# SADHU SINGH v. DELHI ADMINISTRATION lune 1, 1965

- **Citation:** [1966] 1 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 1965-02-24
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sadhu-singh-v-delhi-administration-lune-1-1965-3535
- **Pages:** 12

## Headnote

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SADHU SINGH
v.
DELHI ADMINISTRATION
lune 1, 1965
[J. c. SHAH, J. (VACATION JUDGE)]
243
Defence of India Rules, 1962, Rules 30(1), 30-A(6)(b), 30-A(B)-
Review of order of detention within six months-Order of review wh~th~r
quasi-judicial---Opportunity to detenu to make representation whether
necessary.
The petitioner was detained under an order of detention passed by the
Diatrict Magistrate of Delhi under r. 30(1) of the Defence of India Rules,
.1962 on 5th September, 1964. The order was confirmed by the Administrator under r. 30-A6(b) on the same date.
Within six months i.e. on
February 24, 1965, the Administrator reviewed the order under r. 30A(8) and confirmed it.
The petitioner thereafter filed a petition under
Art. 32 of the Constitution praying for a writ of certiorari quashing the
order under r. 30-A(8).
In support of the petition it was urged that
(1) Even it the proceedings under r. 30(1) and r. 30A6(b) may be purely
adminiatrative, a proceeding for review under r. 30A(8) is q_uasi-judicial
in character.
(2) An order of review involves judicial consideration of
the facts on which the original detention order was based in the light of
subsequent developments including change of views on the part of the
det.enu, and this cannot be eff'i!ctively made unless the detenu is afforded
an opportunity to make a representation.
(3) Every order made by a
public authority which affects the rights of an individual must of n~
sity be preceded by a quasi-judicial determination of the question on
the determination of which the order may be made, and a determination
made contrary to the rule of natural justice is liable to be struck down
by order ot a competent court.
( 4) The use of the word 'decide' in cl.
(8) of Rule 30-A implies the existence of a lis between the State and
the detenu relating to the right of the State to continue to d-etain him
after the period of six months contemplated by the statute.
(5) The
Administrator had reviewed his own order under s. 30-A6(b) and not the
order under r. 30(1) and thus there was no compliance with r. 30-A(8).
HELD : (i) It was not open to this C',ourt to review the order under
r. 30A ( 8). Making of an order of detention proceeds upon the subjective
satisfaction of the prescribed authority in the light of the circumstances
placed before him or on his coming to know that it is necessary
to detain the person concerned with a view to preventing such person
from acting in any manner prejudicial to th-e defence of India or civil
defence,
the maintenance of public order etc.
If that order is purely
executive and not o.pen to review by the Courts, a review of the very
circumstances in which the order was made in the light of the circumstances since the date of that order cannot but be regarded as an executive
order.
[248 F-HJ
(ii) There is no provision in the statute that the reviewing authority
mm! before making the order under r. 30A(8) give an opportunity to the
detenu to make a representation and no such safeguard is implicit in the
scheme of the statute. [249 CJ
A writ of certiorari lies whenever a body of persons having Jogal
authority lo determine questions affecting the rights of subjects and having
244
SUPREME COURT REPORTS
[1966) I S.C.R.
the duty to act judicially act in excess of their legal authority; il doea not
lie to remove or adjudicate upon the order which is of an administrative
or ministerial nature. [249 DJ
Province of Bombay v. Kusaldas S. Advani and Ors. (1950] S.C.R. 621,
relied on.
(iii) There is no principle or authority in support of the view that
whenever a public authority is invested with power to make an order
which prejudicially affects the rights of an individual whatever may be the
nature of the power cxerci:,eJ, whate\Cf may be the procedure prescribed
and whatever may be the nature of the authori·iy conferred, the proceedings of the public aulhorlty musl be regulaied by the analogy of Nies
governing judicial determinati

## Text

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SADHU SINGH
v.
