# P.L.LAKHANPAL v. THE UNION OF INDIA AND ANOTHER

- **Citation:** [1967] 3 S.C.R. 114
- **Court:** Supreme Court of India
- **Decided:** 1967-03-07
- **Case number:** Writ Petition No. 258 of 1966
- **Bench:** M. H!Dayatullah, J. M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-l-lakhanpal-v-the-union-of-india-and-another-4187
- **Pages:** 11

## Headnote

March 7, 1967
B
Defence of India Rules, 1962, Rules 30(1)(b) and 30A(9)-Review
of detention order-if quasi-judicial function-opportunity to detenu to
niake representation.
The petitioner was arrested and detained by an order dated December 10, 1965 under Rule 30(1)(b) of the Defence of India Rules, 1962.
On June 11, 1966, he was served with an order of the Central GovernC
ment under Rule 30A(9) to the effect that after a review of the detention order, it had been decided to continue his detention. Writ petitions
filed b}' the petitioner challenging these
two orders on various grounds
were dismissed.
On December
2, 1966, he was served with another
order ~der Rule 30A(9) statinl! that the detention order h~d been further reVIewed and upon such reVIew the Government had decided that the
detention should continue. The petitioner challenged this order by the
present writ petition on the ground, i'nter alia, that it was passed in disD
regard of the duty of the Government to act judicially, implicit in the
power conferred on it under Rule 30A(9) to continue detention, both
the function to review and the decision thereon being judicial or quasijudicial.
It was contended on behalf of the respondent (i) that the order of
detention being a purely executive order, an order of review under Rule
30A(9) of the very circums•ances on which the detention order
was
E
made and subsequent circumstances would also be an executive order;
and (ii) that the impugned order was passed
after considering various
materials against the petitioner.
HELD, allowing the pe'ition : (i) The function
entrusted to the
authority under Rule 30A(9), as distinguished from the power under
Rule 30( I) (b), is quasi-judicial and the decision which it has to anive
at is a quasi-judicial decision.
F
To say that because a function is in its inception executive in character, it retains the executive character throughout would not be correct.
Besides, the function under Rule 30(1) (b) and that under Rule 30A(9)
is not one and the same.
The former is completed as soon as an order
of detention is made; the .latter is independent of the former and is to be
exercised after detention has gone on for a period of six months. Whereas
the function under Rule 30( I) (b) is executive,
the one under Rule
G
30A(9) ·is quasi-judicial and
therefore in exercising
it the rules
of
natural justice have to be complied with. [123 D-FJ
(ii) It was admitted that the pe•itioner was not given
any opportunity of representing his cas.e or to coi;rect or contradi9t the evidence on
which the· Government admittedly rehed before passing the order of
December 2, 1966. There was therefore
a breach of principles of
natural justice and the order of continuation of detention
was illegal
H
and must be quashed. [123 F-0; 124 C-DJ
Sadhu Singh v. Delhi Admlnistratio11, [1966] 1 S.C.R. 243, dissented
from.
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G
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LAKHANPAL v. UNION (She/at, I.)
115
P. L. Lakhanpal v. Tht Union of India and Anr., [1967] 1 S.C.R. 433,
P. L. Lakhanpal v. The Union of India and another, [1966] Supp. S.C.R.
209, Board of Education v. Rice, (1911] A.C. 182; Local Government
Board v. Arlidge, [1915] A.C. 120 at p. 132; Province of Bombay v.
Kusaldas S. Advani, [1950] S.C.R. 621, 725; Nagendra Nath Bora,
v.
The Commissioner of Hills Division, [1958] S.C.R. 1240;
Radheshyam
Khare v. The State of Madhya Pradesh, (1959] S.C.R. 1440; Gullapalli
Nageswara Rao v. Andhra Pradesh State Road Transport
Corporation.
[1959] Supp. I S.C.R. 319; Shivji Nathubhai v. The
Union of India,
[1960] 2 S.C.R. 775; Board of High School and Intermediate Education,
U.P. v. Ghanshyam, [1962] Supp. 3 S.C.R. 36; and R. Johnson cl Co.
(Builders) Ltd. v. Minister of Health, [1947] 2 All E.R. 395, referred
to.
