judgement:
No. 137 of 1966.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
The petitioner appeared in person.
section V. Gupte, Solicitor General.
R. H. Dhebar and B.R.G.K. Achar, for the respondents.
The Judgment of the Court was delivered by Shelat, J.
The petitioner was detained by an order dated December 10, 1965 under Rule 30(i)(b) of the Defence of India Rules, 1962.
The order inter alia stated: "Whereas the Central Government is satisfied that with a view to preventing Shri P. L. Lakhanpal . from acting 435 in any manner prejudicial to tile defence of India, and civil defence, public safety and the maintenance of public order, it is necessary that he should be detained." On December 24, 1965 he filed a writ petition under article 32 of the Constitution in this Court for a writ of habeas corpus challenging his detention inter alia on the grounds that Rule 30(i)(b) was ultra vires section 3(2)(15)(i) of the Defence of India Act, 1962, that Rule 23 of the Defence of India (Delhi Detenues) Rules, 1964 gave him a right to make a representation by providing a review of the said detention order and also by providing that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation and that his said right was violated by his being prevented from making such a representation, that the said order violated section 44 inasmuch as though he was an editor of a newspaper action against him was not taken as such editor as provided by that section and certain other provisions in the Act resulting in the invalidity of the said order and that the said order was mala fide as the Union Home Minister had failed to file an affidavit swearing as to his satisfaction although the petition contained specific allegations denying such satisfaction.
That petition(1) was heard and was dismissed on April 19, 1966 rejecting the aforesaid contentions.
On June 11, 1966 the Central Government passed an order continuing the said detention order under r. 3OA(9).
But whereas the order of December 10, 1965 directed the petitioner 's detention with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, public safety and the maintenance of public order the said order continuing his detention set out only the defence of India and civil defence.
Likewise, though the original order described the petitioner as the son of the late Shri Diwan Chand Sharma, editor of the Evening View residing at etc., the order of June 11, 1966 simply described him as the son of the late Shri Diwan Chand Sharma.
This difference probably was and had to be made as by reason of his detention he was no longer editing the said newspaper and was no longer residing at the address set out in the original order.
In the present petition the petitioner challenges both the orders on the following grounds: (i) that there is no valid order of detention under any of the provisions of the Act or the Rules made thereunder; (ii) that his continued detention under the order of June 1 1, 1966 was in contravention of Rule 23 of the Defence of India (Delhi Detenues) Rules, 1964 inasmuch as he was denied the right of representation by a letter of the Deputy Secretary in the Ministry of ' Home Affairs dated December 27, 1965; (1) W.P. 47 of 1966 decided on April 19, 1966.
436 (iii) that the detention was punitive and not preventive as the principal ground of his detention viz., his writings in his said paper had ceased to be the ground since the said paper had become defunct, the requisite declaration in respect thereof having lapsed; (iv) that the said detention order contravened section 44 of the Act; and (v) that the orders of detention and continuation were illegal as they were mala, fide and made without any application of mind by the Home Minister; consequently there was no satisfaction as required by section 3 and r. 30(i)(b).
Contentions 2, 4 and part of Contention 5 in so far as they concern the original order of detention no longer survive as they were disposed of by the decision in W.P. 47 of 1966.
The petitioner therefore cannot be permitted to reagitate the same questions, it not being his case that any new circumstances have arisen justifying their reagitation.
Contention No. 3 also cannot be sustained because the affidavit clearly shows that the detention was ordered not only because of his writings in the said newspaper but that the said two orders were made after taking into consideration the over all picture of his activities.
Annexure D to the petition is the affidavit of B. section Raghavan, Deputy Secretary in the Ministry of Home Affairs, filed in the previous petition.
In that affidavit it was clearly stated that the activities of the petitioner "do conclusively prove that the petitioner is a pro Pakistani and anti Indian"; that "there was material before the Union Home Minister about the prejudicial activities of the petitioner and he was satisfied that it was necessary to detail the petitioner" and that "it was the anti national activities of the petitioner that was responsible for his detention.
" That affidavit also stated that "the petitioner 's activities were sufficient in themselves to enable the Central Government to come to the conclusion that if the petitioner was not detained he was likely to act in a manner prejudicial to the defence of India, civil defence, public safety and the maintenance of public order.
" In the return filed in the present petition also the same officer has once again stated that "he (the petitioner) is a pro Pakistani agitator acting against the integrity and the solidarity of India.
The history of the activities of the petitioner shows that he is a pro Pakistani propagandist and seeks to undermine the unity and integrity of India and has close contacts and associations with elements which seek to encourage force and violence in relation to Kashmir.
The petitioner has been in constant touch with the representatives of foreign powers in India, inimical towards India.
" Para 4 of the return also states that he "is a paid pro Pakistani and anti Indian".
It is true that the deponent in his counter affidavit in the previous petition had relied on certain extracts culled out from the petitioner 's writings but those extracts as stated by the deponent were in answer 437 to the petitioner 's claim that he was a journalist and an editor.
But assuming that the petitioner 's writings were relied on for the purpose of passing the original order, it is manifest that they were not the only materials on which the order was based and the authorities had taken into consideration the over all picture of all his activities.
If that be so the fact that his paper has now become defunct would make no difference and it cannot consequently be held that the order is punitive and not preventive.
This leaves the first and part of his fifth contention for consideration.
The petitioners argument on the first contention was that the order dated June 11, 1966 being based only on the ground of defence of India and civil defence the other grounds given in the original order must be held to be non existent and that the validity of the original order being dependent upon the satisfaction.
of the Central Government it is impossible to predicate whether the said order was not made on the basis of the non existent grounds.
Therefore he argued there was no valid satisfaction and the order founded on such invalid satisfaction could not be continued under r. 3OA(9); (2) that even if the Central Government was competent to continue the petitioner 's detention the validity of the order of the 11th June, 1966 not being determinative on the subjective satisfaction but upon a decision of the Government the grounds and the materials on which such decision was made must exist and the Government was therefore bound to establish that there were materials before it upon which its said decision was based.
In order to appreciate these contentions it will be necessary to ascertain the true scope of r. 30A and the scheme of the said Rules.
Section 3(1) of the Act empowers in generality the Central Government to make such Rules as appear to be necessary or expedient for securing the defence of India and civil defence etc.
Sub section 2 provides that such Rules may provide for all or any of the matters therein set out.
Clause (15)(i) empowers the Central Government to make rules providing for detention of any person (a) whom the authority empowered by the Rule to detain suspects on grounds appearing to that authority to be reasonable of having acted, acting or being about to act or being likely to act in any manner prejudicial to the defence of India and civil defence etc.
, or lb) with respect to whom that authority is satisfied that his detention is necessary for the purpose of preventing him from acting in any such prejudicial manner.
Clause 15(i) and the other Rules contemplate and empower, besides the Central Government, other authority to detain, such authority being not below the rank of a District Magistrate.
The jurisdiction of such authority is conditioned under the first part on his suspicion and under the second part on his satisfaction that detention is necessary for purposes therein set out.
The suspicion, of course has to be on grounds appearing to that authority to be 438 reasonable and the satisfaction under the second part is the satisfaction of that authority that detention is necessary to prevent the person in question from acting in any manner prejudicial to the matters set out therein.
Rule 30(1)(b) provides that the Central .or the State Government if it is satisfied with respect to any particular person that it is necessary so to do, may make an order directing that he be detained.
