BOPANNA VENKATESWARALOO AND OTHERS versus SUPERINTENDENT, CENTRAL JAIL, HYDERABAD STATE

8.C.R. SUPREME COURT REPORTS

The result, therefore, is that we allow the appeal in 1963 part and modffy the judgment of the High Court. 0 preliminary decree should be drawn up in favour of Nag"~::~::,aini the plaintiff against defendant No. 6 alone for sum v. of Rs. 55,287 annas odd which will carry interest at Raja Vadmu 7!% simple per annum. Interest will be calculated Viswa•undara on Rs. 52,287 on and from the date of the mortgage, Rao and Others while on the balance of Rs. 3,000 interest will run MukherjeaJ. from 5th November, 1930. We make no order as to costs of this court or of the High Court. The plaintiff will have his costs of the trial court.

Appeal allowed in part.

Agent for the appellant: Al. 8. K. Aiyangar. Agent for respondent No. 1 : Ganpat Rai.

BOPPANNA VENKATESWARALOO AND OTHERS

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

[MEIIB CHAND MAHAJAN, S.R. DAS and BHAGWATIJJ.]

P1·eventive Detention (Second Amendment) Act (XLI of 1952), s. 11-A-Act passed on 22nd August, 1952-Brought into force on 30th Sevteinber, 1952-Detention exviring on 30th September, 1952 -Order on 22nd September, 1959, extending detention uvto 31st December, 1952 -Validity of order of extension-General Clauses Act (X of 1897), s. 22-Act LXI of 1952, s. 11-A (2), apvlicability of.

The petitioner was served with an oriler of detention on the 20th October, 1951, and, after reference to the Advisory Board, the Govemment confirmed the detention and specified 31st March, 1952, as the date up to which the detention was to continue. On the 20th l\farcb, 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 con-tended on behalf of the petitioner that the Government had 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 117

N ovembcr24

President in August 1952, came into force only on the 30\h Sep-tember, 1952: '

Boppanna Held, (i) that the order extending the period of detention made Venkateswaraloo on the 22nd September could not be justified under the provisions and Others of s. 22 of the General Clauses Act, 1897; the word "order" in the v. said section means an order laying down directions aboub the Superinffndent, manner in v.rhich things are to be done under the Act and th•3 sec-Central Jail, tion does not 1nean that subs.tantive order against particular Hyderabad State. person can be made under pr•Jvision of an Act before that Act has come into force.

{ii) The words "the order" iu 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 legally be spocified in that order, but to the order of detention as eventually confirm-ed under s. 11(1) of the Act and the detention of the petitioner could not therefore he treated a> 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. ll-A(2) of the Preventive Detention (Second Amendment) Act, l 952, merely because the date on which the petitioner's detention was to expire, namely, the ilOth Sep•ember, 1952, happened by accid-ent or coincidence to be ic'.entical with the date on which the first Amendment Act (Act XXXIV of 1952) was to expire, for s. ll-A(2) merely provides that if shorter period is specified in the order, the detenu would be entitled lo be released.

(iv) The expression "shorter period" in s. 11-A (2) means period which does not extend up to the ls\ April, 1953, or up to the end of the period of 12 months mentioned in the section and <loes not mean period ending before the 30th September, 1952.

(v) The cletention of the petitioner after the 30th September, i 952, was therefore illegal.

ORIGINAL JURISDICTIO~: Petitions (Nos. 335, 350, 356, 362 and 366 of 1952) under article 32 of the Con-stitution for writs in the nature of habeas corpus.

A.S.R. Chari (arnicus curiae) for the petitionerH.

R. Ganapathy Iyer for the respondents in Petitions Nos. 335 and 356 of 1952.

Hanrnanth Rao Vaishnav for the respondents in Petitions Nos. 350, 362 and 366 of 1952.

0. K. Daphtary, Solicitor-General for lndi'a (P•HU.8 A, lff ehta, with him) for the Intervener.

s.c.R. SUPREME COURT REPORTS 907 '

1952. .N"ovJ;lmber 24. The Judgment of the Court was delivered by

Boppanna Venkateswaraloo and Others 8 uperinten ent, uperinten ent, .v. Central Jail Hyderabad St~te. MahajanJ.

MAHAJA~ J.-This petition and four others, viz., Venkateswaraloo Nos. 350, 356, 362 and 366 of 1952, raise question and Others regarding the construction of section 11-A, inserted .v. . , IV } p , 8 uperinten ent, uperinten ent, m ,..,_ct o 1 950 [. ]y t le revent1ve etention Central Jail (Second Amendment) Act, LXI of 1952. Hyderabad St~te.