DELHI ADMINISTRATION
lune 1, 1965
[J. c. SHAH, J. (VACATION JUDGE)]
243
Defence of India Rules, 1962, Rules 30(1), 30-A(6)(b), 30-A(B)-
Review of order of detention within six months-Order of review wh~th~r
quasi-judicial---Opportunity to detenu to make representation whether
necessary.
The petitioner was detained under an order of detention passed by the
Diatrict Magistrate of Delhi under r. 30(1) of the Defence of India Rules,
.1962 on 5th September, 1964. The order was confirmed by the Administrator under r. 30-A6(b) on the same date.
Within six months i.e. on
February 24, 1965, the Administrator reviewed the order under r. 30A(8) and confirmed it.
The petitioner thereafter filed a petition under
Art. 32 of the Constitution praying for a writ of certiorari quashing the
order under r. 30-A(8).
In support of the petition it was urged that
(1) Even it the proceedings under r. 30(1) and r. 30A6(b) may be purely
adminiatrative, a proceeding for review under r. 30A(8) is q_uasi-judicial
in character.
(2) An order of review involves judicial consideration of
the facts on which the original detention order was based in the light of
subsequent developments including change of views on the part of the
det.enu, and this cannot be eff'i!ctively made unless the detenu is afforded
an opportunity to make a representation.
(3) Every order made by a
public authority which affects the rights of an individual must of n~
sity be preceded by a quasi-judicial determination of the question on
the determination of which the order may be made, and a determination
made contrary to the rule of natural justice is liable to be struck down
by order ot a competent court.
( 4) The use of the word 'decide' in cl.
(8) of Rule 30-A implies the existence of a lis between the State and
the detenu relating to the right of the State to continue to d-etain him
after the period of six months contemplated by the statute.
(5) The
Administrator had reviewed his own order under s. 30-A6(b) and not the
order under r. 30(1) and thus there was no compliance with r. 30-A(8).
HELD : (i) It was not open to this C',ourt to review the order under
r. 30A ( 8). Making of an order of detention proceeds upon the subjective
satisfaction of the prescribed authority in the light of the circumstances
placed before him or on his coming to know that it is necessary
to detain the person concerned with a view to preventing such person
from acting in any manner prejudicial to th-e defence of India or civil
defence,
the maintenance of public order etc.
If that order is purely
executive and not o.pen to review by the Courts, a review of the very
circumstances in which the order was made in the light of the circumstances since the date of that order cannot but be regarded as an executive
order.
[248 F-HJ
(ii) There is no provision in the statute that the reviewing authority
mm! before making the order under r. 30A(8) give an opportunity to the
detenu to make a representation and no such safeguard is implicit in the
scheme of the statute. [249 CJ
A writ of certiorari lies whenever a body of persons having Jogal
authority lo determine questions affecting the rights of subjects and having
244
SUPREME COURT REPORTS
[1966) I S.C.R.
the duty to act judicially act in excess of their legal authority; il doea not
lie to remove or adjudicate upon the order which is of an administrative
or ministerial nature. [249 DJ
Province of Bombay v. Kusaldas S. Advani and Ors. (1950] S.C.R. 621,
relied on.
(iii) There is no principle or authority in support of the view that
whenever a public authority is invested with power to make an order
which prejudicially affects the rights of an individual whatever may be the
nature of the power cxerci:,eJ, whate\Cf may be the procedure prescribed
and whatever may be the nature of the authori·iy conferred, the proceedings of the public aulhorlty musl be regulaied by the analogy of Nies
governing judicial determination of disputed que;tions. [253 C-D]
Ridge v. Baldwin and Or.<. L.R. [1964] A.C. 40, explained.
Re:c v. Electricity Com1nissioner, Ex parte London Electricity Joint
Committee Comprmy, [1924] I K.B. 171, Rex v. Legislative Committee of
the Clzurch Assemhly, Ex Parte Haynes-Smitlz, [1928] I K.B. 411 and
Nakkuda Ali v. layara:rze [ 1951] A.C. 66, referred to.