In Writ Petition 47 of 1966 filed by the petitioner earlier this Court made a distinction between the first and the second part of section 3(2)(15)(i) and held that Rule 30(1)(b) was made under the second part of that sub clause and that consequently the only thing required was that the authority must be satisfied that detention was necessary for purposes mentioned therein.
It is therefore clear that the only condition precedent for the exercise of power thereunder is the satisfaction of the Central or the State Government that it is necessary to detain the person ,concerned to prevent him from acting in a manner prejudicial to the several matters or any one or more of them therein set out.
Rule 30A was introduced in the Rules by notification G.S.R. 183 dated December 28, 1962.
It defines a detention order as meaning one passed under r. 30(1)(b) and provides for a review in accordance with the provisions therein contained.
Sub rule 3 provides that where a detention order is made by the Central or a State Government or an Administrator a review is to be made by the same authority.
Under sub rule 4, if a detention order is passed by an officer authorised by a State Government the reviewing authority would consist of two officers specified by that Government.
If all order is made by an officer authorised by the Administrator the reviewing authority is the Administrator.
Under sub rule 5, if ,a detention order is made by an authorised officer he has to forthwith report the fact to the reviewing authority.
Under sub rule 6 on such report the reviewing authority after taking into account all 'the circumstances of the case has to recommend to the State Government either to confirm or cancel the order and thereupon that Government may confirm or cancel the order as it may deem fit.
Where the reviewing authority is the Administrator he may either confirm or cancel the order after taking into account all the circumstances of the case.
Sub rule 7 provides that every detention order passed by an authorised officer and confirmed by the State Government would be reviewed by the reviewing authority at intervals of not more than six months and in the light of the recommendation of that authority the State Government shall decide whether the order shall be continued or cancelled.
A similar provision in respect of an order passed by an officer authorised by an Administrator is contained in sub rule 8.
Sub rule 9 with which we are immediately concerned provides that where a detention order is passed by the Central or a State Government such order shall be reviewed at the aforesaid intervals by the Govern ment which made it and upon such review the Government shall 439 decide whether the order should be continued or cancelled.
Thus where the detention is continued after the first six months, a review by the prescribed authority is obligatory and a decision of the Central or the State Government or the Administrator as the case may be is the condition precedent for continued detention.
Rule 30A thus provides for a review, the procedure therefor, the different reviewing authorities, the period within which such review has to be made and the obligation to decide whether the detention should be continued or cancelled after taking into account all the circumstances of the case.
In the present case we are concerned not with a detention order passed by an authorised officer but by the Central Government.
In the case of such an order made under rule 30(1)(b) the determinative factor is the satisfaction in regard to a particular person that it is necessary to detain him with a view to prevent him from acting prejudicially to the matters or any one or more of them therein set out.
The jurisdiction to detain is not in respect of a mischief already committed but in anticipation that the person concerned may in future act prejudicially.
Such satisfaction is exclusively that of the detaining authority and it is inherent in the power that it is and has to be the subjective satisfaction.
Presumably an emergency having been declared by the President the legislature granted such a drastic and unique power enabling the Government to act quickly to prevent the person concerned from doing anything deterimental to the said matters.
In such a case it must have been presumed by the legislature that a judicial process under normal laws may be either inept or inappropriate.
Thus the condition precedent to the exercise of jurisdiction to detain under r. 30(1)(b) is only the subjective satisfaction that it is necessary to detain the person concerned.
Rammanohar Lohia vs The State of Bihar).(1) Considering, however, the fact that the notification inducting in the Rules rule 30A providing for a review was issued in December 1962 it would appear that the necessity for ensuring that a person is not improperly detained or is not unnecessarily continued in detention was felt and that must have been the reason why a review was provided for immediately after the detention in the case where an authorised officer has passed the order and in the case of an order passed by the Government, Central or State as the case may be, by that Government at every interval of not more than six months.
It may be recalled that in the case of an order by an officer it is incumbent upon him to forthwith report to the reviewing authority whereupon the reviewing authority has to recommend to the State Government whether to confirm or cancel the order.
Thus a check on the exercise of power by an authorised officer was considered necessary.
Though there is no such immediate review in (1) ; 440 the case of an order passed by the Central or a State Government, ,sub rules 7, 8 and 9 of Rule 30A provide for a review at intervals of not more than six months (a) by the reviewing authority in the case of an order passed by an officer and (b) by the Government in the case of an order passed by the Government.
The provision for review is again a check preventing a person being unnecessarily, continued in detention, and whether the reviewing authority is the Government or the officers it is the Government which has to decide whether the detention should be continued or cancelled.
,and such decision is the condition precedent for an order of continuation of detention.
The difference in the words used in Rule .30(1)(b) and Rule 30A viz., satisfaction in one case and decision after taking into account all the circumstances of the case in the other cannot be accidental but must be deliberate and purposeful.
The phraseology used in Rule 30A is not "in its opinion" or is satisfied" or "has reason to believe" etc., as often used in modern statutes and rules.
The question then is: what precisely does the word "decide" in Rule 30A mean ? It is no doubt a popular and not a technical word .According to its dictionary meaning "to decide" means "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against); bring, come, to a resolution" and "decision" means "settlement, (of question etc).
, conclusion, formal judgment, making up one 's mind, resolve, resoluteness, decided character.
" As Fazl Ali J. in Province of Bombay vs Advani(1) observed: "The word 'decision ' in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders.
The mere fact that an executive authority has to dec ide some thing does not make the decision judicial.
It is the manner in which the decision has to be arrived at which makes the difference and the real test is: Is there any duty to decide judicially?" In that case the question was whether the decision of the Bombay Government under section 3 of the Bombay Land Requisition Ordinance, 5 of 1947 that a property was required for a public purpose was a quasi judicial act and a writ of certiorari would lie against such a decision.
The majority held that it was an administrative act but it is noteworthy that Mukherjea J. who differed along with Mahajan J. (as he then was) was of the view that the question whether a public purpose exists or not had to be determined under that section by the Government of Bombay as there was a lis or a controversy between the interest of the public on the one hand and that of the individual who owned the property on the other, and the deter (1) ; at 642.
441 initiation of the Government was a judicial act such determination being a collateral matter on which the jurisdiction to requisition was founded and not a part of the executive act of requisitioning.
We are however not called upon in the present case to decide whether the function of review and the decision which may be made by the Government is a judicial or a quasi judicial function or not.
Indeed,the petitioner has not raised any such question whether the order of the 11th June 1966 was a judicial or a quasi judicial one.
We do not therefore propose to examine the relevant provisions of the Rules from that point of view.
The question raised by the petitioner before us is whether the validity of the decision depends upon the existence of relevant circumstances which would necessitate the continuation of detention and whether such circumstances on which it is founded are demonstrable.
As tersely put by Lord Atkin in his famous dissent in Liversidge vs Anderson (1) is the decision one of a case of thinking that a person has a broken ankle and not a case of his really having a broken ankle or as Mahajan J. (as he then was) put it in Advani 's case(2 ) at p. 659 of the Report: "Similarly can it be said that section 4 contemplates merely a vacancy in the mind of the Government, not a vacancy in fact as a real thing.
" If the decision is to be founded on a mere subjective satisfaction or opinion it would be in the former category but if it is to be founded on a fact it has to fall in the latter category and in that event it would have to be regarded as one based on an objective test.
It follows that where the exercise of power is not conditioned on a mere opinion or satisfaction but on the existence of a set of facts or circumstances that power can be exercised where they exist.
The authority in such a case is required to exercise the power in the manner and within the limits authorised by the legislature.
The existence of such facts which is the determinant for the exercise of the power is demonstrable.
