# Naranian Singh Nathawan v. The State of Puniab. Pataniali Sastri C. /. 3%

- **Citation:** [1952] 1 S.C.R. 395
- **Court:** Supreme Court of India
- **Decided:** 1950-07-05
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/naranian-singh-nathawan-v-the-state-of-puniab-pataniali-sastri-c-3-24
- **Pages:** 8

## Headnote

..
S.C.R.
SUPREME COURT REPORTS
395
1951
P. D. Sham·
dasani
v.
(I) of the Government of India
Act, 1935, was never
interpreted as
prohibiting deprivation of property by
private individuals.
Its
restoration,
therefore,
in
the
same form in article 31, after omission in the original
draft article 19, could lead
to no inference in support
of the petitioner's contention, which
indeed proceeds
on the fundamental misconception that article 19(1) (£)
and article 31(1),
which are great constitutional safe.
guards Vagainst
State aggression
on private property,
are directed
against infringements
by
private individuals for which remedies should be sought in
the
ordinary law.
Central Bank of
India Ltd.
· In this view 1t 1s unnecessary
to deal with certain
other objections to the maintainability of
the petition
raised by the Solicitor-General on . behalf of the
Bank.
The petition is dismissed. We make no order as to costs.
Petition dismissed.
Agent for the respondent : Rajinder Narain,
NARANJAN SINGH NATHAWAN
v.
THE ST ATE OF PUNJAB
(and 13 other petitions).
lPATANJALI
SAsTRr C. J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.]
Preventive Detention-Ordt;r of detention challenged as illegalFresh order superseding previous
order-Validity-Question of bad
faith-Habeas corpus proceeding-Legality of detention
must be
determined as at date of return.
In the absence of bad faith the detaining authority can super-_
sedc an earlier order of detention which has been
challenged as
defective
on
merely formal
grounds
and make a fresh
order
wherever possible which
is free from
defects and duly complies
with the . requirements of the law in that behalf. The question
of bad faith, if raised, must be decided with reference to the
circumstances of each case.
In habeas corpus proceedings the Court is
to have regard to
the legality or otherwise of the detention at the time of the
return and not with reference to the date of the institution of
the proceedings.
Patanjali
Sastri C. /.
1952
Jan. 25.
1952
Naranian Singh
Nathawan
v.
The State of
Puniab.
Pataniali
Sastri C. /.
3%
SUPREME COURT REPORTS
[1952]
Basanta Chandra Glzose v. King Emperor ( [ 1945] F.C.R. 81)
followed. Naranjan Singh v. The State of Punjab (unreporte<l) explained. Maklzan
Singh Tarsikka v.
The State of Punjab
([1952]
S.C.R. 368) referred to.
CRIMINAL
JURISDICTION:
Petitions (Nos. 513, 566,
568, 570, 591, 595, 596, 601, 616, 617, 623, 625, 631
and 632 of 1951) under article 32 of the Constitution.
for writs in the nature of habeas corpus. The facts are
stated in the judgment.
Raghbir Singh (amicus cu11ae) for the petitioners in
Petitions Nos. 513, 566, 568, 570, 595, 596, 609, 616, 617,
623, 625 and 631.
A. S .. R. Chari (amicus curiae) for the petitioner in
Petition No. 591.
Shiv Charan Singh (amicus curiae) for the petitioner
in Petition No. 632.
S. M. Sikri, Advocate-General of the Punjab
(lindra
Lal, with him) for the State of Punjab.
1952. January 25. · The Judgment of the Court was
delivered by
PATANJALI SASTRI c. J.-This is
a petition under
article 32 of the Constitution submitted through the
'
4
•
Superintendent, Central
Jail, Ambala, for the issue of
-4
a writ of habeas corpus for the release of the petitioner
from custody.
On 5th July, 1950, the petitioner was arrested and
detained under an order of the District Magistrate of
Amritsar in exercise of the powers conferred on him
under section 3 of the Preventive Detention Act, 1950.
and the
grounds of
his detention
were
served o,;
him as required by section 7 of the Act on 10th July,
1950.
