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SUPREME COURT OF INDIA
24th November 1952
MAHAJAN, S.R. DAS AND BHAGWATI, JJ.
Venkateswarloo and others - Petitioners
Versus
Supdt., Central Jail, Hyderabad State and others - Respondents.
Petns. Nos. 335, 350, 356, 362, 366 of 1952.
Advocates appeared
Shri. A. S. R. Chari, Advocate, Amicus Curiae, (The Petitioners were also present) - for Petitioners; Shri. R. Ganapathy Iyer, Advocate, instructed by Shri G. H. Rajadhakshya, Agent, (in Nos. 335 and 356)-Shri. Hanmanth Rao Vaishnav, Advocate, instructed by Shri G. H. Rajadhakshya. Agent (in Nos. 350, 362 and 366) - for Respondents; Shri. C. K. Daphtary, Solicitor-General for India, (Shri P. A. Mehta, Advocate, with him) instructed by Shri. G. H. Rajadhakshya, Agent, for Intervener (Union of India).
The Preventive Detention Act, 1950, was to expire on 1.4.51, but in that year an amending Act was passed which, among other things, prolonged its life till 1.4.1952. A fresh Act was passed in 1952 (Act 34 of 1952) called the Preventive Detention (Amendment) Act, 1952. The effect of this Act was to prolong the life of the Act for further six months, viz., till 1.10.1952. On 22.8.1952, an Act further to amend the Preventive Detention (Second Amendment) Act (61 of 1952) received the assent of the President, by which the life of the Act extended till 31.12.1954. It came into force with effect from 30.9.1952 by a notification of the Central Government.
The petitioner was served with an order of detention on 20.10.1952.
The grounds of detention were furnished to him on 1.11.1951. His case was referred to the Advisory Board on 24.11.1951. The Advisory Board submitted its report on 13.12.1951. The appropriate Government confirmed the detention on 21.1.1952. It specified 31.3.1952 as the date up to which -the detention was to continue. On 29.3.1952 the petitioners detention was extended till 30.9.1952 and on 22.9.1952 his detention was again extended till 31. 12.1952. In the other petitions also, the last order of extension was made on 22.9.1952 extending the detentions till 31.12.1952. But for this extension the detentions could not continue beyond 30.9.1952 except by use of the powers under the new Act.
It was contended on behalf of the detenus that on 22.9.1952 the State Government had no jurisdiction to make an order of extension so as to continue the detention beyond 1.10.1952, viz., beyond the life of the Act then in force and that the order extending the period of detention upto 31.12.1952 was illegal.
Held: (1) The order was illegal and could not be justified by the provisions of S. 22, General Clauses Act (1897). "Orders can only be issued with respect to the time when or the manner in which anything is to be done under the Act. An order for the extension of detention made under the purported exercise of the powers conferred by any of the provisions of the new Act is not an order with respect to the time when or the manner in which anything is to be done under the Act. Such an order could only be made under the Act and after the Act had come into force and not in anticipation of its coming into force. The Act having no retrospective operation, it cannot validate an order made, before it came into force. It seems to us that the expression order in the section means an order laying down directions about the manner in which things are to be done under the Act and it is an order of that nature that can be, issued before the Act comes into force but it does not mean that a substantive order against a particular person can be made before the Act comes into force. In our opinion therefore the contention raised on behalf of the State Government has no force and the order extending the detention of the detenus on 22.9.1952 upto 31.10.1952 is illegal."
(2) The words "the order" in S. 11-A (2) refer, not to the initial order of detention, for no period of detention could legally be specified in that order, but to the order of detention as eventually confirmed under S. 11 (1).
(3) Where an order extending detention till 30.9.1952 is passed, the detention cannot continue after that date by force of the provisions of subsection (2) of S. 11-A merely because that date by accident or coincidence happens to be identical with the date on which the Preventive Detention. (Amendment) Act, (34 of 1952) was to expire.
(4) The words "unless shorter period is specified in the order" in S. 11-A (2) have reference to periods mentioned immediately thereafter and not to the date of expiry of Act 34 of 1952.
Judgement
Mahajan J. - This petition and four others, viz. Nos. 350, 356, 362 and 366 of 1952, raise a question regarding the construction of S. 11-A, inserted in Act 4 of 1950 by the Preventive Detention (Second Amendment) Act, 61 of 1952.
2. Act 4 of 1950, as it originally stood, was to expire on 1-4-1951, but in that year an amending Act was passed which, among other things, prolonged its life till 1-4-1952. A fresh Act was passed in 1952 (Act 34 of 1952) called the Preventive Detention (Amendment) Act, 1952. The effect of this Act was to prolong the life of the Act of 1950 for further six months, viz., till 1-10-1952. On 22-8-1952, an Act further to amend the Preventive Detention Act, 1950, called the Preventive Detention (Second Amendment) Act, 61 of 1952, received the assent of the President, by which the life of the Act was extended till 31-12-1954. It was to come into force on a date appointed by the Central Government. By a notification dated 15-9-1952, the Central Government appointed 30-9-1952 as the date when the new Act was to come into force.
3. The petitioner was served with an order of detention on 20-10-1951. The grounds of detention were furnished to him on 1-11-1951. His case was referred to the Advisory Board on 24-11-1951. The Advisory Board submitted its report on 13-12-1951. The appropriate Government confirmed the detention on 21-1-1952. It specified 31-3-1952 as the date up to which the detention was to continue. On 29-3-1952 the petitioner s detention was extended till 30-9-1952 and on 22-9-1952 his detention was again extended till 31-12-1952. In the other petitions also, the last order of extension was made on 22-9-1952 extending the detention till 31-12-1952. But for this extension the detentions could not continue beyond 30-9-1952 except by use of the powers under the new Act.
4. It was contended on behalf of the detenus that on 22-9-1952 the State Government had no jurisdiction to make an order of extension so as to continue the detention beyond 1-10-1952, viz., beyond the life of the Act then in force and that the order extending the period of detention upto 31-12-1952 was illegal. In our opinion, this contention is well founded. On behalf of the State Government, the order made on 22-9-1952 was sought to be justified on the ground that it had power to enlarge the period of detention under the provisions of the Preventive Detention (Second Amendment) Act of 1952 and it could exercise those powers after that Act had been passed by the Parliament even though the amended Act had not yet come into force. Reliance for this proposition was placed on the provisions of S. 22, General Clauses Act (10 of 1897), Section 22 provides as follows :
"Where, by any central Act or Regulation which is not to come into force immediately on the passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation ......or with respect to the time when, or the place where or the manner in which.....anything is to be done under the Act or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation; but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act or Regulation."
5. This Section corresponds to S. 37, English Interpretation Act of 1899. It is an enabling provision, its intent and purpose being to facilitate the making of rules, bye-laws and orders before the date of the commencement of an enactment in anticipation of its coming into force. In other words, it validates rules, bye-laws and orders made before the enactment comes into force provided they are made after the passing of the Act and as preparatory to the Act coming into force. It does not authorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any particular Section of the new Act. The words of the Section "with respect to" prescr
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