dedol-hf/india-case-legal-rag huggingface dataset:
detention should be a judicial tribunal.  He will be  satis-
fied  if the tribunal or advisory board, as it is called  in
article  22  of the Constitution, is an impartial  body  and
goes  into  the  merits of the order of  detention  and  its
decision is binding on the executive government.  He insists
that the detenu must have a reasonable and effective  oppor-
tunity  to  put up his defence.  He does not insist  on  the
assistance  of counsel, for that is expressly taken away  by
the Constitution itself.  But he insists on what he calls an
effective  opportunity  of being heard in person  before  an
impartial tribunal which will be free to examine the grounds
of his detention and whose decision should be binding  alike
on  the  detenu and the executive authority  which  detains.
The  claim  may be reasonable but the  question  before  the
Court  is not reasonableness or otherwise of the  provisions
of article 22 (4) to (7). Those provisions are not justicia-
ble, for they are the provisions of the Constitution  itself
which is supreme over everybody.
42
328
The  Court can only seek to find out, on a proper  construc-
tion, what protection has in fact been provided. The Consti-
tution has provided for the giving of the grounds of  deten-
tion  although  facts as distinguished from grounds  may  be
withheld  under clause (6) and the right  of  representation
against  the  order of detention.  It has provided  for  the
duration of the detention.  There the guaranteed fundamental
procedural rights end.  There is no provision for any  trial
before  any tribunal.  One cannot import the condition of  a
trial  by any tribunal from the fact that a right of  repre-
sentation has been given.  The right to make  representation
is  nothing  more than the right to  "lodge  objections"  as
provided by the Danzig Constitution and the Weimar Constitu-
tion.  The representations made will no doubt be  considered
by the Government. It is said a prosecutor cannot be himself
the  judge.  Ordinarily, the orders of detention will  in  a
great  majority of cases be made by the District  Magistrate
or Sub-Divisional Officer or the Commissioner of Police. The
representation  of the detenu goes to the  Government.   Why
should it be assumed that a high government official at  the
seat  of  the government will not impartially  consider  the
representation  and  judge  the propriety of  the  order  of
detention  made  by local officials ? Clause  (5)  does  not
imperatively  provide  for any oral representation  which  a
hearing will entail. Indeed the exclusion of the  provisions
of  clauses (1) and (2) negatives any idea of trial or  oral
defence.  The  Court may not, by temperament  and  training,
like  this at all but it cannot question the wisdom  or  the
policy  of the Constitution. In my judgment as regards  pre-
ventive  detention  laws, the only limitation put  upon  the
legislative power is that it must provide some procedure and
at  least incorporate the minimum requirements laid down  in
article 22 (4) to (7). There is no limitation as regards the
substantive  law.   Therefore, a  preventive  detention  law
which provides some procedure and complies with the require-
ments  of  article 22 (4) to (7) must be held to be  a  good
law, however odious it may appear to the Court to be.
329
    Learned  counsel for the petitioner contends  -that  the
impugned Act does not comply with even the bare requirements
of article 22 (4) to (7).  It is pointed out that section  3
of  the Act does not lay down any objective test but  leaves
it  to the authority to define and say whether a  particular
person comes within the legislative heads.  In other  words,
it  is contended that Parliament has not legislated  at  all
but  has delegated its legislative powers to  the  executive
authorities.  I do not think there is any substance in  this
contention.  In the first place this is not an objection  as
to procedure but to substantive law which is not open to the
Court's  scrutiny.  In the next place this contention  over-
looks the basic distinction between the delegation of  power
to  make  the  law and the conferring of  an  authority  and
discretion as to its execution to be exercised under and  in
pursuance of the law.  The impugned Act has specifically set
forth  an ascertainable standard by which the conduct  of  a
particular person is to be judged by the detaining  authori-
ty.
    It  is  next urged that section 12 of the Act  does  not
comply with the requirements of clause (7) of article 22 for
two reasons, namely--
    (i)  that clause (7) contemplates a law prescribing  the
circumstances under which, and the class or classes of cases
in which, a person may be detained for a period longer  than
three  months and then another law thereafter providing  for
preventive detention for a period longer than three  months;
and
    (ii)  that under clause (7)  Parliament  must  prescribe
both the circumstances under which, and the class or classes
of  cases  in which, a person may be detained for  a  period
longer than three months.