The Act having been amended by the Preven-
..:~.
tive Detention
(Amendment)
Act, 1951,
with effect
from 22nd February, 1951,
a fresh
order No. 7853ADSB, dated 17th
May, 1951, was issued in the following terms :-
• "Whereas the Governor of Puniab is satisfied with
. respect to
the
person
known as
Naranjan Singh
Nathawan, s/o Lehna Singh of village Chak Sikandar,
.. .
. )'
•,
-
.).
S.C.R .
SUPREME COURT REPORTS
3t:J7
P. S. Ramdas, Amr

## Text

..
S.C.R.
SUPREME COURT REPORTS
395
1951
P. D. Sham·
dasani
v.
(I) of the Government of India
Act, 1935, was never
interpreted as
prohibiting deprivation of property by
private individuals.
Its
restoration,
therefore,
in
the
same form in article 31, after omission in the original
draft article 19, could lead
to no inference in support
of the petitioner's contention, which
indeed proceeds
on the fundamental misconception that article 19(1) (£)
and article 31(1),
which are great constitutional safe.
guards Vagainst
State aggression
on private property,
are directed
against infringements
by
private individuals for which remedies should be sought in
the
ordinary law.
Central Bank of
India Ltd.
· In this view 1t 1s unnecessary
to deal with certain
other objections to the maintainability of
the petition
raised by the Solicitor-General on . behalf of the
Bank.
The petition is dismissed. We make no order as to costs.
Petition dismissed.
Agent for the respondent : Rajinder Narain,
NARANJAN SINGH NATHAWAN
v.
THE ST ATE OF PUNJAB
(and 13 other petitions).
lPATANJALI
SAsTRr C. J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.]
Preventive Detention-Ordt;r of detention challenged as illegalFresh order superseding previous
order-Validity-Question of bad
faith-Habeas corpus proceeding-Legality of detention
must be
determined as at date of return.
In the absence of bad faith the detaining authority can super-_
sedc an earlier order of detention which has been
challenged as
defective
on
merely formal
grounds
and make a fresh
order
wherever possible which
is free from
defects and duly complies
with the . requirements of the law in that behalf. The question
of bad faith, if raised, must be decided with reference to the
circumstances of each case.
In habeas corpus proceedings the Court is
to have regard to
the legality or otherwise of the detention at the time of the
return and not with reference to the date of the institution of
the proceedings.
Patanjali
Sastri C. /.
1952
Jan. 25.
1952
Naranian Singh
Nathawan
v.
The State of
Puniab.
Pataniali
Sastri C. /.
3%
SUPREME COURT REPORTS
[1952]
Basanta Chandra Glzose v. King Emperor ( [ 1945] F.C.R. 81)
followed. Naranjan Singh v. The State of Punjab (unreporte<l) explained. Maklzan
Singh Tarsikka v.
The State of Punjab
([1952]
S.C.R. 368) referred to.
CRIMINAL
JURISDICTION:
Petitions (Nos. 513, 566,
568, 570, 591, 595, 596, 601, 616, 617, 623, 625, 631
and 632 of 1951) under article 32 of the Constitution.
for writs in the nature of habeas corpus. The facts are
stated in the judgment.
Raghbir Singh (amicus cu11ae) for the petitioners in
Petitions Nos. 513, 566, 568, 570, 595, 596, 609, 616, 617,
623, 625 and 631.
A. S .. R. Chari (amicus curiae) for the petitioner in
Petition No. 591.
Shiv Charan Singh (amicus curiae) for the petitioner
in Petition No. 632.
S. M. Sikri, Advocate-General of the Punjab
(lindra
Lal, with him) for the State of Punjab.
1952. January 25. · The Judgment of the Court was
delivered by
PATANJALI SASTRI c. J.-This is
a petition under
article 32 of the Constitution submitted through the
'
4
•
Superintendent, Central
Jail, Ambala, for the issue of
-4
a writ of habeas corpus for the release of the petitioner
from custody.
On 5th July, 1950, the petitioner was arrested and
detained under an order of the District Magistrate of
Amritsar in exercise of the powers conferred on him
under section 3 of the Preventive Detention Act, 1950.
and the
grounds of
his detention
were
served o,;
him as required by section 7 of the Act on 10th July,
1950.