Unlike Rule 30(1)(b) the power to continue the detention after review is not dependent on the satisfaction of the Government.
Rule 30A postulates that ordinarily detention should not be for more than six months unless found necessary.
It is for that reason that under the Rules when the period of six months expires the Government is enjoined upon to decide whether it should be continued or cancelled.
Though the legislature has made the Government the exclusive forum for such a decision, its decision has to be founded on facts and circumstances which make the continuation necessary in order to prevent the detenu acting in a manner prejudicial to the matters set out therein.
The substitution of decision instead of satisfaction is a clear indication that the criterion (1) ; (2) ; 442 for continuing the detention is the existence of those facts and circumstances which necessitate it.
It is not unreasonable to think that the legislature decided to confer power the exercise of which was made dependent upon the subjective satisfaction at the initial stage but where continuation of detent ion was concerned, it thought that there should be different considerations.
At that stage there would be ample time and opportunity for the Government to scrutinise the case fully and ascertain whether facts and circumstances exist demanding continuation and therefore deliberately used the word "decide" instead of the words "is satisfied".
Therefore where such circumstances do not exist there would be no necessity for continuation and yet if the Government decides to continue the detention,such a decision would be beyond the scope of Rule 30A and would not be a decision within the meaning of or under that rule.
Cases may arise where circumstances exist leading to the authority 's satisfaction that a particular person should be detained but those circumstances may not exist at the time when the review is made.
In the latter case it is impossible to say that the Government can still decide to continue the detention nor is it possible to say that it is the Government 's opinion or satisfaction that such facts and circumstances exist which is the criterion.
The decision on a review has to be arrived at from the facts and cir cumstances which actually subsisted at the time when the original order was made in the light of subsequent developments and not merely those existing at the time when the order was made.
In such a case the decision can be challenged as one not within the scope of or under the rule and therefore unauthorised or as one based on considerations irrelevant to the power.
Our attention was however drawn to the decision in Sadhu Singh vs Delhi Administration(1) where Shah J. sitting singly during vacation has held that the order of detention passed by the District Magistrate and its confirmation by the Delhi Administration were acts pre eminently executive, subject to subjective satisfaction and therefore not subject to a judicial review.
He, however, added that even then the court 's power is not excluded to investigate into compliance with the procedural safeguards imposed by the statute or into the existence of prescribed conditions precedent to the exercise of power or into a plea that the order was made mala fide or for a collateral purpose.
The learned Judge then proceeded to consider the plea that the review under r. 30A(8) was a quasi judicial proceeding and that a review of the facts in the light of subsequent developments, including the change of views, if any, of the detenu since he was detained cannot effectively be made unless he was afforded an opportunity to make his representation and convince the reviewing authority that the facts and circumstances which may have justified the original (1) ; 443 order did not continue to exist or in the context of changed circumstances did not justify the continuation of the detention.
In ,repelling this plea, the learned Judge observed: "Making of an order of detention proceeds upon the subjective satisfaction of the prescribed authority in the light of circumstances placed before him or coming to his knowledge, that it is necessary to detain the person concerned with a view to preventing him from acting.
If that order is purely executive and not open to review by the Court, a review of those very circumstances on which the order was made in the light of circumstances since the date of that order cannot but be regarded as an executive order.
Satisfaction of the authority under r. 30(1) proceeding upon facts and circumstances which justifies him in making an order of detention and the satisfaction upon review of those very facts and circumstances in the light of circumstances which came into existence since the order of detention are the result of an executive determination and are not subject to judicial review.
" On this view he held that the review was not a judicial function nor did the statute require the safeguard of a judicial approach or the right of being heard.
He also negatived the plea that the word "decide" in r. 3OA(8) meant that there was a lis observing as follows "That only imports that the Administration after reviewing the material circumstances has to decide whether the detention of the detenu should be continued or cancelled.
Undoubtedly, in reviewing the order of detention, the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made, the subsequent developments which have a bearing on the detention of the detenu and the representation, if any, made by the detenu.
But the rule contemplates review of the detention order and in the exercise of a power to review a condition of a judicial approach is not implied.
" Shah J. in this decision was primarily dealing with the question whether the function of review and a decision following it is a judicial function and whether there is a lis between the power of the Government to continue detention on the one hand and the right of the detenu to be released on the other As already stated that question does not arise before us and we refrain from deciding, it.
Though he rejected that plea the learned Judge has yet said in explicit terms that the reviewing authority has to consider "the material circumstances " and then has to decide whether the detention should be continued or not.
He has also emphasised that M 15 sup.
CI/66 15 444 the Administrator while reviewing has to take into account the relevant circumstances" existing at the time when the Original order was made and the subsequent developments having "a bearing on the detention".
The decision thus presupposes that the Government or the Administrator, as the case may be, cannot decide to continue the detention without considering all the relevant circumstances which existed at the time of the original order and those which exist at the time when the authority decides to continue the detention.
While making the plea that the use of the word 'decide" in r. 30A meant that there is a lis, it does not appear to have been argued that assuming that the power to continue the detention was ministerial the condition precedent to the exercise of that power is not the subjective satisfaction but the decision from the facts and circumstances and that the validity of the exercise of that power is dependent on the existence of facts and circumstances relevant to the purpose set out in r. 30(1) and r. 30A.
If they are shown not to exist surely the decision would not be a decision within the meaning of r. 30A and would be amenable on that ground to a challenge.
The question then is, is the decision to continue the order of detention one within the scope of r. 30A ? Relying on the omission in the order of June 11, 1966 of the words "public safety and the maintenance of public order" the petitioner contended that it must be held that those two grounds never existed and that since the exercise of power to detain depended on the satisfaction of the Government it cannot be predicated that the omitted grounds did not affect the Government during the process of its satisfaction.
He relied on two decisions of this Court, (1) Baradwaj vs State of Delhi(1) and (2) Shibban Lal vs State of U.P.(2) Both the cases were under the , IV of 1950.
In Baradwaj 's case(2) the question was not of a ground not existing but of a ground being found to be vague and it was held that even though the rest of the grounds were not vague, the detention was not in accordance with the procedure established by law and was therefore illegal.
The decision therefore turned on the question whether under article 22(5) of the Constitution the detenu had an opportunity ,of effectively making a representation.
In Shibbanlal 's case(2) the Court held that where the Government itself while confirming the detention in exercise of its power under section II admits that one of the two grounds mentioned in the original order was unsubstantial or non existent, to say that the other ground which still remained was quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the ,executive authority which was against the legislative policy underlying the statute.
In such cases, the position would be the same .,as if one of the two grounds was irrelevant for the purpose of the (1) [1953] S.C.R.708 (2) A.I.R. 1964 S.C.179 445 Act or was wholly illusory and this would vitiate the detention order as a whole.
These decisions cannot help the petitioner.
In the first place the scheme of the is entirely different from the Act and the Rules before us.
Section 3 of that Act confers the power of detention.
Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation.
Section 8 requires the setting up of Advisory Boards.
Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation, if any, made by the detenu.
Under section 10, the Board has to make a report to the Government and the report would be whether there is sufficient cause for detention or not.
Under section 11, the Government may confirm the detention order and continue the detention where the report is that there is sufficient cause.
But where the Board reports that there is no such sufficient cause, the Government has to revoke the detention order.
It is clear from section 9 and the sections following it that the Government has to make the reference to the Board within 30 days from the order and the Board has to find whether there is sufficient cause for detention or not.
The review by the Board is thus almost contemporaneous.
If therefore the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that they did not exist at the time when the authority made up its mind to pass the order.
