dedol-hf/india-case-legal-rag huggingface dataset:
Share capital of the Bank which sold those shales to a
51
392
third  party in purported exercise of its right of lien  for
recovery  of a debt due to it from the petitioner,  and  the
transfer was registered in the books of the Bank in the year
1937.  The petitioner thereupon instituted a series of  pro-
ceedings  in  the High Court at Bombay on its  original  and
appellate jurisdiction challenging the validity of the  said
sale  and  transfer. The latest of these proceedings  was  a
suit  filed against the Bank in 1951 wherein the plaint  was
rejected on 2nd March, 1951, under Order 7, Rule 11 (d),  of
the  Code  of Civil Procedure as barred by  limitation.  The
petitioner now prays that all the adverse orders made in the
previous  proceedings be quashed and the said High Court  be
directed  to  have "the above suit set down to be  heard  as
undefended and pronounce judgment against the respondent  or
to make such orders as it thinks fit in relation to the said
suit".  It may be mentioned here that though  the  aforesaid
order rejecting the petitioner's plaint was appealable,  the
petitioner did not prefer an appeal on the somewhat extraor-
dinary  ground that "the appeal if filed could not be  heard
by the Judges of the said Court as all of them were disqual-
ified  from  hearing such appeal" either  because  of  their
interest  in the Bank or because of their prejudice  against
him.
    We  are of opinion that the petitioner has  misconceived
his  remedy  and  the petition must fail  on  a  preliminary
ground.   Neither  article 19 (1) (f) nor article 31 (1)  on
its  true  construction  was intended  to  prevent  wrongful
individual  acts  or to provide  protection  against  merely
private conduct.  Article 19 deals with the "right to  free-
dom" and by clause (1) assures to the citizen certain funda-
mental freedoms including the freedom "to acquire, hold  and
dispose  of property" subject to the power of the  State  to
impose  restrictions on the exercise of such rights  to  the
extent  and on the grounds mentioned in clauses (2) to  (6).
The language and structure of article 19 and its setting  in
Part  III of the Constitution clearly show that the  article
was intended to protect those freedoms against State  action
other than in the legitimate exercise of its power to  regu-
late private rights in the  public  interest,
393
Violation of rights of property by individuals is not within
the purview of the article.
The  position is no better under article 31  (1).   The
petitioner  has  urged that clause (1) should  be  construed
apart from and independently of the rest of the article and,
if  so construed, its language is wide enough to  cover  in-
fringements  of rights of property by  private  individuals.
He  laid  emphasis on the omission of the  word  "State"  in
clause  (1)  while  it was used in clause (2)  of  the  same
article  as  well  as in many other articles  in  Part  III.
Referring to entry No. 33 of the Union List, entry No. 36 of
the  State List and  entry No, 42 of the Concurrent List  of
the  Seventh  Schedule to the Constitution, he  also  argued
that,  while these entries read with article  246  empowered
Parliament and the State Legislatures to make laws regarding
acquisition  or requisitioning of property for the  purposes
of  the Union or the State as the case may be. no power  was
conferred  to make laws regarding "deprivation of  property"
by  the  State, so that the  "deprivation"  contemplated  in
clause  (1) could only be deprivation by individuals.   Sub-
section  (1) of section 299 of the Government of India  Act,
1935, corresponding to clause (1) of article a 1 was, it was
pointed out, omitted in the draft article 19 (later numbered
as  article 81) which retained in a modified form  only  the
provision  contained  in  sub-section (2)  of  that  section
relating  to compulsory acquisition of property  for  public
purposes.  But,  clause (1) was  subsequently  restored  and
article   was enacted in its present form as recommended  in
Drafting Committee's Report and this, it was claimed, showed
that clause (1) was intended to operate as a distinct provi-
sion apart from clause (2). We see no force in any of  these
arguments.
    In  support of the argument that clause (1 )  should  be
construed  in  isolation from the rest of the  article,  the
petitioner  relied  on certain observations of  our  learned
brother  Das  in Chiranjit Lal v. The Union  of  India  (1),
where  the view was expressed that clause (1)enunciated  the
general principle that no person should be deprived
(1) [1950] S.C,R,. 860.
394
of his property except by authority of law and laid down  no
condition  for  payment of compensation,  while  clause  (2)
dealt with deprivation of property brought about by acquisi-
tion  or  taking possession of it and  required  payment  of
compensation.  In other words, deprivation  referred  to  in
clause(1)  must be taken  to  cover  deprivation   otherwise
than by acquisition or requisitioning of property dealt with
in    clause (2).   We   consider  it  unnecessary  for  the
purpose  of the present petition to go into  that  question.