The Act having been amended by the Preven-
..:~.
tive Detention
(Amendment)
Act, 1951,
with effect
from 22nd February, 1951,
a fresh
order No. 7853ADSB, dated 17th
May, 1951, was issued in the following terms :-
• "Whereas the Governor of Puniab is satisfied with
. respect to
the
person
known as
Naranjan Singh
Nathawan, s/o Lehna Singh of village Chak Sikandar,
.. .
. )'
•,
-
.).
S.C.R .
SUPREME COURT REPORTS
3t:J7
P. S. Ramdas, Amritsar District, that with a view to
preventing him from acting in a manner prejudicial to
the security of the
State, it is necessary to make the
following order :
Now, therefore, in exercise of
the powers conferred
by sub-section (1) of
section 3 and section 4 of the
Preventive Detention Act,
1950, as amended by the
Preventive Detention
(Amendment)
Act,
1951, the
Governor of
Punjab
hereby
directs
that
the
said
Naranjan
Singh
Nathawan
be
committed
to
the
custody of the
Inspector-General of Prisons, Punjab,
and detained in any jail of the State till 31st March,
1952, subject to
such
conditions as to
maintenance,
discipline and punishment for breaches of discipline as
have been specified
by general order or as contained
in t~e Punjab Detenu Rules, 1950."
This order was served on the petitioner on 23rd May,
1951,
but no grounds in
support of this order were
served on him.
The petitioner thereupon presented this petition for
his release
contending that
the aforesaid
order was
illegal inasmuch as (1) the grounds of detention communicated to
him on 10th
July,
1950, were "quite
vague, false and imaginary" and (2) he was not furnished with the grounds on which the order dated 17th
May, 1951, was pased. The petition was heard ex partt:
on 12th November, 1951, when this Court issued a
rule nisi calling upon the respondent to show cause
why the petitioner should not be released, and it was
posted for
:final hearing on
23rd November,
1951.
Meanwhile, the State
Government issued an order on
18th Novemher, 1951, revoking the order of detention
dated 17th May,
1951, and on the same date the
District Magistrate, Amritsar, issued yet another order
for the detention of the petitioner under sections 3 and
4 of the amended Act; this last order along with the
grounds on which it was based was served on the petitioner on 19th November, 1951.
Thereupon the petitioner submitted a supplemental
petition to thi's Court on 28th
November, 1951, challenging the validity of the last order on the ground
3-5 S. c. India/71
1952
Naranjan Singh
Nathawan
v.
The State uf
Punjab.
Pataniali
Sastri C. /.
1952
Naranian Singh
Nathawan
v.
The State of
Punjab.
Patanjali
Sastri C. /.
398
SUPREME COURT REPORTS
(1952]
that "it was only a device to defeat the habeas corpus
petition of the petitioner in which a rule
had already
been issued", and he put forward an additional ground
of attack on the legality of the earlier order dated 17th
may, 1951, namely, that it fixed the term of detention
till 31st March, 1952, before obtaining
the opinion of
the Advisory Board as required by section
11 of the
amended Act. This ground was evidently based on the
view expressed by this
Court that the specification of
the period of detention in the initial order of detention
under section 3 of the amended Act before obtaining
the opinion of the Advisory Board rendered the order
illegal.
In the return to the rule showing cause filed on behalf
of the respondent, the Under Secretary (Home) to the
Government explained the circumstances which led to
the issue of the fresh order of detention dated 18th
November, 1951. After stating that the petitioner's case
was referred to and considered by the Advisory Board
constituted under section 8 of
the amended Act and
that the Board reported on 30th May, 1951, that there
was sufficient cause for the detention of the petitioner,
' ' the affidavit proceeded as follows :
"That the Government was advised that the orders
made under section 11 of the
Preventive
Detention
Act, 1950, as
amended
by the Preventive Detention
(Amendment) Act, 1951, but carried out in the form
of orders under section 3 of the said
Act, should be
followed by grounds of detention and, as this had not
been .done in most cases, the detentions were likely to
be called in question.
The
Government
was further
advised there were other technical defects which might
render the detention of various detenus untenable.
