# [1953] 1 S.C.R. 905

- **Citation:** [1953] 1 S.C.R. 905
- **Court:** Supreme Court of India
- **Decided:** 1952-08-22
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1953-1-s-c-r-905-220
- **Pages:** 9

## Headnote

•
8.C.R.
SUPREME COURT REPORTS
905
The result, therefore, is that we allow the appeal in
1963
part and modffy the judgment of the High Court. A
0
preliminary decree should be drawn up in favour of Nag"~::~::,aini
the plaintiff against defendant No. 6 alone for a sum
v.
of Rs. 55,287 annas odd which will carry interest at Raja Vadmu
7!% simple per annum. Interest will be calculated Viswa•undara
on Rs. 52,287 on and from the date of the mortgage, Rao and Others
while on the balance of Rs. 3,000 interest will run
MukherjeaJ.
from 5th November, 1930. We make no order as to
costs of this court or of the High Court. The plaintiff
will have his costs of the trial court.
Appeal allowed in part.
Agent for the appellant: Al. 8. K. Aiyangar.
Agent for respondent No. 1 : Ganpat Rai.
BOPPANNA VENKATESWARALOO AND OTHERS
1962
V •
N ovembcr24
SUPERINTENDENT, CENTRAL JAIL,
HYDERABAD STATE.
UNION OF INDIA-Intervener.
[MEIIB CHAND MAHAJAN, S.R. DAS and BHAGWATIJJ.]
P1·eventive Detention (Second Amendment) Act (XLI of 1952),
s. 11-A-Act passed on 22nd August, 1952-Brought into force on
30th Sevteinber, 1952-Detention exviring on 30th September, 1952
-Order on 22nd September, 1959, extending detention uvto 31st
December, 1952 -Validity of order of extension-General Clauses
Act (X of 1897), s. 22-Act LXI of 1952, s. 11-A (2), apvlicability of.
The petitioner was served with an oriler of detention on the
20th October, 1951, and, after a reference to the Advisory Board,
the Govemment confirmed the detention and specified 31st March,
1952, as the date up to which the detention was to continue.
On
the 20th l\farcb, 1952, the detention was extended till the 30th
September, 1952, and on the 22nd September, 1952, the detention
was again extended up to the 31st December, 1952. It was contended on behalf of the petitioner that the Government had no
power on 22nd September, 1952, to extend the detention.beyond the
1st October, 1952, as the Preventive Detention (Second Amendment) Act of 1952, even though it had received the assent of the
117
•
006
SUPREME COURT REPORTS
[1953]
1952
President in August 1952, came into force only on the 30\h September, 1952:
'
Boppanna
Held, (i) that the order extending the period of detention made
Venkateswaraloo on the 22nd September could not be justified under the provisions
and Others
of s. 22 of the General Clauses Act, 1897; the word "order" in the
v.
said section means an order laying down directions aboub the
Superinffndent, manner in v.rhich things are to be done under the Act and th•3 secCentral Jail,
tion does not 1nean that a subs.tantive order against a particular
Hyderabad State. person can be made under a pr•Jvision of an Act before that Act
has come into force.
{ii) The words "the order" iu s. 11-A of the Preventive Detention {Second Amendment) Act, 1952, do not refer to the initial
detention order, as no period of detention could legally be spocified
in that order, but to the order of detention as eventually confirmed under s. 11(1) of the Act and the detention of the petitioner
could not therefore he treated a> automatically extended up to the
1st April, 1953, under the provisions of s. 11-A by reason of the
fact that in the initial order for the detention of the petitioner no
period of detention had been specified.
(iii) The detention of the petitioner could not continue after
the 30th September, 1952, by force of the provisions of s. ll-A(2)
of the Preventive Detention (Second Amendment) Act, l 952,
merely because the date on which the petitioner's detention was
to expire, namely, the ilOth Sep•ember, 1952, happened by accident or coincidence to be ic'.entical with the date on which the
first Amendment Act (Act XXXIV of 1952) was to expire, for
s. ll-A(2) merely provides that if a shorter period is specified in
the order, the detenu would be entitled lo be released.
(iv) The expression "shorter period" in s. 11-A (2) means a
period which does not extend up to the ls\ April, 1953, or up to
the end of the peri

## Text

•
8.C.R.
