judgement:
vil Appeal Nos.
1926 50 of 1986 etc.
From the Judgment and Order dated 20.2.
1986 of the Bombay High Court in O.S. Appeal Nos.
616, 673,674 to 692,694 and 725 of 1985.
Soli J. Sorabji, K.K. Singhvi, A.K. Gupta, B. Bhushan, N.P. Mohindra, J.P. Cama, Mukul Mudgal, A.M. Khanwilkar, K.V. Murrup Menon, Mrs. V.D. Khanna, M.G. Ramachandran, Pratap H. Toprani, Sanjeev Anand and A.S. Bhasme for the appearing parties.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
It appears that there were serious complaints about the service conditions of about 70,000 persons working as Security Guards in various factories and establishments in Greater Bombay and Thane Industrial Com plex, the majority of whom were employed through about 250 Security Agencies operating in those areas.
The complaints related not merely to insufficient remuneration paid to them by the agencies, but also to insecurity of service and other forms of exploitation.
There was a sample survey conducted by the Government of Maharashtra to ascertain the extent of exploita 23 tion and to secure information regarding the service condi tions of the Security Guards.
The sample survey revealed that most of the agencies were not registered under the Shops and Establishments Act.
There was only one registered union but that union accounted for membership of 2200 only.
It was found that most of the Security Guards did not enjoy the benefit of any Provident Fund Scheme or any scheme of Gratuity.
Most of them were not covered by the Employees ' State Insurance Scheme and had no medical facilities.
Leave facilities were inadequate.
Rest intervals were not properly provided.
Wages were low and only a few agencies paid over time and bonus.
Most of them did not also have either drink ing water facility, canteen facility or transport facility.
A very meager percentage of Guards were provided with living quarters.
It was recommended that it was absolutely neces sary to prevent exploitation of the unprotected Security Guards and to provide them with better service conditions.
Pursuant to the report of the committee which made the sample survey, the Government issued the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Ordinance.
The Ordinance was replaced by the Maharashtra Private Security Guards (Regulation of Employment and Wel fare) Act, 1981.
The vires of the Act were challenged in various writ petitions filed in the High Court of Bombay by Security Agencies.
They were dismissed by the High Court and a petition for special leave to appeal under article 136 of the Constitution was dismissed by the Supreme Court on January 5, 1983.
While dismissing the special leave petition, the Supreme Court gave the following directions: "It appears that some of the petitioners have applied to the State Government to accord exemption to them from the operation of the provisions of the Private Security Guards (Regulation of Employment and Welfare).
Scheme, 1981 and those applications are under the consideration of the State Government.
We, therefore, direct that the above scheme shall not be enforced as against the petitioners herein till the end of January 1983.
The State Government should dispose all applications made by the petitioners before January 31, 1983.
" This order was subsequently modified in the following manner: "The order dated January 5, 1983 is modified by deleting the entire portion of the order following upon the words "these special leave petitions are dismissed.
" The scheme will be brought into force forthwith.
" 24 In the judgment of the learned Single Judge who dis missed the writ petitions initially, the learned Judge had held that it was competent for security agencies to seek exemption from the operation of the provisions of the Act.
As many as 139 security agencies applied to the Government under sec.
23 of the Act for grant of exemption from the provisions of the Act.
These applications were first screened by the Advisory Committee who recommended that exemption might be granted to 21 agencies.
The cases of four other agencies which were not recommended by the Advisory Committee were again investigated by the Labour Commissioner who recommended that these four agencies also might be granted exemption from the provisions of the Act.
On June 28, 1984, the Government of Maharashtra finally rejected all the applications for exemption filed by the various security agencies.
Several security agencies thereupon filed writ petitions in the High Court of Bombay.
The twenty five writ petitions filed by the twenty one agencies whose cases were recommended by the Advisory Committee and the four agencies whose cases were recommended by the Labour Commissioner were admitted by the High Court and the rest were dismissed in limine.
The twenty five writ petitions which were admitted were also finally dismissed on July 11, 1985 by a learned Single Judge.
On appeals preferred by the twenty five secu rity agencies, a Division Bench of the Bombay High Court directed the State Government to consider afresh the appli cations for exemption.
An objection raised on behalf of the Security Guards Board and the Government of Maharashtra that security agencies could not seek exemption under sec.
23 of the Act was overruled.
The Bombay High Court took the view that the applications had been rejected as a result of the policy decision not to grant exemption to any security agency and that this was wrong.
The High Court held that each application for exemption had to be considered on its own merits and so disposed of.
Hence the direction to the Government to consider the applications afresh.
The Security Guards Board constituted under sec.
6 of the Act has preferred these twenty five appeals against the judgment of the Bombay High Court.
Shri K.K. Singhvi, learned counsel for the appellant, the Security Guards Board for Greater Bombay and Thana District, argued that sec.
23 of the Act did not contemplate the grant of exemption in favour of a security agency and therefore, the applications for exemption were liable to be rejected on that ground alone.
He further submitted that the High Court was wrong in holding that the applications had 25 been rejected on the basis of any policy decision.
They were rejected after consideration of all the applications on merits.
If there was a policy decision such a decision was arrived at on a consideration of all the applications for exemption and it was that none of the applications deserved to be allowed.
Shri Soli Sorabji and other learned counsel, who followed him, argued that the Act did not contemplate the abolition of the agency system as such and it was only meant to regulate and provide better conditions of service for Security Guards.
Wherever the conditions of service were better than those proposed under the Scheme, the Government was under a duty to grant the necessary exemption so that the employees may have the benefit of the advantageous conditions of service.
According to them, this result flowed from a perusal of the Act, in particular sees.
22 and 23.
It was also urged that the High Court was right in its conclu sion that the applications for exemption had not been re jected on merits but because of a policy decision.
We may now proceed to consider the rival submissions with reference to the provisions of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981.
The preamble to the Ordinance which preceded the Act recited, ".
. and whereas the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action to make a law for regulat ing the employment of private Security Guards employed in factories and establishments in the State of Maharashtra and for making better provision for their terms and conditions of employment and welfare, through the establishment of a Board therefore, and for matters connected therewith . . ".
The long title of the Act is, "An Act for regulating the employment of private Security Guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a Board therefore, and for matters connected therewith." Sec.
1(4) makes the Act applicable, "to persons who work as Security Guards in any factory or establishment, but who are not direct and regular employees of the factory or the establishment as the case may be." Secs.
2(1), (3), (4), (5), (8) and (10) defines the expres sions "agency", "employer", "establishment", "facto ry", "principal employer" and "Security Guard" as follows: " "agency", or "agent", in relation to a Security Guard, 26 means an individual or body of individuals or a body Corporate, who undertakes to execute any security work or watch and ward work for any factory or establishment by engaging such Security Guard on hire or otherwise, or who supplies such Security Guards either in groups or as an individual, and includes a sub agency or a sub agent; "employer", in relation to a Security Guard engaged by or through an agency or agent, means the principal employer, and in relation to any other Security Guard, the person who has ultimate control over the affairs of the factory or establishment and includes any other person to whom the affairs of such factory or establishment are entrusted, wheth er such person is called an Agent, Manager or by any other name prevailing in the factory or establishment; "establishment" means an establishment as defined in clause (8) of section 2 of the Bombay Shops and Establishments Act, 1948; "factory" means a factory as defined in clause (m) of section 2 of the ; "principal employer" means an employer who has engaged Security Guards through an agency or agent; "Security Guard" or "private Security Guard" means a person who is engaged or is to be engaged through any agency or an agent, wheth er for wages or not, to do security work or watch and ward work in any factory or estab lishment and, includes any person, not em ployed by any employer or agency or agent, but working with the permission of, or under an agreement with, the employer or agency or agent, but does not include the members of any employer 's family or any person who is a direct and regular employee of the principal employer;" Section 3 empowers the State Government for the purposes of ensuring an adequate supply and full and proper utilisation of Security Guards in factories and establishments and generally for making better provisions in the terms and conditions of employment of such workers, to make one or more schemes to provide for the registration of emp 27 loyers and Security Guards in any factory or establishment and to provide for the terms and conditions of employment of registered Security Guards and to make provisions for the general welfare of such Security Guards.
