extending the period of detention

made on the 22nd September could not be justified under the

provisions of s. 22 of the General Clauses Act, 1897; the

word " order" in the said section means an order laying down

directions about the manner in which things are to be done

under the Act and the section does not mean that a

substantive order against a particular person can be made

under a provision of an Act before that Act has come into

force.

(ii) The words "the order" in s. 11-A of the Preventive De-

tention (Second Amendment) Act, 1952, do not refer to the

initial detention order, as no period of detention could

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legally be specified in that order, but to the order of

detention as eventually confirmed under s. 11(1) of the Act

and the detention of the petitioner could not therefore be

treated as automatically extended up to the 1st April, 1953,

-Under the provisions of s. 11-A by reason of the fact that

in the initial order for the detention of the petitioner no

period of detention had been specified.

(iii) The detention of the petitioner could not continue

after the 30th September, 1952, by force of the provisions

of s. 11-A(2) of the Preventive Detention (Second Amendment)

Act, 1952, merely because the date on which the petitioner's

detention was to expire, namely, the 30th September, 1952,

happened by accident or coincidence to be identical with the

date on which the first Amendment Act (Act XXXIV of 1952)

was to expire, for s. 11 - A(2) merely provides that if a

shorter period is specified in the order, the detenu would

be entitled to be released.

(iv) The expression "shorter period" in s. 11-A (2) means a

period which does not extend up to the 1st April, 1953, or

Lip to the end of the period of 12 months mentioned in the

section and does not mean a period ending before the 30th

September, 1952.

(v) The detention of the petitioner after the 30th

September, 1952, was therefore illegal.

JUDGMENT:

ORIGINAL JURISDICTION : Petitions (Nos. 335, 350, 356, 362

and 366 of 1952) under article 32 of the Constitution for

writs in the nature of habeas corpus.

A.S.R. Chari (amicus curiae) for the petitioners.

B. Ganapathy Iyer for the respondents in Petitions Nos.

335 and 356 of 1952.

Hanmanth Rao Vaishav for the respondents in Petitions Nos.

350, 362 and 366 of 1952.

C. K. Daphtary, Solicitor-General for, India (Porus, A,

Mehta, with him) for the Intervener.

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1952. November 24. The Judgment of the Court was delivered

by

MAHAJAN J.-This petition and four others, viz., Nos. 350,

356, 362 and 366 of 1952, raise a question regarding the

construction of section 11-A, inserted in Act IV of 1950 by

the Preventive ]Detention (Second Amendment) Act, LXI of

1952.

Act IV of 1950, as it originally stood, was to expire on 1st

April, 1951, but in that year an amending Act was passed

which, among other things, prolonged its life till the 1st

April, 1952. Afresh Act was passed in 1952 (Act XXXIV of

1952) called the Preventive Detention (Amendment) Act, 1952.

The effect of this Act was to prolong the life of the Act of

1950 for further six months, viz., till the 1st October,

1952. On the 22nd August, 1952, an Act further to amend the

Preventive Detention Act, 1950, called the Preventive

Detention (Second Amendment) Act, LXI of 1952, received the

assent of the President, by which the life of the Act was

extended till the 3 1 st December, 1954. It was to come

into force on a date appointed by the Central Government.

By a notification dated 15th September, 1952, the Central

Government appointed the 30th September, 1952, as the date

when the new Act was to come into force.

The petitioner was served with an order of detention on the

20th October, 1951. The grounds of detention were furnished

to him on the 1st November, 1951. His case was referred to

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the Advisory Board on the 24th November, 1951. The Advisory

Board submitted its report on the 13th December, 1951. The

appropriate Government confirmed the detention on the 21st

January, 1952. It specified 31st March, 1952, as the date

up to which the detention was to continue. On the 29th

March, 1952, the petitioner's detention was extended till

the 30th September, 1952, and on the 22nd September, 1952,

his detention was again extend till 31st December, 1952. In

the other petitions also the last order of extension was

made on 22nd September, 1952, extending the detentions till

31 st December,

908

1952. But for this extension the detentions could not

continue beyond 30th September, 1952, except by use of the

powers under the new Act.

