ons Nos 69 and 71 of 1967
Writ Petition under article 32 of the Constitution of India for the enforcement of fundamental rights
R H Dhebar R Gopalakrishnan and section P Nayar for the respondent in both the petitions
The Judgment of the Court was delivered by Wanchoo C J
These two petitions under Art 32 of the Constitution raise common questions of law and will be dealt with together  The petitioners were detained under r 301b of the Defence of India Rules 1962 hereinafter referred to as the Rules under orders of the Government of Jammu  Kashmir in March 1965
Their detention was continued from time to time after review under r30A
One of such reviews was made in February 1967
At that time the scope of review was governed by judgment dated June 1 1965 of Shah J Vacation Judge in Sadhu Singh vs Delhi Administration1
In that case it was held that r30A re lating to re view did not require a judicial approach to the question 1  199 of continuance of detention
No opportunity therefore was given to the petitioners to represent their cases when the review was made in February 1967 and their detention was continued for a further period of six months
Then came the judgment of this Court in P L Lakhanpal vs the Union of India1 That judgment overruled the decision of Shah J and held that the function of review under r30A was quasi judicial and therefore in exercising it rules of natural justice had to be complied with
In view of this judgment what the respondent did was to hold another review in April 1967
At that time notice was given to the petitioners and they were given a hearing
Thereafter order was passed in each case on April 27 1967 by which the State Government directed the continuance of the detention orders for a further period
In the meantime the present petitions had been filed on March 30 1967 and were based on the judgment of this Court in Lakhanpal s case1
It is not disputed on behalf of the respondent that Lakhanpal s case1 will apply to the present petitions and the petitioners will be entitled to release because the procedure of a quasi judicial tribunal was not followed when earlier reviews were made from August 1965 to February 1967
Reliance is however placed on behalf of the respondent on the review made in April 1967 and it is urged that that review was in accordance with the view taken by this Court in Lakhanpal s1 case and therefore continuance of detention thereafter is justified
Further it is urged that even if this contention is not correct the State Government has power to pass a fresh order of detention on the same facts and even if we allow the present petitions we should make it clear that the State Government has such power
It is urged in this connection that the judgment of Bhargava J in Avtar Singh vs The State of Jammu and Kashmir1 is not correct
The first question therefore is whether the orders of review dated April 27 1967 are sufficient for the continuance of detention even though the earlier orders of review passed from August 1965 to February 1967 were not properly made in view of the judgment of this Court in Lakhanpal s case1
Reliance in this connection is placed on the judgment of this Court in A K Gopalan vs The Government of India1 In that case it was held that it is well settled that in dealing with a petition for habeas corpus the court has to see whether the detention on the date on which the application is made is legal if nothing more has intervened between the date of the application and the date of hearing
 So it is urged for the respondent that as the order passed on review 1  2 W Ps
68 70 79 89 92 of 1967 decided on June 9 1967
3  200 under r30A continuing detention on April 27 1967 was in accordance with the judgment of Lakhanpal s case the earlier orders of review made between August 1965 and February 1967 which were improper made no difference
We cannot accept this contention
In Gopalatn s case1 what had happened was that a fresh order was made on March 4 1965 and the detention was under that order
The principle laid down in that case is unexceptionable but the question is whether that principle applies to the facts of the present case
In Gopalan s case   the question that arose was whether the fresh order of March 4 1965 under which detention was made was legal and the Court did not look at the earlier order which had been cancelled by the fresh order of March 4 1965
In the present cases however no fresh order was made on April 27 1967 and this distinguishes the present cases from Gopalan s case1
Rule 30A of the Rules was originally not in the Rules and was introduced some time later
Before the introduction of r30A the position was that a detention made under r30 would be of indefinite duration
But r30A provided for review of detention orders passed under r 30 and such review was to be made at an interval of not more than six months
On such review the Government had to decide whether detention orders should continue or be cancelled
The effect of r30 along with r30A 9 would therefore be that the detention order passed under r30 would be good only for six months and unless there was a review and the detention order was continued the detenu would have to be released
We cannot accept the contention on behalf of the respondent that the detention order would continue even after six months and the detenu may be detained under that order even thereafter without an order under r30A 9 continuing the order of detention
It is true that r30A9 only says that the Government shall decide whether the detention order should be continued or cancelled
That however does not mean that if the Government omits to make a review under r30A within six months the detention order will still continue and the detenu continue to be detained thereunder
The provisions in r30A are designed to protect the personal liberty of the citizens of this country and that is why that rule provides that every detention order shall be reviewed at an interval of not more than six months
This is a mandatory provision and if it is not complied with and the Government omits to review the detention order within six months the order must fall and the detenu must be released
of course when the Government actually reviews the order it will either continue that order or cancel that order
That is why r30A 9 says that on review the Government shall decide whether the order should be continued or cancelled