SUPREME COURT REPORTS
905
The result, therefore, is that we allow the appeal in
1963
part and modffy the judgment of the High Court. A
0
preliminary decree should be drawn up in favour of Nag"~::~::,aini
the plaintiff against defendant No. 6 alone for a sum
v.
of Rs. 55,287 annas odd which will carry interest at Raja Vadmu
7!% simple per annum. Interest will be calculated Viswa•undara
on Rs. 52,287 on and from the date of the mortgage, Rao and Others
while on the balance of Rs. 3,000 interest will run
MukherjeaJ.
from 5th November, 1930. We make no order as to
costs of this court or of the High Court. The plaintiff
will have his costs of the trial court.
Appeal allowed in part.
Agent for the appellant: Al. 8. K. Aiyangar.
Agent for respondent No. 1 : Ganpat Rai.
BOPPANNA VENKATESWARALOO AND OTHERS
1962
V •
N ovembcr24
SUPERINTENDENT, CENTRAL JAIL,
HYDERABAD STATE.
UNION OF INDIA-Intervener.
[MEIIB CHAND MAHAJAN, S.R. DAS and BHAGWATIJJ.]
P1·eventive Detention (Second Amendment) Act (XLI of 1952),
s. 11-A-Act passed on 22nd August, 1952-Brought into force on
30th Sevteinber, 1952-Detention exviring on 30th September, 1952
-Order on 22nd September, 1959, extending detention uvto 31st
December, 1952 -Validity of order of extension-General Clauses
Act (X of 1897), s. 22-Act LXI of 1952, s. 11-A (2), apvlicability of.
The petitioner was served with an oriler of detention on the
20th October, 1951, and, after a reference to the Advisory Board,
the Govemment confirmed the detention and specified 31st March,
1952, as the date up to which the detention was to continue.
On
the 20th l\farcb, 1952, the detention was extended till the 30th
September, 1952, and on the 22nd September, 1952, the detention
was again extended up to the 31st December, 1952. It was contended on behalf of the petitioner that the Government had no
power on 22nd September, 1952, to extend the detention.beyond the
1st October, 1952, as the Preventive Detention (Second Amendment) Act of 1952, even though it had received the assent of the
117
•
006
SUPREME COURT REPORTS
[1953]
1952
President in August 1952, came into force only on the 30\h September, 1952:
'
Boppanna
Held, (i) that the order extending the period of detention made
Venkateswaraloo on the 22nd September could not be justified under the provisions
and Others
of s. 22 of the General Clauses Act, 1897; the word "order" in the
v.
said section means an order laying down directions aboub the
Superinffndent, manner in v.rhich things are to be done under the Act and th•3 secCentral Jail,
tion does not 1nean that a subs.tantive order against a particular
Hyderabad State. person can be made under a pr•Jvision of an Act before that Act
has come into force.
{ii) The words "the order" iu s. 11-A of the Preventive Detention {Second Amendment) Act, 1952, do not refer to the initial
detention order, as no period of detention could legally be spocified
in that order, but to the order of detention as eventually confirmed under s. 11(1) of the Act and the detention of the petitioner
could not therefore he treated a> automatically extended up to the
1st April, 1953, under the provisions of s. 11-A by reason of the
fact that in the initial order for the detention of the petitioner no
period of detention had been specified.
(iii) The detention of the petitioner could not continue after
the 30th September, 1952, by force of the provisions of s. ll-A(2)
of the Preventive Detention (Second Amendment) Act, l 952,
merely because the date on which the petitioner's detention was
to expire, namely, the ilOth Sep•ember, 1952, happened by accident or coincidence to be ic'.entical with the date on which the
first Amendment Act (Act XXXIV of 1952) was to expire, for
s. ll-A(2) merely provides that if a shorter period is specified in
the order, the detenu would be entitled lo be released.
(iv) The expression "shorter period" in s. 11-A (2) means a
period which does not extend up to the ls\ April, 1953, or up to
the end of the period of 12 months mentioned in the section and
<loes not mean a period ending before the 30th September, 1952.
(v) The cletention of the petitioner after the 30th September,
i 952, was therefore illegal.
ORIGINAL JURISDICTIO~: Petitions (Nos. 335, 350,
356, 362 and 366 of 1952) under article 32 of the Constitution for writs in the nature of habeas corpus.