ORIGINAL JURISDICTION : Writ Petition No. 258 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of the Fundamental Rights.
The petitioner appeared in person.
R. H. Dhebar, R. N. Sachthey, and S. S. Javali, for the respondent

## Text

P.L.LAKHANPAL
A
v.
THE UNION OF INDIA AND ANOTHER
[M. H!DAYATULLAH, J. M. SHELAT AND G. K. MITTER, JJ.]
March 7, 1967
B
Defence of India Rules, 1962, Rules 30(1)(b) and 30A(9)-Review
of detention order-if quasi-judicial function-opportunity to detenu to
niake representation.
The petitioner was arrested and detained by an order dated December 10, 1965 under Rule 30(1)(b) of the Defence of India Rules, 1962.
On June 11, 1966, he was served with an order of the Central GovernC
ment under Rule 30A(9) to the effect that after a review of the detention order, it had been decided to continue his detention. Writ petitions
filed b}' the petitioner challenging these
two orders on various grounds
were dismissed.
On December
2, 1966, he was served with another
order ~der Rule 30A(9) statinl! that the detention order h~d been further reVIewed and upon such reVIew the Government had decided that the
detention should continue. The petitioner challenged this order by the
present writ petition on the ground, i'nter alia, that it was passed in disD
regard of the duty of the Government to act judicially, implicit in the
power conferred on it under Rule 30A(9) to continue detention, both
the function to review and the decision thereon being judicial or quasijudicial.
It was contended on behalf of the respondent (i) that the order of
detention being a purely executive order, an order of review under Rule
30A(9) of the very circums•ances on which the detention order
was
E
made and subsequent circumstances would also be an executive order;
and (ii) that the impugned order was passed
after considering various
materials against the petitioner.
HELD, allowing the pe'ition : (i) The function
entrusted to the
authority under Rule 30A(9), as distinguished from the power under
Rule 30( I) (b), is quasi-judicial and the decision which it has to anive
at is a quasi-judicial decision.
F
To say that because a function is in its inception executive in character, it retains the executive character throughout would not be correct.
Besides, the function under Rule 30(1) (b) and that under Rule 30A(9)
is not one and the same.
The former is completed as soon as an order
of detention is made; the .latter is independent of the former and is to be
exercised after detention has gone on for a period of six months. Whereas
the function under Rule 30( I) (b) is executive,
the one under Rule
G
30A(9) ·is quasi-judicial and
therefore in exercising
it the rules
of
natural justice have to be complied with. [123 D-FJ
(ii) It was admitted that the pe•itioner was not given
any opportunity of representing his cas.e or to coi;rect or contradi9t the evidence on
which the· Government admittedly rehed before passing the order of
December 2, 1966. There was therefore
a breach of principles of
natural justice and the order of continuation of detention
was illegal
H
and must be quashed. [123 F-0; 124 C-DJ
Sadhu Singh v. Delhi Admlnistratio11, [1966] 1 S.C.R. 243, dissented
from.
A
ll
c
n
F
G
. II
LAKHANPAL v. UNION (She/at, I.)
115
P. L. Lakhanpal v. Tht Union of India and Anr., [1967] 1 S.C.R. 433,
P. L. Lakhanpal v. The Union of India and another, [1966] Supp. S.C.R.
209, Board of Education v. Rice, (1911] A.C. 182; Local Government
Board v. Arlidge, [1915] A.C. 120 at p. 132; Province of Bombay v.
Kusaldas S. Advani, [1950] S.C.R. 621, 725; Nagendra Nath Bora,
v.
The Commissioner of Hills Division, [1958] S.C.R. 1240;
Radheshyam
Khare v. The State of Madhya Pradesh, (1959] S.C.R. 1440; Gullapalli
Nageswara Rao v. Andhra Pradesh State Road Transport
Corporation.
[1959] Supp. I S.C.R. 319; Shivji Nathubhai v. The
Union of India,
[1960] 2 S.C.R. 775; Board of High School and Intermediate Education,
U.P. v. Ghanshyam, [1962] Supp. 3 S.C.R. 36; and R. Johnson cl Co.
