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S.C.R.

SUPREME COURT REPORTS

SHAMARAO V. PARULEKAR

THE DISTRICT MAGISTRATE, THANA,

BOMBAY AND TWO OTHERS

Petition No. 86 of 1952.

D. M. PANGARKAR v.

THE STATE OF BOMBAY AND ANOTHER

Petition No. 147 of 1952.

MRS.GODAVARIPARULEKAR

THE DISTRICT MAGISTRATE, THANA,

BOMBAY AND TWO OTHERS

Petition No. 157 of 1952.

GANESH LAXMAN PATIL FOR TUKARAM HARI

WAZEKAR

THE DISTRICT MAGISTRATE, KOLABA

AND TWO OTHERS

THE STATE OF HYDERABAD-INTERVENER

Petition No. 155 of 1952.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, MuKHERJEA, DAs and VIVIAN BosE JJ.]

Preventive Detention Act (IV of 1950)-Amendment Acts of .1951 and 1952-Detention order under Act of 1950 as amended in 1951 -Extension of duration of Act by Amending Act of 1952 until 1st October, 1952-Whether extends period of detention-Amendment Act-Rule of construction-"Principal Act," meaning of- Validity of s. 3 of Amending Act of 1952-Legality of detention after 1st April, 1952-Constitution of India, Arts. 14, 22 (4) and (7).

May 26.

Shamarao V. Parulek_at

v. 2"he District

Magistrate ..

Thana, and Others.

1\i1 or<lcr directing the detention of the petitioner was n1ade on the 15th of Nove1nber, 1951, under the Preventive Detention Act of J 950 as a1nen<led by the A111ending Act of 1951, \Vhich pfolonged the duration of the Act of 1950 up to the 1st April, 1952. 'The Preventive Detention (An1en<lment) Act of 1952 extended the duration of the Act of 1950 for a further period of six 1nonths, that is to say, until the 1st October, 1952.

Section 3 of the Act of 1952 provided further that detention orders con finned under the principal Act and in -force itnn1ediately before the conunencement of the Act of 1952, sh~1ll, 1,-vhere the period of detention is not specified in the order, re1nain in force "for so long as the principal Act (which was defined as the Act of 1950) \\'as in force." It \Vas contended on behalf of the petitioner that his <letention after 1st 1\pril, 1952, \Vi.ls illegal.

1-Ield, (i) \Vhen a subsequent Act an1cnds an earlier one in such a \Vay as to incorporate itself or a part of itself into the earlier, then the earlier 1\ct 1nust thereafter be read and construed (except where that \vould lead to a repugnancy, inconsistency or absurdity) as if the altered \vords had been written into the earlier Act \Vith pen and ink and the old words scored out so that there is no need to refer to the atneuding Act at all.

After the passing of the Act of 1952 the expressions "the Act of 1950'" and "the principal Act" incant the 1\ct of 1950 as a111ended by the Act of 1952, and the effect of s. 3 of the Act of I 952 was that the detention of the petitioner \Vould re1nain in force until the 1st October, 1952, without prejudice to the po\ver of the Govern n1ent to 1nodify or revoke it;

(ii) section 3 did not contravene Art. 14 of the Constitution as there \Vas a rational classificatien of the cases of detention orders in the section, and the period of detention was left in every case to the discretion of the State;

(iii) the words "any person in sub-cl. (b) of cl. 7 of Art. 22 of the Constitution do not contemplate that individual attention should be paid to each case; on the contrary, the words used in the said sub-clause empower the Parlian1ent to pres cribe the maxin1um for a class taken as a \vholc as it has done in s. 3, ands. 3 does not therefore offend cl. (4) or cl. (7) of Art. 22;

(iv) the power of the Parliament to fix a maxi1nu!P period does not exhaust itself once it has exercised 'that power but can be exercised again in respect of the same detention;

( v) section 3 1s not repugnnt to the Constitution on the ground that it does not fix a time limit, for it specifies the

period as until the expiry of the Act; nor on the ground that it ...,.-1 introduces the idea of potentially indefinite detention by periodical amendments; for the Parliament has the power to do that.