It is for that reason that the courts have held that since the order is based on subjective satisfaction, it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the autho rity or not and to say that those only which existed had made up the satisfaction would be to substitute the court 's objective test in place of the subjective satisfaction of the detaining authority.
The scheme of rules 30(1) and 30A is totally different from that of the .
Where an order is made under r. 30(1)(b), its review is at intervals of periods of not more than six months.
The object of the review is to decide whether there is a necessity to continue the detention order or not in the light of the facts and circumstances including any development that has taken place in the meantime.
If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original order and therefore the satisfaction was on grounds which did not then exist.
It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in r. 30 (1).
At the end of six months the reviewing authority on the materials before it may come to a decision that the detention is still necessary as the detenu is likely to act in a manner prejudicial 446 to some but not all the matters.
Provided such decision is arrived at within the scope of r. 30A the decision to con tinue the detention order would be sustainable.
There is thus no analogy between the provisions of review in the two Acts and therefore decisions on the cannot be availed of by the petitioner.
As regards the contention as to mala fides it will be observed that the original order was passed by the Union Home Minister while the order under r. 30A was passed by the Minister of State of Home Affairs.
The first part of the contention has already been rejected by this Court in the petitioner 's earlier Writ Petition and therefore cannot be reagitated.
The contention in regard to the second part was that since the State Minister himself has not filed an affidavit swearing to his decision and the affidavit on re cord is that of the Deputy Secretary there is nothing to show that the Minister had arrived at a decision that there were facts and circumstances necessitating the continuation of the petitioner 's detention.
The reasons given by the petitioner for this contention are in substance the same as those urged in the earlier petition and which were rejected by this Court then.
Since no allegation of malice or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or non application of mind.
The affidavit by the Deputy Secretary discloses that the decision under r. 30A was arrived at by the Minister after an examination of all the materials before him.
The affidavit also discloses the activities of the petitioner and the conclusion arrived at by the Minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence.
So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it would have come to a different conclusion.
It is therefore not possible to agree with the contention that this is a case of a mala fide exercise of power or a case of non application of mind by the authority concerned.
For the reasons aforesaid the petition fails and is dismissed.
V.P.S. Petition dismissed.

summary/full:
The petitioner who was the editor of a newspaper was detained by and order of the Central Government under r. 30(1)(b) of the Defence of India Rules, 1962, and the detention was continued by another order of the Central Government passed six months later, under r. 3OA(9).
The first order directed the petitioner 's detention with a view to preventing him from acting in any manner prejudicial to the defence of India, civil defence, public safety and the maintenance of public order, but the order continuing the detention set out only the defence of India and civil defence.
The petitioner challenged the second order of the following grounds: (i)the detention was punitive and not preventive, because his writings in is paper were the grounds of his original detention but that the paper had since become defunct; (ii) the two additional grounds given in the original order and omitted in the latter order must be held to have been non existent at the time of the original order, and therefore, the original order based on such non existent grounds was illegal, and could not be validly continued under r. 3OA(9); (iii) even if the Government was competent to continue the detention, the validity of the decision of the Government to continue the detention depended upon the existence of relevant circumstances which would necessitate the continuation and such circumstances were demonstrable; and (iv) the Minister who passed the second order should have filed a counter affidavit showing that he applied his mind to the material before he passed the order continuing the detention.
HELD : (i) Assuming that the petitioners writings in his paper were relied on for the purpose of passing the original order, they were not the only materials on which the original order and the order continuing the detention were based.
The authorities had taken into consideration the over all picture of all his anti Indian and pro Pakistani activities.
Therefore, the fact that his paper had since become defunct would make no difference because the jurisdiction to detain is not in respect of a mischief already committed but in anticipation.
that the person concerned may in future act prejudicially.
[436 H; 437 A B; 439 C D] (ii) The decision to continue the detention order was within the scope of r. 30A and was therefore sustainable.
[446 A B] Rule 30 A provides for a review of the order of detention, the procedure therefor,, the different reviewing authorities, the period within which such review has to be made and the obligation to decide whether the detention should be continued or cancelled after taking into account all the circumstances of the case.
Sub rule (9) provides that where a detention order is passed, by the Central or a State Government such order shall be reviewed at intervals of not more than six months by the Government which made the order and upon such review decide whether to continue or cancel the order.
The object of the review is to decide whether there is a necessity to continue the detention order or not in 434 the fight of the facts and circumstances including any development that has taken place in the meantime.
If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist that is not to say that those reasons did not exist at the time of passing the original order and that the satisfaction was on grounds which did not then exist.
There is no analogy between the provisions of review in the Defence of India Rules and in the and therefore, the decisions on that Act cannot be availed of by the petitioner.
[438 H; 439 B; 445 F H; 446 A B] (iii) The words used in r. 30(1) (b) and r. 30A are satisfaction in one case, and decision after taking into account all the circumstances of the case in the other.
Unlike r. 30(1)(b), the power to continue the detention after review is not dependent on the solution of the Government.
Under r. 30A the Government is enjoined upon to decide whether the detention should be continued or cancelled.
The substitution of decision instead of satisfaction is an indication that the criterion for continuing the detent on is the existence of those facts and circumstances which necessitate it.
The existence of such facts which is the determinant for the exercise of the power is demonstrable, and if they are shown not to exist the decision would not be a decision within the meaning of r. 30A and would be amenable on that ground to challenge.
The counter affidavit of the Deputy Secretary, on record, disclosed the anti national activities of the petitioner and that the decision under r. 30A that the petitioner had acted and was likely to act in a manner prejudicial to the defence of India and civil defence was arrived at by the Minister after an examination of all the materials before him.
So long as the decision was arrived at on such materials, since this Court does not sit in appeal against such a decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with the decision on the ground that if the Court had examined them it would have come to a different conclusion.
[440 C, 441 F H; 446 F G] Sadhu Singh vs Delhi Administration, ; referred to.
(iv) It was not a case of a mala fide exercise of power or a case of non application of mind by the authority concerned.
Since no allegation, , of malice or dishonesty have been made in the petition personally against the Minister., his omission to file a counter affidavit, by itself, could not be a ground to sustain the allegation of mala fides or non application of mind.
[446 D E]


judgement:
ppeals Nos.1367 and 1368 of 1966.
Appeals from the judgment and order dated April 19, 1966 of the Assam High Court in Civil Rules Nos. 171 and 236 of 1965.
Purshottam Trikamdas, A. K. Sen, Naunit Lal and Vineet Kumar,for the appellant (in both the appeals).
Sarjoo Prasad, Vinoo Bhagat and section N. Prasad, for respondent No. 4 (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, J.
These are two appeals by certificate against a common judgment of the High Court of Assam & Nagaland at Gauhati, dismissing two writ petitions filed by one Ranga Mahammad against D. N. Deka and B. N. Sarma, District & Sessions Judges respectively of Lower and Upper Assam Districts questioning the transfer of the former from Jorhat to Gauhati and the appointment and posting of the latter at Jorhat.
The petitioner had asked that the relevant notifications by the Government be quashed on the ground that the High Court alone could make the transfers and, in any event, the High Court had to be consulted and was not consulted before making the orders.
The petitions were heard and disposed of by a Divisional Bench consisting of Chief Justice Mehrotra and Mr. Justice section K. Dutta.
456 The Chief Justice held that there was no consultation with regard to the posting of Deka, that the transfer of Deka to Gauhati was irregular as the High Court alone could have ordered it, and that the transfer of B. N. Sarma was for a like reason also irregular.