The matters in regard to which provisions may be made in the scheme are also set out in sec.
3(2) (a) to (n).
We may mention that clause (d) of sec.
3(2) in particular relates to terms and conditions of employment, including the rates of wages, hours of work, maternity benefit, over time payment, leave with wages, provision for gratuity and conditions as to weekly and other holidays and pay in respect thereof.
We should also mention here that sec.
3(2)(g) provides that the scheme may prohibit, restrict or otherwise control the employment of Security Guards to whom the scheme does not apply and the employment of Security Guards by employers to whom the scheme does not apply.
3(3) provides that the scheme may further provide for punishment for a contraven tion of any provision of the scheme with imprisonment or with fine.
4 prescribes the procedure for making, varying or revoking a scheme.
6 provides for the con stitution of a Board for the Security Guards in any area.
Sec. 8 prescribes the powers and duties of the Board.
15 provides for the constitution of an Advisory Committee.
19, 20 and 21 provide for the application of Workmen 's Compensation Act, Payment of Wages Act and Maternity Benefit Act to Security Guards.
22 and 23 are important.
22 provides for the preservation of existing rights and privileges if they are more favourable and sec.
23 provides for exemption from the provisions of the Act.
These provi sions are important for our present purposes.
They are as follows: "22.
Nothing contained in this Act shall affect any rights or privileges, which any registered Security Guard employed in any factory or establishment is entitled to, on the date on which this Act comes into force, under any other law, contract, custom or usage applicable to such Security Guard, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act and the Scheme: Provided that, such Security Guard shall not be entitled to receive any corre sponding benefit under the provisions of this Act and the Scheme.
The State Government may, after consulting the Advisory Committee, by notification in the Official Gazette, and subject to such condi tions and for such period 28 as may be specified in the notification, exempt from the operation of all or any of the,provisions of this Act or any Scheme made thereunder, all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments, if in the opinion of the State Government, all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits, which are on the whole not less favourable to such Security Guards than the benefits provided by or under this Act or any Scheme made thereun der: Provided that, before any such notification is issued, the State Government shall publish a notice of its intention to issue such notification, and invite objections and suggestions in respect thereto and no such notification shall be issued until the objec tions and suggestions have been considered and a period of one month has elapsed from the date of first publication of the notice in the Official Gazette: Provided further that, the State Government may, by notification in the Offi cial Gazette, at any time, for reasons to be specified, rescind the aforesaid notification.
" Pursuant to the powers conferred by section 4 of the Act, the Government of Maharashtra after consulting the Advisory Committee made the Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981.
Paragraph 11 of the Scheme requires the Board to maintain (1) a register of employers, and (2) a Pool Register which shall be a register of Security Guards.
Paragraph 12 empowers the Board to arrange for the classification of Security Guards in suit able categories as may be determined by it from time to time.
Paragraph 14 requires 'every employer who has engaged private Security Guards on the appointed day or at any time thereafter to 'get himself registered with the Board ' by applying in the prescribed form.
The employer of an estab lishment coming into existence after the commencement of the Scheme is required to apply for registration simultaneously with the commencement of its business.
Paragraph 15 requires 'any Security Guard who was working on the appointed day or at any time thereafter in the employment in the area to which the Scheme applies ' to 'apply to the Board ' in the prescribed form.
Paragraph 25 provides that every registered Security Guard shall be deemed to have accepted 29 the obligation of the Scheme.
A registered Security Guard in the pool who is available for work is required not to engage himself for employment under any registered employer unless he is allotted to that employer by the Secretary of the Board.
A registered Security Guard in the pool who is avail able for work is further required to carry out directions of the Board and to accept employment under any registered employer for which he is considered suitable by the Board.
Paragraph 26 provides that every registered employer shall accept the obligations of the Scheme.
A registered employer is required not to employ a Security Guard other than a Security Guard who has been allotted to him by the Secre tary.
A registered employer is however at liberty to employ Security Guard directly, A registered employer is required to disburse to the Security Guard the wages and other allow ances directly, if so directed by the Board and send to the Board a statement of such payment within the prescribed time.
Paragraph 27 prohibits the employment by a registered employer of a Security Guard unless the Security Guard is a registered Security Guard or a directly employed Security Guard.
Paragraph 29 makes detailed provision for wages, allowances and other conditions of service of Security Guards.
Paragraph 30 provides for the disbursement of wages and other allowances to the Security Guards.
Paragraph 31 provides for disciplinary procedure.
Paragraph 32 prohibits the termination of employment of registered Security Guard except in accordance with the provisions of the Scheme.
Paragraph 33 and paragraph 34 provide for appeals and termi nation.
Paragraph 35 provides.
for revision.
Paragraph 37 provides for the cost of operating the Scheme and makes provision for amenities and benefits to the registered Security Guards.
It is obvious from section 1(4) and the very definition of 'Security, Guard ' that the Act and, therefore, the Scheme are not applicable to persons who are direct and regular employees of a factory or establishment but are applicable only to persons working in any factory or establishment who are engaged or are to be engaged through an agency or agent and to persons who though not employed by the employer or agency or agent are working with their permission or under an agreement with them.
Section 23, we have seen, provides for exemption from the operation of all or any of the provi sions of the Act or any scheme made thereunder of "all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments." The basic condition to be satisfied is that the State Government should be of the opinion that "all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits, which are on the whole not less 30 favourable to such Security Guards than the benefits provid ed by or under this Act or any Scheme made thereunder. "A close scrutiny of section 23, particularly in the light of section 1(4) read with the definition of 'Security Guard ', makes it clear that the exemption is not in respect of an agency or an agent or even a factory or establishment but in respect of all or any class or classes of Security Guards employed in any factory or establishment or in any class or classes of factories or establishments.
In other words, the exemp tion is in regard to 'Security Guards ', employed in any factory or establishment or in any class or classes of factories or establishments.
The exemption may be in respect of all the Security Guards employed in a factory or estab lishment or in a class or classes of factories or establish ments or in respect of a class or classes of Security Guards so employed.
For example, all Security Guards employed in factory may be exempted or Security Guards of a particular grade or doing a particular type of work in factory may be exempted.
Again all Security Guards employed in a class of factories, say textile mills may be exempted.
All Security Guards in all textile mills doing a particular type of work or drawing a particular scale of pay may be exempted.
The correlationship of the Security Guards or classes or Securi ty Guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishments in which they work and not with the agency or agent through and by whom they are employed.
This analysis has however no bearing on the question of locus standi of the persons who may seek the intervention of the State Government by the issue of notifications for exemption.
Obviously the Security Guards or classes or Security Guards employed in a factory or establishment may apply to the Government to exempt them from the operation of the Act.