(iv) The word 'decide' used in r. 30-A(8) does not make tho onlC'r
under that rule judicial. [253 E]
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Observations of Fazl Ali J. as ti> the import of the word
'decision'
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in Advanis case relied on.
(\·) The second paTJgraph of the order of the administrator made it
clear that the detention order of the petitioner \\'ould continue and that
detention order was clearly the order made hy the Districl Magistrate and
confirmed by the Adminis!ra•or.
There v.·as no substance in the contention that the Administrator h:•J revie~·cd the order confirming the order
of detention and not the order of deten1icn.
It is difficult to divorce
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the order of detention irom the order confirming it, for without confir~
mation the order of <lereotion would h:ive no legal sustenance. [254 D-EJ
ORIG!:-IAL JuRrsmcno~ : Writ Petition No. 43 of 1965.
Writ Petition Under Art. 32 of the Constitution of India for
enforcement of fundamental rights.
R. K. Gari: and S. C. Agarwala, for the petitioner.
R. H. Dhebar, for the respondent
The Judgment of the Court was delivered by
Sbah, J.
In ex.ercise of the powers conferred by Rule 30( I)
of the Defence of India Rules, 1962, the District Magistrate, Delhi
ordered that the petitioner be detained in the Central Jail, New
Delhi. On September 11, 1964 the District Magistrate informed
the petitioner that the Administrator, Union Territory of Delhi,
-hereinafter called 'the Administrator'-had reviewed the detention order, dated September 5, 1964, and had confirmed the same.
On April 12, 1965 the petitioner moved this Court for an "order
setting aside his detention" and for an order for his releal!C. He
submitted, inter a/ia, that the District Magistrate had made the
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SADHU SINGH V. DELHI ADMN. (Shah, J.)
245
order for a collateral purpose; that there was nothing on the
record to show that the District Magistrate reported forthwith the
detention of the petitioner to the Administrator, or that the Administrator had reviewed the detention of the petitioner as required
by law; and that in default of a "proper review" of the detention
order by the Administrator under Rule 30-A (8) of the Defence
of India Rules, 1962, detention of the petitioner after six months
from the date of the original order was unauthorised .
The District Magistrate, Delhi swore an affidavit that he had
carefully considered the materials placed before him and on being
satisfied that the petitioner "was indulging in anti-social activities",
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and that the activities of the petitioner were prejudicial to the
maintenance of public order, and that it was necessary to detain
the petitioner, he made an order that the petitioner be detained;
that the fact of detention was forthwith reported to the Administrator; that the Administrator had confirmed the order of detention
of September 5, 1964, and that the Administrator had also within
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six months from the date of detention reviewed that order and
had decided on February 24, 1965, to continue the detention of
the petitioner.
By order, dated April 28, 1965, this petition was directed to
be heard during the vacation and accordingly it was placed before·
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me for hearing on May 18, 1965. On that day, the p-~titioner
filed an argumentative affidavit in rejoinder without setting out
any facts, controverting the statements made by the District
Magistrate.
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In support of the petition, counsel urged that the detention of
the petitioner was without authority because the Administrator
had confirmed the order under Rule 30-A(6)(b) of the Defence
of India Rules without taking into account all the circumstances
which had a bearing upon the order of detention passed by the
District Magistrate, and the Administrator reviewed the order of
detention without affording an opportunity to the petitioner to
satisfy him that the grounds which may have existed for directing
the petitioner's detention did not exist on the date when the order
was reviewed.
A resume of the relevant provisions of the Defence of India
Act and the Rules may briefly be made. The Defence of India
Act, 1962 was enacted by the Parliament with a view to arm the
Central Government with extraordinary powers in the situation
which arose on account of the Chinese invasion of the borders of
lndia. By s. 3 of the Act power was conferred upon the Central
SUlllEMB COUi.T REPORTS
[1966) I S.C.R.
