Validity of power of Governor.

Govinda Menon, J.-These are petitions under section 491, Code of Criminal Procedure, by the various petitioners herein praying that directions in the nature of Habeas Corpus to be issued to the superintendent of the respective jails in which they are confined to produce them before this Court so that they might be set at liberty. In all these cases the petitioners are detained under the provisions of Madras Maintenance of Public Order Act, 1947 (Act I of 1947), as amended by the Madras Maintenance of Public Order (Amendment) Act, 1948 (Act XVII of 1948). Madras Act I of 1947 was to remain in force for a period of one year from the 12th March, 1947 and there was a provision therein that the Provincial Government may from time to time, by notification in the Fort St. George Gazette, extend the continuance of the Act for a further period or periods not exceeding one year in the aggregate. In accordance with that provision contained in section 1(4) of Act I of 1947, the Provincial Government extended the operation of the Act by notification. Later on, by Act XVII of 1948, an amendment was made to section 1(4) of Act I of 1947, by which for the words “for a further period or periods not exceeding one year in the aggregate”the words “for a further period or periods not exceeding three years in the aggregate”, were substituted. While matters were in this state, the Governor of Madras, acting under section 88(1) of the Government of India Act, 1935, promulgated Ordinance I of 1949 on the 11th August, 1949, with the object of the removal of doubts regarding the validity of the continuance of Madras Act I of 1947. By this Ordinance certain new provisions were introduced, viz., section 3(a) by which it was declared that the validity of the Madras Maintenance of Public Order (Amendment) Ordinance, 1948 (Ordinance II of 1948) and Madras Act XVII of 1948, shall not be questioned on the ground that the Act amended thereby was not in force at the time when the Amending Act was enacted or the Amending Ordinance was promulgated. Section 3(b) reads as follows:-

“(b) no action or proceeding taken, no notification issued, no order made, and nothing done, by any authority in accordance with the provisions of the said Act at any time on or after the 12th day of March, 1948, shall be questioned on the ground that the said Act was not in force at that time.

A further section 4-A was also inserted in Act I of 1947 which is in the following terms:-

” No order of detention made in respect of any person in pursuance of any of the foregoing provisions at anv time, whether before, on, or after, the 12th day of March, 1948, shall be deemed to be invalid or unlawful or improper on the ground of any defect.vagueness or insufficiency, or any delay in any communication made to such person under this Act.“

On the 10th October this year the question regarding the validity of Ordinance I of 1949 was considered and decided by this Court in Criminal Miscellaneous Petition No. 1529 of 19491 to which my learned brother Basheer Ahmed Sayeed, J., was a party. It was held therein that the notification by the Government of Madras [vide G.O. No. 446 (General), dated 27th February, 1948, published in the Fort Saint George Gazette of 2nd March, 1948), extending the duration of Act I of 1947 for a further period of one year commencing from 12th March, 1948, was ultra vires and illegal in view of the decision of the Federal Court in Jatindranath Gupta v. Province of Bihar2. The amendment of sub-section (4) of section 1 by Madras Act XVII of 1948 by substituting three years for one year was also declared to be ultra vires the Legislature, because Madras Act I of 1947 expired on 12th March, 1948 and its term could not be extended by a notification by the Provincial Government. I do not intend to discuss that aspect of the case now because my learned brothers have given enough reasons for holding that to the extent Madras Act I of 1947 was extended by the notification of the Prov