But that does not mean that if for any reason say by oversight the Government omits to review an order within the time provided in the first part of r30A9 the detention can continue even though there has been 1  2  201 no review
What applies to an omission to review an order under r3OA9 applies equally to a case where a review is not in accordance with law as held by this Court in Lakhanpal s case1
Where therefore there has been no review under r30A9 or a review is not in compliance with the provisions thereof as explained in Lakhanpal s case1 the result is that the original detention order though it may have been good when it was passed falls and the detention after the first period of six months becomes illegal
Further if there is no review of the detention order in the manner provided by law as explained in Lakhanpal s case1 the original order falls after six months and there is nothing to continue thereafter
In the present cases the orders were passed in March 1965 and should have been reviewed after every six months in the manner explained in Lakhanpal s case1
That admittedly was not done upto February 1967 though a number of reviews were made inbetween
Consequently orders of detention passed in March 1965 fell after six months and there were no orders to continue thereafter
When therefore the State Government ordered the continuance of detention orders on review on April 27 1967 in accordance with the procedure indicated in Lakhanpal s case1 there was no order to be continued because in between the reviews were not proper and the detention had become illegal
In these circumstances the principle laid down in Gopalan s case2 cannot apply to the facts of the present case for we cannot ignore that between September 1965 and April 1967 there was no proper review as required by r30A9 and the detention for all that period was illegal and could not be saved by the original order of March1965 which must be deemed to have come to an end after six months in the absence of a proper review under r30A9
So there was no order which could be continued on April 1967 and therefore the petitioners would be entitled to release on that ground This brings us to the next question namely
whether it is open to the State Government to pass a fresh order in the circumstances of the present cases
In this connection reliance is placed on behalf of the respondent on two cases of this Court Ujagar Singh vs The State of Punjab 3 and Godavari Shamrao Parulekar vs State of Maharashtra and others4
The first case was under the Preventive Detention Act IV of 1950
In that case it was held that if the authority making an order is satisfied that the ground on which a detenu was detained on a former occasion is still available and that there was need for detention on its basis no mala fides can be attributed to the authority from the fact that the ground alleged for the second detention is the same as that of the 1  3  2  4  202 first detention
 In the latter case what had happened was that detenues were first detained under the Preventive Detention Act
Later that order was revoked and they were detained under r30 of the Rules and the order was served in jail
The second order of detention was apparently based on the same facts on which the first order of detention was passed
This Court held that the second order of detention was perfectly valid and its service in jail did not make the detention illegal
These cases certainly show that a fresh order of detention can be passed on the same facts if for any reason the earlier order of detention has to be revoked by the Government
Further we do not find anything in the Defence of India Act hereinafter referred to as the Act and the Rules which forbids the State Government to cancel one order of detention and pass another in its place
Equally we do not find anything in the Act or the Rules which will bar the Government from passing a fresh order of detention on the same facts in case the earlier order of detention or its continuance is held to be defective for any reason
This is of course subject to the fact that the fresh order of detention is not vitiated by mala fides
So normally a fresh order of detention can be passed on the same facts provided it is not mala fide if for any reason the previous order of detention or its continuance is not legal on account of some technical defect as in the present cases
This brings us to the consideration of the judgment of our brother Bhargava J in Avtar Singh s case1 to which we have already referred
Our learned brother held that where the original order of detention as in these cases was a good order for the first period of six months it would not be open to the State Government to pass a fresh order of detention on the same facts after cancelling the order on the expiry of six months for that would be going round the provisions of r30 A and that the only way in which detention could be continued after the first period of six months where a good order was originally passed was to make a review in a proper manner as indicated in the case of Lakhanpal2 Our learned brother also seems to have held that if a review was not made in a proper manner as indicated in Lakhanpal s case2 the Government would be completely powerless and could not detain the persons concerned by a fresh order
In effect therefore our learned brother held that if a mistake is made by Government in the matter of review it could not correct it and the detenu must go free
Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every six months and thus continues the detention of a detenu circumventing the provisions 1 WPs
68 70 79 89 92 of 1967 decided on June 9 1967 2  203 of r30 A for review which was interpreted by this Court in Lakhanpal s case1 gives some protection to the citizens of this country it would certainly be acting mala fide
Such a fresh order would be liable to be struck down not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power
But if the Government has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect
In such a case it cannot be said that the fresh order is a mala fide order passed to circumvent r30 A Take the present case itself
The Government passed the original order of detention in March 1965
That order was good for six months and thereafter it could only continue under r30 A on orders passed under r30 A9
The Government did pass orders under r30 A 9 and we
cannot say in view of the judgment in Sadhu Singh s case2 that the Government went wrong in the procedure for review