(Builders) Ltd. v. Minister of Health, [1947] 2 All E.R. 395, referred
to.
ORIGINAL JURISDICTION : Writ Petition No. 258 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of the Fundamental Rights.
The petitioner appeared in person.
R. H. Dhebar, R. N. Sachthey, and S. S. Javali, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. The petitioner was arrested by an order dated
December 10, 1965 under Rule 30\l)(b) of the Defence of
India Rules, 1962 and was detained in Central Jail, Tebar, New
Delhi. On the 24th December, 1965, he filed writ petition No. 47
of 1966 in this Court challenging his detention, inter a/ia; on the
grounds that (1) Rule 30(I)(b) was ultra vires s. 3(2)(15)(i)
of the Defence of India Act, (2) that rule 23 of the Defence of
India (Delhi Detenues) Rules, 1964 gave him a right to .make a
representation by providing review of the said detention order
and that his said right was disregarded by his having been prevented from making such representation, ( 3) that the said order
was in breach of s. 44 of the Act, and ( 4) that it was made in
ma/a fide exercise of power. That petition was dismissed on April
19, 1966.
The petitioner was thereafter served with an order
dated June 11, 1966 passed by the Central Government under
Rule 30A(9) of the said Rules. The said order, inter alia, stated
that "the said detention order has been reviewed by the Central
Government-and upon such review the Central Government
hereby decides that Shri P. L. Lakhanpal-should continue to
be detained .wi~h. a view to preventing hi~ from acting in any
manner pre-1ud1c1al to the Defence of India and Civil Defence".
The p~ti~ioner filed ~rit .Petition No. 137 of 1966 challenging
the validity of the said angina! order of detention and the order
dated June II, 1966. Rule 30A(9) provides as follows:-
"Every detention order made by the Central Government or the State Government shall be reviewed at
116
SUPREME COURT REPORTS
[1967] 3 S.C,R.
intervals of not more than six months by the Govern·
ment who made the order and upon such review that
Government shall decide whether the order should be
continued or cancelled".
That petition also was dismissed by judgment dated September
.21, 1966. It appears that the petitioner thereafter addressed certain letters and sent representations to the Home Ministry stating
therein that he was now clearly of the opinion that the demand
for plebiscite in Kashmir by Pakistan had become untenable as
a result of certain events having taken place, that the Tashkent
declaration had altered relations between Pakistan and India, that
the said declaration and other events which had since taken place
had completely changed the complexion of Pakistan's stand 011
Kashmir and that he was also now of the opinion that the application of some of the provisions of the Indian Constitution
to
Kashmir was correct. He also represented that there were more
pressing problems in the country requiring his attention than the
question of Kashmir and the relations between the two countries
on that question.
By an order dated the 2nd December, 1966,
the Government of India directed the further detention of the peti·
tioner stating therein that "the said detention
order has been
further reviewed by the Central Government and
upon such
review the Central Government hereby decides that ,the order
for the detention of the said Shri P. L. Lakhanpal shou1d be continued".
The present petition
challenges the
validity of this
order.
The petitioner contended :-
( i) that the said order is a mechanical and casual
order passed without taking into consideration all the
facts and circumstances relevant under Rule 30 (1) (b)
and Rule 30A(9).
(ii) That it is passed in utter disregard of the duty
of the Government to act judicially, implicit in the
power conferred on it under Rule 30A ( 9) to continue
detention, both the function to review and the decision
thereon being judicial or quasi-judicial.
(iii) That the said order is ultra vires s. 44 of the
Act whereunder the Government is required to decide
whether detention is the minimum action necessary on
the facts and circumstances of the case.
(iv) That the said order is ma/a fide and illegal
being contrary to the policy statements made on behalf
of the Government in Parliament from time to time to
restrict the operation of the Act and the Rules :
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LAKHANPAL v. UNION (She/at, J.)
(a) for purposes of defence only, and
( b) in border States; and
( v) That the said order is ma/a fide as it is motivated by punitive rather than preventive considerations.