    As regards the first  point I do not see why  Parliament
must  make  two  laws, one laying down  the  principles  for
longer  detention and another for detention for such  longer
period.   It may be that a State cannot provide  for  longer
detention until Parliament
330
has  made  the law, but I can see no reason  why  Parliament
cannot  do  both by the same Act.  In fact, clause  (4)  (b)
contemplates  the detention itself to be in accordance  with
the  provisions  of any law made by  Parliament  under  sub-
clauses (a) and (b) of clause (7). Therefore, the  detention
can  well be under the very law which the  Parliament  makes
under  sub-clauses  (a)  and (b) of clause (7).  As  to  the
second  point the argument is that Parliament has a  discre-
tion under clause (7) to make a law and it is not obliged to
make  any law but when our Parliament chooses to make a  law
it  must prescribe both the circumstances under  which,  and
the  class  or classes of cases in which, a  person  may  be
detained for a period longer than three months.  I am unable
to  construe clause (7) (a) in the way suggested by  learned
counsel  for  the petitioner.  It is an  enabling  provision
empowering  Parliament to prescribe two things.   Parliament
may prescribe either or both. H a father tells his  delicate
child  that he may play table tennis and badminton  but  not
the  strenuous game of football, it obviously does not  mean
that tim child, if he chooses to play at all, must play both
table  tennis and badminton.  It is an option given  to  the
child.   Likewise, the Constitution gives to Parliament  the
power  of prescribing two things. Parliament is not  obliged
to  prescribe at all but if it chooses to prescribe  it  may
prescribe either or both.   Clause 7 (a), in my opinion, has
to  be read distributively as follows:  The  Parliament  may
prescribe  the   circumstance  under which a person  may  be
detained  for a period longer than three months and  Parlia-
ment may prescribe the class or classes of cases in which  a
person  may  be  detained for a  period  longer  than  three
months. That appears to me to be consonant with sound  rules
of  construction.  Further, the circumstances and the  class
or  classes  of cases may conceivably coalesce.  Indeed  the
Full Bench case No. 1 of 1950 before the Calcutta High Court
(Kshitindra Narayan v. The Chief Secretary) itself indicates
that the same provision may be read as circumstances or as a
classification.  In that case learned counsel conceded  that
section  12  had prescribed the circumstances but  his  com-
plaint was that it had not
331
prescribed  the class or classes of cases. The  majority  of
the Court repelled this contention. One learned Judge howev-
er, held that section 12 had prescribed the class or classes
of  cases but had not prescribed the circumstances.  It  is,
therefore, clear that the classification itself may indicate
the  circumstances.  Again, the classification may be  on  a
variety  of  bases.  It may be according  to  provinces  the
detenus  come from.  It may be according to the age  of  the
detenus. It may be according to the object they are supposed
to  have  in view or according to the  activities  they  are
suspected  to  be engaged in.  In this case  Parliament  has
taken five out of the six legislative heads and divided them
into  two categories.  The detenus are thus  classified  ac-
cording to their suspected object or activities  endangering
the several matters specified in the section.  I do not  see
why  classification  cannot be made on the  footing  of  the
objectives of the detenus falling in some of the legislative
heads, for each legislative head has a specific  connotation
well understood in law.  If I am correct that there has been
a  classification then the fact that a person  falls  within
one  or the other class may well be the circumstances  under
which  he  may be detained for a period  longer  than  three
months.   I  do not consider it right, as a matter  of  con-
struction, to read any further limitation in clause 7 (a) of
article 22.  In my judgment Par]lament was not obliged under
clause (7) to prescribe both circumstances and classes,  and
in any case has in fact and substance prescribed both.