It was only after the judgment of this Court in Lakhanpal s case1 that the manner of review became open to objection with the result that the continuance of the order in these two cases failed and the detention became illegal
If in these circumstances the Government passes a fresh order under r30 it cannot be said that it is doing so mala fide in order to circumvent r30 A 9
In actual fact the Government had complied with the provisions of r30 A9 and what it did was in accordance with the judgment of this Court in Sadhu Singh s case2
It is true that after Lakhanpal s case1 the manner in which the review was made became defective and therefore the continuation of detention became illegal
Even so if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpal s case1 it would in our view be not right to say that the Government cannot do so because that would be circumventing r30 A
We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules
The Courts have always the power to strike down an order passed in mala fide exercise of power and we agree with Bhargava J to this extent that if the Government instead of following the procedure under r30 A as now laid down in Lakhanpal s case1 wants to circumvent that provision by passing fresh orders of detention on the same facts every six months it will be acting mala fide and the court will have the power to strike down such mala fide exercise of power
But in cases
like the present where the continuance became defective after the judgment of this Court in Lakhanpal s case1 we can see no reason to deny power to Government to rectify the defect by passing a fresh order of detention
Such an order in such circumstances 1  2  204 cannot be called mala fide and if the Government has the power to pass it which it undoubtedly has for there is no bar to a fresh order under the Act or the Rules there is no reason why such a power should be denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made
We are therefore of opinion that the view taken in Avtar Singh s case1 insofar as it says that no fresh order can be passed even to correct any defect in an order continuing detention under r 30 A9 is not correct
We therefore allow the writ petitions and order the release of the petitioners
But it will be open to the State Government to pass a fresh order of detention if it considers such a course necessary
Petitions allowed RKPS 1 W Pe 68 70 79 89 92 of 1967 decided on June 9 1967


Summary:
The petitioners were detained under r 301 b of the Defence of India Rules 1962 under orders passed by the State Government in March 1965
Their detention was continued from time to time after review under r 30A
One review was made in February 1967 when the scope of such a review was governed by the judgment of this Court in Sadhu Singh vs Delhi Administration 1966 I SCR 243 to the effect that such review did not require a judicial approach to the question of continuance of detention
Accordingly at the review in February 1967 no opportunity was given to the petitioners to represent their cases and their detention was continued for a further period of six months
Thereafter by its judgment in the case of P LLakhanpal vs The Union of India  this Court overruled the decision in Sadhu Singh s case and held that the function of review under r 30A was quasi judicial and that in exercising it the rules of natural justice had to be complied with
In view of this judgment the respondent held another review in April 1967 when notice was given to the petitioners and they were given a hearing
Thereafter an order was passed in each case on April 27 1967 by which the State Goverment directed the continuance of the detention orders for a further period
In the meantime the present petitions under article 32 of the Constitution were filed on March 20 1967 based on the judgment of this Court in Lakhanpal s case
It was contended on behalf of the respondent State that as the review made in April 1967 was in accordance with the view taken in Lakhanpalls case the continuance of the detention thereafter was justified that the State Government had power to pass a fresh order of detention on the same facts and even if the present petitions were to be allowed it should be made clear that the State Government had such power and that the decision of this Court in the case of Avtar Singh vs The State of Jammu and Kashmir de cided on June 9 1967 was not correct
HELD i The writ petitions must be allowed and the petitioners released
In the Present cases the orders were passed in March 1965 and should have been reviewed after every six months in the manner explained in Lakhanpal s case
That admittedly was not done upto February 1967 though a number of reviews were made in between
Consequently orders of detention passed in March 1965 fell after six months and there were no orders to continue thereafter
When 198 therefore the State Government ordered the continuance of detention orders upon the review on April 27 1967 in accordance with the procedure indicated in Lakhanpal s case there were no orders to be continued because in between the reviews were not proper and the detention had become illegal
201 C D
A K Gopalan vs The Government of India 1966 2 SCR 427 distinguished
Although r 30A 9 only says that the Government shall decide whether the detention order should be continued or cancelled that does not mean that if the Government omits to make a review under r 30A within six months the detention order will still continue and the detenu continue to be detained thereunder
The provision for review in r 30A is designed to protect the personal liberty of the citizen and is a mandatory provision if it is not complied with and  the Government omits to review the detention order within six months the order must fall and the detenu must be released
200 FG ii A fresh order of detention can be passed on the same facts provided it is not mala fide if for any reason the previous order of detention or its continuance is not legal on account of some technical or other defect as in the present cases
There is nothing in the Defence of India Act and Rules which forbids the State Government from cancelling one order and passing another in its place
2O2 C
Ujagar Singh vs The State of Punjab  and Godavari Shamrao Parulekar vs State of Maharashtra and Ora   referred to
The view taken in Avtar Singh vs The State of Jammu and Kashmir in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under r 30A9 is not correct
204 B