Even  assuming that clause (1) has to be read and  construed
apart from clause (2), it is clear that it is a  declaration
of  the  fundamental right of private property in  the  same
negative  form in which article 21 declares the  fundamental
right to life and liberty. There is no express reference  to
the  State in article 21. But could it be suggested on  that
account that that article was intended to afford  protection
to  life and personal liberty against violation  by  private
individuals ? The words "except by procedure established  by
law" plainly exclude such a suggestion. Similarly, the words
"save by authority of law" in clause (1) of article 31  show
that it is a prohibition of unauthorised governmental action
against private property, as there can be no question of one
private individual being authorised by law to deprive anoth-
er of his property.
      The  argument  based on the entries in  the  Lists  is
fallacious.  It is not correct to suggest that,  merely  be-
cause there is no entry in the Lists of the Seventh Schedule
relating  to  "deprivation of property" as such, it  is  not
within the competence of the legislatures in the country  to
enact a law authorising deprivation of property. Such a  law
could  be made, for instance, under entry No. 1 of List  II,
entry No. 1 of List II or entry No. 1 of List III.   Article
31  (1) itself contemplates a law being  passed  authorising
deprivation of the properties, and it is futile to deny  the
existence of the requisite legislative power.
    Nor does the legislative history of the article lend any
support to the petitioner's contention. Section 299
395
(1)  of the Government of India Act, 1935, was never  inter-
preted  as  prohibiting deprivation of property  by  private
individuals.   Its restoration, therefore, in the same  form
in article 31, after omission in the original draft  article
19,  could lead to no inference in support c. of  the  peti-
tioner's contention, which indeed proceeds on the  fundamen-
tal misconception that article 19(1)(f) and article 31  (1),
which  are  great constitutional  safeguards  against  State
aggression  on  private property, are directed  against  in-
fringements by private individuals for which remedies should
be sought in the ordinary law.
    In  this  view it is unnecessary to  deal  with  certain
other  objections  to the maintainability  of  the  petition
raised  by the Solicitor-General on behalf of the Bank.  The
petition is dismissed. We make no order as to costs.
                                  Petition dismissed.
Agent for the respondent: Rajinder narain.
PETITIONER:
S. KRISHNAN AND OTHERS
        Vs.
RESPONDENT:
THE STATE OF MADRAS(AND OTHER PETITIONS)UNION OF INDIA--Inte
DATE OF JUDGMENT:
07/05/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1951 AIR  301            1951 SCR  621
 CITATOR INFO :
 F          1952 SC 181  (6,30)
 F          1959 SC 609  (14)
 R          1962 SC 945  (19)
RF         1967 SC1643  (14,237)
 R          1970 SC 494  (13)
 F          1972 SC1660  (7)
 RF         1973 SC1461  (301,1919)
 RF         1974 SC 396  (25)
 R          1974 SC 613  (9,10,11,17,28,32,33,51)
 R          1974 SC1336  (8)
 R          1975 SC 863  (5)
 E          1976 SC1207  (66)
 RF         1977 SC1884  (23)
ACT:
    Preventive  Detention (Amendment) Act, 1951, ss. 9,  10,
11,  12--Indian Constitution, 1950, Arts. 22 (4) (a) &  (b),
22  (7)--Detentions under earlier Act treated as  detentions
under new Act and continued for more than one year--Omission
to   fix   maximum   period--Infringement   of   fundamental
rights--Contravention  of  Constitution--Validity of  amend-
ing Act--Temporary Statutes--Order of detentions  --Validity
after expiry of Statute.
HEADNOTE:
    The  Preventive Detention (Amendment) Act of 1951  which
extended  the operation of the Preventive Detention  Act  of
1950  for  a  period of one more year, that is,  up  to  1st
April, 1952, effected two material alterations by  providing
(i)  that a reference to an Advisory Board shall be made  in
all cases within six weeks (s. 9); (ii) that every detention
order  in  force at the commencement of the  new  Act  shall
continue in force and shall have effect as if had been  made
under the Act as amended (s. 12).  The petitioners, who were
On  the  date  of the commencement of the  amending  Act  in
detention  in  pursuance of orders made under s. 3  (1)  (a)
(ii)  of the Preventive Detention Act of 1950, and  who  but
for the amending Act would have been entitled to be released
under  the  earlier Act on the expiry of one year  from  the
date  of the order of detention, applied for  habeas  corpus
contending  that  ss.  9 and 12 of the  amending  Act  which
enacted  the  above  mentioned  provisions  contravened  the
provisions  of Art. 22 (4) (a) of the Constitution and  were
consequently void under Art. 13(a) inasmuch as the  combined
effect  of  these sections was to keep  the  petitioners  in
detention  for  a period longer than  three  months  without
reference  to  an Advisory Board, and also to keep  them  in
detention  for a period of more than one year.  The Act  was
also attacked on the ground that it did not fix any  maximum
period for detention:
   Held,  per KANIA C.J., PATANJALI SASTRI,  MAHAJAN,  S.R.