In
view of this, the Government decided that the cases of
all detenus should be reviewed by the District Magistrates concerned.
Accordingly, the Punjab Government
instructed the District Magistrates to review the cases
and apply
their
minds afresh
and emphasised that
there must exist rational
grounds with the detaining
authority to justify the detention 9£ a person and they
were asked to report clearly in each case if the District
••
"( .
....
,,
J...
~.
. 'Y
-
...,
-
S.C.R.
SUPREME COURT REPORTS
399
Magistrate concerned wanted the detenus to be detained. The Punjab Government also reviewed some cases.
Accordingly all cases including the case of the petitioner
were reviewed and in this case the District Magistrate
was again
satisfied
that it was
necessary
that the
detenu be detained with a view to prevent him from
acting in a manner prejudicial to the
security of the
State and the
maintenance of
public order."
And it
concluded by stating "that the
petitioner is detained
now
under
the
orders of the District Magistrate,
Amritsar."
The original and supplementary petitions came on
in due course for hearing before Faz! Ali and Vivian
Bose JJ. on. 17th
December, 1951, when reliance was
placed on behalf of the petitioner on certain observations in an unreported decision of this Court in Petition
No. 334 of 1951 (Naranjan Singh v. The State of Punjab) and it was claimed that in view of those observations and of the provisions of Part III of the Constitution, the de6sion in
Basant Chandra Chose v. King
Emperor(1), on which the
respondent relied, was no
longer good law. The learned Judges thought that the
matter should be considered by a Constitution bench
and the case was accordingly placed before us.
It will be seen from the affidavit filed on behalf of
the respondent that the case of the petitioner, along
with his representation
against the detention order of
17th May, 1951, was placed before the Advisory Board
for its consideration, and the Board reported on 30th
May, 1951, that in
its opinion
there was
sufficient
cause for the detention of the petitioner. It is said that,
on the basis of that report, the
Government decided
that the petitioner should be detained till 31st March,
1952, but while a properly framed order under section 11
should "confirm" the detention order and
"continue"
the detention for a specified period, the order of 17th
May, 1951, was issued under a misapprehension in the
form of an initial order under section 3 of the amended Act, on the same grounds
as
before without any
fresh communication
thereof
to the
petitioner.
To
(1) [1945] F. C. R. 81.
52
1952
Naranian Singh
Nathawan
v.
The State of
Punjab. -
Pataniali
Sastri C. / •
1952
Naran;an Singh
Nathawan
v.
The State of
Puniab.
Pataniali
Sastri C. /.
400
SUPREME COURT REPORTS
[1952J
avoid arguments based on possible defects of a technical and formal character, the said order was revoked
under section 13, and · on a review of the case by the
District Magistrate, a
fresh
order
of detention was
issued under section 3 on 18th November,
1951, and
this was followed by a formal
communication of the
same grounds as
before as
there could be no fresh
grounds, the petitioner having
throughout been under
detention.
It is
contended
bv the
Advocate-General of the
Punjab that the decisio'n reported in [ 1945] F.C.R. 81
is clear authority in
support of
the validity of the
aforesaid order.
On essentially similar facts the court
laid down two propositions both of which have application here. (1) Where an earlier order of detention is
defective merely on formal grounds,
there is nothing·
to preclude a proper order of detention being based on
the pre-existing grounds themselves, especially in case&
in which the sufficiency of the grounds is not examinable by the courts, and (2) if at any time before the
court directs the release of the detenu, a valid order
directing his detention is produced, the court cannot
direct his release merely on the ground that at some
prior stage there was no valid cause for detention. The
question is not whether the
later order
validates the
earlier detention but whether
in the face of the later
valid order the court can direct the release of the petitioner. The learned Judges point out that the analogy
of civil proceedings in which the rights of parties have
ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas corpus where the court is
concerned solely with the question whether the applicant is being lawfully detained or not._
The petitioner's
learned counsel
conceded
that he
could not challenge the correctness of the second pr<>
position, but took exception
to the first as being no
longer tenable after the Indian Constitution came into
force.
It was
urged that article
22 lays down the
procedure to be followed in cases of preventive detention and the said procedure must be strictly observed
••
-
-
-
...