    I  am  conscious  that a law made  by  Parliament  under
article  22 (7)will do away with the salutary  safeguard  of
the opinion of an advisory board.  But it must be remembered
that  our Constitution itself contemplates that  in  certain
circumstances  or  for certain class or classes  of  detenus
even  the advisory board may not be safe and it has  trusted
Parliament  to make a law for that purpose.  Our  preference
for an advisory board should not blind us to this aspect  of
the matter.  It is true that circumstances ordinarily relate
to extraneous things, like riots, commotion,
332
political or communal or some sort of abnormal situation and
it is said that the framers of the Constitution had in  mind
some  such situation when the advisory board might  be  done
away with.  It is also urged that they had in mind that  the
more dangerous types of detenus should be denied the  privi-
lege  of  the  advisory board.  I am free  to  confess  that
prescription  of specific circumstances or a more rigid  and
definite specification of classes would have been better and
more  desirable.   But  that is crying for  the  ideal.  The
Constitution  has  not in terms put any such  limitation  as
regards  the circumstances or the class or classes of  cases
and  it  is  idle to speculate as to the  intention  of  the
Constitution-makers,  who, by the way, are the very  persons
who made this law.  It is not for the Court to improve  upon
or add to the Constitution. If the law duly made by  Parlia-
ment is repugnant to good sense, public opinion will  compel
Parliament to alter it suitably.
    Finally,  an objection is taken that section 14  of  the
impugned Act takes away or abridges the right of the  detenu
to move this Court by appropriate proceedings.  Both clauses
(1)  and  (2) of article 32 speak of enforcement  of  rights
conferred by Part III. The right to move this Court is given
to  a person not for the sake of moving only but for  moving
the  Court for the enforcement of some rights  conferred  by
Part III and this Court has been given power to issue direc-
tions or orders or writs for the enforcement of any of  such
rights.  In order, therefore, to attract the application  of
article  32, the person applying must first satisfy that  he
has  got  a right under Part III which has  to  be  enforced
under article 32.  I have already said that article 19  does
not  deal with the freedom of the person. I have  also  said
that articles 21 and 22 provide for protection by  insisting
on  some  procedure.   Under article 22  (5)  the  authority
making  the order of detention is enjoined, as soon  as  may
be,  to communicate to the detenu the grounds on which  that
order has been made. This provision has some purpose,  name-
ly,  that  the  disclosure of the grounds  will  afford  the
detenu the
333
opportunity  of making a representation against  the  order.
Supposing the authority does not give any grounds at all  as
distinct from facts referred to in Clause (6).  Surely,  the
detenu  loses  a fundamental right because he  is  prevented
from  making a representation against the order.  of  deten-
tion.   Suppose  the authority hands over to  the  detenu  a
piece  of  paper with some scribblings on it  which  do  not
amount  to any ground at all for detention.  Then  also  the
detenu  can  legitimately complain that his right  has  been
infringed.   He  can then come to the Court to  get  redress
under article 32, but he cannot show to the Court the  piece
of paper with the scribblings on it under section 14 of  the
Act  and the Court cannot judge whether he has actually  got
the  grounds which he is entitled to under article  22  (5).
In.  such a case the detenu may well complain that both  his
substantive right under article 22 (5)' as well as his right
to  constitutional remedies under article 32 have  been  in-
fringed.   He can complain of infringement of  his  remedial
rights  under article 32, because he cannot show that  there
has  been  an infringement of his  substantive  right  under
article  22 (5).  It appears to me, therefore, that  section
14  of  the  Act in so far as it prevents  the  detenu  from
disclosing  to the Court the grounds communicated to him  is
not in conformity with Part III of the Constitution and  is,
therefore, void under article 13 (2).  That section,  howev-
er,  is clearly severable and cannot affect the  whole  Act.
On  this question the views of Meredith C.J. and Das  J.  of
Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar
Barman v. The State) and the majority of the learned  Judges
of the Calcutta High Court in Full Bench Case No. 1 of  1950
(Kshitindra  Narayan  v. The Chief Secretary) appear  to  be
correct and sound.
    For  the reasons I have given above, in my opinion,  the
impugned  Act is a valid law except as to section 14  in  so
far as it prevents the grounds being disclosed to the Court.
The  petitioner before us does not complain that he has  not
got  proper grounds.  Further, the period of  his  detention
under the impugned Act
334
has not gone beyond three months and, in the  circumstances,
this  application  should, in my opinion,  stand  dismissed.
Petition dismissed.
Agent for the petitioner: S. Subrahmanyam.
Agent  for  the  State of Madras and Union  of  India:  P.A.
Mehta.
335
PETITIONER:
[IN  THE SUPREME COURT OF INDIA  (HYDERABAD).]CO-OPERATIVE S
        Vs.
RESPONDENT:
NANDLAL
DATE OF JUDGMENT:
12/10/1950
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
NAIK R.S.