ORIGINAL JumsorcnoN : Petitions (Nos. 86, 147, 157 and 155 of 1952) under article 32 of the Const'itution for writs in the nature of habeas corpus.

Petitioners in person in petitions Nos. 86, 147 and 157 of 1952.

Rajani Patel for the petitioner in petition No. 155.

M. C. Setalvad, Attomey-General for India, ( G. N. /oshi, with him) for the respondents.

Ganapathi Iyer for the intervener (State of Hyderabad).

1952.

May 26.

The Judgment of the Court was delivered by BosE J.-This petition and three others, namely petitions Nos. 147, 155 and 157 of 1952, raise issues regarding the vires and applicability to these cases of section 3 of the Preventive Detention (Amendment) Act, 1952.

This judgment is confined to those points and will govern these cases only in so far as they raise those points.

The remaining points wliich do not touch these issues will be dealt with by another Bench.

The only exception is a point raised in petition No. 155 of 1952 with which the other petitions are not concerned. \Ve will deal with that separately.

The present petition (No. 86 of 1952) was argued very ably and with commendable conCiseness by the petitioner in person.

The fact that he has not been able to persuade us to his view is not due to any defect in his presentation of the case.

The petitioner was arrested on the 15th of NoYembcr, 1951, and an order of detention under the Preventive Detention Act of 1950 was served on him the same .day, and he was given the grounds of detention on the following day, the 16th. His case was placed before an Advisory Board and on the 8th of February, 1952, the Bombay Government "confirmed and continued"

the detention under section 11 (1) of the Preventive Detention Act of 1950.

This Act, as it originally stood, was due to expire <>n the 1st of April, 1951, but in that year an amending

Shamarao V. Parttlekar

The Dfrtrict

Magistrate,

Thana, and Others.

Bose /.

Shamarao V. Parulekar v.

The District Magistrate,

Thana, and Others.

Bose f.

Act was passed which, among other things.. prolonged its life to the 1st of April, 1952. The order of detention in ths case was passed under tl1e Act of 1950 as amended by the Act of 1951. According to past decisions of this Court, the detention would have expired on the 1st of April, 1952, when the Act of 1950 as amended in 1951 would itself have expired.

But a fresh Act was passed in 1952 (Act XXXIV of 1952), the Preventive Detention (Amendment) Act, 1952.

The effect of this Act was to prolong the life of the Act of 1950 for a further six months, namely till the 1st of October, 1952.

The question is whether that Act also prolonged the deten6on and whether it had the vires to do so.

It was contended that the mere prolongation of the life of an Act does not, by reason of that alone, prolong the life of a detention which was due to expire when the Act under which it was made expired. Therefore, as the Act under which the present detention was made was due to expire on the 1st of April, 1952, the mere prolongation of its life by the amending Act did not affect a prolongation of the detention.

Accordingly, the petitioner should have been released on the 1st of April, 1952, and as tl1ere is no fresh order of detention he is entitled to immediate release.

We need not express any opinion on that point because there is present in the amending Act something more than a mere prolongation of tl1e life of the old one. There is section 3 which is in these terms :

"Validity and duration of dete11tio11 in certain cases.- Every detention order confirmed under section 11 of the principal Act and in force immediately before the commencement of this Act shall have effect as if it had been confirmed under the provisions of the principal Act as amended by this Act; and accordingly, where the period of detention is either not specified in such detention order or specified (by whatever form of words) to be for the duration or un.til the -d expiry of the principal Act or until the 31st day of March. 1952, such detention order shall continue te>

. 1952 remain in force for so long as the principal Act is in force, but without prejudice to the power of the appropriate Government. to revoke or modify it at any tirrie. "_ - ---- --·