Government to make rules for securing the defence of India, civil
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defence, public safety, maintenance of public order and related
matters. Rule 30 authorised the Central Government or the State
Government, if it was satisfied with respect to any
particular
person that with a view to preventing him from acting in any
manner prejudicial to the defence of India and civil defence, the
public safety, the maintenance of public order etc. it was necessary
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so to do, to make an order, amongst others, directing that he be
detained.
By Rule 30-A machinery was set up for confirmation
and review of detention orders. Clause (2) of Rule 30-A provided
that every detention order shall be reviewed in accordance with
the provisions contained in the Rule. Clause ( 5) provided that a
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detention order made by an officer empowered by the Administrator shall forthwith be reported to the Administrator. By cl. (6)
it was provided that on receipt of a report under sub-rule ( 5) the
Administrator shall after taking into account all the circumstance&
of the case, either confirm or cancel the order. Clause ( 8) provided that every detention order made by an officer empowered
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by the Administrator and confirmed by him under cl. (b) of snbrule ( 6) shall be reviewed at intervals of not more than six
months by the Administrator who shall decide upon such review
whether the order should be continued or cancelled.
The validity of the order of detention was challenged only on E
the ground that there had been no confirmation of the order by
the Administrator in the manner provided by Ruic 30-A(6)(b).
ill the retition it was alleged that there was in fact no confirmation by the Administrator. The District Magistrate in his affidavit
stated that the Administrator had confirmed the order of detention
on September 5, 1964, and that all the procedural requirements
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relating to the making of the order were duly complied with.
By his affidavit in rejoinder the petitioner merely argued that
aa the order Wl!S confirmed only on the basis of the report of the
fact of detention, it could not be said that the order was confirmed
after taking into account all the circumstances of the case under
Ruic 30-A ( 6). At the hearing counsel for the petitioner asked
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for leave to amend the petition by setting up in support of the
JtCtition the ground that the Administrator had not taken into
account all the circumstances of the case. In order to avoid any
delay in the disposal of the petition, counsel for the Delhi Admini!-
tration, showed to me the order of confirmation made by the
Administrator and the original order was handed up. The order
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prima facie suffered from no defect.
Counsel for the petitioner
did not urge any further argument in regard to the validity of
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SADHU SINGH V. DELHI ADMN. (Shah, J.)
247
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the order of confirmation after the order was handed up by counsel
for the Delhi Administration.
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Relying upon the use of the expression "the Administrator who
shall decide upon such review whether the order should be continued or cancelled", it was urged that even if ;a proceeding
directing detention of a person in exercise of powers under Rule
30 (1) and a proceeding for confirmation of the order may be
purely administrative, a proceeding for review of the order under
Rule 30-A ( 8) is quasi-judicial in character and the Administrator
must afford to the detenu an opportunity to make his representation on the action proposed to be taken in regard to him on
review.
Counsel submitted that an order of review of detention
leading to continuation of detention involves a judicial approach
by the authorities to GJl the facts on the basis of which the original
order of detention was made and a review of those facts in the
light of subsequent developments including the change of views,
if any, of the detenu since he was detained, and this, it was
contended, cannot be effectively made unless the detenu is afforded
an opportunity to make his representation and to convince the
Administrator that the facts or circumstances which may have
justified the making of the original order of detention did not
continue to exist or in the context of changed circumstances did
not justify the continuation of detention.
Alternatively, it was
contended that the use of the word "decide" in cl. ( 8) of Rule
30-A implies the existence of a /is between the State on the one
hand and the detenu on the other relating to the right of the
State to continue to detain him after the expiry of the period of
six months contemplated by the statute.
In my view there is no substance in either of the contentions.
Rule 30( 1) has been enacted as an emergency
measure.