DAs  and  Bose JJ. :--that ss. 9 and 12  of  the  Preventive
Detention (Amendment) Act, 1951, did not contravene Art.. 22
(4) of the Constitution and were not void.
622
    Per  KANIA C.J., and PATANJALI SASTRI  J.--The  amending
Act could be regarded as a law made substantially in accord-
ance with sub-clauses (a) and (b) of cl. (7) of Art. 22, and
as such it satisfied the requirements of Art. 22 (4) (b) and
cannot be held to be unconstitutional or void.
    Per MAHAJAN and DAs JJ.--The law enacted by the amending
statute is not the same law as was declared by the  original
statute  and to that extent the amended statute was  in  the
nature of a new and independent statute; the effect of s. 12
was to make the detention of the petitioners a fresh  deten-
tion under the new law; and there was nothing in the new law
standing  by itself which authorised detention of  a  person
for more than three months without reference to an  Advisory
Board  or for more than one year and there was thus no  con-
travention of any of the provisions of Art. 22 (4).
    Held also per KANIA C.J., PATANJALI SASTRI, MAHAJAN  and
Das  JJ.  (Bose J.  dissenting).--The  Preventive  Detention
(Amendment)  Act, 1951, was not invalid on the  ground  that
it. did not fix a maximum period for detention, inasmuch  as
the  Act itself was to be in force only for a period of  one
year  and  no detention  under the Act  could  be  continued
after the expiry of the Act.  BoSE J.--Sub-section (1) of s.
11  of the impugned Act contravened Art. 22 (4) of the  Con-
stitution  inasmuch as it did not fix any maximum period  of
detention, but on the other hand empowered the government in
express terms to order that a detention.shall continue  "for
such  period as it thinks fit".  The view that  a  detention
which  has  been ordered under an Act would come to  an  end
with the expiry of the Act is not sound.
JUDGMENT:
    ORIGINAL JURISDIGTION. --Petitions Nos. 303,617 to  619,
621  to  631,  567 to 571, 592, 594, 596 and  600  of  1950.
Petitions under Art. 32 of the Constitution for writs in the
nature  of habeas corpus.  The petitioners were detained  in
pursuance  of  orders for detention made under s.  3  (1)(a)
(ii)   of the Preventive Detention Act, 1950.  On  the  22nd
February, 1951, while they were under detention the  Preven-
tive  Detention (Amendment) Act, 1951, came into  force  and
this  Act by substituting the figures "1952" for  "1951"  in
sub-sec. (3) of s. 1 of the Preventive Detention Act of 1950
continued  the operation of the Act until 31st March,  1952.
Since  the maximum period of detention fixed by the  Act  of
1950  was one year the petitioners applied for writs in  the
nature  of  habeas corpus for their release.   The  material
facts, the points raised by
623
the  petitioners and the arguments of the counsel appeal  in
the Judgment.
    M.K.  Nambiyar (V. G. Row, with him) for the  Petitioner
in Petition No. 303 of 1950.
    Bawa Shiv Charan Singh for the Petitioners in  Petitions
Nos. 618, 619, 621,622, 624, 626, 627, 628, 629, 630 and 631
of 1950.
    Basant Chandra Ghose (amicus curiae) for the Petitioners
in Petitions Nos. 567, 568, 569, 570, 571,592, 594,596,  and
600 of 1950.
V.K.T.  Chari,   Advocate-General,   Madras,  and   G.S.
Swaminathan (R. Ganapathy lyer. with them) for the  Respond-
ents in Nos. 618, 619, 621,622, 624,626, 627, 628, 629,  630
and 631 of 1950.
    Fakhruddin  Ahmed  (Nuruddin Ahmed, with  him)  for  the
Respondents  in Petitions Nos. 567, 568, 569, 570,  571,592,
594, 596 and 600 of 1950.
Petitioner  in  person  in Petition No. 617  of  1950.
