The Government cannot avoid the requirement of making a quasi judicial order under R. 30-A (9) of the Defence of India Rules by purporting to act under R. 30 (1) (b) and passing a fresh order under it.

Judgment

BHARGAVA, J. : These five writ petitions raise identical question and, having been heard together, are decided by this single judgment. For the sake of convenience, the facts of one case, in which the arguments were first advanced, may be stated. That case is of Ghulam Ahmad, petitioner in Writ Petition No. 79 of 1967. This petitioner was arrested on the 10th March 1966 and an order for his detention under R. 30 (1) (b) of the Defence of India Rules 1962 was made on the 11th March 1966. Thereafter, on two subsequent occasions, the detention order was reviewed under R. 30-A (9) of the said Rules and on the basis of these reviews, orders were passed continuing the detention. The present petition challenging this detention was moved in this Court on 18th April 1967. The main ground for challenge was that the orders of review under R. 30-A (9) were not valid, as those orders were made without giving an opportunity to the petitioner of rendering an explanation or other materials and the orders passed did not indicate the reasons for the Government arriving at the decision that it was necessary to continue the detention of this petitioner. Clearly, in accordance with the decision given by this Court in P. L. Lakhanpal v. Union of India, Writ Petn. No. 258 of 1966, D/- 7-3-1966; the detention of the petitioner became illegal when the Government failed to pass a proper review order before the expiry of the first period of six months computed from 11th March, 1966, the date of the first order of detention. In Lakhanpal s case, W. P. No. 258 of 1966 D/- 7-3-1966, this Court held that "whereas the function under R. 30 (1) (b) is executive, the one under R. 30-A (9) is quasi judicial and, therefore in exercising it, the rules of natural justice have to be complied with." in the judgment, the Court explained these principles of natural justice as follows :-

"It is equally obvious that the manner in which the question of continuation of detention enjoined upon by R. 30-A (9) has to be determined is by applying the objective standard as against the subjective opinion or the belief of the detaining authority, i. e., by weighing evidence brought before or collected by such authority relevant to the purposes under R. 30 (1) (b) and Rule 30-A (9) and then coming to a decision whether the order of detention needs continuation or not. How can such an authority come to its decision honestly and properly unless it is certain that the materials before it are true and dependable? How is that certainty to be derived unless the person concerned is given an opportunity to correct or contradict such evidence either by explanation or through other materials which he can place before the authority?"

2. In the present case, a counter-affidavit has been, filed on behalf of the State Government, but there is no assertion in that counter-affidavit that, at the time when orders for continuing the detention under R. 30-A (9)were passed, any opportunity was given to the petitioner to correct or contradict the evidence either by explanation or through other materials which be could place before the Government and that the Government arrived at the decision after considering such explanation or materials. Therefore, after the expiry of six months from 11th March 1966, the detention of the petitioner became illegal. Consequently, in April 1967, when this writ petition was moved, the petitioner was under illegal detention and he was clearly entitled to an order of release.

3. However, it appears from the counter-affidavit filed on behalf of the State Government that, subsequently, on 12th May 1967, the Government proceeded to pass two orders; one was an order cancelling the original order of detention dated 11th March 1966, and that was followed by a second order on the same date directing detention of the petitioner by a fresh order under R. 30 (1) (b). It has been urged on behalf of the State Government that the Government was competent to make a fresh order on