ShamaraQ V .. Paroleka'I'

v, It will be noticed that the concluding part of this section states that the detention order shall remain in force "for so long as the principal Act is in force." Section 2 of the amending Act defines the "principal

Act" to mean the Act of 1950. Therefore, it was argued, as the Act of 1950 was due to expire on 'the 1st of April, 1952; the. present detention also came to an end on that date and so, in the absence of a.fresh order of detention, the petitioner's detention after that· date was illegal. .This argument; though ingenious, -

The District

..;.lJagistrate.

is fallacious. - The construction of an Act which has been amended is now governed by technical rules and we. must first be clear regarding the proper canons of construction.

The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to . a _repugnancy, inconsistency or absurdity) as if the altered word~ had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th edition, page 207; it is the law in America: see Crawford on Statutory Construction, page 1 IO; and it is the law . which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal l.1allick('). Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed andsection 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October; 1952; · · ·

(1) (1927) 54 I:A• 152 at 155

Tna, and Otha-a.

Bo, eJ.

Shamarao V. Parulek.ar

The District

'Magistrate,

Thana, 1md Others.

Bose /.

Turning now to section 3, whose vires is questioned, and examining it clause by clause we first get these words:

"Every detention order confirmed under seetion II of the principal Act and in force immediately before the commencement of this Act."

According to the rule of construction just examined, the words "'principal Act" means the Act of 1950 as amended by the Acts of 1951 and of 1952, that is to say, the Act of 1950 due to expire on the 1st of October, 1952.

Incidentally, in the particular centext it could not mean the Act of 1950 as it stood in 1950 because no order confirmed under it as it then stood could have been alive "at the commencement of this Act", namely .on the 15th of March, 1952.

The section continues-

"shall have effect as if it had been cunfirmcd under the provisions of the principal Act as amended by this Act."

The underlined words "as amended by this Act"' were relied on to show that wherever the words "the principal Act" were referred to they meant the unamended original Act of 1950, otherwise these words would have been unnecessary.

In our opinion, they were unnecessary in the sense that their absence would not have made any difference to the interpretation though it would have made the section barder to follow and understand.

We say that for this reason.

Without the underlined words the section paraphrased would read-

"Every detention order confirmed under the original Act shall have effect as if confirmed under its . ' ,, prov1s10ns.

If this were to be read literally it would lead to an absurdity, for if the order is actually confirmed under the original unamended Act it would be pointless to introduce a fiction and say that the order shall be deemed to be confirmed under that Act as unamended.

But even apart from a strictly technical construction, the language of the section is accurate because, as we

,.._ -

have said, the rule is that an amended Act must be :ead as if the words of amendment had been written into the Act except where that would lead to an 111consistency, and this woul<l be one of those cases unless the words are construed in a sensible and commonsense way.

The draughtsman therefore had either to leave the words as they were, with an apparent inconsistency, or make his meaning clear by adding the words he did.

But we do not think the addit1on made any difference to the result.

We now turn to the second half of section 3, that is to say, to the words following the semi-colon.

It is important to note here that this part is conequential on the first and merely explains the effect of the first

half.

It is also relc\'ant to note that it deals with four different kinds of orders, different, that is to say, in the form of the words used though in the end they all come to the same thing. It deals with the following kinds of order :-

(1) an order in which the period of detention is not specified at all; in that event the detention would end at midnight on the night of the 31st of March, 1952.

It is clear that in this context the words "the principal Act" cam1ot mean the Act expiring on the 1st of October, 1952, because it envisages an order made before the Act of 1952 was in being and so on the date of its making the order could only refer to the Act then in being;

(2) an order in which the period is stated to be "fo1 the duration of the principal Act", that is to ay, till the 31st of March, 1952 ;

(3) an order in which the period is specified to be until the expiry of the principal Act, which again brings us back to the 31st of March, 1952, as the last day of detention;

(4) an order in which the period is specified to be till the 31st of March, 1952. In all these four cases the section says that the detention order shall "continue to remain in force, for so long as the principal Act is iFl force'', that is to say, till the 1st October, 1952.