M.C.  Setalvad,  Attorney-General for  India  (R.  Ganapathy
lyer, with him) for the Union of India, Intervener.
    1951. May 7.  The following Judgments were delivered --
    KANIA  C.J.  -  I agree with the  Judgment  prepared  by
Sastri J. and have nothing more to add.
    PATANJALI  SASTRI J.--The common question  which  arises
for  consideration  in these petitions  is  whether  certain
provisions  of  the Preventive  Detention  (Amendment)  Act,
1951,  purporting  to amend the  Preventive  Detention  Act,
1950,  so as to authorise detention of , the petitioners  to
be  continued beyond the expiry of one year are ultra  vires
and inoperative.
    The  amending  Act  hereinafter referred to as  the  new
Act) came into force on 22nd February, 1951, and by  substi-
tuting  the figures " 1952" for "1951" in subsection (3)  of
section 1 of the Preventive Detention Act, 1950,  (hereinaf-
ter referred to as the old Act) it
624
continues  the  operation of the old Act  till  31st  March,
1952.
The  petitioners  in all these cases were, at  the  com-
mencement  of the new Act, under detention in  pursuance  of
orders made under section 3 (1) (a) (ii) of the old Act and,
save in a few cases where the detention was also attacked on
some  special grounds which have no substance, the  legality
of that detention was not open to question.  But such deten-
tion  having commenced more than a year before the  date  of
hearing  of these petitions the petitioners would have  been
entitled  to be released had it not been for the  provisions
of the new Act which purport to authorise the continuance of
their detention.
    Mr.  Nambiyar, on behalf of the petitioners, urged  that
these  provisions  contravened  article 22 (4)  (a)  of  the
Constitution  and  were, therefore, void  under  article  13
(2). Article 22 (4) (a) provides:
    "No law providing for preventive detention shall  autho-
rise  the  detention of a person for a  longer  period  than
three months unless
(a) an Advisory Board consisting of persons who are,  or
have  been, or are qualified to be appointed as Judges of  a
High  Court has reported before the expiration of  the  said
period  of three months that there is in its opinion  suffi-
cient cause for such detention:
    Provided that nothing in this sub-clause shall authorise
the  detention of any person beyond the maximum period  pre-
scribed  by any law made by Parliament under sub-clause  (b)
of clause (7)."
It  will  be. seen that two conditions have to  be  ful-
filled  in order that a person can be detained for a  longer
period  than three months; (i) his case must be referred  to
an  Advisory Board constituted in the manner  specified  and
(ii) that Board must make a report before the expiration  of
three months that there is sufficient cause for such  deten-
tion.  Section 12 of the old Act having provided that  there
was to be no review by an  Advisory Board  in cases  falling
within
  625
section 3 (1) (a) (ii), the petitioners' detention in pursu-
ance  of  orders made under the latter  section  fell  under
article 22 (4) (b), and there was no question, therefore, of
such detention contravening article 22 (4) (a).  The  scheme
of  the  new Act, however, was to extend the  benefit  of  a
review  by  an Advisory Board to all cases and to  bind  the
detaining  authorities to act conformably to the  report  of
the Board.  The method adopted to give effect to this scheme
was  to delete some of the provisions of the old Act and  to
substitute in their place new provisions.
    The  material provisions of the new Act are sections  9,
10,  11  and 112. Section 9 provides for a reference  to  an
Advisory Board within six weeks from 'the date specified  in
sub-section  (2)  which says "The date referred  to  in  sub
section  (1) shall be--(a) in every case where at  the  com-
mencement of the Preventive Detention (Amendment) Act, 1951,
the  person is under detention in pursuance of  a  detention
order made under sub-clause (i) or sub-clause (ii) of clause
(a) of sub-section (1)of section 3, the date of commencement
of  the  said Act; and (b) in every other case the  date  of
detention under the order". By section 10 the Advisory Board
is  required to submit its report within ten weeks from  the
date specified in sub-section (2) of section 9.  Section  11
(1)authorises  the  appropriate Government to  continue  the
period of detention for such period as it thinks fit in case
the Advisory Board reports that there are sufficient grounds
for  the detention, while sub-section (2) provides that  the
Government shall revoke the detention order and release  the
person  concerned  if the Advisory Board reports  the  other
way.  Sub-section (1) of section 12 declares for the "avoid-
ance  of doubt" that every detention order in force  at  the
commencement  of  the new Act "shall continue in  force  and
shall  have effect as if it had been made under this Act  as
amended"  by the new Act, and sub-section (2) provides  that
nothing contained in subsection (3) of section 1 or in  sub-
section  (1) of section 12 of the old Act shall  affect  the
validity or duration of any such order.