Similarly Security Guards or classes of Security Guards employed in classes of factories or establishments may apply to the Government to exempt them from the opera tion of the Act.
Again a factory or an establishment or a class or classes of factories or establishments may apply to the Government to exempt Security Guards employed in their factories or establishments from the operation of the Act.
Though agencies or agents do not enter the picture directly, since the very definition of Security Guards means persons engaged or to be engaged through an agency or agent, it must follow that where Security Guards have been engaged or are to be engaged through them in any factory or establishment or a class of factories or establishments, such agency or agent may also apply to the Government, not to exempt all Security Guards engaged or to be engaged through them out to exempt Security Guards engaged or to be engaged in a factory or establishment or a class of factories or establishments.
The question is 31 not one of locus standi at all but which or what class of Security Guards are to be exempted from the operation of the Act and the Scheme.
Therefore, we are of the view that even an agency or agent may apply to the Government to grant exemption, but the exemption to be granted by the Government is not to be of any agency or agent but only of Security Guards employed in a factory or establishment or a class or classes of factories or establishments.
One of the submissions of the learned counsel was that if section 23 was read in the light of section 22 it would follow that an agency could ask for exemption from the operation of the Act of all Security Guards employed through them.
We do not see how that follows.
All that section 22 provides in effect is that the rights or privileges of any registered Security Guard shall not be altered to his detriment.
It only means that if hitherto as an employee of the agency, the terms and conditions of his services were more attractive on the whole than the terms and conditions of service offered by the Act and the scheme under the factory or establishment, the original terms and conditions of service will be preserved and become applicable to their service under the factory or establishment.
It was submitted by the learned counsel that the Act and the Scheme did not provide for termination of the contract of employment between the agency and the Secu rity Guard or for the transfer of the services of the Secu rity Guards from the employment of the Agency to that.of the factory or establishment.
We do not agree with the submis sion.
By necessary implication, the services of the Security Guards will stand transferred to the service of the factory or establishment on allotment to it by the Board.
It is in that fashion, among other things, that security of service is secured to the Security Guards.
The High Court appeared to think that all the applica tions were rejected on the ground that a policy decision had been taken not to grant exemption in any case.
The High Court relied on the affidavit of Shri Rajadhyaksha.
It was stated in the affidavit of Shri Rajadhyaksha that the opin ion of the Advisory Committee was sought on the applications for exemption and the Advisory Committee recommended the applications of 21 applicants.
Later the cases of four other applicants were recommended by the Labour Commissioner.
After referring to these circumstances, Shri Rajadhyaksha stated in the affidavit.
"I say that after the receipt of the recommen dations from the Advisory Committee by the Department of Industries, Energy and Labour, all the papers were submitted to the 32 Chief Minister through the Minister for Labour and the Minister of State for Labour to con sider whether to publish the notice of the Government 's intention to issue such notifica tion and invite objections and suggestions in respect thereto.
I say that after considering all the pros and cons of the problem, the Hon 'ble the Chief Minister, in consultation with the Hon 'ble Minister for Labour and the Hon 'ble Minister of State for Labour took the decision that none of the agencies who had applied for exemption should be granted exemp tion under s.23 of the said Act because grant ing of such exemption will not be in the interest of the Security Guards employed with the agencies.
" Later again Shri Rajadhyaksha stated; "I say that simply because the Advisory Com mittee had recommended the case for exemption, it was not obligatory on the State Government to publish a notice of its intention to issue notification for exemption as alleged therein.
I say that it was for the Government to con sider the entire matter and to decide whether such a notification should be issued or not and if as a matter of policy and after going through the entire case the Government decided not to grant exemption no exception can be taken to the decision of the State Government.
" We do not read the affidavit of Shri Rajadhyaksha to say that there was a predetermined policy decision pursuant to which all the applications for exemption were rejected without any consideration on merits.
What the deponent of the affidavit meant to say was that the merits of each case were fully considered and the applications were rejected because it was their policy not to grant exemption if it was not in the interest of the Security Guards; A complaint was made that the Government did not state its reasons for rejecting the applications for exemption.
We do not think that in cases of this nature where exemptions are sought from the operation of the Act, it is necessary for the Government to state its reasons.
Of course, if there is a charge of mala fides or arbitrariness, the court may look into it to discover if there are any mala fides or if the refusal of the Government was arbitrary.
We do not think that the orders refusing to grant exemptions in the present cases call for any interference on the sole ground of fail ure to state reasons.
33 In the result all the appeals are allowed and the writ petitions filed in the High Court are dismissed.
Civil Writ Petition No. 12319 of 1985 filed by one of the agencies in this Court is also dismissed.
The State of Maharashtra has also filed a special leave petition against the judgment of the Bombay High Court.
It is disposed of on the same lines as the civil appeals.
On behalf of some of the Security Guards a writ petition was filed in the Bombay High Court and it has been withdrawn to this Court to be disposed of along with the appeals.
One of the contentions raised in the writ petition filed by the workmen is that the Scheme does not offer any continuity or guarantee of employment to those who are already working in factories or establishments having been engaged through agencies.
We are assured by Shri K.K. Singhvi, learned counsel for the Board that every individual registered Security Guard who was previously working in a factory or establishment will be allotted to the same factory or estab lishment and if the total package of the terms and condi tions of his service were better than the terms and condi tions of service offered by the Board such person should be employed on the previous terms and conditions of service.
The assurance of Shri Singhvi is made part of our order.
The learned counsel for the workmen also urged that there was an insistence upon payment of 'capitation fee ' and sponsoring by a union before a Security Guard was registered under the Scheme.
This, of course is not permissible under the Act or the Scheme and whoever has been so insisting will desist from doing so.
P.S.S. Appeals allowed.

summary:
Section 1(4) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 makes the provisions of the Act applicable to security guards who were not direct and regular employees of the factory or the establishment.
A 'security guard ' is defined in section 2(10) as a person who is engaged or is to be engaged through any agency or an agent to do security work.
Section 3 empowers the State Government to make schemes to provide for the registration of employers and security guards and the terms and conditions of employment of registered security guards and their general welfare.
Section 22 provides for preserva tion or ' existing rights and privileges of security guards if they are more favourable to them than those under the Act.
Section 23 empowers the State Government to exempt security guards from the operation of the provisions of the Act or any scheme made thereunder.
The Security Guards Board was constituted under section 6 of the Act and the Private Security Guards (Regulation or ' Employment and Welfare) Scheme, 1981 was also made to give effect to the Act.
The respondents ' applications for exemption from the provisions of the Act having been rejected by the State Government they filed writ petitions before the High Court which were dismissed by a Single Judge.
20 On appeal, the Division Bench took the view that the applications had been rejected as a result of the policy decision not to grant exemption to any security agency and that this was wrong, that each application for exemption had to be considered on its own merits and so disposed of, and consequently directed the Government to consider the appli cations afresh.
In these appeals, it was contended for the appellant Security Guards Board that section 23 of the Act did not contem plate the grant of exemption in favour of a security agency, on which ground alone the applications were liable to be rejected, and that the applications were rejected after consideration on merits and not on the basis of any policy decision.
For the respondents it was argued that if section 23 was read in the light of section 22 it would follow that an agency could ask for exemption from the operation of the Act, that wherever the conditions of service were better than those proposed under the scheme the Government was under a duty to grant exemption, and that the Act did not contemplate the abolition of the agency system as such or termination of the contract of employment between the agency and the security guards, or for the transfer of the services of the security guards from the employment of the agency to that of the factory or establishment.