It
authorises the appropriate Government or the Administrator, or
authorities empowered by the Government or the Administrator,
with a view to prevent a person from acting to the detriment of
public order and safety, to detain him without trial.
However
shocking it may appear that a person may be detained without a
trial or without being even informed of the specific grounds on
which such action is deemed necessary, in the larger interests
of the security of the State such as maintenance of peaceful conditions in the country, public order, conduct of military operations
etc. the Parliament has thought it necessary when a grave emergi:ncy arose to invest the appropriate Government
and
the
Administrator with that power.
Validity of the statute which
invests the executive with these drastic powers has been upheld
248
SUPREME
COURT REPORTS
[1966] I S.C.R.
by this Court, and that is no longer a live issue. It is conceded,
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and in my judgment rigJitly, that the satisfaction of the authority
which justified the use of the power under Ruic 30, and confirmation of the order of det~ntion are not subject to judicial review,
for the order of detention without trial is preeminently an executive act.
The subjective satisfaction of the detaining authority
i~ a condition of the making of the order, and if that condition
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is shown to exist, the oourt~ have no power to enquire into the
sufficiency of materials on which the order is made or the propriety or expediency of making the order. It is the satisfaction
of the rrescribcd authority which is determinative of the validity.
That, however, does not exclude the Court's power to investigate
into the compliance with the procedural safeguards imposed by the C
statute, or into the exiMence of prescribed conditions precedent
to the exercise of i;ower, or into a ?lea that the order was made
ma/a fide or for a collateral purpose.
That, however, is not
judicial review of the order.
If jurisdiction of the Court to enter upon a judicial r·~vicw of
the order of detention aid its confirm~tion i> excluded, it is difficult
to appreciate the gwund:; on which it may legitimately be urged
that the dxi<ion lo continue detention u~on review of the order
of de!cn1ion may still he rcr;arded as subject to judicial review.
By cl. ( e) of Ruic 30-A rower is ccnfcrred uron the Administrator to review the detention at interva?'i of not n1orc than six
monlhs.
This provision ha< apparently been made for ensuring
that de:ent.ion of a pcr:,on may not rnntinue longer than is necessary for effectuating the ryurposc for wl;ich it was originally made.
It invcs!s the Administrator, subject to the restriction imposed,
with power to review the order of detention from time to time
and to decide whether !lie order should be continued or cancelled.
Making of an order of detention proceeds unon the subjective
satisfaction of the prescribed authmity in th:! li~ht of circum~!ances
placed before him, or coming to his knowledge, that it is neccrsary
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to detain the person concerned with a view to preventing him
from acting in any manner prejudicial to the defence of India
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and civil defence, the public safety, tlte maintcnanc~ of public
order etc. If that order is purely executive, and not open to review
by the courts, a review of those very circumstances on which the
order was made in the light of the circumstances since the date
of that order cannot but be regarded as an executive order.
Satisfaction of the authority under Rule 30( I) proceeding upon
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facts and circumstances which justifies him in making an order o(
detention and th~ satisfaction upon review of those very facts and
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SADHU SINGH v. DELlll ADMN. (Shah, J.)
249
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circumstaiices in the light of circumstances, which came into
existence since the order of detention, are the result of an executive determination and are not subject to judicial review.
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It was, however, urged that even if this Court cannot review
the determination of the authority, the Court is entitled to inquire
whether the authority before making the order brought to bear
upon it a judicial approach, that is whether the authority gave an
opportunity to the detenu t0,. make a representation against the
action proposed to be taken in regard to him, and if it appears
that he failed to do so, a writ of certiorari may issue and the
order may be discharged by the issue of an appropriate writ.
There is no such safeguard prescribed by the statute : it is also
not implicit in the scheme of the statute. A writ of certiorari lies
wherever a body of persons having legal authority to detennine
questions affecting the rights of subjects and having the duty to
act judicially act in excess of their legal authority; it does not lie
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to remove or· adjudicate upon the order which is of an administrative or ministerial nature. See Province of Bombay v. Kusaldas S.