117
In reply to these contentions the counter-affidavit filed by the
Deputy Secretary in the Ministry of Home Affairs states that between the 10th of December, 1965 and the 2nd of December,
1966, the petitioner had made representations either di!~tly ~r
through certain persons and had addressed l~tters explarnmg his
position, that on the basis of those representations and letters and
the report about his past activities called for from the police and
after considering those materials the Central Government felt
satisfied that it the petitioner were to be released, he was likely
to resume his prejudicial activities and, therefore, his detention
should be continued.
The affidavit further alleged that at the
time of the review of his case on Decemfier 2, 1966 "the said
letters, papers, representations and the report from the police were
placed before the Minister who had considered the same and he
was satisfied that it was necessary to continue the detention of the
petitioner''. It also stated that it was not possible to disclose to
the detenu the material on the basis of which the Central Government came to the said conclusion, that the order of detention
was to prevent the petitioner from indulging in prejudicial activities mentioned in Rule 30(1 )(b) and that the apprehension of
E
his indulging in such activities would have to be judged and was
judged from representations made by him.
It is thus clear from
the counter-affidavit that the detaining authority considered ( 1)
the representations and letters made and written by the petitioner,
( 2) the report of the police authorities in regard to the past
activities of the petitioner (there being no question of any present
activities as he was in jail since the 2nd of December, 1965) and
( 3) the events which had since his detention taken place. AccorF
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ding to the Central Government, it came to the decision that
continuation of his detention was necessary as it was satisfied
that if he were to be released he would continue the same antinational activities for which he was detained and that his professions that there was a change in his view was only a ruse to
get himself released from detention.
Now, there is no doubt that under the Act as also under the
s~id Ru_les tl~e Government is the special forum on whose subjecuve sat1sfact10n an order of detention for the considerations set
out in Rule 30(l)(b) can be made and on whose decision arrived
at on the considerations and in the manner prescribed by Rule
30A(9) such detention can be continued. However, as held in
P. L. Lakhanpal v. The Union of India and Anr .. (') there is a
(I) [196711 S.C.R. 433.
111
SUPUMll COUJ.T RJIPOltTS
[f967J 3 S.C.K.
<lifference in the power to detain and the power to continue such
<letention beyond a period of six months in that whereas the
former depends upon the subjective satisfaction of the detaining
authority, the latter has in express terms been made dependent
on the existence of facts and circumstances necessitating such
continuance.
This Court held in that petition :
"It follows that where the exercise of power is not
conditioned on a mere opinion or satisfaction but on the
existence of a set of facts or circumstances that power
can be exercised where they exist.
The .authority in
such a case is required to exercise the power in the manner and within the limits authorised by the Legislature.
The existence of such facts which is the determinant for
the exercise of the power is demonstrable''.
The Court further observed :-
"Unlike Rule 30(1 )(b) the power to continue the
detention after review is not dependent on the satisfaction of the Government. Rule 30A postulates that ordi·
narily detention should not be for more than six months
unless found necessary. It is for that reason that under
the Rules when the period of six months expires the
Government is enjoined upon to decide whether it
should be continued or cancelled. Though the legislature has made the Government the exclusive forum for
such a decision, its decision has to be founded on facts
and circumstances which· make the continuation necessary in order to prevent the detenu acting in a manner
prejudicial to the matters set out therein. The substitution
of decision instead of satisfaction is a clear indication
that the criterion for continuing the detention is the
existence of those facts and circumstances which necessitate it. It is not unreasonable to think that the legislature decided to confer power the exercise of which was
made dependent upon the subjective satisfaction at the
initial stage but where continuation of detention was
concerned, ·it thought that there should be different considerations.
At that stage there would be ample time
and opportunity for the Government to scrutinise the
case fully and ascertain whether facts and circumstances
exist demanding continuation and therefore deliherately
used the word 'decide' instead of the words 'is satisfied'.
Therefore, where such circumstan~es do not exist there
would be no necessity for contimiation and yet if the
Government decides to continue the detention, such
a decision would be beyond the scope of Rule 30A and
would not be a decision within the meaning of or under
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LAKHANPAL V. UNION (Shtlat, /,)
that Rule.