626
    It will be seen that although the object of the new  Act
was  to  liberalise  the provisions of the old  Act  in  the
manner indicated above, section 12 had the effect of enlarg-
ing  the  period of detention of the  petitioners  who  were
under detention at the commencement of the new Act by enact-
ing  the  legal fiction that detention in such  cases  shall
have  effect as if it had been made under the new  Act.   On
that  basis, the new Act seeks to bring detention orders  in
force  at  its commencement and more than three  months  old
into  conformity  with article 22 (4) (a) by  prescribing  a
period of six weeks in section 9 for referring such cases to
the  Advisory Board and ten weeks in section 10 (1) for  the
submission  by the Board of its report, the period  in  each
case being calculated from the commencement of the new  Act.
But this fiction cannot obscure the fact that in the case of
the petitioners more than three months had elapsed from  the
date  of  their arrest without any Advisory Board  making  a
report on their detention and it is, of course, not possible
for  the  Advisory Board now provided for in such  cases  to
submit its report before the expiration of that period, with
the result that  their detention contravened article 22  (4)
(a).  No doubt the detention up to the commencement  of  the
new  Act was lawful under section 12 of the old Act,  as  it
was  in  accordance  with sub-clause (b) of  clause  (4)  of
article 22, but that could not make the petitioners' contin-
ued detention any the less a violation of article 22 (4) (a)
after  the deletion of old section 12.  It is a  fallacy  to
treat  what was a lawful detention under sub-clause  (b)  as
being  no detention at all for purposes of  sub-clause  (a).
Detention  is a hard physical fact, and the total period  of
detention  of  the  petitioners having  far  exceeded  three
months  without  an Advisory Board  having  reported  within
three months that there were sufficient grounds therefor, it
could  not  lawfully be continued under article  22  (4)(a).
Constitutional   provisions  regarding  fundamental   rights
cannot be circumvented by resorting to legal fictions.
    It was said that if the petitioners had been released on
22nd February, 1951, and re-arrested and detained
   627
immediately  thereafter  under the new  Act  such  detention
would  have been valid.  But, for proceeding in that  manner
the enactment of section 9 (2)(a)and section 12 (1) would be
unnecessary.   Parliament has, however, adopted a  different
mode  of  proceeding  by providing for  the  continuance  of
detention orders in force at the commencement of the new Act
on  the  basis that they should have effect as if  they  had
been  made under the new Act.  The resulting position  must,
therefore,  be dealt with only on that basis and not on  any
other hypothetical footing.
The Attorney-General, however, contended in the alterna-
tive  that the constitutional validity of section 9 (2)  (a)
and  section 12 (1) of the new Act could be sustained  under
article 22 (4) (b) which has been held by a majority of  the
Judges  in A.K. Gopalan v. The State of Madras (1) to  be  a
distinct  and independent provision  authorising  preventive
detention  for a period longer than three months in  accord-
ance with a law made by Parliament under sub-clauses (a) and
(b)of clause (7) of article 22. The Attorney-General claimed
that the aforesaid provisions were such a law, none the less
because  Parliament may have intended to make a  law  within
article 22 (4) (a) by providing for a review by an  Advisory
Board  in all cases of preventive detention.  On a  question
of  vires, the intention of the Legislature  is  immaterial,
and I agree that a provision for an Advisory Board is not  a
hall-mark  which  stamps a preventive detention law  as  one
necessarily falling within sub-clause (a) of clause (4),  so
as  to make its constitutional validity determinable  exclu-
sively  with  reference  to the requirements  of  that  sub-
clause.   The law could still be upheld if it fulfilled  the
conditions  laid down in sub-clause (b) of clause  (4).  Mr.
Nambiyar, however, submitted that the new Act did not fulfil
those conditions, for it is not a law made under  subclauses
(a)  and (b) of clause (7). The word "and" should be  under-
stood  in  its ordinary conjunctive sense, and the  new  Act
neither  prescribes the  circumstances and classes  referred
to in sub-clause (a)nor the (1) [1950] S.C.R. 88,
(1) [1950] S.C.R.88.
628
maximum period of detention required to be prescribed  under
sub-clause  (b) of clause (7). The contention is  devoid  of
substance. The new Act can, in my opinion, be regarded as  a
law  made substantially in accordance with  sub-clauses  (a)