A dvanl and others. ( 1)
Counsel for the petitioner contended that every order made
by a public authority which affects the rights of an individual must
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of necessity be preceded by a quasi-judicial determination of the
question on the detennination of which the order may be made
and if the detennination is made contrary to the rules of natural
justice, it is liable to be struck down by order of a competent court.
He submitted that this rule has been expounded by the House of
Lords in a recent judgment (to be presently noticed). The view
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which this Court has taken is inconsistent with any such proposition e.g., observations of Kania C.J. in Advani's case(') at p. 633,
of Mukherjea J. at p. 669 and of S. R. Das J., at p. 715; and
in my judgment the observations of Lord Reid in Ridge v. Baldwin
and others(') which counsel for the petitioner leans uμon, do not
support that proposition. In Ridge's case( 2 ) the watch committee
G of a Borough in purported exercise of powers conferred on them
bys. 191(4) of the Municipal Corporations Act, 1882 dismissed
a chief constable from his office, without formulating a specific
charge, and without infonning him of the grounds on which they
proposed to proceed, and without giving him an opportunity to
present his case. The watch committee in arrivin?; at its decision
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considered, inter alia, his own statements in evidence and the
observations made by the Judge who tried a case against him of
(I) [1950) S. C. R. 621
(2) L. R. [1964) A. C. 40.
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SUPREME COURT R!PORTS
[1966] l S.C.R.
conspiracy to obstruct the course of justice. The chief constable
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tben brought an action against the watch committee for a declaration that his dismissal was "illegal, ultra vires and void".
The
House of Lords by a majority held that the chief constable could
be dismissed by the watch committee only on grounds stated in
s. 191 ( 4) of the Act of 1882, and as they dismissed him on the
ground of neglect of duty, they were bound to observe tbe prinB
ciples of natural justice. The power of dismissal under s. 191 ( 4)
of Act 1882 could not in the view of the House be exercised until
the watch committee had informed the chief constable of the
grounds on which they proposed to proceed and had given him
a proper opportuni~y to present his case in defenc~. and the resolution of the watch Committee without giving that inform~tion. and
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affording him an opportunity to defend himself was null and
void.
Ridge's case( 1 ) does not support the broad proposition
that no order of public authority which affects the rights of a
person may be made, without giving that person an opportunity o(
making a representation against the proposed order,
and
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observations made on pp. 72 & 73 of the Report are clearly agaiMt
any such proposition. The House was dealing with a case involving the interpretation of a statute enacted at a time when, as
tbe Parliament was well aware, the courts habitually applied the
principles of natural justice to i;.rovisions like s. 191 ( 4) of the
Act of Je82. The princi;>al criticism of Lord Reid was directed
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against what he conceived was the misunderstanding of the wellk.nown passage in the judgment of Atkin, L.J. in Rex v. Electricity
Commissioners, Ex parte London Electricity Joint Commilfee Company(') in subsequent decisions especial!y by Lord Hewart C.J.
in Rex v. Legislative Committee of the Church Assembly. Ex parte
Haynes-Smith(') and in the judgment of the Privy Council in F
NakkuddA/i v. Jayaratne(')-a case from Ceylon, Atkin L.J. in
Rex v. Electricity Commissioners, Ex parte London Electricity
Joint Committee Company(') observed :
"l3ut the operation of the writs
(of prohibition
and certiorari) has extended to control the proceedings
of bodies which do not claim to be, and would not be
recognised as, courts of justice. Wherever any body of
persons having legal authority to determine questions
affecting the rights of subjects, and having the duty to
act judicially, act in excess of their legal authority, they
are subject to the controlling jurisdiction of the King's
Bench Division exercised in these writs."
--- --- -·-·--
(I) LR. (1964] A. C. 41J.