CITATION:
 1950 AIR  274            1950 SCR  741
ACT:
    Co-operative Credit Societies Act, 1340 F., (Hyderabad),
s.  42  --Award--Remission by Registrar to Civil  Court  for
execution-Powers          of           Registrar--Instalment
decree--Default--Execution  proceedings for whole amount  in
Civil  Court--Power  of Registrar to accept  instalment  and
direct Civil Court to stop proceedings.
HEADNOTE:
    Section  42  of the Co-operative Credit  Societies  Act,
1340 (Hyderabad) provided as follows: "If an award given  by
the  Registrar  or  by a person nominated by him,  or  by  a
committee of arbitrators is not acted upon, then the  Regis-
trar  can have it enforced--(a) through a civil court  on  a
certificate  issued by him. The civil court will  treat  the
award in the same way as its own decree;(b) through a  Reve-
nue  Court or oficer by issuing a certificate to that  court
or officer."
   Held, that under the section the Registrar was not in the
same position as a court passing the decree under the  Civil
Procedure Code in the matter of execution of the decree  and
he does not possess all the powers of an executing court.
   Where  a dispute arose between a member of a society  and
the society and an arbitrator appointed under the Act passed
a decree for payment of a certain sum in six monthly instal-
ments  with  a  condition that if default was  made  in  the
payment of any instalment the whole amount will become  due,
and  under the provisions of s. 42 the decree was  sent  for
execution to the Civil Court on a certificate of Registrar:
95
742
    Held, that after a default had been made in the  payment
of the first instalment and the whole decree debt had become
due  and  execution had been taken out for recovery  of  the
whole  amount,  the [Registrar had no power  to  accept  the
amount of first instalment and direct the executing court to
stop further proceedings, and the executing court was  enti-
tled to ignore the Registrar's order and to proceed with the
execution.
JUDGMENT:
    APPEAL  under article 374(4) of the Constitution from  a
judgment  and  decree of the High Court of  Hyderabad  dated
24th Aban 1356 F., in Civil Appeal No. 374/4 of 1356 F.
Devi Pershad, for the appellant.
Appa Rao and Sada Shiva Rao, for the respondent.
    1950. October 12.  The judgment of the Court was  deliv-
ered by
    MAHAJAN J.--This appeal arises out of execution proceed-
ings of a decree passed by an arbitrator under the Co-opera-
tive Credit Societies Act.  The appeal was presented to  the
Judicial  Committee of the State and is now before us  under
article 374 (4) of the Constitution.
    Raja  Nandial was a member of the decree-holder  society
and  was also its debtor.  A dispute arose between  him  and
the society and under the rules governing such societies the
matter  was referred to arbitration. The arbitrator  on  the
19th  Meher 1352 F., passed a decree against him in the  sum
of  Rs. 8,100 payable in equal six monthly instalments  with
six  per cent. interest, the first instalment being  payable
at  the end of Azur 1353 F.  On the 2nd Dai 1353  F.,  under
the  provisions of section 42, clause (d), of the  Co-opera-
tive Societies Act the decree was sent for execution to  the
civil  court on a certificate issued under the signature  of
one  Moulvi  Mohammed Hasan, Madadgar  Nazim.   The   amount
recoverable   was  stated  as Rs. 8,100  principal  and  Rs.
6669-0 interest.  On the same day the decree-holder present-
ed  an application for execution of the decree to the  Civil
Court, Balda. claiming recovery of Rs. 10,339-14-9.  It  was
alleged that as default had been committed in the payment of
743
the  first instalment due in the month of Azur 1353  F,  the
whole decretal amount had become recoverable. It was  prayed
that  the property detailed in the application be  attached.
On  3rd Dai 1353 F., i.e., a day after the  presentation  of
the application for execution, the judgment debtor deposited
a  sum  of  Rs. 1,000 towards the first  instalment  in  the
Office  of the Registrar of Co-operative Societies  and  ex-
pressed his will lingness to deposit any further amount that
may  be  due towards that  instalment.  The  Nazim's  office
stated  in  reply that as he had committed  default  in  the
payment of the first instalment the whole decree had  become
due  and  the  amount of Rs. 1,000 could  not  be  accepted.