Holding, however, that none of the District Judges could be said to occupy wrongly the office of District & Sessions Judge the High Court declined the writ of quo warranto.
The petitions ,were accordingly dismissed but without cost to the State Government.
In a separate but concurring judgment Dutta J. passed some scathing remarks on the action of the Government which he described as mala fide and actuated by some ulterior motive.
The High Court on being moved by the State Government granted certificates under article 132 of the Constitution on the ground that the judgment involved the interpretation of articles 233 and 235 of the Constitution.
By these appeals the State Government seeks the reversal of the opinion of the High Court on the interpretation of articles 233 and 235 of the Constitution.
The main contention is that the High Court was, in fact, consulted and, alternatively, that the power to transfer District Judges lies with the State Government and not with the High Court.
The State Government also asks for the expunction of the remarks of Mr. Justice Dutta above mentioned.
The State of Assam consists of only three Sessions Divisions.
They are : The Upper Assam Districts, the Lower Assam Districts and the Cachar Districts with Jorhat, Gauhati and Silchar respectively as the Headquarters of the three District Judges.
The Government of Assam with the concurrence of the High Court has made the Assam Judicial Service (Senior) Rules and rule 5 deals with recruitment.
In the Senior Judicial Service of the State there are two grades Senior Grade 1 and Senior Grade 11.
Grade I has four posts earmarked for Registrar, and three District Judges, and Grade 11 consists of the Additional District Judges.
The other posts are filled up by promotion from Grade II of the cadre or Grade I of the Assam Judicial Service (Junior) respectively.
On December 6, 1962 the Chief Justice appointed A. Rahman, District Judge, Gauhati, as Registrar and recommended that D. N. Sarma, Additional District & Sessions Judge be promoted and appointed District Judge, Gauhati, and in B. N. Sarma 's 457 place D. C. Sharma should be appointed as Additional District & Sessions Judge.
This proposal was accepted by Government.
It appears, however, that one Medhi, District Judge, was retiring and there was a vacancy.
It also appears from the correspondence which has been placed in our hands that there was some conversation on the telephone between the Chief Justice and the Finance Minister regarding R. C. Choudhury (Joint Secretary Legal Department) whom the Minister suggested for officiation in that vacancy and the Chief Justice expressed his willingness to receive him.
Later by a D. O. letter of January 5, 1963 the Chief Justice pointed out that the Rules did not permit this to be done.
He observed that not more than one third of the District Judges could be recruited from the Bar and as Choudhury could only be recruited as a member of the Bar there was no vacancy for direct recruitment.
The Minister who had accepted the telephone conversation as final and was about to issue the necessary notification replied that as Sharma was to continue for a year, Sharma 's post could be given to Choudhury and suggested reconsideration of the case.
The Chief Justice replied that .
the question was not of filling Sharma 's vacancy but Medhi 's and that Choudhury could not be transferred from the Legal Department to the Judicial Service because appointments as District & Sessions Judges must be made in accordance with article 233 of the Constitution.
He explained that an appointee had to be either a person in the Judicial Service of the Union or the State or an Advocate of 7 years ' standing and that persons from other services could not be transferred and appointed as District Judges.
He ended by saying that he could have taken Choudhury as a member of the Bar if the High Court recommended him, but Rule 5(ii) of the Assam Judicial Service (Senior) Rules, which reserved two out of the three posts for promotees, was in the way.
He declined to take Choudhury directly from the Legal Department and recommended D. N. Deka 'section name for promotion as District Judge to hold the charge at Jorhat.
This letter apparently nettled the Minister for his letter of the 24th January was worded somewhat strongly.
It seems that the Minister thought that the Chief Justice was retreating from a position previously accepted by him.
He traced the history of the correspondence and the conversations and expressed his amazement at the change of opinion.
He pointed out that the intention was not to transfer Choudhury but to give him judicial experience and observed that the constitutional provisions could not be invoked when Choudhury had put in seven years ' practice at the Bar and was qualified.
He concluded by saying "I am sorry, that I have to write all this but you will understand that I have no other alternative in view of the embarrassing situation created by your letter.
The Chief Justice wrote on February 7, 1963 observing that there 'was no question of adopting any non cooperating or embarrassing attitude and that all the points raised by the Minister could be ,explained satisfactorily.
He, however, saw no point in saying more as Choudhury 's name was to be dropped.
He enquired why Rahman was not released although it had no connection with the other matter and the appointment of the Registrar was entirely ,a matter for the Chief Justice.Facts
He requested that Ralunan be released soon and recommended the appointment of B. N. Sarma as District Judge in his place.
He also suggested section C. Barua 's transfer from Cachar to Gauhati.
In the vacancy of Medhi he recommended D. N. Deka 's promotion and recommended his transfer to Jorhat.
A notification was issued on June 22, 1963 appointing Deka as District Judge with Headquarters at Jorhat.
Nothing was done regarding the other recommendations.
On September 7, 1963, this is to say, exactly seven months after the ,last letter of the Chief Justice, the Secretary to the Government of Assam wrote to the Registrar that the State Government after careful consideration could not accept the suggestion about the transfer of Barua and proposed the transfer of B. N. Sarma to Jorhat and of Deka to Gauhati immediately as Jorhat was without a District Judge for months.
The Registrar, in reply, wrote back to say that the matter had become stale and the High Court would like to reconsider the matter.
Some letters were exchanged but they arc not on the file of this Court.
To this a final reply was given by the Government on February 19, 1964 informing the High Court that the recommendations were not acceptable except as to Deka 's transfer from Jorhat to Gauhati.
One Ranga Mahammad of Gauhati then filed two petitions in the High Court of Assam under articles 226 and 227 of the Con stitution questioning the jurisdiction of Deka, District & Sessions Judge, Jorhat.
He averred that the High Court was not consulted regarding Deka 's appointment and posting at Gauhati.
By the second petition he questioned the transfer of B. N. Sarma 459 to Jorhat.
On rule being issued in the two petitions, Government put in a detailed return pointing out that it had acted within its powers and had also consulted the High Court.
The High Court did not accept the submissions of the State Government.
The state Government now appeals.
Three questions arise and they are : (a) who is to order transfer of a District Judge the State Government or the High Court;(b) is the provision regarding consultation in articles 233 and 235 mandatory or directory and if the former, whether the High Court was not in fact consulted; and (c) should the remarks of Mr. Justice Dutta about the State Government be expunged ? The answer to the first question depends on a true construc tion of articles 233 and 235 of the Constitution.
The text of these articles is set out below.
* The question we have posed resolves itself into a question of a very different but somewhat limited form,, namely, whether the power to transfer District Judges is included in the 'control ' exercisable by the High Court over District Courts under article 235, or in the power of "appointment of persons to be and the posting and promotion, of district judges" which is to be exercised by the Governor under article 233, albeit in consultation with the High Court.
If the sense of the matter be the former, then the High Court and if the latter, the Governor, would possess.
that power.
The right approach is, therefore, to enquire what is meant by "posting" and whether the term does not mean the initial posting of a District Judge on appointment or promotion to a vacancy in the cadre, permanent or temporary
If this be the meaning, as the High Court holds, then the transfer of District Judges already appointed or promoted and posted in the cadre must necessarily be outside the power of the Governor and fall to be made by the High Court as part of the control vested in it by article 235.
"233.Appointment of district Judges.
(1) Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State Shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment" "235.
Control over subordinate Courts.