(3) (1928] 1 K. B. 411.
(2) [t924] t K. B. 171, 9>5
(4) [19511 A. C. 66.
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SADHU SINGH v. DBL!Il ADMN. (Shah, J.)
251
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In dealing with a preliminary question whether a writ of
prohibition may be issued to prohibit the Legislative Committee
of the Church Assembly from proceeding with a measure called
the "Prayer Book Measure, 1927'', Lord Hewatt C.J. in Rex v.
Legislative Committee of the Church Assembly Ex parte HaynesB
Smith (1) proceeded to observe at p. 415:
" In order that a body may satisfy the required
test it is not enough that it should have legal authority
to determine questions affecting the rights of subjects;
there must be superadded to that characteristic the
further characteristic that the body has the duty to act
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judicially."
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Lord Reid took exception to the last· clause of the law so stat~.
He observed :
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If Lord Hewatt meant that it is never enough
that a body simply has a duty to determine what the
rights of an individual should be, but that there must
always be something more to impose on it a duty to
act judicially before it can be found to observe the
principles of natural justice, then that appears to me
impossible to reconcile with the earlier authorities."
The point of the criticism was that a body invested with authority
to determine what the rights of an individual should be, may be
held to perform a judicial function without something more in
the statute to impose on it a duty to act judicially. But it was not
iaid that whenever a body is called upon to determine or decide
some question which affects the rights of an individual, the proceeding must be regarded as judicial.
In Nakkuda Ali v. M. F. De S. Jayaratne(') a decision of the
Judicial Committee in a case coming from Ceylon-an order of
the Controller of Textiles in Ceylon cancelling the licence of a
dealer under Rule 62 of the Defence (Control of Textiles) ReguG Iations, 1945-a war-time regulation-which authorised him to
cancel a licence "where the Controller had reasonable grounds to
believe that any dealer was unfit to be allowed to continue as a
dealer" was challenged in the Supreme Court of Ceylon by a
petition for a writ of certiorari. The Supreme Court dismissed
the petition, and the Judicial Committee affirmed the order. In
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the view of the Judicial Committee the words of Regulation 62
imposed "a condition that there must in fact exist such reason-
(I) [1928] K. B. 411.
(2) (1951] A. C. 66.
252
SUPREME COURT REPORTS
(1966) l S.C.R.
able grounds, known to the controller, before he can validly
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exercise the power of cancellation. But it does not follow ncee&-
sarily from this that tbc controller must be acting judicially in
exercising this power".
The Judicial Committee observed :
"
It is a long step in the argument to say that
because a man is enjoined that he must not take action
unless he has reasonable ground for believing something
he can only arrive at that belief by a course of conduct
analogous to the judicial process. And yet, unless that
proposition is valid, there is really no ground for holding
that the controller is acting judicially or quasi-judicially
when he acts under this regulation. If he is '"not under
a duty so to act then it would not be according to law
that his decision should be amenable to review and,
if necessary,
to avoidance by the procedure of
certiorari,"
B
c
and held that certiorari did not lie in the case. The Judicial Committee then quoted the passage already set out from the judgments D
of Atkin L.J., in Rex v. Electricity Commi.uioners, Ex parte
London Electricity Joint Committee Company('), and of Lord
Hcwart C.J. in Rex v. Legislative Committee of the Church
A~sembly, Ex parte Haynes-Smith(') and observed that, "It is
that characteristic that the contro'ler lacks in acting under regula· E
tion 62".
In Nakkutla Ali's case(') the Controller was prima fade
dealing with a case in which the rights of a person were to be
determined, but the Judicial Committee was of the view that the
statute in the particular case did not require the Controller to act
judicially. There is undoubtedly a clear distinction between cao;es
F
in which an authority is invested with power to determine the
rights of a person, and cases in which the authority is invested
with power to act in a certain matter, and the exercise of that
power affects the rights of a person. In the former, the duty to
act judicially may readily be inferred.