Allowing the appeals, the Court, HELD: 1.
The orders of the State Government refusing to grant exemption to the respondents from the operation or ' the provisions of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 do not call for any interference.
[32GH] 2.
Section 23 of the Act read with section 1(4) and the definition of 'security guard ' in section 2(10) makes it apparent that the exemption is in regard to security guards employed in any factory or establishment or in any class or classes of factories or establishments and not in respect of an agency or an agent.
All security guards employed in a facto ry may be exempted or security guards of a particular grade or doing a particular type of work in the factory may be exempted.
Again, all security guards employed in a class of factories, say textile mills, may be exempted.
All security guards in textile mills doing a particular type of work or drawing a particular scale of pay may be exempted.
The correlationship of the security guards or classes of securi ty guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishments in which they work and not to the agency or agent through and by whom they are employed.
[30A D] 21 3.
The question is not one of locus standi at all but which or what class of security guards are to be exempted from the operation of the Act and the scheme.
The security guards or classes of security guards employed in a factory or establishment or in a class or classes of factories or establishments may apply to the Government to exempt them from the operation of the Act.
Similarly a factory or an establishment or a class or classes of factories or estab lishments may apply to the Government to exempt security guards employed in their factories or establishments from the operation of the Act.
Where security guards have been engaged or are to be engaged through an agency or agent in any factory or establishment or a class of factories or establishments, such an agency Or agent may also apply to the Government, not t9 exempt all security guards engaged or to be engaged through them but to exempt security guards engaged or to be engaged in a factory or establishment or a class of factories or establishments.
The exemption to be granted by the Government is not to be of any agency or agent but only of security guards employed in a factory or establishment or a class or classes of factories or estab lishments.
[30H 31 A; 30E; G; 31 AB] 4.
Even if section 23 is read in the light of section 22 it does not follow that any agency can ask for exemption from the operation of the Act of all security guards employed through them.
All that section 22 provides in effect is that the rights or privileges of any registered security guard shall not be altered to his detriment, which only means that if hitherto as an employee of the agency the terms and conditions of his service were more attractive on the whole than the terms and conditions of service offered by the Act and the scheme under the factory or establishment, the original terms and conditions of service will be preserved and become applica ble to their service under the factory or establishment.
[31B D] 5.
The Act and the scheme provide for termination of the contract of employment between the agency and the security guards, and by necessary implication the services of the security guards will stand transferred to the service of the factory or establishment on allotment to it by the Board.
It is in that fashion, among other things, that security of service is secured to the security guards.
[31 DE] 6.
In cases of this nature where exemptions are sought from the operation of the Act, it is not necessary for the Government to state its reasons.
Of course if there is a charge of mala fides or arbitrariness.
the Court may look into the matter to discover if there were any mala fides or if the refusal of the Government was arbitrary.
In the instant case.
there was none.
[32GH] 22 7.
The merits of each case were fully considered by the Government and the applications were rejected because it was their policy not to grant exemption if it was not in the interest of the security guards.
There was no predeter mined policy decision as such.
[32F] 8.
Every individual registered security guard who was previously working in a factory or establishment will be allotted to the same factory or establishment and if the total package of the terms and conditions of his service were better than the terms and conditions of service offered by the Board such person would be employed on the previous terms and conditions of service.
[33CD] 9.
Charging of 'capitation fee ' by a union before spon soring a security guard tot registration under the scheme is not permissible under the Act or the scheme.


judgement:
(Crl.) No. 292 of 1986.
(Under Article 32 of the Constitution of India).
Ram Jethmalani, Ms. Rani Jethmalani and A.K. Sharma for the Petitioner.
Anil Dev Singh, Mrs. Indra Sawhney and Ms. section Relan for the Respondents.
The Judgment of the Court was delivered by SEN, J.
By this petition under Article 32 of the Consti tution, the petitioner Smt.
Poonam Lata has asked for the issue of a writ of habeas corpus for the release of her husband, Shital Kumar who has been 1127 detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue.
dated February 28, 1986.
made under section 3(1) of (hereinafter referred to as the 'Act '), on being satisfied that it was necessary to detain him "with a view to preventing him from dealing in smuggled goods".
Put very briefly, the essential facts are these.
The Directorate of Enforcement, New Delhi, gathered intelligence over a period of time before making of the impugned order of detention which revealed that the detenu was engaged in receiving smuggled gold from across the Indo Nepal Border and was making payments in foreign currency and remitting the sale proceeds of such smuggled gold out of the country in the shape of U.S. dollars with the help of carriers.
On February 26.
1986, the Directorate received information that the three carriers, namely, Ram Deo Thakur, Shyam Thakur and Bhushan Thakur would be leaving under the assumed names of Dalip, Mukesh and Rajesh respectively by 154 Dn.
Jayanti Janata Express leaving New Delhi Railway Station at 6.45 p.m.
Accordingly, the officers of the Delhi Zone of the Directorate mounted surveillance at Platform No. 5 of the Railway Station from which the train was to steam off.
The said carriers were detrained and upon search of their bag gage, the officers recovered $ 29,750 and Rs.1500 from Ram Deo Thakur @ Dalip, $ 28,900 and Rs.650 from Shyam Thakur @ Mukesh and $ 20,000 and Rs.1,000 from Bhushan Thakur @ Rajesh.
The same ware seized under section 110(1) of the .
The total value of the seized foreign currency was equivalent to Rs.10,25,000 in round figure.
During interrogation by the officers under section 108 of the , these persons stated that the seized for eign currency totaling $ 78,650 had been paid by the detenu towards the price of 48 gold biscuits of foreign origin brought by them from Darbhanga to New Delhi and made over to him and accordingly the detenu was taken into custody on February 27, 1986.
He too made a statement under section 108 of the Act confessing that he was dealing in smuggled gold brought across the Indo Nepal Border and has been remitting the price of such gold in U.S. dollars through different carriers.
On February 28, 1986, the detenu was served with the impugned order of detention along with the grounds thereof and copies of the relevant documents relied upon in the grounds.
On March 25, 1986.
the detenu submitted a represen tation under section 8(b) of the Act and the detaining authority by its order of April 4, 1986 rejected the 1128 same.
On April 12, 1986 the detenu made a representation to the Advisory Board through the Superintendent of the Central Jail, Tihar.
The representation together with comments of the detaining authority and the relevant documents were forwarded by the Ministry of Finance, Department of Revenue to the Advisory Board.
On the same day the detenu appears to have made a representation to the Central Government and it was received in the Ministry of Finance on April 24, 1986.
The Minister of State for Finance rejected the said repre sentation on April 28, 1986 and the detenu was informed about it the following day.
The Advisory Board had its sittings on April 28 and 29, 1986.
and came to the conclu sion that there was sufficient cause for the detention and sent its report on May 8, 1986.
The Minister considered the report of the Advisory Board and confirmed the order of detention on May 14, 1986 and the Central Government 's order of confirmation was duly communicated on May 26, 1986.
The representation of the detenu was still before the Advisory Board when the petitioner moved this Court under Article 32 of the Constitution on April 23, 1986.
On April 29, 1986, notice was ordered by the Court returnable on May 3, 1986, and it directed that the matter may be placed before the Vacation Judge on May 15, 1986.
On that date, the learned Vacation Judge made an order for the release of the detenu on parole in the following terms: "The detenu is released on parole until fur ther orders on the condition that he will report to the Directorate of Revenue Intelli gence, New Delhi every day and the Directorate will be at liberty to ask him to explain his conduct during this time.