Cases may arise where circumstances exist
leading to the authonty's satisfaction that a particular
person should be detained but those circumstances may
not exist at the time when the review is made. In the
latter case it is impossible to say that the Government
can still decide to cont.inue the detention nor is it possible to say that it is the Government's opinion or satisfaction that such facts and circumstances exist which is
the criterion. The decision on a review has to be arrived at from the factS and circumstances which actually
subsisted at the time when the original order was made
in the light of subsequent developments and not merely
those existing at the time when the order was made. In
such a· case the decision can be challenged as one not
within the scope of or under the Rule and therefore unauthorised or as one based on considerations irrelevant
to the power".
119
The position reslllting from this decision is that the decision
to continue detention has to be arrived at not su;jectively but on
an objective standard, i.e. on a decision on materials relevant to
the purposes under Rule 30(1)(b) and R•le 30A(9) gathered
by or placed before the detaining authority which, according to
that authority, necessitates continuation. Though it is the detainin& authority which has. to decide and its order is not subject to
appeal or revision by a .. court of law such ·an order is liable to a
challenge where either such facts and circumstances do not exist
or where it is made on the basis of facts or circumstances not
relevant or extraneous to the said purposes.
On the contentions raised by the petitioner, the question that
falls for determination is whether the function entrusted by Rule
30A(9) to the Government and its decision thereunder are judi-
~ial or qu~si-judicial. This question was le~ open in the. earlier
Judgment m P .. L. Lakhanpal v.
The Union of India and
Anothtr(1 ) as the petitioner had then not raised it.
As ta what is a quasi-judicial as against an administrative or
ministerial function, it is no longer necessary to go in any detailed
search for the principles governing the distinction b11tween the two.
Lord Loreburn, L. C. in Board of Education v. Rice(2 ) stated,
"Comparatively recent statutes have extended, if they have not
originated, the practice of imposing upon departments or officers
of Stall:: the duty of deciding or determining the
questions of
various kinds. In the present instance, as in maay others, what
comes for determination is sbmetimes a matter to be settled by
discretioa, involving no law. It will, I suppose, usually be of an
administrative kind; but sometimes it will involve a matter of law
(I) [1'66] Supp S.C.R. 209.
(2) [1911] A.C. 182.
120
SUPRl!MI! COURT REPORTS
[1967] 3 S.C.R.
as well as a matter of fact, or even depend upon a matter of law
alone.
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I do not add that
in doing either they must act in good faith and fairly listen to both
sides, for that is a duty lying up0n every one who decides anything.
But I do not think that they are bound to treat such a
question as though it were a trial .... They can obtain information
in any way they think best, always giving a fair opportunity to
those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view". Similar
sentiments were also expressed by Lord Haldane in Local Gcwernment Board v. ArUdge(').
The Lord Chancellor there stated,
"When the duty of deciding an appeal is imposed, those whose
duty it is to decide it must act judicially. They must deal with
the question referred to them without bias, . and they must give
to each of the parties the opportunity of adequately presenting
the case made. The decision must be come to in the spirit and
with the sense of responsibility of a tribunal wilose duty it is tq
mete out justice".
The principles distinguishing a quasi-judicial
function from one which is ministeral were more precisely set out
by Das, J. (as he then was) in the Province of Bombay v. Kusaldas
S. Advani(2 ). He observed
(1) where is a Us,
there is
prima facie in the absence of anything in the st(l.tute to the contrary the duty of the authority to act judicially _and the decision
of the authority is a quasi-judicial act; and (2) even if there is no
Us inter-parties and the contest between the party proposing to
do the act and the subject opposing it, the final determination
of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. "In other words,
while the presence of two parties besides the deciding authority
will prima facie and in the absence of any otqer factor impose
upon the authority the duty to act judicially, the absence of two
such parties is not decisive in taking the act of the authority out
of the category of quasi-judicial act if the authority is nevertheless
required by the statute to act judicially". These principles have
since been acted upon by this Court in subsequent decisions such
as Nagendra Nath Bora, v. The Commissioner of Hills Division(•)
Radheshyam Khare v. The State of Madhya Pradesh('), Gullapal/i
Nageswara Rao v. Andhra Pradesh State Road Transport Corporation("), and Shivji Nathubhai v. The Union of India ('). In
Board of High School and Intermediate Education,
U.P. v.