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. fresh Act was passed in 1952 (Act XXXIV of 1952) called the Preventive Detention (Amendment) Act, 1952. The effect of this Aet 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 Preven-tive Detention (Second Amendment) Act, LXI of 1952, received the assent of the President, by which the life of the Act was 0xtendcd till the 31st December, 19.54. It was to come into force on date appointed by the Central Government. By notification dated 15th September, 1952, the Central Government appoint-ed the 30th September, 1952, as the date when the new Act was to come into force.

The petitioner was served with an order of deten-tion on the 20th October, 1951. The grounds of deten-tion were furnished to him on the 1st November, 1951. His case was referred to the Advisory Board on the 24th November, 1951. The Advisory Boilrd submitted its report on the 13th December, 1951. The appropri-tite 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, aml on the 22nd September, 195:2, his detention was again extend.-till 31st December, 1952. In the other petitions also the last order of extension was made on 22nd Septem-ber, 1952, extending the detentions till 31st December,

908 SUPREME CO-CRT REPORTS [1953]

1952. But for this extension the detentions could not continue beyond 30th September, 1952, except by use

10;2 1952. Boppanna -h venkateBWaraloo of the powers under t new Act.

and Others It was contended on behalf of the detenus that on .v. . the 22nd September, 1952, the State Government had Superintendent, ·, · d' t' ak t · t Central Jail, no J\fflS ic 10n to m. an or er o ex ens10n so as o Hyderabad State contmue the detent10n beyond the 1st October, 1952, -·-viz., beyond the life of the Act then in force, and that Mahajan J. the order extending the period of detention upto 31st December, 1952, was illegal. In our opinion, this con-tention 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 Parlia-ment 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:--

.v. . Superintendent,

"Where, by any Central Act or Regulation which is not to come into force immediately on the passing thereof, 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 Regu-lation, 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 Regula-tion." ·

This section corresponds to section 37 of the English Interpretation Act of 189H. 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 com-ing into force. In other words, it validates rules, bye. laws and orders made before the enactment comes into

force provided they are made after the passing of the W52 Act and as preparatory to the Act coming into force. It does not authorize or empower the State Government v,,~;~~:::1oo to pass substantive orders against any person in exer-and other. cise of the authority conferred by any particular section v. of thr new Act. The words of the section "with re.spect Superintendent, lo" prescribe the limit and the scope of the power given Central Jail, by the section. Orders can only be issued with respect Hyderabad Stat& to the time when or the manner in which anything is Ma;.jan J, 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. Ruch an order could onlv be made under the Act and after the Act had come" into force and not in 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 rnitme that can be issued before the Act comes into force but it does not mean that substantive order against particular person can be made before the Act comes into force. In our opinion, therefore, the contention raised on behalf of the State Govern-ment has no force and the order extending the deten-tion of the detenus on the 22nd September, 1952, upto the 31st December, 1952, is illegal.The learned Solicitor-General on behalf of the Cnion Government intervened and contended that the deten-tion of the petitioner as well as of others concerned in the comiected petitions was legal because in the initial order of detention made in all these ca,scs no period of detention had been specified and by force of section ll-A(2), the detention of the petitioners stood auto-matically extended till 1st April, 1953.

Section 10 of the new Act l Preventive Detention Second (Amendment) Act, 1952], adds the new section 11-A, which is in these terms:-

9io SUPREME COl'RT REPORTS [1953]

1952 " ( 1) The maximum period for which any person T'enko:,;;;;~'~~:11 100 which has been confirmed under scction may which has been confirmed under scction may 11 be detained in pursuance of tmy detention order 11 shall be and Others twelve months from the date of detention.

T'enko:,;;;;~'~~:11 100 which has been confirmed under scction may which has been confirmed under scction may 11 shall be and Others twelve months from the date of detention. _v. (2) Notwithstanding anything contained in sub-Superintendent, section (1) every detention order which has been OentralJail, fi d' . ll th Hyderabad State. con rme un er sect10n · e1ore commencement _ of the Preventive Detention (Second Amendment) Mahajan J, Act, 1952, shall, unless 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 deten-tion 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 a.ny earlier time."