Shamarao V. Parulekar v.

The District

Magistrate,

Thana, and Others.

Bose f.

Shamarao V. Parulekar v.

The District

Magistrate, Thana, Qnd Others.

Bose/.

That follows from the first part of the section because that is the meaning which the law directs shall be placed on these words unless the context otherwise directs and the context does not direct otherwise here.

This part of the section is only explanatory.

But we wish to found deeper than this.

It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently.

Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.

Sec the speech of Lord Wensleydale in Grey v. Pearson(') quoted with approval by the Privy Council in Narayana Swami v. Emperor('); also Salmon v. Duncombe("). The rule is also set out in the text books = See Maxwell on the Interpretation of Statutes, 9th edition, page 236, and Craies on Statute Law, 5th. edition, pages 89 to 93. The meaning of section 3 is quite plain ancl only desperate hair splitting can reduce it to an absurdity. Courts should not be astute to defeat the provisions of an Act whose meaning is, on the face of it, reasonably plain.

Of course, this does not mean that an Act, or any part of it, can be recast. It must be possible to spell the meaning contended for out of the words actually used. We hold that there is no difficulty of construction.

It was next argued that in any event the extended detention became a fresh detention (because of the Act of 1952) from the date the Act came into force, and reliance was placed upon the judgments of two of us, Mahajan and Das JJ. in S. Krishnan v. The State of Madras('). It is enough to say that that was not the

(') [1857] 6 H.L.C. 61 at 106. (') 1l App. Cas. 627 at 634.

(') A.I.R.1939 P. C.47. (') [1951] S.C.R.621 at635and640.

\.-----

......

decision of the Court in that case, and further, that the

two Judges who held it was a fresh detention nevertheless considered that a fresh order with its concomitant fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way the petitioner must fail.

Reference was made to the equality clause in article 14 of tlte Constitution but that argument is easily met because the classification which section 3 makes is reasonable.

In one class it places all those whose cases have already been considered by the Advisory Board and in the other those whose cases have yet to go before it; also the law is fair, or at any rate as fair as detention laws can be, despite this distinction because power is left to the appropriate Government to revoke or modify these orders, or any of them, at any time.

Substantially therefore there is no _differentiation.

Article 14 was considered at length in The State of West Bengal v. Anwar Ali Sarkar(1), and according to the law laid down there, the Court must be satisfied on two points before it can strike at a law on the ground of unlawful discrimination. It must be satisfied (1) that the law in fact discriminates and (2) that such discrimination is not permissible on the prindple --- of a rational classification made for the purposes of the legislation.

The argument here was that section 3 discriminated against those detenus whose cases had been referred to the Advisory Board and whose detention was confirmed, on the strength of its report, under section 11 ( 1) before the amending Act of 1952 was passed. The reason given was that these detentions are automatically extended up to the 1st of October, 1952, by section 3 without further reference to an Advisory Board, whereas in other cases, that is to say, in the case of those who were detained before the amending Act but whose cases had not been referred at the date it came into force, and in the case of those detained after the

(t) [1952] S.C.R. 284.

Shamarao V. Parvlek.ar

The District

Magistrate, Thana, and Others.

Bose /.

Shamarao V. Parulekar • v.

The District

Magistrate,

Thana, and Others.

Bose /.

amending Act, the Advisory Board is called into play an,\ individual attention is given to each case with the result that many of those detentions might not be for as long as six months. They might, for example. be only for one month or two .. It was urged that this was discrimination of a kind which cannot be supported by any principle of permissible classification because classification into the above categories has llC\ reasonable relation to the objects of tl1e legislation, such as security ' of the State, maintenance of public order and so forth.