Reply affidavit may be filed within two weeks.
The matter will be listed two weeks after reopening of the Court after summer vacation.
In the meantime, the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole.
" Notwithstanding the order of the learned Vacation Judge that the matter should be listed within two weeks after the re opening of the Court after the long vacation it should have been some time in early August of 1986 the case was not listed till January 14, 1987.
The 1129 respondents also took no steps to apply for early listing of the matter.
On January 14, 1987, a prayer was made by the learned counsel appearing for the Union of India seeking two weeks ' time to file an additional affidavit and the case was ordered to be listed on March 3. 1987.
During all these months, the detenu has been out of jail.
Indisputably the detention was for one year.
When the matter came up for hearing on the 3rd of March, 1987, Shri Jethmalani, learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of parole i.e. from May 15, 1986 till February 28, 1987, could not be added to the period of detention specified in the impugned order under sub section
(1) of section 3 of the Act and the period of one year from the date of detention having expired on February 26, 1987, the impugned order had lapsed and the detenu became entitled to be freed from the shackles of the order of detention.
Ac cording to the learned counsel, section 10 of the Act prescribes the maximum period of detention to be one year or two years, as the case may be, from the date of detention or the specified period, whichever expires earlier.
Admittedly in respect of the detenu no decla ration under section 9 of the Act has been made and, therefore, the maximum period of detention so far as he is concerned is one year and it has to be reckoned as prescribed under section 10 of the Act.
That section indicates not only the starting point but also the outer limit.
In other words, the argument is that once the detenu is taken into custody under the Act pursuant to an order of deten tion, the running of time would not be arrest ed merely because the Court directs release of the detenu on parole.
Shri Jethmalani drew a distinction between 'bail ' and 'parole '; he contended that preven tive detention was not a sentence by way of punishment and, therefore, the concept of serving out which pertains to punitive juris prudence cannot be imported into the realm of preventive detention.
According to him, the grant of parole to a detenu amounts to a provisional release from confinement; yet the detenu continues to be under judicial deten tion; release from jail custody subject to restrictions imposed on free and unfettered movement transfers the detenu to judicial custody.
Since there is no provision to autho rise interruption of running of the period of detention, release on parole does not bring about any change in the situation.
It has further been argued that when the Court enter tains a writ petition for grant of habeas corpus and issues a rule nisi, the detenu is deemed to have come into judicial custody and the effect of grant of parole does not termi nate such custody but merely allows greater freedom of move 1130 ment to the detenu.
Conditions imposed on the detenu during parole impinge upon his freedom and liberty; therefore, the period during which a detenu is released on parole cannot be taken as a period during which the detention is not operative.
Shri Jethmalani placed reliance on the ratio of the Privy Council decision in Lala Jairam Das & Ors.
vs Emperor, AIR 1945 PC 94 to contend that but for the special provision contained in sub section (3) of section 426 of the old Code of Criminal Proce dure, 1898 (corresponding to section 389(4) of the Code of 1973) the power of the Court to grant bail to a convicted person or accused would not include a power to exclude the period of bail from the term of the sentence.
The same principle ought to apply in the case of re lease of a detenu on bail or parole and the Court therefore cannot on general principles add the period of bail or parole to the period of detention.
In the absence of any provision regarding the grant of parole and the computa tion of the period thereof and in view of the special provisions contained regarding com mencement and the computation of the period of detention of one year, the period of parole cannot be deducted while computing the period of one year of detention.
The learned counsel also relied upon the direction made by a Bench of three Judges in the case of Amritlal Chan numal Jain etc.
vs State of Gujarat & Ors.
(Writ Petitions Nos.
1342 43, 1345 48 and 1362 of 1982 and No. 162 of 1983 dated July 10, 1985) where this Court directed that the period during which a detenu was on parole should be taken into account while calculating the total period of detention.
According to learned counsel the direction in Amritlal Channumal Jain 's case was given after a Bench of two Judges in Harish Makhija vs State of U.P. Crl.
M.P. No. 620 of 1984 in U.P. (Crl.) No. 301 of 1983 held on February 11, 1985, that the period of parole cannot be counted towards the period of detention.
Shri Jethmal ani has submitted that in view of the direc tion of the larger Bench of this Court, the ratio laid down in Amritlal Channumal Jain 's case (supra) has to prevail and must be taken as binding on us.
There is no denying the fact that preven tive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preven tive detention.
The grant of parole is essen tially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considera tions.
Historically 'parole ' is a concept known to military law and denotes release of a prisoner of war on promise to return.
Parole has become an integral part of the English and American systems of criminal justice inter twined with the evolution of changing atti tudes of the society towards crime and crimi nals.
1131 As a consequence of the introduction of parole into the penal system, all fixed term sen tences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served.
In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise.
It is a provisional release from confinement but is deemed to be a part of the imprisonment.
Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to trans form himself into a useful citizen.
Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner.
Rules are flamed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.
(See: The Oxford Companion to Law, edited by Walker, 1980 edn., p. 931, Black 's Law Dictionary, 5th edn., p. 1006, Jowitt 's Dictionary of English Law, 2nd edn., Vol. 2, p. 1320, Kenny 's Outlines of Criminal Law, 17th edn., p. 574 76, The English Sentencing System by Sir Rupert Cross at pp.
31 34, 87 et seq.
, American Jurisprudence, 2nd edn., Vol.
59, pp.
53 61, Corpus Juris Secundum, vol.
67, Probation and Parole, Legal and Social Dimen sions by Louis P. Carney).
It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehavior.
There is abundance of authority that High Courts in exercise of their jurisdiction under Article 226 of the Constitution do not release a detenu on bail or parole.
There is no reason why a different view should be taken in regard to exercise of jurisdiction under Article 32 of the Constitution particularly when the power to grant relief to a detenu in such proceedings is exercisable on very narrow and limited grounds.
In State of Bihar vs Rambalak Singh & Ors., a Constitution Bench laid down that the release of a detenu placed under detention under Rule 30 of the Defence of India Rules, 1962.
on bail pending the hearing of a petition for grant of a writ of habeas corpus was an improper exercise of jurisdiction; It was observed in that case that if the High Court was of the view that prima facie the impugned order of detention was patently illegal in that there was a serious defect in the order of detention which would justify the release of the detenu, the proper and more sensible and reasonable course would invariably be to expedite the hearing of the writ petition and 1132 deal with the merits without any delay rather than direct release of the detenu on bail.
Again, in State of Uttar Pradesh vs Jairam & Ors., [1982] 1 SCC 176 a three Judge Bench speaking through Chandrachud, CJ., referred to Rambalak Singh 's case and set aside the order passed by the learned Single Judge of the High Court admitting the detenu to bail on the ground that it was an improper exercise of jurisdiction.
As to grant of parole, it is worthy of note that in none of the cases this Court made a direction under Article 32 of the Constitution for grant of parole to the detenu but left it to the executive to consider whether it should make an order in terms of the relevant provision for temporary release of the person detained as under section 12 of the COFEPOSA, in the facts and circumstances of a particular case.
In Samir Chatterjee vs State of West Bengal; , , the Court set aside the order of the Calcutta High Court releasing on parole a person detained under section 3(1) of the and unequivocally viewed with disfavor the observations made by Krishna Iyer, J. in Babulal Das vs State of West Bengal, ; to the effect: "While discharging the rule issued and dis missing the petition, we wish to emphasize that section 15 is often lost sight of by the Government in such situations, as long term preventive detention can be self defeating or criminally counter productive.