The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court; but nothing in this Article shall be construed as taking away from any Such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
" 460 The history of the articles 233 237 in Chapter VI (Subordinate Courts) of Part VI of the Constitution, was considered elaborately in the State of West Bengal & Anr.vs Nripendranath Bagchi(1) and it was pointed out that the articles were intended to make the High ,Court the sole custodian of control over the judiciary except in so far as exclusive jurisdiction was conferred upon the Governor in regard to the appointment and posting and promotion of District ,Judges.
Therefore, unless the transfer of a District Judge can be said to be a "posting" of a District Judge the High Court must ,obviously enjoy the exclusive power.
In its ordinary dictionary meaning the word 'to post ' may denote either (a) to station some one at a place, or (b) to assign someone to a post, i.e. a position or a job, especially one to which a person is appointed.
See Webster 's New Word Dictionary (1962).
The dispute in this case has arisen because the State Government applies the first of the two meanings and the High Court the second.
In article 233 the word 'posting ' clearly bears the second meaning.
This word occurs in association with the words "appointment ' and 'Promotion ' and takes its colour from them.
These words indicate the stage when a person first gets a position or job ,and 'posting ' by association means the assignment of an appointee or promotee to a position in the cadre of district Judges.
That a special meaning may be given to a word because of the collocation of words in which it figures, is a well recognised canon of construction.
Maxwell ("On Interpretation of Statutes" 11th Edn.
p. 321 and the following pages) gives numerous examples of the application of this principle, from which one may be given here.
The words 'places of public resort ' assume a very different meaning when coupled with 'roads and streets ' from that which the same words would have if they were coupled with 'houses '.
In the same way the word 'posting ' cannot be understood in the sense of 'transfer ' when the idea of appointment and promotion is involved in the combination.
In fact this meaning is quite out of place because 'transfer ' operates at a stage beyond appointment and promotion.
if 'Posting ' was intended to mean 'transfer ' the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word 'transfer ' itself.
It follows, therefore, that under article 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of district Judges but not with the transfer of district Judges already ,appointed or promoted and posted to the cadre.
The latter is obviously a matter of control of district Judges which is vested in the High Court.
The word 'post ' used twice in the article clearly means the position or job and not the station or place and 'posting ' must obviously mean the assignment to a position or job and not placing in charge of a station or Court.
The association of words in article 235 is much clearer but as the word 'posting ' in the earlier article deals with the same subject matter, it was most certainly used in the same sense and this conclusion is thus quite apparent.
This is, of course, as it should be.
The High Court is in the day to day control of courts and knows the capacity for work of individuals and the requirements of a particular station or Court.
The High Court is better suited to make transfers than a Minister.
For however well meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court.
He must depend on his department for information.
The Chief Justice and his colleagues know these matters and deal with them personally.
There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves.
It is also well known that all stations are not similar in climate and education, medical and other facilities.
Some are good stations and some are not so good.
There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary.
The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us.
The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court.
The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a district Judge and assigned him to a post in cadre.
Thereafter, transfer of incumbents is a matter within the control of District Courts including the control of persons presiding there as explained in the cited case.
As the High Court is the authority to make transfers, there was no question of a consultation on this account.
The State Government was not the authority to order the transfers.
There was, however, need for consultation before D. N. Deka was promoted and posted as a District Judge.
That such a consultation is mandatory has been laid down quite definitely in the recent decision of this Court in Chandra Mohan vs U. P.(1) On this part of the case it is sufficient to say that there was consultation.
(1) 462 This brings us to the question whether the remarks of Mr. Justice Dutta should be expunged.
There is no doubt that the State Government and the High Court were working together till Choudhury 's name was suggested.
This is not the first time when cordiality was ruined because a Secretary 's name was suggested by the Minister and was not acceptable to the High Court.
The Assam High Court 's stand has been completely vindicated by Chandra Mohan 's case cited above.
In such matters the opinion of the High Court is entitled to the highest regard.
We have considered very carefully the question of expunging Mr. Justice Dutta 's remarks, The power to expunge is an extraordinary power and can be exercised only when a clear case is made out.
That another Judge in Mr. Justice Dutta 's place would not have made those comments is not the right criterion The question is whether Mr. Justice Dutta can be said to have acted with impropriety.
Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised.
The appeals accordingly fail and are dismissed but there will be no order about costs.

dataset_name: IN-Abs

summary/full:
The respondent, filed petitions under Am.
226 and 227 in the Assam High Court asking that notifications by the State Government of the transfer of one District & Sessions Judge and the appointment and posting of another be quashed on the ground that the High Court alone could make the transfers and.
in any event, the High Court was to be consulted and was not consulted before the impugned orders were made.
The High Court held that there was no consultation with regard to the posting of one of the District Judges and that his transfer was irregular as the High Court alone could have ordered it; and furthermore that the transfer of the other.
District Judge was for a like reason also irregular.
Holding, however, that none of the District Judges could be said to occupy wrongly the office of District & Sessions judge, the High Court declined the writ of quo warranto and dismissed the petition, but without costs to the State Govenment.
One of the learned Judges of the High Court who comprised the Division Bench that heard the petitions,, in a separate but concurring judgment, passed some scathing remarks on the action of the Government which he described as mala fide and actuated by some ulterior motive.
On being moved by the State Government, the High Court granted certificates under article 132 of the Constitution to appeal to the Supreme Court on the ground that the judgment involved the interpretation of articles 233 and 235 of the Constitution.
By these appeals the State Government sought a reversal of the opinion of the High Court on the two Articles.
Three questions arose for decision in the appeal: (a) who is to order transfer of a District Judge the State Government or the High Court; (b) is the provision regarding consultation in article 233 mandatory or directory and if the former, whether the High Court was not in fact consulted; and (c) whether the remarks complained of about the State Government made by the learned Judge should be expunged.
HELD: (i) Under article 233 the Governor is only concerned with the appointment, promotion and posting to the cadre of district Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.
The latter is a matter of control of District Judges which is vested in the High Court under article 235.
[460 G] The word posting means either to station some one at a place or to assign someone to a post, I.e. a position or a job, especially one to which a person is appointed.
In article 233 it bears the second meaning.
The word occurs in association with the words 'appointment ' and 'promotion ' and takes its colour from them.
These words indicate the stage when 454 455 a person first gets a position or job and 'posting 'by association means the assignment of an appointee or promotee to a position in the cadre of District Judges.
The word 'posting ' cannot be understood in the sense of 'transfer ' when the idea of appointment and promotion is involved in the combination.
This meaning is quite out of place because 'transfer ' operates at a stage beyond appointment and promotion.
Transfer, therefore, falls within the control vested in the High Court.
[460 C G] State of West Bengal vs Nripendranath Bagcht,[1966] 1 S.C.R. 771, referred to.
(ii) As the High Court acting under article 235 and not the State Government is the authority to make transfers, no question can arise of a consultation on this account.
In the present case, however, consultation as required by article 233, was necessary before one of the District Judges was promoted and posted as a District Judge.
Chandra Mohan vs U.P. , referred to.
(iii) The power to expunge is an extraordinary power and can be exercised only when a clear case is made out.
Although the opinion of this Court may be that the learned Judge need not have made the remarks complained of, it could not be said that in making them he acted with such impropriety that the extraordinary powers should be exercised.
[462 DIP]


judgement:
Appeals Nos. 557 & 558 of 1965, Appeal by special leave from the judgment and order dated September 19, 1962 of the High Court of Judicature at Madras (in Tax Case No. 87 of 1960).
R. Ganapathy lyer, for the appellant.
R. M. Hazarnavis and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Sree Meenakshi Mills Ltd. a company incorporated under the Indian Companies Act with its registered office at Madurai carries on business of cotton spinning and weaving.