Ghanshyam (1)
the question again was whether the power
entrusted to the Examination Committee under s. 15
of U.P.
(ll [1915] A.C. 120 at p. 132.
(2) [1950] S.C.R. 621, 725.
(3) [1958] S.C.R. 1240.
(4) [1959] S.C.R. 1440.
(5) [1959] Supp. 1 S.C.R. 319.
(6) [1960J 2 S.C.R. 775.
(7) [1962] S~pp. 3 S.C.R. 36.
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LAKHANPAL V, UNIO~ (She/at, J.)
121
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Intermediate Education Act, 1921 and Chapter VI, r. ( 1) of the
Regulations made thereunder was a quasi-judicial power.
Wanchoo, J., who spoke for the court said at page 43
as
follows:-
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"Now it may be mentioned that the statute is not
likely to provide in ~ many words that the authority
passing the order is required to act judicially; that can
only be inferred from the express provisions of the statute
in the first instance in each case and no one circumstance
alone will be determinative of the question whether the
authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting
under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute
read along with the nature of the rights affected, the
manner of the disposal provided, the objective criterion
if any to be adopted, the effect of the decision on the
person affected and other in die fa afforded by the statute".
The Coun there held that it was obvious that the Committee when
it proceeded to decide matters covered by r. 1 ( 1) will have to
depend upon materials placed before it and before it decided to
award any penalty it had to come to an objective determination
on certain facts and this was the only manner in which it could
carry out the duties imposed on it. Even though there was no
/is in the present case in the sense that there were not two contend11:
ing parties before it the Committee should hear the examinees
whose lives might be seriously affected by its decision even subjecting them in some cases to criminal prosecution on charges
of impersonation, fraud and perjury.
Though, therefore, there
was nothing express one way or other in the act or the Regulation
easting a durv on the Committee to act judicially, the manner of
II
the disposal anli the serious effects of the decision of the Committee would li:ad to the conclusion that a duty to act judicially
was cast on the Committee and the Committee when it acted under
r. 1 ( 1) was acting quasi-judicially and the principles of natural
justice would apply to its proceedings.
Let us now proceed to consider the nature of the function of
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review and the decision thereon in the light of the principles laid
down in these decisions.
There can hardly be any doubt that
in ~ case of the lcind y;e have before us there must always occur
a dilemma or a conflict between the claims on the one hand of
personal liberty of an individual and these of national interests
on the other. Nevertheless, it must be remembered that in such
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cases, the only remedy that a person detained has lies in the procedural safeguards that the legislature deliberately lays down.
Wher~ suii~ procedural safeguards have been fully and properly
complied with, the Coun would have no power or would in any
UllupCI/67-9
.
122
SUP:UMB COU&T RBPORTS
(1967) 3 S.C.R.
event be reluctant, even if it has, to interfere. That is because
of the consideration that national interest and security should
hliVe a prior claim than even the personal liberty of an individual
who has acted or is likely to act in a manner prejudicial to them.
In such cases, however, utmost care has to be taken to comply
with such few safeguards which the law justifying the loss of liberty
provides.
That the impugned decision
involves the right of
personal liberty, a more cherished right than that one cannot conceive in our democratic State is obvious. It is equally obvious
that the manner in which the question of continuation of dete~
tion enjoined upon by Rule 30A(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 Rule 30(l)(b) and Rule 30A(9) and then coming
to a decision whether the order of detention needs continuation or
not.
ijow 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. Keeping in mind
the five factors laid down in the case of The Board of High School
and Intermediate Education U.P.( 1), the conclusion that we must
come to is that the function entrusted to the authority under Rule
30A(9) as dintinguished from the power under Rule 30(l)(b)
is quasi,judicial and the decision which it has to arrive at cannot
be anything other than a quasi-judicial decision.
Mr. Dhebar, however, relied on the judgment of Shah, J. in
Sadhu Singh v. Delhi Administration(') and especially the observations therein that "if the order of detention is purely executive
and not open to review by .the court, a review of those very circumstances on which the order was made in the light of circumstances since the date of the order cannot but be regarded as an
executive order". The question is: Does it follow that because
the first order is purely executive, the subsequent order is necessarily also exec,utive?