Subsequentiy, however, on the 5th  Dai 1353 F, a letter  was
issued by one Mohammed Aihsan, Assistant Madadgar Nazim,  to
the  Civil  Court,  Balda, saying that Rs.  1,034  had  been
deposited  in the Office of the Nizamat Co operative  Credit
Societies and therefore the proceedings in execution  should
be  stayed  or adjourned.  On receipt of the letter  in  the
civil court, the decree-holder raised an objection that  the
Registrar  had  no  jurisdiction to stay  execution  of  the
decree as he was not an executing court.  This objection was
overruled by the court and it was held that under the provi-
sions of section 42 of the Co-operative Credit Societies Act
the Registrar retained the power of staying execution of the
award  decree even after the issue of a certificate by  him.
In  the  result  the  execution  proceedings  were   stayed.
Against this order an appeal was taken to the Sadar  Adalat.
The Sadar Adalat allowed the appeal partially and held  that
to  the extent of the payment made the decree could  not  be
executed  but  it could be executed with respect  to  future
instalments  as  and when they would fall  due.  It  further
found that the default clause in the decree must be taken to
have been condoned by the deposit of the first instalment in
the  office of the Registrar. The decree-holder preferred  a
second appeal to the High Court but  without  any   material
success.  The  High  Court  held  that  there  had   been  a
default in  the  payment  of the first  instalment
744
and  the  decree-holder  had  thus  a  right to execute  the
whole decree and that neither the Registrar nor the  execut-
ing court could deprive the decree-holder of that right.  In
spite  of this finding it took the view that  the  Registrar
still  retained jurisdiction to adjourn  execution  proceed-
ings.   The contention of the judgment-debtor that the  cer-
tificate  was bad as having been issued by a Madadgar  Nazim
was  negatived.   It was held that the  Madadgar  Nazim  had
delegated  powers  in this respect and that the  defect,  if
any, stood cured by a fresh certificate signed by the  Nazim
himself.  The result was that with these findings the  deci-
sion  of the executing court adjourning the  execution  pro-
ceedings was maintained.
    The  first point for consideration in this appeal is  as
regards the jurisdiction of the Registrar functioning  under
the  Co-operative Credit Societies Act in respect to  execu-
tion  of decrees.  The decision of this question depends  on
the interpretation to be placed on the language employed  in
section 42, clause (d), of the Cooperative 'Credit Societies
Act, 1340 F., as amended. This section is in these terms :-
    "If  an  award  given by the Registrar or  by  a  person
nominated  by him, or by a committee of arbitrators  is  not
acted upon, then the Registrar can have it enforced-
    (a)  through  a civil court on a certificate  issued  by
him.   The civil court will treat the award in the same  way
as its own decree;
    (b)  through  a Revenue Court or officer  by  issuing  a
certificate to that court or officer."
    The language employed in this section does not place the
Registrar on the same pedestal as a court passing the decree
under the Civil Procedure Code. Under the Code a civil court
passing a decree is also the court executing the decree.  It
has  a dual capacity, (1) of the court passing  the  decree,
and  (2) of the executing court. The Registrar, it  appears,
has the first capacity of a civil court but he has not  been
placed in the matter of execution in the same capacity as  a
civil court passing a decree.  The only
745
jurisdiction conferred on the Registrar is that he can issue
a  certificate and on that certificate he can send a  decree
either to the civil court or to a revenue officer. It may be
that  after  issuing  a certificate he may  be  entitled  to
cancel the certificate or issue another, or he may by  with-
drawing  the  certificate withdraw execution  from  a  civil
court and send it to a revenue court and vice versa.  On the
plain words of the section it cannot be held that the Regis-
trar  has  been constituted an executing court or  that  any
powers  in the matter of the execution of the  award  decree
have been conferred upon him.  The question that arises  for
consideration is whether in view of this construction of the
section  it  was open to the Registrar to  intervene  during
execution proceedings that were pending in a civil court  on
the  basis of the certificate granted by him.  In  order  to
determine  this point it is necessary to see precisely  what
the  Registrar actually did in this case.  After  a  default
had been made in the payment of the first instalment and the
whole  decree  debt had become due and  execution  had  been
taken out for recovery of the amount, the Registrar accepted
the  amount of the first instalment and asked the  executing
court  to  stop further proceedings.  The act of the  Regis-
trar  in accepting the first instalment was a clear trespass