In the premises "of the factory of the Company there are installed 80 handloorns 393 These handlooms were found inadequate to weave the yarn pro duced by the factory and a part of the yarn produced was distributed to weavers outside the factory who were engaged by the Company to weave the yarn into cloth.
Under cl.
18 B of the Cotton Cloth and Yarn (Control), Order, 1945, issued by the Government of India, the Textile Commissioner was authorized to direct ally manufacturer or dealer or any class of manufacturers or dealers, inter alia, not to sell or deliver any yarn or cloth of specified description except to such person or persons and subject to such conditions as the Textile Commissioner may specify.
On February 7, 1946, the Textile Commissioner issued an order directing the Company not to sell or deliver any yarn manufactured by the Company except to such person or persons as the Textile Commissioner may specify.
It was recited in the order that "nothing in this Order shall apply to a sale or delivery made, in pursuance of clause 18 A of the said order, to any dealer in yarn not engaged in the production of cloth on handlooms or powerless".
The Company addressed a letter on February 13, 1946 to the Textile Commissioner submitting that the prohibition in general terms was ultra wires the authority conferred by the Cotton Cloth and Yarn (Control) Order.
The Company continued notwithstanding the prohibition to deliver yarn to weavers and did so till February 20, 1946.
This yarn was seized under the orders of the Textile Commissioner.
On February 20,1946, the Provincial Textile Commissioner, purporting to act in exercise of authority conferred upon him by a notification issued by the Government of India, issued an order addressed to the Company that: "You should accordingly confine your delivery to the categories of persons notified below: (a) Licensed yarn dealers (in accordance with the said 18 A of the Control Order).
(b) to consumers who purchased yarn directly from you during the basic period 1940 42 (in accordance with my circular letter dated 4th January 1946 referred to above).
(c) your handloom factory situated in the premises of your Mill at Madurai (just the quantity of yam required).
"Note: Any other delivery of yarn by you which is not covered by a special order or permission of the Textile Control Authorities will accordingly be a contravention of the Textile Commissioner 's order under clause 18 B referred to above." After this order was issued, the Company did not deliver any yarn to weavers.
On March 4, 1946 the Company filed a petition for a writ of nandamus in the High Court of Madras under section 45 of the Specific 394 Relief Act praying for an order directing the Provincial Textile Commissioner, Madras to desist from seizing the yarn supplied to the weavers at or around Madurai and Rajapalayam for the purpose of converting the yarn belonging to the Company into cloth; to restore to the Company or to direct the Provincial Textile Commissioner and his subordinates to restore the yam already seized; and to forbear from seizing or to direct the subordinates of the Provincial Textile Commissioner to forbear from seizing the yarn that may be entrusted to the weavers by the Company in the usual course of business according to the practice already obtaining for conversion into cloth.
This petition was dismissed by Kunhi Raman, J, and the order of dismissal was confirmed in appeal by the High Court.
The matter was then carried in appeal to the Privy Council.
The Judicial Committee dismissed the appeal filed by the Company.
They held, agreeing with the High Court, that the expression "deliver" in cl.
18 B sub cl. 1(b) of the Cotton Cloth and Yarn (Control) Order, 1945, is used in its ordinary broad sense of handing over possession, as distinct from passing of property, and would include delivery of possession to a bailer.
Accordingly, delivery of part of its yarn by the Company to owners of handlooms outside the mill premises for conversion of the yarn into cloth for the Company was in contravention of the order made under cl.
18 B sub.
(1) (b).
The Judicial Committee also held that a petition under section 45 of the , directing the Provincial Textile Commissioner to desist from seizing the yam supplied to the weavers and to restore to the Company the yarn already seized was incompetent as the acts in respect of which relief was asked for took place outside the limits of the ordinary original civil jurisdiction of the High Court.
The Company spent Rs. 20,035/ in prosecuting the proceed ings under section 45 of the and had also to pay Rs. 5,912/ as costs to the Government of the unsuccessful appeal to the Judicial Committee.
In its returns of income the Company claimed deduction of the amounts of Rs. 20,035/ and Rs., 5,9121/for the assessment years 1949 50 and 1950 51 respectively as being expenditure wholly and exclusively laid out for the purpose of its business.
The claims were rejected by the departmental authorities, and by the Income tax Appellate Tribunal.
The Tribunal then referred the following question to the High Court of Judicature at Madras : "Whether the expenses of Rs. 20,035/ incurred in the assessment year 1949 50 and Rs. 5,912/ (relating to the assessment year 1950 5 1) being the cost paid to Government as directed by the Privy Council were expenses incurred in the ordinary course of business and allowable as deductions?" 395 The question as framed is somewhat vague.
But it is common ground that the Company claimed deduction under section 10(2) (xv) of the Indian Income tax.
Act, 1.922 on the footing that the two amounts represented expenditure laid out wholly and, exclusively by the Company for the purpose of its business.
The High Court answered the question in the negative. 'With special leave, the Company has appealed to this Court.
The Tribunal has found that after the order dated February 20, 1946 was issued, the Company did not deliver yarn to any weaver.
it is recited in the judgment of the Tribunal that a "correct order by the proper authorities was passed" on February 20, 1946 and, thereafter the Company did not distribute any yarn to weavers.
The averments made by the Company in the petition under section 45 of the , are somewhat involved, but in substance the claim of the Company was that the Provincial Textile Commissioner was incompetent to pass the order dated February 20, 1946 which placed restrictions on the business of the Company and the order was "likely to cause irreparable and irretrievable injury", and it was prayed that an order do issue under section 45 of the restraining the Provincial Textile Commissioner from enforcing the order and the Textile Commissioner be prohibited by an order from seizing the yarn delivered to the weavers outside the factory and be further ordered to restore the yarn already seized.
No clear averment was made in the petition about the date on which the yarn seized had been delivered by the Company to the weavers.
This petition failed, because the High Court had no jurisdiction to entertain the petition, and also because the expression "deliver" used in cl.
18 B of the Control Order included handing over of yarn to the weavers outside the premises of the factory for conversion into cloth.
But expenditure incurred in prosecuting a civil proceeding relating to the business of an assessee is admissible as expenditure laid out wholly and exclusively for the purpose of the business even if the proceeding is decided against the assessee.
It was held by this Court in Commissioner of Income Tax, West Bengal vs H. Hirjee(1) that the deductibility of expenditure under section 10(2) (xv) must depend on the nature and purpose of the legal proceeding in relation to the business whose profits are under computation and cannot be affected by the final outcome of that.
proceeding.
The proceeding started by the Company was in relation to the business of the Company.
The Company was thereby seeking relief against interference by the executive authorities in the conduct of its business in the manner in which it was being carried on previously.
It was also seeking to obtain an order for restoration of its goods which were seized.
It may be (1) ; : ; M15Sup CI/66 12 396 granted that the Company was, in starting the proceeding, ill advised.
However wrongheaded, ill advised, unduly optimistic, or overconfident in his conviction the assessee may appear in the light of the ultimate decision, expenditure in starting and prosecuting the proceeding may not be denied admission as a permissible deduction in computing the taxable income, merely because the proceeding has failed, if otherwise the expenditure is laid out for the purpose of the business wholly and exclusively, i.e. reasonably and honestly incurred to promote the interest of the business.
Persistence of the assessee in launching the proceeding and carrying it from Court to Court and incurring expenditure for that purpose again cannot be a ground for disallowing the claim.