It was contended on behalf of the detenus that on the 22nd

September, 1952, the State Government had no jurisdiction to

make an order of extension so as to continue the detention

beyond the I st October, 1952, viz., beyond the life of the

Act then in force, and that the order extending the period

of detention upto 31st December, 1952, was illegal. In our

opinion, this contention is well founded. On behalf of the

State Government the order made on the 22nd September, 1952,

was sought to be justified on the ground that it had power

to enlarge the period of detention under the provisions of

the Preventive Detention (Second Amendment) Act of 1952 and

it could exercise those powers after that Act had been

passed by the Parliament even though the amended Act had not

yet come into force. Reliance for this proposition was

placed on the provisions of section 22 of the General

Clauses Act (X of 1897). Section 22 provides as follows:---

"Where, by any Central Act or Regulation which is not to

come into force immediately on the passing thereof, a power

is conferred to make rules or bye laws, or to issue orders

with respect to the application of the Act or

Regulation.......... or with respect to the time when, or

the place where or the manner in which ......... anything is

to be done under the Act or Regulation, then that power may

be exercised at any time after the passing of the Act or

Regulation; but rules, bye-laws or orders so made or issued

shall not take effect till the commencement of the Act or

Regulation."

This section corresponds to section 37 of the English

Interpretation Act of 1899. It is an enabling provision,

its intent and purpose being to facilitate the making of

rules, bye-laws and orders before the date of the com-

mencement of an enactment in anticipation of its coming into

force. In other words, it validates rules, bye laws and

orders made before the enactment comes into

909

force provided they are made after the passing of the Act

and as preparatory to the Act coming into force. It does

not authorize or empower the State Government to pass

substantive orders against any person in exercise of the

authority conferred by any particular section of the new

Act. The words of the section " with respect to " prescribe

the limit and the scope of the power given by the section.

Orders can only be issued with respect to the time when or

the manner in which anything is to be done under the Act.

An order for the extension of detention made under the

purported exercise of the powers conferred by any of the

provisions of the new Act is not an order with respect to

the time when or the manner- in which anything is to be done

under the Act. Such an order could only be made under the

Act and after the Act had come into force and not in

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anticipation of its coming into force. The Act having no

retrospective operation, it cannot validate an order made

before it came into force. It seems to us that the

expression " order " in the section means an order laying

down directions about the manner in which things are to be

done under the Act and it is an order of that nature that

can be issued before the Act comes into force but it does

not mean that a substantive order against a particular

person can be made before the Act comes into force. In our

opinion, therefore, the contention raised on behalf of the

State Government has no force and the order extending the

detention of the detenus on the 22nd September, 1952, upto

the 31st December, 1952, is illegal.

The learned Solicitor-General on behalf of the Union

Government intervened and contended that the detention of

the petitioner as well as of others concerned in the

connected petitions was legal because in the initial order

of detention made in all these cases no period of detention

had been specified and by force of section 11-A(2), the

detention of the petitioners stood automatically extended

till 1st April, 1953.

Section 10 of the new Act [Preventive Detention ,Second

(Amendment) Act, 1952], adds the new section 11 -A, which is

in these terms

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"(1) The maximum period for which any person may be detained

in pursuance of any detention order which has been confirmed

under section 11 shall be twelve months from the date of

detention.

(2)Notwithstanding anything contained in subsection (1),

every detention order which has been confirmed under section

11 before the commencement of the Preventive Detention

(Second Amendment) Act, 1952, shall, unless a shorter period

is specified in the order, continue to remain in force until

the 1st day of April, 1953, or until the expiration of

twelve months from the date of detention, whichever period

of detention expires later.

(3)The provisions of sub-section (2) shall have effect

notwithstanding anything to the contrary contained in

section 3 of the Preventive Detention (Amendment) Act, 1952

(XXXIV of 1952), but nothing contained in this section shall

affect the power of the appropriate Government to revoke or

modify the detention order at any earlier time."

It was suggested that on a grammatical construction of this

section the word "order" in sub-section (2) means the

initial order of detention and cannot refer to the order of

confirmation as no such order is contemplated by the Act.

In our opinion, this contention is not sound. It was held

by this Court in Petition No. 308 of 1951 [Makhan Singh

Tarsikka v. The State of Punjab(1)] that the fixing of the

period of detention in an initial order of detention is

contrary to the scheme of the Act and cannot be supported as

it tends to prejudice a fair consideration of the

petitioner's case when it is placed before the Advisory

Board. That decision was pronounced on the 10 th December,

1951, and according to well known canons of construction of

statutes and principles of legislation it has to be presumed

that when Parliament enacted section 11-A in Act LXI of 1952

it was aware of the decision of this Court that no period

could be specified in the initial order of detention. -It

follows that when Parliament in sub-section (2) provided

that "every detention order

(1) [1952] S.C.R. 368.