Section 15 reads: 15.
Temporary release of persons detained We consider that it is fair that persons kept incarcerated and embittered without trial should be given some chance to reform them selves by reasonable recourse to the parole power under section 15.
Calculated risks, by re lease for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised.
" Alagiriswamy, J. speaking for the Court, observed in no uncertain terms: 1133 "We fail to see that these observations lay down any principle of law.
Section 15 merely confers a power on the Government.
The power and duty of this Court is to decide cases coming before it according to law.
In so doing it may take various considerations into ac count.
But to advise the Government as to how they should exercise their functions or powers conferred on them by statute is not one of this Court 's functions.
Where the Court is able to give effect to its view in the form of a valid and binding order that is a different matter.
Furthermore, section 15 deals with release on parole and there is nothing to show that the petitioner applied for to be released on parole for any specific purpose.
As far as we are able to see, release on parole is made only on the request of the party and for a specific purpose.
" The innovative view expressed by Krishna lyer, J. in Anil Dey vs State of West Bengal, 14 which he tried to reiterate in Golam Hussain vs The Commissioner of Police, Calcutta & Ors., ; and in Babulal Das ' case, (supra), therefore, no longer holds the field, and rightly so, because the Court cannot usurp the functions of the Government.
Section 10 of the Act provides that the maximum period for which any person may be detained in pursuance of an order of detention to which provisions of section 9 do not apply shall be for a period of one year from the date of detention or the specified period, whichever expires earli er.
The key to the interpretation of section 10 of the Act is in the words 'may be detained '.
The subsequent words 'from the date of detention ' which follow the words 'maximum period of one year ' merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling.
under section 9.
There is no justifiable reason why the word 'detain ' should not receive its plain and natural meaning.
According to the Shorter Oxford English Dictionary, vol. 1, p. 531, the word 'detain ' means "to keep in confinement or custody".
Webster 's Campre hensive Dictionary, International Edition at p. 349 gives the meaning as "to hold in custody".
The purpose and object of section 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order.
It would not be violated if a person against whom an order of deten tion is passed is held in actual custody in jail for the period prescribed by the section.
The period during which the detenu is on parole cannot be 1134 said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody.
The order of detention pre scribes the place where the detenu is to be detained.
Parole brings him out of confinement from that place.
Whatever may be the terms and conditions imposed for grant of parole, detention as contemplated by the Act is interrupted when release on parole is obtained.
The position would be well met by the appropriate answer to the question "how long has the detenu been in actual custody pursuant to the order?" According to its plain construction, the purpose and object of section 10 is to prescribe not only for the maximum period but also the method by which the period is to be computed.
The computation has to commence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of parole, the detention would not continue when parole operates and until the detenu is put back into custo dy.
The running of the period recommences then and a total period of one year has to be counted by putting the differ ent periods of actual detention together.
We see no force in Shri Jethmalani 's submission that the period during which the detenu was on parole has to be taken into consideration in computing the maximum period of detention authorised by section 10 of the Act.
It is pertinent to observe that the Court has no power to substitute the period of detention either by abridging or enlarging it.
The only power that is available to the Court is to quash the order in case it is found to be illegal.
That being so, it would not be open to the Court to reduce the period of detention by admitting the detenu on parole.
What in a given situation should be the sufficient period for a person to be detained for the purpose of the Act is one for the subjective satisfaction of the detaining author ity.
Preventive detention jurisprudence in this regard is very different from regular conviction followed by sentence that an accused is to suffer.
Whether it be under Article 226 or Article 32 of the Constitution, the Court would, therefore, have no jurisdiction either under the Act or under the general principles of law or in exercise of ex traordinary jurisdiction to deal with the duration of the period of detention.
Parliament has authorised the detention of persons under the COFEPOSA to serve two purposes: "(1) To prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foreign exchange and also preventing him from smuggling activities 1135 and thereby to render him immobile for the period considered necessary by the detaining authority so that during that period the society is protected from such prejudicial activities on the part of the detenu.
And (2) In order to break the links between the person so engaged and the source of such activity and from his associates engaged in that activity or to break the continuity of such prejudicial activities so that it would become difficult, if not impossible, for him to resume the activities.
" Release of a detenu on parole after an order of detention has been made and the detenu lodged in custody for achieving one or the other of the aforesaid legislative objects is thus contrary to the purpose of the statute.
There is a statutory prohibition against release of a detenu during the period of detention in sub section (6) of section 12 of the Act.
That sub section which was inserted by Amending Act 39 of 1975 with effect from 1.7.1975 reads: "Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a deten tion order made under this Act is in force shall be released whether on bail or bail bond or otherwise.
" Sub section (6) puts a statutory bar to the release of the detenu during the period of detention in a manner otherwise than the one provided in section 12.
Section 12 authorises either the Central Government or the State Government to temporarily release the detenu on such terms and conditions as the appropriate Government considers necessary to impose.
The scheme of section 12, unless release by the appropriate Government is taken to be one of parole, keeps away parole from the subject of preventive detention.
At any rate, it is the appropriate Government and not the Court which deals with a case of temporary release of the detenu.
Since the Act authorises the appropriate Government to make an order of temporary release, invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first.
It may be that in a given case the Court may be required to consider the propriety of an adverse order by the Government in exercise of the jurisdiction under section 12 of the Act.
On the principle that exercise ' of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to 1136 examine the legality and propriety of the governmental action.
There is no scope for entertaining an application for parole by the Court straightaway.
The legislative scheme, keeping the purpose of the statute and the manner of its fulfilment provided thereunder, would not justify enter taining of an application for release of a detenu on parole.
Since in our view release on parole is not a matter of judicial determination, apparently no provision as contained in the Code of Criminal Procedure relating to the computa tion of the period of bail was thought necessary in the Act.
But we would like to point out to the Government the desira bility of inserting a provision like sub s.(4) of section 389 of the Code of Criminal Procedure, 1973 that when an action is taken under section 12 of the Act and the appropriate Gov ernment makes a temporary release order, the period of such temporary release whether on bail or parole has to be ex cluded in computing the period of detention.
Either the statute or the rules made thereunder should provide for this eventuality.
In the premises, it must accordingly be held that the period of parole has to be excluded in reckoning the period of detention under sub section (1) of section 3 of the Act.
We find it difficult from the observations made by the three Judge Bench in Amritlal Channumal Jain 's case to infer a direction by this Court that the period of parole shall not be added to the period of detention.
The words used 'shall be taken into account ' are susceptible of an inter pretation to the contrary.
We find that an order made by a bench of two Judges of this Court in Harish Makhija 's case (supra) unequivocally laid down that the period of parole cannot be counted towards the period of detention.
This accords with the view taken by this Court in a bench of two Judges in State of Gujarat vs Adam Kasam Bhaya, ; and State of Gujarat vs Ismail Juma & Ors., ; In view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain 's case (supra) is capable of another construction as well, we do not find Shri Jethmalani 's contention on this score as acceptable.
For these reasons, the only contention advanced by Shri Jethmalani in course of the hearing, namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub s.(1) of section 3 of the Conserva tion of Foreign Exchange & Prevention of Smuggling Activi ties Act, 1974, must fail.
The writ petition is accordingly 1137 dismissed.
There shall be no order as to costs.
