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

1. These two petitions under Article 32 of the Constitution raise common questions of law and will be dealt with together. The petitioners were detained under Rule 30 (1) (b), Defence of India Rules, 1962 (hereinafter referred to as the Rules), under orders of the Government of Jammu and Kashmir in March, 1965. Their detention was continued from time to time after review under Rule 30A. 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, 1. (Vacation Judge) in Sadhu Singh v. Delhi Administration, (1966) I SCR 243 = (AIR 1966 SC 91  ). In that case it was field that Rule 80A relating to review did not require a judicial approach to the question 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 v. Union of India, W. P. No. 258 of l966, D/- 7-3-1967 = (AIR 1967 SC 1507  ). That judgment overruled the decision of Shah, J. and held that the function of review under Rule 30A was quasi judicial and therefore in exercising it, rules of natural justice had to be complied with. In view of his 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 Lakhanpals case W. P. No. 258 of 1966, D/- 7-3-1967 = (AIR 1967 SC 1507  ).

Reasoning:
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.