We are unable to accept this line of reasoning. To say that section 3 automatically extends the detention of persons in the petitioner's position to the 1st of October, 1952, and stops iliere, is only to make a partial statement of the effect of section 3 because the extension is subject to the power of the appropriate Government to revoke or modify it at any time.

In other words, the automatic continuation of the detention till the 1st of October is not absolute and irrevocable but is made dependent on the power of the appropriate Government to revoke or modify it at its discretion under section 13 of the Act. The State may or may not continue the detention for the whole of thc extended period.

In both classes of cases the duration of the detention within the overall limit of the life of the Act is left to the discretion of the State. The only difference is that in the one class of cases the discretion is exercised after the period has been extended by the amending Act, in the other the appropriate Govtrnment fixes the period itself in its discretion and can again at its discretion revoke or modify '1t.

In both cases, the substance of ilie law is that tl1e period of detention is left to the discretion of the State, and so tbere is no substantial discrimination.

It was argued that however fair this may look t>n paper, in pract1ice that will be grave discrimination because, as a matter of fact, tl1e State will not apply its mind in ilie majority of cases like the petitioner's That is an argument we cannot accept and no material was placed before us to justify such a conclusion.

~· '

We turn now to the next point. It was contended that section 3 offends the Constitution because article 22 ( 4) and (7) do not envisage the direct intervention of Parliament in a whole batch of cases.

The protectiem guaranteed is that there shall be individual attention and consideration to each separate case by some duly specified and constituted authority.

In our opinion, this is not accurate.

Article 22 ( 4) guarantees that there shall be no preventive detention for more than ili.ree months unless the law authorising it makes provision for an Advisory Board and the Board after considering each individual case separately reports . that there is in its opinion sufficient cause for such detentim1.

To that extent there must be individual consideration of ead1 case, but once the report is made and is unfavourable to the detenu, then the detention can be for a longer period

provided it does not exceed "the maximum period prescribed by any law made by Parliament under subclause (b) of clause (7) ." Sub-clause (b) of clause (7) emp0wcrs Parliament to prescribe "the maximum period for which any person may in any class or ....... . of cases be detained under any law providing for preventive detention." Parliament is accordingly empowered to specify a class. It has done so. The class is all persons whose cases have already been considered by an Advisory Board.

It is empowered to prescribe a maximum period.

That also it has done.

The extended detention (that is to say, for more than three months) can then be "under any law providing for preventive detention." A law made by Parliament falls within these words. Parliament is equally authar'ised to say who shall determine the period of detention, and as there is nothing in the Constitution to prevent it, it can itself exercise the authority it is empowered to delegate to others.

Stress was laid on the words "any person" in sub. clause (b) of clause (7) and it was contended that this contemplates individual attention in each case.

But

Shamarao V. Parulek_11r

The District

Magistrate,

Thana, and Others.

Bose/.

Shamarao V. Parulekar v.

The District Magistrate, Thana, and Others.

Bose /.

if that is so, then it means that Parliament must itself direct the maximum period for each separate person falling. within the class individually. The words are, we th111k, reasonably plain and we hold that Parliament can prescribe the maximum for a class taken as a whole as it has done in section 3.

It was next argued that once the power given under clause (7) to fix a maximum period has been exercised '-· the power exhausts itself and cannot be exercised again in respect of the same detention. In our opinion, no such limitation is imposed upon Parliament by the Constitution.

Then it was said that secuon 3 stands on a footing different from section 12 of the amending Act of 1951 as it introduces the idea of potentially indefinite detention and accordingly is repugnant to the Constitution, and in any event is a fraud upon it. In so far as this means that section 3 fixes no time limit, the contention is unsound because the section specifies the exact period of the qetention, namely till the expiry of the Act of 1950, that is to say, till the 1st of October, 1952.

In so far as it means that Parliament is enabled to continue detention indefinitely by the expedient of periodic amendments in the Act of 1950, the answer is that Parliament has the power.