But whether a public
authority invested with powers to pass a specified order is required G
to act judicially must depend upon the scheme of the statute which
invests him with that power. The nature of the authority conferred, the procedure prescribed and the nature of the powers
exercised will determine the question whether the public authority
is required to act judicially; it is not however predicated that
before a writ of certiorari or prohibition may issue the duty to
H
(i)[i924J .....--K:-i 17!.
(2) (19281 1 K. B. 411.
(3) (19,lJ A. C. 66.
I
'.>,"
~-
t
•
•
SADHU SINGH V. DELHI ADMN. (Shah, J.)
253
A
act judicially must be expressly or independently imposed upon
the authority called upon to determine the rights of a citizen.
In the view of the Judicial Committee "if the mere requirement
that the Controller must have reasonable grounds of belief is
insufficient to oblige him to act judicially, there is nothing else
in the. context or conditions of his jurisdiction that suggests that
B
he must regulate his action by analogy of judicial rules." The
scheme of the Regulation therefore negatived according to the
Judicial Committee, a judicial approach.
I am not concerned in this case with the validity of the
criticism by Lord Reid of the two decisions. It is sufficient to
c state for the purpose of this case that there is no principle or
binding authority in support of the view that wherever a public
authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the
nature of the power exercised whatever may be the procedure
D
E
prescribed, and whatever may be the nature of the authority conferred, the proceeding of the public authority must be regulated
by the analogy of rules governing judicial determinat,ion of disputed questions.
The alternative contention that the use of the word "decide"
in Rule 30-A ( 8) compels a judicial approach cannot also be
sustained. As pointed out by Faz! Ali J., in Advani's case(') at
p. 642:
"The word "decision" in
common parlance is
more or less a neutral expression and it can be used with
reference to purely executive acts as well as judicial
orders. The mere fact that an executive authority has
F
to decide something does not make the decision judicial.
It is the manner in which the decision has to be arrived
at which makes the difference, and the real test is :
fa there any duty to decide judicially ?"
Rule 30-A(8) requires the Administrator to review at intervals
G
of not more than six months the detention order and then to decide
upon such review whether the order be continued or cancelled.
That only :llnports that the Administrator after reviewing the
material circumstances has to decide whether the detention of the
detenu should be continued or cancelled. Undoubtedly, in review-
•
ing the order of detention, the Administrator would be taking
H
into account all the relevant circumstances existing at the time
when the order was made, the subsequent developments, which
(I) [1950] S. C. R. 621.
L6Sup.CI/65-2
254
SUPREME COURT REPORTS
(1966] 1 S.C.R.
have a bearing on the detention of the detenu and the representaA
tion, if any, made by the detenu. But the rule contemplates review
of the detention order and in the exercise of a power to review
a condition of a judicial approach is not implied.
Counsel for the petitioner said that the order of the Administrator dated February 24, 1965 was invalid, because the AdminisB
trator had reviewed the order confinning the order of detention
and not the order of detention. In the preamble clause there is a
reference to a "report for review of the order, dated the 5th
September, 1964 confinning the detention order" of the petitioner.
But it is difficult to divorce the order of detention from the order
of confirmation, for without confirmation the order of detention c
would have no legal sustenance. The Rule provides that the order
of detention shall forthwith be reported, if made by an officer
empowered by the Administrator, to the Administrator and that
the Administrator shall, after taking into account all the circumstances of the case, either confirm the detention order or cancel
it.
It is pursuant to the detention order so confirmed, that a
D
person remains detained, and the review which is intended to be
made under Rule 30-A (8) is of that order which is confirmed.
The second paragraph of the order of the Administrator makes it
clear that the detention order of the petitioner shall continue and
that detention order is clearly the order made by the District
Magistrate and confirmed by the Administrator.
E
The petition therefore fails and is dismissed.
Petition dismissed.
. ,
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'