Case: Jagdev Singh Vs. State of Jammu &amp; Kashmir

) 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 Rule 30A, 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 Lakhanpal, W. P. No. 258/66, D/-7-3-67(AIR l967 SC 1507). Our learned brother also seems to have held that if a review was not made in a proper manner as indicated in Lakhanpals case, W. P. No. 258/66, D/ - 7-3-67 = (AIR 1987 SC 1507 ) 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.9. 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 of Rule 30-A for review, which, as interpreted by this Court in Lakhanpals W. P. No. 258/66 , D/-7-3-67 = (AIR 1967 SC l507) give come 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 Govermnent 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 Rule 30-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 Rule 30-A on orders passed under Rule 30-A (9). The Government did pass orders under Rule 30-A (9) and we cannot say in view of the judgment in Sadhu Singhs case, l966-1 SCR = (AIR 1966 SC 91 ) that the Government went wrong in the procedure for review. It was only after the judgement of this Court in Lakhanpals case, W. P. No 258/66, D/- 7-3-67 = (AIR 1967 SC 1507 ) 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 Rule 90, it cannot be said that it is doing so mala fide in order to circumvent Rule 30-A (9). In actual fact the Government had complied with the provisions of Rule .30-A (9) and what it did was in accordance with the judgment of this Court in Sadhu Singhs case, 1966-1 SCR 243 = (AIR 1966 SC 91 ).10. It is true that after Lakhanpals case, W .P. No. 258/66, D/7-3-1967 = (AIR l967 SC 1507) the manner in which the review was made became defective and therefore the continuance 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 Lakhanpals case, W. P. No. 258/ 66, D/- 7-3-67= (AIR 1967 SC 1507 ) it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30-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 Rule 30-A as now laid down in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) 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 Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) 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 cannot be called mala fide, and if the Government has the power to pass it-which it undoubtedly has, for there is 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 Singhs case W. Ps. Nos. 68, 70, 79, 89 and 92 of 67, D/- 9-6-67 = (AIR 1967 SC 1797 ) in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.11.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In these circumstances the principle laid down in Gopalans case, (1966) 2 SCR 427   = (AIR 1966 SC.816  ) cannot apply to the facts of the present cases, for we cannot ignore, that between September, 1965 and April, l967 there was no proper review as required by Rule 30A (9) and the detention for all that period was illegal and could not be saved by the original order of March, 1965 which must be deemed to have come to an end after six months, in the absence of a proper review under Rule 30A (9). So there was no order which could be continued on April 1967, and therefore the petitioners would be entitled to release on thatis true that after Lakhanpals case, W .P. No. 258/66, D/7-3-1967 = (AIR l967 SC 1507) the manner in which the review was made became defective and therefore the continuance 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 Lakhanpals case, W. P. No. 258/ 66, D/- 7-3-67= (AIR 1967 SC 1507  ) it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30-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 Rule 30-A as now laid down in Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) 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 Lakhanpals case, W. P. No. 258/66, D/-7-3-67 = (AIR l967 SC 1507) 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 cannot be called mala fide, and if the Government has the power to pass it-which it undoubtedly has, for there is 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 Singhs case W. Ps. Nos. 68, 70, 79, 89 and 92 of 67, D/- 9-6-67 = (AIR 1967 SC 1797  ) in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.