This was precisely the power exercised In the amending Act of 1951 and upheld by this Court in S. Krishnan v.

The State of Madras('). The present Act is no different from that in this respect.

So far, we have dealt with the facts in petition No. 86 of 1952.

The facts in the other three petitions naturally differ in their details but they all conform to the same general pattern so far as the points d!s cussed above are concerned, so there is no need to discuss them individually. \Ve hold that section 3 of the amending Act of 1952 is intra vires and that the detentions are not bad on any of the grounds discu5'- ed above. The rest of the points raised in each individual case are left open except for one point which

f1) [1951] S.C.R. 621.

. - -..,.-

anses m petition No. 155 of 1952. That point 1s as follows.

The first ground of detention given to the petitioner in this case reads :

"Being the President of Jamat of Agris you have used your position as such to increase your influence over the residents of Uran Peta, have created a band of obedient and trusted associates, have inflicted heavy fines on villagers in Uran Peta who have disregarded your wishes and have imposed on them boycott or excommunication in cases of their refusal to pay the

fines."

It was argued that at the very outset these allegations import noth'ing more than an exercise of functions such as the infliction of fines and excommuni- <:ation which the petitioner as head of the caste had authority to do. They do not touch any of the matters covered by section 3 (1) (a) of the Preventive Detention Act, 1950, under which the petitioner is detained.

For example, they do not touch the security of the

State or the maintenance of public order or any of the other matters specified in section 3. They are therefore irrelevant to the detention, and as it is impossible to say how far these irrelevant matters influenced the detention, the petitioner is entitled to release. Reliance was placed upon certain observations of the Federal Court in Rex v. Basudev(1).

We think 'it unnecessary to examine this point because we do not think the ground is irrelevant nor do we agree that it means what the petitioner says.

In our opinion, the grounds of detention must be regarded as a whole and when that is done the relevance of the first ground becomes plain.

The gravemen of the charge against the petitioner is that he aimed at setting up a parallel government in the Uran Peta area and that in order to achieve that end he did various acts such as intimidating the workers in the salt pans with threats of murder, and his own workers with threats of death, unless they carried out his

(1) [ 1949] F.C.R. 657 at 661.

Shamarao V. Parulekar

The District

Magistrate,

Thana, and Others.

Bose /.

Evacce Evuee

The District

Mllgistrttte,

Thana, and Others.

Bose /.

May 26.

orders; and among the lesser instances given to illustrate the exercise of parallel governmental authority are the ones set out in the first ground, namely the mfliction of fines with the sanction of excommunication and boycott to ensure their payment and due obedience to his orders. This point has no force and is decided against the petitioner.

It will not be open to him to re-agitate this afresh when his case is reheard on the remaining issues.

All the four cases will now be set down for hearing on the remaining points which arise in them. As they do not involve constitutional issues they need not go before a Constitution Bench.

Agent for the petitioner m Petition No. 155 : M.SK.

Sastri for P. G. Goklzale.

Agent for the respondents and Intervener : P. A.

Mehta.

EBRAHIM ABOOBAKAR AND ANOTHER

CUSTODIAN GENERAL OF

EVACUEE PROPERTY.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,

MuKHERJEA, DAs and VIVIAN BosE JJ.]

Bomba)' Evacuees (Admi11istratio11 of Property) Act, 1949- 0rdinance No. XXVII of 1949, ss. 7, 24-0rder refusing to declare

person evacuee-Whether appea/able-lnformant, whether "person aggrieved"-Right to appeal-CoHrts with limited juristliction-- Pau1er to decide facts upon which iurisdiction depends-Powers of an appellate court-Grant of writ of certiorari-Guiding principles.

A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.

It must be shown before such writ is issued that the authority which passed the order acted without jurisdiction or in excess of it, or in violation of the principle~ of natural justice.

Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of