While making the subsequent order, the
authority is called upon to decide whether further detention is
necessary for the purposes set out in the Rules. That decision has
to be arrived at, firstly, on the assessment of the evidence placed
before the authority and not on its subjective satisfaction and
secondly, in the light of the facts which existed at the date of the
original order and the facts and circumstances which have occurred or developed since then. It. is well-recognised that a function
or power which in its inception is purely ministerial may some-
(I) [)962] Supp. 3 S,C,R.-36.
(2) (1966] I S.C.R. 243.
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LAKHANPAL v. UNION (She/at, /,)
123
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times become quasi-judicial at a latte. r or some intermediate stage
during the course of its exercise. At the stage at which it. attains
the nature of a quasi-judicial function, the authority entrusted
with that function has to comply with the rules of natural justice
and give an opportunity to the party. concerned of representing
his case.
An illustration can be found in R. Johnson & Co.
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(Builders) Ltd.· v. Minister of Health('), where Lord Greene,
M.R. at. p. 401 of the Report points out that the function entrusted to the Minister there was of such a composite character.
It started as an administrative function but at the second stage it
was quasi-judicial where he had to consider the objections of
parties, that is, the objectors and the local authority and then
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ended as an administrative function when the Minister decided
whether to confirm or not to confirm the report of the local authority.
Regarding the second stage,
he characterised that as a
quasi-lis and the parties i.e. objectors and the local authority as
quasi-parties and said that while that stage was pending statements
made by or obtained through either of the quasi-parties would
have to be disclosed to the other quasi-party.
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To say therefore that because a function is in its inception
executive in character, it retains the executive character throughout would not, with ·respect; be correct.
Besides, the function
under Rule 30(1)(b) and that under Rule 30A(9) is net one
and the same. The former is completed as soon as an order of
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detention is made; the latter is independent of the former and is
to be exercised after detention has gone on for a period of six
months. . In our view, whereas the function under Rille 30( l )(b)
is executive, the one under Rule 30A ( 9) is
quasi-judicial and
therefore in exercising it the rules of natural justice have to be
complied with.
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. It is admitt~ that. the petitioner was not given any opporturuty of representing his case or to correct or contradict the evi-
~ence ~n which !he Government was going to rely on and which
!t admittedly rehed on.
But Mr. Dhebar's contention was that
!£ ~~ poy;er of decision under Rule 30A(9) were held to be quasi·
J.ud1c1al m character a person detained would be entitled to disG
closure of the materials in possession of the Government and on
the basis of which the order would be made that such disclosure
would not only be prejudicial to the very puiJ,oses of the Act and
the Rules but also to national interest and, therefore, the legislature co~d ~ot ~ve intended such disclosure. The answer to this
contention 1s ~le. In some cases, though such cases would
b~ few, such dis7losure would perhaps be embarrassing and, we
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will assume, detrimental to, the larger interests of the country.
But the proper remedy agamst such a consequence is not to deny
(I) [1947] 2 All E. R. 39S.
124
SUPllBMB COU.T llBPOl.TS
[1967] 3 s.c.
the elemental right of representing his case to the person whose
liberty is being deprived but by providing a rule wherellllder the
authority in suitable cases can claim privilege against such disclosure.
Such a provision is in Jact provided for under Art. 22
of the Constitution under the Prevention of Detention Act. There
does not appear . to be any reason why such a rule ca)lnot be
made under the Defence of India Act or the Rules made thereunder.
It may be that in the present case the Government had
materials before it which might justify the petitioner's detention.
We do not know whether it had or not for the only thing that was
.said in the counter-affidavit was that there were materials on the
consideration of which the Minister based his decision. If that
be so, the proper thing to do was tG give a chance to the petitioner
to explain them.
This not having been done the order of continuation of detention wai; illegal, it being in breach of the prindples of natural justice and has, therefore, to be quashed.
In this view, it is not necessary to deal with the rest cf the
contentions raised by the petitioner. The petition is ·allowed.
The order dated December 2, 1966 is quashed and the petitioner
;s directed to be set free forthwith.
R.K.P.S.
Petition allmved.
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