30 of 1950
Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated 24th October 1950 of the High Court of Judicature at Bombay Bavdekar and Vyas JJ in Criminal Application No 1003 of 1950
MC Setalvad Attorney General for India and CK Daphtary Solicitor General for India with GN Joshi for the appellant
Respondent ex parte
676 1952
May 26
This is an appeal from an order of the Bombay High Court directing the release of the respondent who had been detained under section 3 of the Preventive Detention Act of 1950 The learned Attorney General states at the outset that Government does not want to re arrest the respondent but merely desires to test the High Court s decision on certain points which will have far reaching effects on preventive detentions in the State of Bombay
Following the precedent of their Lordships of the Privy Council in King Emperor vs Vimlabai Deshpande1 we proceed to decide the appeal but direct that the respondent shall not in any event be re arrested in respect of the matters to which the appeal relates
The respondent was originally arrested under an order of the District Magistrate Belgaum dated the 26th February 1950 though he was then beyond the jurisdiction of that authority
On the 11th of July 1950 the Bombay High Court held that a detention of that kind was invalid
The decision was given in the case of In re GhateC 2
This necessitated a review of 57 cases among them the respond ent section Orders were passed in all those cases on the 17th of July 1950
About 52 of the detenus were released and in the remaining cases fresh orders of detention were passed by the Government of Bombay
In the respondent s case the order was in these terms Whereas the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga Village Taluka Karwar District Kanara that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it is necessary to make the following order Now therefore in exercise of the powers conferred by sub section 1 of section 3 of the Preventive 1 ILR at 655
2 677 Detention Act 1950 No IV of 1950 the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained
By order of the Governor of Bombay Sd V T Dehejia Secretary to the Government of Bombay Home Department
Dated at Bombay Castle this 17th day of July 1950
 He was served with the grounds of detention on the 26th of July 1950 and with a fuller set on the 9th of August
The original grounds were as follows In furtherance of your campaign for non payment of rent you were instigating the people in the Belgaum Dis trict to commit acts of violence against landlords
In all probability you will continue to do so
 The second set gave the following additional particulars The people in Belgaum District whom you were instigat ing to commit acts of violence against landlords in further ance of your campaign for non payment of rent were the tenants in Hadalge and round about villages in the Khanapur Taluka of Belgaum District and the said instigation was carried on by you for some months till your arrest in April 1949
 On the 24th of August 1950 the respondent applied to the Bombay High Court under section 491 of the Criminal Proce dure Code for an order of release
He succeeded and the appeal is against that order
The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed inproper legal form
The basis of their reasoning is this
Article 1661 of the Constitution requires that  All executive action of the Government of a State shall be expressed to be taken in the name of the Governor
 It will be seen that the order of detention states in the preamble 678  Whereas the Government of Bombay is satisfied  and the operative part of the order runs  Now therefore  the Government of Bombay is pleased to direct etc
 It does not say that the Governor of Bombay is pleased to direct
The learned Judges held that this is not an order expressed to be made in the name of the Governor and accord ingly is not protected by clause 2 of article 166
They conceded that the State could prove by other means that a valid order had been passed by the proper authority but they held that the writing Record No 3 which purports to embody the order cannot be used to prove that a valid order was made because the formula set out in article 1661 was not employed
We are unable to agree
Now we do not wish to encourage laxity of expression nor do we mean to suggest that ingenious experiments regard ing the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile but when all is said and done we must look to the substance of article 166 and of the Order
The short answer in this case is that the order under consideration is expressed to be made in the name of the Governor because it says By order of the Governor
 One of the meanings of expressed is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor he is in substance saying that he is acting in the name of the Governor and on his behalf is making known to the detenu the opinion and feelings and orders of the Governor
In our opinion the Constitution does not require a magic incanta tion which can only be expressed in a set formula of words
What we have to see is whether the substance of the require ments is there
It has to be remembered that this order was made under the  and therefore had to conform to its terms
Section 3 of the Act provides that the State Government may if satisfied 679 make an order directing that such person be detained
 It is true that under section 3 43 a a of the General Clauses Act the words the State Government mean the Governor but if that be so then the expression must be given the same meaning in the order which merely reproduces the language of section 3 not indeed because the General Clauses Act applies to the order it does not but because the order is reproducing the language of the Act and must therefore be taken to have the same meaning as in the Act itself particularly as the order concludes with the words  By order of the Governor of Bombay
 It will be noticed that section 3 of the enables certain authorities specified by it to make orders of detention
These include not only State Governments but also the Central Government any District Magistrate or Sub Divisional Magistrate and certain Commis sioners of Police
The list does not include the Governor of a State
Now though the term State Government appearing in an enactment means the Governor of the State there is no provision of law which equates the term Governor with the State Government of which he happens to be the head
On the contrary the Constitution invests him with certain func tions and powers which are separate from those of his Gov ernment
It was therefore appropriate that the order in this case should have set out that the Government of Bombay was satisfied and not some other authority not contemplated by the Act and that that Government directed the detention
It was also proper that the order should have been executed under the orders of the Governor authenticated under the rules by the signature of the Secretary
It is true that addition of the words and in his name to the words By order of the Governor of Bombay would have placed the matter beyond controversy but we are unable to see how an order which purports to be an order 680 of the Governor of BombaY can fail to be otherwise than in his name
If A signs his name to a communication that commu nication goes out in his name
Equally if he employs an agent to sign on his behalf and the agent states that he is signing under the orders of A the document still goes forth in the name of A
In our opinion the High Court was wrong on this Point The next step in the High Court s reasoning was this
The learned Judges held that the writing produced as the order did not prove itself because of the defect we have just considered but that nevertheless it was open to the State Government to prove by other means that such an order had been validly made