We direct that the petitioner shall surrender to custody to undergo remaining period of detention.
We give the detenu ten days ' time to comply with this direction failing which a non bailable warrant for his arrest shall issue.
P.S.S. Petition dis missed.

dataset_name: IN-Abs

summary:
Sub section (6) of section 12 of the prohibits release of a detenu on bail, or bail bond or otherwise, during the period a detention order is in force.
Sub sections (1) and (1A) of section 12, however, permit tempo rary release by the Central or State Governments on certain terms and conditions.
Section 10 provides for a maximum period of detention of one year in cases .to which provi sions of section 9 do not apply.
The husband of the petitioner was detained under section 3(1) of the Act by an order dated February 28, 1986.
His repre sentation under section 8(b) was rejected by the detaining au thority on April 4, 1986.
The Advisory Board in its sittings on April 28 and 29, 1986 concluded that there was sufficient cause for detention.
The order of detention was confirmed by the Minister on May 14, 1986.
The writ petition filed under Article 32 of the Consti tution on April 23, 1986 was heard by the Vacation Judge on May 15 1986 who made an order for the release of the detenu on parole and directed the matter to be listed in early August of 1986.
The case, however, could not be listed till January 14, 1987, and was finally heard on March 3, 1987.
The detenu had been out of Jail during the entire period.
The period of one year expired on February 28, 1987.
1124 It was contended for the petitioner that the period of parole from May 15.
1986 till February 28.
1987 could not be added to the period of detention specified in the order under sub section
(1) of section 3 of the Act, that the period of one year from the date of detention having expired on February 28.
1987 the order of detention had lapsed entitling the detenu to be freed, and that once the detenu is taken into custody under the Act pursuant to an order of detention the running of time would not be arrested merely because the court directs the release of the detenu on parole.
Relying on the decision in Lala Jairam Das & Ors.
vs Emperor.
(AIR it was contended that the court cannot on gener al principles add the period of bail or parole to the period of detention, and that the ratio laid down in Amritlal Channumal Jain etc.
vs State of Gujarat & Ors., (W.P. Nos.
1342 43 of 1982 decided on July 10, 1985) that the period during which a detenu was on parole should be taken into account while calculating the period of detention has to prevail and must be taken as binding.
Dismissing the writ petition.
the Court.
HELD: 1.
The period of parole of the detenu from May 15, 1986 to February 28.
1987 has to be excluded in reckoning the period of his detention for one year under sub section
(1) of section 3 of the .
[1136D, G H] 2.1 The purpose and object of section 10 of the Act is to prescribe not only a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order but also the method by which the period is to be computed.
The key to the interpretation of the section is in the words "may be detained.
" The subsequent words "from the date of detention" which follow the words "maximum period of one year" merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not fall ing under section 9.
There is no justifiable reason why the word "detain" should not receive its plain and natural meaning 'to hold in custody '.
[1134B; 1133G, EP] 2.2 The period during which the detenu is on parole cannot be said to be a period during which he has been held in custody pursuant to the order of his detention.
In such a case he was not in actual custody.
The order of detention prescribes the place where the detenu is to be detained.
Parole brings him out of confinement from that place and detention as contemplated by the Act is interrupted until the detenu is put back into custody.
The running of the period recommences then and 1125 a total period of one year has to be counted by putting the different periods of actual detention together.
In the instant case it cannot, therefore, be said that the period during which the detenu was on.
parole has to be taken into consideration in computing the maximum period of detention authorised by section 10 of the Act.
[1133H; 1134A D] Harish Makhija vs State of U.P., Crl.
M.P. No. 620 of 1984 in W.P. (Crl.) No. 301 of 1983 decided on February 11, 1985; State of Gujarat vs Adam Kasam Bhaya, ; and State of Gujarat vs IsmaiI Juma & Ors., ; referred to.
Amritlal Channumal Jain etc.
vs State of Gujarat & Ors.
, Writ Petitions Nos.
1342 43 of 1982 decided on July 10, 1985, distinguished.
Parole is the release of a prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his in carceration in the event of misbehavior.
It is a grant of partial liberty or lessening of restrictions to a convict prisoner and does not change the status of the prisoner.
[1131E, BC] Preventive detention is not punishment.
The scheme of section 12.
unless temporary release by the appropriate Government is taken to be one of parole, keeps away parole from the subject of preventive detention.
[1130F; 1135F] 4.1 What in a given situation should be the sufficient period for a person to be detained for the purpose of the COFEPOSA Act is one for the subjective satisfaction of the detaining authority.
Preventive detention jurisprudence in this regard is very different from regular conviction fol lowed by sentence that an accused is to suffer.
[1134EF] 4.2 Whether it be under article 226 or article 32 of the Constitution.
the Court has no jurisdiction either under the Act or under the general principles of law or in exercise of extraordinary jurisdiction to deal with the duration of the period of detention either by abridging or enlarging it.
The only power that is available to it is to quash the order in case it is found to be illegal.
It would not, therefore, be open to the Court to reduce the period of detention by admitting the detenu on parole.
[1134F,E] 5.
Sub section
(6) of section 12 of the Act puts a statutory bar to the release of the detenu after an order of detention has been made and the detenu lodged in custody.
It is the appro priate Government and not the Court 1126 which deal with a case of temporary release of the detenu under subss.(1) and (1A) of section 12 of the Act.
The detenu seeking to have the benefit of temporary relief must go to the appropriate Government first.
The Court cannot entertain his application for parole straightaway.
On the principle that exercise of administrative jurisdiction is open to Judicial review by the superior Court, the High Court under article 226 or this Court under article 32 may in a given case examine the legality and propriety of the Government action.
[1135E,C, F, G; 1136A; 1135H] Samir Chatterjee vs State of West Bengal, ; ; State of Bihar vs Rambalak Singh & Ors., and State of; Uttar Pradesh vs Jairam & Ors., [1982] 1 SCC 176, referred to.
Babulal Das vs State of West Bengal, ; ; Anil Dey vs State of West Bengal, and Golam Hussain vs Commissioner of Police, Calcutta & Ors. ; , overruled.
It is desirable to insert in the COFEPOSA Act or the Rules made thereunder a provision like sub s.(4) of section 389 of the Code of.
Criminal Procedure, 1973 that when an action is taken under section 12 of the Act and the appropriate Govern ment makes a temporary release order the order of such temporary release whether on bail or parole has to be ex cluded in computing the period of detention.
[1136C] Lala Jairam Das & Ors.
y. Emperor AIR 1945 PC 94, referred to.


judgement:
ivil Appeal No. 165 of 1974 etc.
From the Judgment and Decree dated 22.10.1973 of the Kerala High Court in S.A. No. 580 of 1970.
T.S. Krishnamoorthy Iyer and N. Sudhakaran for the Appellants.
P.S. Poti, S.B. Saharya and Ms. Ratna Nair for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
After hearing Counsel appearing on both sides we do not find any merit in this appeal and the Special Leave Petitions.
The sole question raised before us in the appeal con cerns the interpretation of Section 7D of the Kerala Land Reforms Act, 1963 Act 1 of 1964 as amended by Act, 35 of 1969.
That section reads "7D.
Certain persons occupying private forests or unsur 111 veyed lands to be deemed tenants Notwith standing anything to the contrary contained in section 52 or any other provision of the , or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar to which the provisions of the Madras Preserva tion or Private Forests Act, 1949 (XXVII of 1949), were applicable on the 11th day of April, 1955 or which was unsurveyed on that date, shall be deemed to be a tenant if he or his predecessor in interest was continuously in occupation of such land for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967.