-
••
S.C.R.
SUPREME COURT REPORTS
401
as the only prospect of release by a court must be on
the basis of technical or formal defects, a long line of
decisions having held that the scope of judicial review
in matters of preventive detention is practically limited to an enquiry as to · whether there has been strict
compliance with the requirements of the law.
This is
undoubtedly true and this
Court had
occasion in the
recent case of Makhan Singh Tarsikka v. The State of
Punjab (Petition No. 308 of 1951) (1) to observe "it
cannot too often be emphasised that before a person is
depriTed of his
personal liberty the procedure established by law must be strictly followed and must not
be departed
from to the
disadvantage
of the person
2ffected".
Th~ proposition,
however,
applied with
equal force to cases of preventive detention before the
commencement of the Constitution, and
it is difficult
to see what difference the Constitution makes in regard
to the
position.
Indeed, the position
is now made
more clear by the express
provisions of section 13 of
the Act which provides that a detention order may at
11ny time be revoked or modified and that such revocation shall not bar the making of a fresh detention order
under section 3 against the same person. Once it is
conceded that in habeas
corpus proceedings the court
is to have
regard to the legality or
otherwise of the
detention at
the time of the
return and not with
reference to the date of the institution of the proceeding, it is difficult to hold, in the absence of proof of
bad faith, that the detaining
authority cannot supersede an earlier order of detention challenged as illegal
and make a fresh
order
wherever
possible which is
free from defects and duly complies with the reqmrements of the law in that behalf .
. )
As regards the
observation in
Naranjan
Singh's
case. we do not understand them as laying down any
general proposition to the effect that no fresh order of
detention could
be made when once
a petition challenging the validity of an earlie.r
order has been filed
in court.
The learned
Judges appear to have inferred
from the facts of that case that the later .order was
( 1) Since reported as [ 1952] S.C.R. 368.
1952
Naranjan Singh
Nathawan
v.
The State of
Punjab.
Patanjali
Stlstri C. /.
1952
Naranjan Singh
Nathawan
v.
The State of
Punjab.
Patanjali
Sastri C. /.
1952
Jan. 30.
402
SUPREME COURT REPORTS
[1952]
not made
bona fide on being satisfied
that the petitioner's
detention was
still
necessary
but
it
was
"obviously to defeat the
present petition".
The question of bad faith, if raised would certainly have to be
decided with reference
to the
circumstances of each
case, but
the
observations in
one
case
cannot
be
regarded as a precedent in dealing with other cases.
We accordingly remit the case for further hearing.
This order will govern the other petitions
where the
same question was raised.
Petitions remitted.
Agent for the respondent: P. A. Mehta.
SHRIMANT SARDAR
BHUJANGARAO
DAULATRAO GHORPADE
v.
SHRIMANT
MALOJIRAO
DA ULA TRAO
GHORPADE AND OTHERS.
[PATANJALI SAsTRI C. J.,
DAs and VIVIAN
BosE JJ.]
Bombay Revenue Jurisdiction Act (X of 1876), s. 4(a)-Saranjam-Dispute between branches
of grantee's •family-Government
Resolution regulating succession-Suit to declare Resolution ultra
vires, for declaration of sole right as saranjamdar, and for injunc·
tion against
other branches-Governtnent impleaded
as partyMaintainability of suit.
The position of the Gajendrcigad estate which had been recog·
nised by the
British
Government as a saranjam and
which had
been declared by the Bombay
High Court in 1868 to be partible,
was re-examined in 1891 and
Government passed a Resolution in
1891 that "the
whole of the
Gajendragad estate was
a saranjam
continuable as hereditary in the fullest sense of the word.
It ls
continuable to all made legitimate descendants
of the holder at
the time of the British
conquest."
In 1932 by another Resolution Government formally resumed the grant and re-granted it
to the plaintiff who belonged to the first branch of the family of
the original grantee with a direction that it should be entered in
his sole name in
the accounts of the Collector. The other two
branches felt aggrieved and in 1936 Government passed another
Resolution which confirmed the Resolution of 1891 and modified
the
Resolution of 19321, by declaring that
the portions
of the
••
-
-
~ .