The learned Judges therefore called upon Government to make an affidavit setting out the facts
An affidavit was made by the Home Secretary but the learned Judges were not satisfied and asked for a further affidavit
The Home Secretary thereupon made a second one but the learned Judges were i still not satisfied and considered that the Minister in charge should have made an affidavit himself
We do not intend to discuss this matter because once an order of this kind is unable to prove itself and has to be proved by other means it becomes impossible to lay down any rule regarding either the quantum of evidence necessary to satisfy the Court which is called upon to decide the question or the nature of the evidence required
This is a question of fact which must be different in each case
Of course sitting as a court of appeal it would have been necessary for us to decide this had we reached a different conclusion on the first point and had the State Government desired the rearrest of the respondent
But as we are only asked to deal with general principles all we need say as regards this is that it is not necessary in every case to call the Minister in charge
if the Secre tary
or any other person has the requisite means of knowledge and his affidavit is believed that will be enough
681 We wish however to observe that the verification of the affidavits produced here is defective The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally
The verifica tion however states that everything was true to the best of his information and belief
We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit
Verifications should invar iably be modelled on the lines of Order XIX rule 3 of the Civil Procedure Code whether the Code applies in terms or not
And when the matter deposed to is not based on person al knowledge the sources of information should be clearly disclosed
We draw attention to the remarks of Jenkins CJ and Woodroffe J in Padmabati Dasi vs Rasik Lal Dhar1 and endorse the learned Judges  observations
In fairness to the Home Secretary we deem it right to say that his veracity was neither doubted nor impugned by the High Court but only his means of knowledge
He was speaking of the satisfaction of the Minister and the High Court was not satisfied regarding his knowledge of the state of the Minister s mind
The learned Judges considered that the Minister himself would have been a more satisfactory source of information but as we say this is not a question of law
As a matter of abstract law of course the state of man s mind can be proved by evidence other than that of the man himself and if the Home Secretary has the requisite means of knowledge for example if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts and the Home Secretary s affidavit was regarded as sufficient in the particular case then that would constitute legally sufficient proof
But whether that would be enough in any given case
or whether the  best evidence rule should be applied in strictness in that particular case must necessarily depend upon its facts
In the present case there was the element that 57 cases were dealt with in the course of 6 days 1 Cal
682 and orders passed in all on one day
But we do not intend to enter into the merits
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affidavit from the Minister in charge of the department is indispensable in all such cases then they went too far
The learned Attorney General contended that the Minis ter in charge could not be asked to divulge these matters because of article 163 3 of the Constitution
We donor decide this question and leave it open
Another point which was argued related to the privilege which the Home Secretary claimed on behalf of the State Government under article 22 6 of the Constitution
Govern ment disclosed certain facts in the grounds furnished to the detenu and claimed privilege regarding the rest of the facts in its possession
In our opinion the grounds supplied were sufficiently specific and they could form a proper basis for the satisfaction of the Government
As regards the rest Government has claimed privilege in the affidavit of the Home Secretary on the ground of public interest
This raises further questions which we do not intend to examine as the respondent is not to be re arrested
The order of release was in our opinion wrong but in view of Government s undertaking not to re arrest the re spondent we direct that he be not re arrested in respect of the matters to which this appeal relates
Order of High Court set aside


Summary:
The United Provinces Agricultural Income tax Act 1949 authorised imposition of a tax on agricultural income within the State and the agricultural income tax and super tax were charged on the total agricultural income of the previous year of the assessee
For the purposes of the Act the Collector and the Assistant Collector were declared to be the assessing authorities within their respective revenue jurisdiction and the expression  Collector  was to have the same meaning as in the United Provinces Land Revenue Act 1901
Under the rules framed by the government under section 44 of the Act an assessee having agricultural income in the jurisdiction of more than one assessing authority was to be assessed by the Collector of the district in which he permanently resided
The State Government of Uttar Pradesh appointed Mr K C Chaudhry under subS 1 of section 14A of the United Provinces Land Revenue Act 1901 to be the Additional Collector in District Bahraich and authorised him to exercise all the powers and perform all the duties of a Collector in all classes of cases 
Claiming to exercise the 83 powers of a Collector under section 14 of the United Provinces Agricultural Income tax Act of 1949 he assessed the net agricultural income of the assessee who owned landed property in two districts namely Bahraich and Kheri in the State of Uttar Pradesh at 1281110 10 0 and ordered him to pay Rs 136390 2 0 as agricultural income tax and super tax
The validity of this order was challenged by the assessee in the High Court by an application under article 226 of the Constitution and the High Court quashed the order of the Additional Collector holding that he had no  extra territorial  jurisdiction which was exercised by the Collector as the assessing authority in cases where the property of the assessee was situate in several districts and as such the proceeding taken by him for assessing agricultural income tax was unauthorised
After the judgment of the High Court was delivered the State Legislature amended the United Provinces Agricultural Income tax Act 1949 by Act XIV of 1956 giving retrospective operation to the amending provisions
The Amendment Act enacted that the assessment proceedings held by an Additional Collector who was invested with the powers of a Collector under Act III of 1901 should be deemed always to have been properly taken
The State Government submitted before the High Court an application under section 11 of the amending Act for review of its judgment but it was dismiss ed
On appeal by the State Government by special leave Held that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income tax and super tax under the United Provinces Agricultural Income tax Act 1949
A Court of appeal must give effect to the law as it stood at the time of hearing of the appeal if at any stage anterior to the hearing the law had been amended with retrospective effect conferring on an authority or tribunal from the order whereof the appeal is filed jurisdiction which it originally lacked
The power of the appellate court to deal with the appeal in accordance of the amended law is not affected by a provision for review as contained in section 11 of the Amending Act