Under section 10(2)(xv) of the Indian Income tax Act as amended by Act 7 of 1939 expenditure even though not directly related to the earning of income may still be admissible as a deduction.
Expenditure on civil litigation commenced or carried on by an assessee for protecting the business is admissible as expenditure under section 10(2) ((xv) provided other conditions are fulfilled, even though the expenditure does not directly relate to the earning of income.
Expendi ture incurred not with a view to direct and immediate benefit for purposes of commercial expediency and in order indirectly to facilitate the carrying on of the business is therefore expenditure laid out wholly and exclusively for the purposes of the trade.
In Morgan (Inspector of Taxes) vs Tate & Lyle Ltd.(1) the House of Lords held that expenditure incurred by a Company engaged in :sugar refining, in a propaganda campaign to oppose the threatened nationalization of the industry was a sum wholly and exclusively laid out for the purpose of the Company 's trade and was an admissible deduction from its profits for income tax purposes.
majority of the House held that the object of the expenditure being to preserve the assets of the Company from seizure and so to enable it to carry on and earn profits, the expenditure was a permissible deduction under r. 3(a) of the Rules applicable to cases (1) & (2) of Sch.
D of the Income tax Act, 1918.
The object of the petition filed by the Company was to secure a declaration that the order dated February 20, 1946 insofar as it sought to put restrictions upon the right of the Company to carry on its business in the manner in which it was accustomed to do was unauthorized and to prevent enforcement of that order: thereby the Company was seeking to obtain an order from the Court ,enabling the business to be carried on without interference.
Expenditure incurred in that behalf would without doubt be expenditure laid out wholly and exclusively for the purpose of the business of the Company.
(1) : 397 It was argued however that the any delivered by the Company to the weavers contrary to the prohibitory order dated February 20, 1946 was attached under the order of the Provincial Textile Commissioner, and since the Company violated the prohibitory order, the primary object of the petition for mandamus instituted by the Company was to secure protection against prosecution of the Company and an order for return of the goods in respect of which an offence was committed.
Expenditure incurred,in prosecuting that claim was, it was said, not laid out wholly and exclusively for the purpose of the business.
Reliance was placed upon the judgment of this Court in H. Hirjee 's case(1) in which it was held that a person who was prosecuted for an offence under section 13 of the Hoarding and Profiteering Ordinance, 1943, on a charge, of selling goods at prices higher than were reasonable, in contravention of the provisions of section 6 thereof, and a part of his stock was seized and taken away, was not entitled to claim deduction under section 10(2)(xv) of the Income tax Act for the sums spent in defending the criminal proceedings against him because the expenditure could not be said to have been laid out and expended wholly and exclusively for the purpose of the business.
But the assumption underlying the argument is not true.
The Tribunal has in the statement of the case observed in paragraph 2 : "Subsequently, on 20th February 1946, a proper order by the appropriate authority was passed and it is common ground that after that date, at any rate no further distribution of yarn was made by the assessee.
In the interim (period) between 7th February 1946 and 20th February 1946, the yarn which was distributed to the handloom weavers was the subject of seizure by the provincial Textile Commissioner and this the assesse sought to resist by filing an application under section 45 of the 1, of 1877 In the view of the Tribunal the Company did not act in violation of the terms of the order dated February 20, 1946; it cannot there fore be said that the Company was seeking to protect itself against a criminal prosecution and the consequences arising from infringement of the order dated February 20, 1946.
It is true that in the judgment in appeal from the order refusing mandamus, Leach, C.J. speaking for the Court observed: (see Sree Meenakshi Mills vs Provincial Textile Commissioner, Madras(2): "In spite of the fact that this order in effect prohibited the appellant delivering yarn to owners of handlooms situate outside the mill premises, the appellant continued to deliver yarn to such weavers.", and (1) ; (2) A.I.R. 1947 Mad. 82, 398 the Judicial Committee observed: "Despite.
the prohibition the appellant continued to deliver yarn to such owners in order (as already mentioned) that they might turn the yarn into.
cloth and bring the article back to the mills.
" (See Sree Meenakshi Mills Ltd. vs Provincial Textile Commissioner; Madras(1).
But the Tribunal has observed in its order dismissing the appeal filed by the Company that it was "not disputed before" them that, after February 20, 1946 the Company did not distribute any yam.
The question referred in this case must be decided not on what was found or observed by the High Court in appeal from order, in the proceedings under section 45 of the or by the Judicial Committee, but upon findings of fact recorded by.
the Tribunal.
It is unfortunate that the High Court took the facts, not from the statement of the case, but apparently from the judgment.
of the Judicial Committee.
The High Court assumed that the Company had contravened the law because it delivered yarn to weavers in contravention of the order dated February 20, 1946.
But the assumption on which the discussion is founded is erroneous.
The High Court also thought that expenditure to fall within the terms of section 10(2)(xv) must be one for the purpose of earning income, and there was no material on the record to show that the expenditure was so incurred.
If it is intended thereby to imply that the primary motive in incurring the expenditure admissible to deduction under section 10(2)(xv) must be directly to earn income thereby, we are with respect unable to agree with that view.
This Court in Commissioner of Income tax, Kerala vs Malaya lam, Plantations Ltd.(2) observed: "The expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits".
It 's range is wide: it may take in not only the day to day running of a business, but also the rationalizationof administration and modernization of its machinery: it may include measures for the preservation of the business or for the protection of its assets and property from expropriation coercive process or assertion of hostile title: it may also comprehend payment of statutory dues and taxes imposed as a precondition to commence or for carrying (1)L.R. 76, I.A. 191, 195.
(2)[1964] 7 S.C.R. 693,705:53 I.T.R. 140, 150.
399 on of a business; it may comprehend many other acts incidental to the carrying on of a business.
" Expenditure incurred to resist in a civil proceeding the enforcement of a measure legislative or executive, which imposes restrictions on the carrying on of a business, or to obtain a declaration that the measure is invalid would, if other conditions are satisfied, be admissible, in our judgment, under section 10(2)(xv) as a permissible deduction in the computation of taxable income.
The appeals are therefore allowed.
The question referred is answered in the affirmative.
The appellant Company will be entitled to its costs in this Court and the High Court.
One hearing fee.
y. P. Appeals allowed.

summary/full:
The assessee mill claimed deduction under section 10(2) (xv) of the Indian Income tax Act of the expenses incurred by it and the costs awarded to Government in respect of unsuccessful writ petition and appeals therefrom.
The deduction was disallowed by the departmental authorities, and the question was answered against the assessee by the High Court.
In appeals to this Court.
HELD: The appeal must be allowed.
The proceeding started by the assessee was in relation to the business of the assessee.
Expenditure incurred to resist in a civil proceeding the enforcement of a measure legislative or executive, which imposes restrictions on the carrying on of a business or to obtain a declaration that the measure is invalid would. if other conditions are satisfied, be admissible under section 10(2) (xv) as a permissible deduction in the computation of taxable income, even though the expenditure does not directly relate to the earning of income.
Expenditure may not be denied admission as a permissible deduction in computing the taxable income merely because the proceeding has failed.
Persistence of the assessee in launching the proceeding and carrying it from Court to Court and incurring expenditure for that purpose again cannot be a ground for disallowing the claim.
(396 B C; 399 B) Commissioner of Income tax, West Bengal vs H. Hirjee 23 I.T.R 427, Morgan (Inspector of Taxes) vs Tate & Lyle Ltd. : and Commissioner of Income tax, Kerala vs Malayalam Plantations Ltd., (196 HI 7 S.C.R. 693, referred to.