A.S.R. Chari (arnicus curiae) for the petitionerH.
R. Ganapathy Iyer for the respondents in Petitions
Nos. 335 and 356 of 1952.
Hanrnanth Rao Vaishnav for the respondents in
Petitions Nos. 350, 362 and 366 of 1952.
0. K. Daphtary, Solicitor-General for lndi'a (P•HU.8
A, lff ehta, with him) for the Intervener.
s.c.R.
SUPREME COURT REPORTS
'
907
1952.
.N"ovJ;lmber 24. The Judgment of the Court
was delivered by
•
1952
Boppanna
MAHAJA~ J.-This petition and four others, viz., Venkateswaraloo
Nos. 350, 356, 362 and 366 of 1952, raise a question
and Others
regarding the construction of section 11-A, inserted 8
.v. d
.
,
IV
f
950 . b
}
p
,
D
uperinten ent,
m ,..,_ct
o 1
y t le
revent1ve
etention
Central Jail
(Second Amendment) Act, LXI of 1952.
Hyderabad St~te.
Act IV of 1950, as it originally stood, was to expire
on 1st April, 1951, but in that year an amending Act
MahajanJ.
was passed which, among other things, prolonged its
life till the 1st April, 1952. A fresh Act was passed in
1952 (Act XXXIV of 1952) called the Preventive
Detention (Amendment) Act, 1952. The effect of this
Aet was to prolong the life of the Act of 1950 for
further six months, viz., till the 1st October, 1952.
On the 22nd August, 1952, an Act further to amend
the Preventive Detention Act, 1950, called the Preventive Detention (Second Amendment) Act, LXI of
1952, received the assent of the President, by which
the life of the Act was 0xtendcd till the 31st December,
19.54. It was to come into force on a date appointed
by the Central Government. By a notification dated
15th September, 1952, the Central Government appointed the 30th September, 1952, as the date when the
new Act was to come into force.
The petitioner was served with an order of detention on the 20th October, 1951. The grounds of detention were furnished to him on the 1st November, 1951.
His case was referred to the Advisory Board on the
24th November, 1951. The Advisory Boilrd submitted
its report on the 13th December, 1951. The appropritite Government confirmed the detention on the 21st
,January, 1952. It specified 31st March, 1952, as the
date up to which the detention was to continue. On
the 29th March, 1952, the petitioner's detention was
extended till the 30th September, 1952, aml on the
22nd September, 195:2, his detention was again extend.-
till 31st December, 1952. In the other petitions also
the last order of extension was made on 22nd September, 1952, extending the detentions till 31st December,
•
908
SUPREME CO-CRT REPORTS
[1953]
10;2
1952. But for this extension the detentions could not
-
continue beyond 30th September, 1952, except by use
Boppanna
h
venkateBWaraloo of the powers under t e new Act.
and Others
It was contended on behalf of the detenus that on
.v.
.
the 22nd September, 1952, the State Government had
Superintendent,
·,
· d' t'
ak
d
f
t
·
t
Central Jail, no J\fflS ic 10n to m. e an or er o ex ens10n so as o
Hyderabad State contmue the detent10n beyond the 1st October, 1952,
-·-
viz., beyond the life of the Act then in force, and that
Mahajan J. the order extending the period of detention upto 31st
December, 1952, was illegal. In our opinion, this contention is well founded.
On behalf of the State
Government the order made on the 22nd September,
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 section 22 of the General Clauses Act
(X 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 byelaws, 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."
·
This section corresponds to section 37 of the English
Interpretation Act of 189H. 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
S.C.R.
SUPREME COURT ItEPOR;.i'S
909
force provided they are made after the passing of the
W52
Act and as preparatory to the Act coming into force. It
does not authorize or empower the State Government v,,~;~~:::1oo
to pass substantive orders against any person in exerand other.
cise of the authority conferred by any particular section
v.
of thr new Act. The words of the section "with re.spect Superintendent,
lo" prescribe the limit and the scope of the power given
Central Jail,
by the section. Orders can only be issued with respect Hyderabad Stat&
to the time when or the manner in which anything is
Ma;.jan J,
'
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.
Ruch an order could onlv 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 rnitme 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 the 22nd September, 1952, upto
the 31st December, 1952, is illegal.