It was suggested that on grammatical construc-tion 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 con-templated by the Act. In our opinion, this contention is not sound. It was held by this Court in Petition No. 308of1951 [1Vlakhan Singh Tarsikka v. The State of Punjab(')] that the fixing of the period of detention in an initial order of detention is contrarv to the scheme of the Act and cannot be supported as' it tends to pre-judice fair consideration of the petitioner's case when it is placed before the Advisory Board. That decision was pronounced on the 10th December, 1951, and according to well known canons of construction of statutes and principles of legislation it has to be pre-sumed that when Parliainent enacted section 11-A in Act LXI of 1952 it was aware of the decision of this Court that no period could be Hpecified 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.

S.C.R. SUPRE?IIE COURT HEPORTS

19sz sz

which has been confirmed under section 11 before the 19sz commencement of the Preventive Detention (Second Amendment) Act, 1952, shall, unless shorter period v :oppann~ is specified in the order, continue to remain in force" ":,,~tp~:~; [00 ]till certain date, it plainly infonded by the words v. "the order" to refer, not to the initial order of deten- Superintendent, tion, for no period of detention could legally be speci-Central Jail, fied in that order, but to the order of detention as lfyderabod State. eventually confirmed under section 11 (1). 'Ve are MahajanJ, 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 period in the order, it intends to refer to the detention order as confirmed under section 11 ( 1) and not the initial order of deten-tion.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 lst 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 ll-A(2). The phraseology employ-ed in thP 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 ll-A(2) as in section 3 of Act XXXIV of 1952. That section runs thus:-

" Every detention order confirmed unde1· 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 31st day of March, 1952, Ruch

912 SVPREME COURT REPORTS [1953]

detention order shall continue to remn,in in force for so long as the principal Act ~s in force .. .'' ·

Boppanna Venkate81vara7oo The Parliament, when it intended tc sav that if the and Others date specified in an order is coterminous "with the life v. of the Act the detention will continue for further Superintwdent, period automatically, said so in clear and unamhiguous Hyderabad Central Jail st~te. 1 anguage am 1 l )y use o f" apt wor s. I l t mew t at t ere _ may he cases in which the date specified for the deter-MahajanJ. mination of the detention may be coterminous with the date on which the Act is to expire, and it made clear provision in section 3 to cover all such cases. In section 11-A(il), however, it simply said that if shorter period is specified in the order, then the detenu would be entitled to bis release on that date. In the order pas~ed against the petitioner and also in the orders passed in the connected petitions, :30th September, 1952, w.1s the date specified np to which detention could continue and that being so, their present detention cannot continue after that date by force of the provisions of sub-section (2) of section 11-A merely because that date by accident or coin· cidence 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 period shorter than 30th Sep-tember, 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 sub-section {2) of section 11-A. This contention is difficult to sustain gram-matically. The words "unless shorter period is specified in the order " clearly have reference to tbe periods mentioned immediately thereafter, namely, the first April, 1953, or the date of expir~·of twelve months fron.,1 the date of detention. They hn,ve no reference at all to the date of the expiry of Act XXXIV of 1952. \Vhen the attention of the learned Solicitor-Cenernl was drawn to the plain reading of the section nnd the grammar of it., he conceded that the adjective "shorter" there had reference to the 1st April, 1953, or the date of expiry of the period of twelve months

S.C.R. SUPREME COURT REPORTS

mentioned in ihe section and could not mean date antecedent to 30t,h September, 1952.

oppamna and Other•

oppamna For the reasons given above, in our judgment, the Venkatcswaraloo detention of the petitioner in this petition and of those and Other• in the other petitions mentioned above, after the 30th v. September, 1952, became illegal and we therefore Superintend~nt, drrec [. ]t t t th pe t't' 1 10ners m · th' is pet1t10n · · an m . pet1-. Hyderabad State Central Jail, tions Nos. 350, 356, 362 and 366 of 1952 be released -forthwith. They are in detention by reason of the MaJwjan J. extension order made on the 22nd September extend-ing 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 subsisting and perfectly valid order and their deten-tion 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.

THAKURAIN RAJ RANI AND OTHERS

THAKUR DWARKA NATH SINGH AND OTHERS.

[MEHR CHAND MAHAJAN, s.R.DAS andBHAGWAnJJ,J

Will--Agreement by cousiJ> of testator to make monthly poymm•t to testator in consideration of giving hirn and his sons the remainder after life-esta.te to wid,ow--Grant of letters of administration-Question of animus testanfr-Whether res-judicata-Payments, 11..vhether condition precedent or ?nere consideration-Death of cousin before widoiir--Efi'ect of.

On the 7bh .T anuary, 1904, G, cousin of S, executed au agree-ment in favour of S, the material portion of which ran as follows: ''Whereas my cousin S has proposed to make bequest of his taluka in favour of his wife and after her death in my favour and 118

Jan. 23,