911

which has been confirmed under section 1 1 before the

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commencement of the Preventive Detention (Second Amendment)

Act, 1952, shall, unless a shorter period is specified in

the order, continue to remain in force " till a certain

date, it plainly intended by the words " the order " to

refer, not to the initial order of detention, for no period

of detention could legally be specified in that order, but

to the order of detention as eventually confirmed under

section 11 (1). We are not on any debatable ground when we

say that at that stage it is open to an appropriate

government to specify the period of detention in the case of

every detenu. We are satisfied that when sub-section (2)

refers to specification of a period in the order, it intends

to refer to the detention order as confirmed under section

11 (1) and not the initial order of detention.

It was next contended that the period specified in the order

in question being coterminous with the date fixed for the

life of the Act, the specification of the period was wholly

unnecessary and therefore the order of detention could

continue till the 1st April, 1953, by force of sub-section

(2) of section 11 -A in the new Act, as if no period had in

fact been specified in the order. This argument cannot be

sustained on the language employed in section 11-A(2). The

phraseology employed in the section is in sharp distinction

to the language employed in section 3 of Act XXXIV of 1952

and if the object was to convey the same intention, then

Parliament would have used similar language in section 11-

A(2) as in section 3 of Act XXXIV of 1952. That section

runs thus:- --

"Every detention order confirmed under section 11 of the

principal Act and in force immediately before the

commencement of this Act shall have effect as if it had been

confirmed under the provisions of the principal Act as

amended by this Act; and accordingly, where the period of

detention is either not specified in such detention order or

specified (by whatever form of words) to be for the duration

or until the expiry of the principal Act or until the 31 st

day of March, 1952, such

912

detention order shall continue to remain in force for so

long as the principal Act is in force. "

The Parliament, when it intended to say that if the date

specified in an order is coterminous with the life of the

Act the detention will continue for a further period

automatically, said so in clear and unambiguous language and

by use of apt words. It knew that there may be cases in

which the date specified for the determination of the

detention may be coterminous with the date on which the Act

is to expire, and it made a clear provision in section 3 to

cover all such cases. In section 11-A(2), however, it

simply said that if a shorter period is specified in the

order, then the detenu would be entitled to his release on

that date. In the order passed against the petitioner and

also in the orders passed in the connected petitions, 30th

September, 1952, was the date specified up to which

detention could continue and that being so, their present

detention cannot continue after that date by force of the

provisions of subsection (2) of section 11 -A merely because

that date by accident or coincidence happens to be identical

with the date on which the first amendment Act was to

expire.

Then it was contended that even if the date up to which

detention was to continue was specified in the order, it

does not fix a period shorter than 30th September, 1952,

(the date on which Act XXXIV of 1952 was to expire), and the

detenus are not entitled to the benefit of the provisions of

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sub-section (2) of section 11-A. This contention is

difficult to sustain grammatically. The words " unless a

shorter period is specified in the order " clearly have

reference to the periods mentioned immediately thereafter,

namely, the first April, 1953, or the date of expiry of

twelve months from the date of detention. They have no

reference at all to the date of the expiry of Act XXXIV of

1952. When the attention of the learned Solicitor-General

was drawn to the plain reading of the section and the

grammar of it, he conceded that the adjective shorter "

there bad reference to the 1st April, 1953, or the date of

expiry of the period of twelve months

913

mentioned in the section and could not mean a date

antecedent to 30th September, 1952.

For the reasons given above, in our judgment, the I

detention of the petitioner in this petition and of those in

the other petitions mentioned above, after the 30th

September, 1952, became illegal and we therefore direct that

the petitioners in this petition. and in petitions Nos. 350,

356, 362 and 366 of 1952 be released forthwith. They are in

detention by reason of the extension order made on the 22nd

September extending their detention up to 31st December,

1952. On that date the State Government had no jurisdiction

to make that order under the law in force as it stood on

that date. 30th September, 1952, had been specified as the

date up to which their detention was to last by a subsisting

and perfectly valid order and their detention order beyond

that date is illegal and cannot be justified on the

provisions of section 11 -A (2) or on the provisions of

section 11 (1) of the original Act.

Petitions allowed.

Agent for the respondents and intervener: G. H.

Rajadhyaksha.