The learned Solicitor-General on behalf of the Cnion
Government intervened and contended that the detention of the petitioner as well as of others concerned in
the comiected petitions was legal because in the initial
order of detention made in all these ca,scs no period of
detention had been specified and by force of section
ll-A(2), the detention of the petitioners stood automatically extended till 1st April, 1953.
Section 10 of the new Act l Preventive Detention
Second (Amendment) Act, 1952], adds the new section
11-A, which is in these terms:-
•
9io
SUPREME COl'RT REPORTS
[1953]
1952
" ( 1) The maximum period for which any person
11
may be detained in pursuance of tmy detention order
T'enko:,;;;;~'~~:100 which has been confirmed under scction 11 shall be
and Others
twelve months from the date of detention.
_v.
(2) Notwithstanding anything contained in subSuperintendent, section (1)
every detention order which has been
OentralJail,
fi
d' d
.
ll b c
th
Hyderabad State. con rme un er sect10n
· e1ore
e commencement
_
of the Preventive Detention (Second Amendment)
Mahajan J, Act, 1952, shall, unless a shorter period is specified in
the order, continue to remain in force until the 1st day
of April, 1953, or until the expiration of twelve months
from the date of detention, whichever period of detention expires later.
(3) The provisions of sub-section (2) shall have
effect notwithstanding
anything to the contrary
. contained in section 3 of the Preventive Detention
(Amendment) Act, 1952 (XXXIV of 1952), but nothing
contained in this section shall affect the power of the
appropriate Government to revoke or modify the
detention order at a.ny earlier time."
It was suggested that on a grammatical construction of this section the word "order" in sub-section (2)
means the initial order of detention and cannot refer
to the order of confirmation as no such order is contemplated by the Act. In our opinion, this contention
is not sound. It was held by this Court in Petition
No. 308of1951 [1Vlakhan Singh Tarsikka v. The State of
Punjab(')] that the fixing of the period of detention in
an initial order of detention is contrarv to the scheme
of the Act and cannot be supported as' it tends to prejudice a fair consideration of the petitioner's case
when it is placed before the Advisory Board. That
decision was pronounced on the 10th December, 1951,
and according to well known canons of construction of
statutes and principles of legislation it has to be presumed that when Parliainent enacted section 11-A in
Act LXI of 1952 it was aware of the decision of this
Court that no period could be Hpecified in the initial
order of detention.
It follows that when Parliament
in sub-section (2) provided that "every detention order
(1) [1952] S.C.R. 368.
,
•
S.C.R.
SUPRE?IIE COURT HEPORTS
\)11
which has been confirmed under section 11 before the
19sz
commencement of the Preventive Detention (Second
Amendment) Act, 1952, shall, unless a shorter period v :oppann~
is specified in the order, continue to remain in force"
":,,~tp~:~; 00
till a certain date, it plainly infonded by the words
v.
"the order" to refer, not to the initial order of deten- Superintendent,
tion, for no period of detention could legally be speciCentral Jail,
fied in that order, but to the order of detention as lfyderabod State.
eventually confirmed under section 11 (1).
'Ve are
MahajanJ,
not on any debatable ground when we say that at that
stage it is open to an appropriate government to
specify the period of detention in the case of every
detenu. We are satisfied that when sub-section (2)
refers to specification of a period in the order, it
intends to refer to the detention order as confirmed
under section 11 ( 1) and not the initial order of detention.
It was next contended that the period specified in
the order in question being coterminous with the date
fixed for the life of the Act, the specification of the
period was wholly unnecessary and therefore the order
of detention could continue till the lst April, 1953, by
force of sub-section (2) of section 11-A in the new Act,
as if no period had in fact been specified in the order.