" The High Court has taken the view that the benefit of the above section would apply only to persons whose occupa tion of the private forests or unsurveyed lands had a lawful origin and not to persons m unlawful occupation based on trespass or forcible and unlawful entry.
We are of opinion that the said interpretation placed by the High Court on the section is perfectly correct.
For a proper understanding of the scope and intendment of Section 7D, it is necessary to examine the setting and the context in which the said section occurs in the Act.
This will require a conjoint study of the provisions con tained in Section 7A to 7C and Sections 8 and 9 of the Act which immediately precede and succeed Section 7D.
Those sections are in the following terms: "7A. Certain persons occupying land for not less than ten years to be deemed tenants notwithstanding anything to the contrary contained in section 52 or any other provision of the , or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, a person shall be deemed to be a tenant in respect of the land of another in his occupation if (a) he or his predecessor in interest occupied such land believing it to be the property of the Government; (b) subsequent to such occupation such land has become the property of such other person as a consequence of any judgment, decree or order of any civil court, and 112 (c) such land has been in the continuous occupation of such person for a period of not less than ten years preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969.
Explanation I In computing the period of occupation of a person for the purpose of clause (c), the period during which the predecessor in interest or predecessors in interest of such person was or were in occupation shall also be taken into account.
Explanation II For the purpose of this section, a person shall be deemed to be in continuous occupation notwithstanding any order of court for delivery of possession to another person or any court record of dispos session.
7B. Certain persons occupying lands under leases granted by incompetent persons to be deemed tenants (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment decree or order of court, any person in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed purporting to be a lease deed, shall be deemed to be a tenant if he or his predecessor in interest was in occupation of such land on the 11th day of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who had no right over the land or who was not competent to lease the land.
(2) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person who on the 11th day of April, 1957, was in occupation of the land of another and continued to be in occupation of such land till the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be a tenant if the court has delivered a judgment or passed an order before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette that the occupation by such person was on the basis of an oral permission or an unregistered deed purporting to be a lease deed granted by a persOn who had no right over the land or who was not competent to lease the land.
113 7C. Certain persons who have paid amounts for occupation of land shall be deemed to be tenants: Notwithstanding anything to the contrary contained in any law, or in any con tract, custom or usage, or in any judgment, decree or order of court, any person who is in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be a tenant if he or his predecessor in interest has paid within a period of ten years immedi ately preceding such commencement any amount in consideration of such occupation or for the use and occupation of such land and has ob tained a receipt for such payment from any person entitled to lease that land or his authorised agent or a receiver appointed by a court describing the payment as modavaram or nashtavaram or modanashtavaram or a receipt described as M.R. receipt.
XX XX XX XX XX 8.
Certain persons who were cultivating land on varam arrangement to be deemed tenants Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, any person who, by virtue of the provisions of section 6 of the Kerala Stay of Eviction Proceedings Act, 1957, was enti tled to cultivate any nilam after the 11th day of April, 1957, and was cultivating the nilam at the commencement of this Act, shall be deemed to be a tenant, notwithstanding the expiry of the term fixed under the varam arrangement.
Certain persons who surrendered lease hold rights but continued in possession to be deemed tenants Notwithstanding anything to the contrary contained in any law, or in any contract, custom or Usage, or in any judgment, decree or order of court, where, on or after the 11th day of April, 1957, a tenant holding land less in extent than the ceiling area, had executed a deed surrendering his leasehold right to the landlord, but had not actually transferred possession of the land to the landlord before the commencement of this Act, such deed shall be deemed to be invalid and such person shall be deemed to be a tenant.
" 114 On a careful scrutiny of the aforesaid provisions, it becomes abundantly clear that the intention of the legisla ture was to grant protection only to persons whose posses sion had a lawful origin in the sense that they had either bona fide believed the lands to be Government 's lands of which they could later seek assignment or had taken the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into posses sion with the intention of attorning to the lawful owners or on the basis of arrangements like varam etc.
which were only in the nature of licences and fell short of a leasehold right.
It was not within the contemplation of the legisla ture to confer the benefit of protection on persons who had wilfully trespassed upon lands belonging to others and whose occupation was unlawful in its origin.
The expression "in occupation" occurring in Section 7D must be construed as meaning "in lawful occupation.
" In the present case the finding of fact entered by the High Court is that the appellant had come into possession of the lands by trespass.
His plea before the Courts below was that he was himself the owner of the area having acquired title to it by adverse possession.
In such circumstances the High Court was in our opinion fully justified in holding that the appellant was not entitled to the protection of Section 7D.
The appeal, is, therefore, devoid of merits.
Shri P.S. Potti, learned Senior Counsel appearing on behalf of the respondents has very fairly submitted before us that his clients respondents are prepared to pay to the appellant a sum of Rs.50,000 as ex gratia payment in full and final settlement of whatever claims the appellant may have towards the value of the rubber trees standing in plots.
A, B and C or in any other respect.
We record this submission and direct that an amount of Rs.50,000 shall be deposited by the respondents in the trial Court within a period of three months from today, whereupon the appellant will be at liberty to withdraw the said amount from Court without furnishing any security.
Subject to the aforesaid observation and direction, the appeal and the Special Leave Petitions.
are dismissed.
The parties will bear their respective costs.
The amounts depos ited in the trial court by the Receiver may be withdrawn by the respondents herein.
A.P.J. Appeal & Petitions dismissed.

summary:
Section 7D of the Kerala Land Reforms Act, 1963 Act 1 of 1964 as amended by Act 35 of 1969 provides that a person occupying private forests or unsurveyed lands shall be deemed to be a tenant if he or his predecessor in interest was continuously in occupation of such land for not less than two years within a period of 12 years immediately precedings the 11th day of April, 1969.
In the instant case, the High Court while interpreting section 7D took the view that the benefit of section 7D would apply only to persons whose occupation of the private forests or unsurveyed lands had a lawful origin and not to persons in unlawful occupation based on trespass or forcible and unlaw ful entry.
In the appeal to this Court also the so1e question concerning the interpretation of section 7D was raised.
Dismissing the appeal and the special leave petitions, HELD: 1.
On a careful scrutiny of the provisions con tained In sections 7A to 7C and sections 8 and 9 of the Act it is clear that the intention of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be Government 's lands of which they could later seek assignment or had taken the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into possession with the intention of attorning to the lawful owners or on the basis of arrange ments like varam etc.
which were only in the nature of licences and fell short of a leasehold right.
It was not within the contemplation of the legislature to confer the benefit of protection on persons 110 who had wilfully trespassed upon lands belonging to others and whose occupation was unlawful in its origin.
[114A C] 2.
The expression "in occupation" occurring in section 7D must be construed as meaning ' 'in lawful occupation".
[114C] 3.
In the present case, the finding of fact entered by the High Court is that the appellant had come into posses sion of the lands by trespass.
His plea before the Courts below was that he was himself the owner of the area having acquired title to it by adverse possession.
In such circum stances the High Court was fully justified in holding that the appellant was not entitled to the protection ors.
7D. [114D] [In view of the offer made by the respondents that they are prepared to pay to the appellant a sum of Rs.50,000 as ex gratia payment in full and final settlement of his claim, the Court directed that an amount of Rs.50,000 shall be deposited by the respondents in trial Court within three months with liberty to appellant to withdraw the same with out furnishing any security.
[114E]