This argument cannot be sustained on the language
employed in section ll-A(2). The phraseology employed in thP section is in sharp distinction to the language
employed in section 3 of Act XXXIV of 1952 and if
the object was to convey the same intention, then
Parliament would have used similar language in section
ll-A(2) as in section 3 of Act XXXIV of 1952. That
section runs thus:-
" Every detention order confirmed unde1· section 11
of the principal Act and in force immediately before
the commencement of this Act shall have effect as if it
had been confirmed under the provisions of.the
principal Act as amended by this Act; and accordingly,
where the period of detention is either not specified in
such detention order or specified (by whatever form of
words) to be for the duration or until the expiry of the
principal Act or until the 31st day of March, 1952, Ruch
•
912
SVPREME COURT REPORTS
[1953]
1952
detention order shall continue to remn,in in force for so
long as the principal Act ~s in force .. .'' ·
Boppanna
Venkate81vara7oo
The Parliament, when it intended tc sav that if the
and Others
date specified in an order is coterminous "with the life
v.
of the Act the detention will continue for a further
Superintwdent, period automatically, said so in clear and unamhiguous
Central Jail 1
1 l
f"
d
I l
h
h
Hyderabad st~te. anguage am )y use o apt wor s.
t mew t at t ere
_
may he cases in which the date specified for the deterMahajanJ.
mination of the detention may be coterminous with
the date on which the Act is to expire, and it made a
clear provision in section 3 to cover all such cases.
In section 11-A(il), however, it simply said that if
a shorter period is specified in the order, then the
detenu would be entitled to bis release on that
date. In the order pas~ed against the petitioner
and also in the orders passed in the connected petitions,
:30th September, 1952, w.1s the date specified np to
which detention could continue and that being so,
their present detention cannot continue after that date
by force of the provisions of sub-section (2) of section
11-A merely because that date by accident or coin·
cidence happens to be identical with the date on which
the first amendment Act was to expire.
Then it was contended that even if the date up to
which detention was to continue was specified in the
order, it does not fix a period shorter than 30th September, 1952, (the date on which Act XXXIV of 1952
was to expire), and the detenus are not entitled to the
benefit of the provisions of sub-section {2) of section
11-A. This contention is difficult to sustain grammatically. The words "unless a shorter period is
specified in the order " clearly have reference to tbe
periods mentioned immediately thereafter, namely, the
first April, 1953, or the date of expir~·of twelve months
fron.,1 the date of detention. They hn,ve no reference
at all to the date of the expiry of Act XXXIV of 1952.
\Vhen the attention of the learned Solicitor-Cenernl
was drawn to the plain reading of the section nnd the
grammar of it., he conceded
that the adjective
"shorter" there had reference to the 1st April, 1953,
or the date of expiry of the period of twelve months
,
S.C.R.
SUPREME COURT REPORTS
913
mentioned in ihe section and could not mean a date
1952
antecedent to 30t,h September, 1952.
B oppamna
For the reasons given above, in our judgment, the Venkatcswaraloo
detention of the petitioner in this petition and of those
and Other•
in the other petitions mentioned above, after the 30th
v.
September, 1952, became illegal and we therefore Superintend~nt,
d.
t h t th
t't'
· th'
· ·
d .
.
Central Jail,
rrec t a
e pe 1 10ners m
is pet1t10n an m pet1- Hyderabad State
tions Nos. 350, 356, 362 and 366 of 1952 be released
-
·
forthwith. They are in detention by reason of the
MaJwjan J.
extension order made on the 22nd September extending their detention up to 31st December, 1952. On
that date the State Government had no jurisdiction to
make that order under the law in force as it stood on
that date. 30th September, 1952, had been specified
as the date up to which their detention was to last by a
subsisting and perfectly valid order and their detention order beyond that date is illegal and cannot be
justified on the provisions of section 11-A (2) or on the
provisions of section 11 ( 1) of the original Act.
Petitions allowed.
Agent for the respondents and intervener : G. H.
Rajadhyaksha.
THAKURAIN RAJ RANI AND OTHERS
v.
THAKUR DWARKA NATH SINGH
AND OTHERS.
[MEHR CHAND MAHAJAN, s.R.DAS andBHAGWAnJJ,J
Will--Agreement by cousiJ> of testator to make monthly poymm•t
to testator in consideration of giving hirn and his sons the remainder
after life-esta.te to wid,ow--Grant of letters of administrationQuestion of animus testanfr-Whether res-judicata-Payments,
11..vhether condition precedent or ?nere consideration-Death of cousin
before widoiir--Efi'ect of.
On the 7bh .T anuary, 1904, G, a cousin of S, executed au agreement in favour of S, the material portion of which ran as follows:
''Whereas my cousin S has proposed to make a bequest of his
taluka in favour of his wife and after her death in my favour and
118
1953
Jan. 23,