# SHAMARAO V. PARULEKAR v. THE DISTRICT MAGISTRATE, THANA, BOMBAY AND TWO OTHERS

- **Citation:** [1952] 1 S.C.R. 683
- **Court:** Supreme Court of India
- **Decided:** 1952-10-01
- **Bench:** Patanjali Sastri C.J, Mehr Chand Mahajan, MuKHERJEA, DAs, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shamarao-v-parulekar-v-the-district-magistrate-thana-bombay-and-two-others-59
- **Pages:** 14

## Headnote

Preventive Detention Act (IV of 1950)-Amendment Acts of .1951
and 1952-Detention order under Act of 1950 as amended in 1951
-Extension of duration of Act by Amending Act of 1952 until 1st
October, 1952-Whether extends period of detention-Amendment
Act-Rule
of
construction-"Principal
Act,"
meaning
ofValidity of s. 3 of Amending Act of 1952-Legality of detention
after 1st April, 1952-Constitution
of India, Arts. 14, 22 (4)
and (7).
1952
May 26.
1952
Shamarao
V. Parulek_at
v.
2"he District
Magistrate ..
Thana,
and Others.
684
SUPREME COURT REPORTS
[1952J
1\i1 or<lcr directing the detention of the petitioner was n1ade
on the 15th of Nove1nber, 1951, under the Preventive Detention
Act of J 950 as a1nen<led by the A111ending Act of 1951, \Vhich
pfolonged the duration of the Act of 1950 up to the 1st April,
1952.
'The
Preventive Detention
(An1en<lment)
Act
of
1952
extended the duration of the Act of 1950 for a further period of
six 1nonths, that is to say, until the 1st October, 1952.
Section 3
of the Act of 1952
provided further that detention orders con·
finned under the principal Act and in -force itnn1ediately before
the conunencement of the Act of 1952,
sh~1ll, 1,-vhere the period of
detention is not specified in the order, re1nain in force "for so
long as the principal Act (which was defined as the Act of 1950)
\\'as in force." It \Vas contended on behalf of the petitioner that
his <letention after 1st 1\pril, 1952, \Vi.ls illegal.
1-Ield, (i) \Vhen a subsequent Act an1cnds an earlier one in
such a \Vay as to incorporate itself or a part of itself into the
earlier, then the earlier 1\ct 1nust thereafter be read and construed (except where that \vould lead to a repugnancy, inconsistency
or absurdity) as if the altered \vords had been written into the
earlier Act \Vith pen and ink and the old words scored out so that
there is no need to refer to the atneuding Act at all.
After the
passing of the Act of 1952 the expressions "the Act of 1950'"
and "the principal Act" incant the 1\ct of 1950 as a111ended by
the Act of 1952, and the effect of s. 3 of the Act of I 952 was that
the detention of the petitioner \Vould re1nain in force until the
1st October, 1952, without prejudice to the po\ver of the Govern·
n1ent to 1nodify or revoke it;
(ii) section 3 did not contravene Art. 14 of the Constitution
as there \Vas a rational classificatien of the cases of
detention
orders in the section, and the period of detention was left in
every case to the discretion of the State;
(iii) the words
"any
person
in
sub-cl. (b) of cl. 7 of
Art. 22 of the Constitution do not contemplate that individual
attention should be paid to each case; on the contrary, the words
used
in
the said sub-clause
empower
the Parlian1ent to pres·
cribe the maxin1um for a class taken as a
\vholc as it has done in
s. 3, ands. 3 does not therefore offend cl. (4) or cl. (7) of Art. 22;
(iv) the
power
of
the
Parliament
to
fix
a
maxi1nu!P
period does not
exhaust
itself
once it
has
exercised 'that
power but can
be exercised again
in
respect
of the same
detention;
( v) section
3 1s
not
repugn~nt to the
Constitution on the
ground that it does
not fix a time limit, for it specifies the
•
period as
until the expiry of the Act; nor on the ground that it
...,.-1
introduces
the
idea
of
potentially
indefinite
detention
by
periodical amendments; for
the Parliament has the power to
do that.
S.C.R.
SUPREME COURT REPORTS
685
ORIGINAL
JumsorcnoN : Petitions
(Nos.
86,
147,
157 and 155 of 1952) under article 32 of the Const'itution for writs in the nature of habeas corpus.
Petitioners in person in petitions Nos. 86, 147 and
157 of 1952.
Rajani Patel for the petitioner in petition No. 155.
M. C. Setalvad, Attomey-General for India, ( G. N.
/oshi, with him) for the respondents.
R.
Ganapathi Iyer
for
the
intervener (State
of
Hyderabad).
1952.
May 26.
The Judgment of the Court was
delivered by
BosE
J.-This petition and three others,
namely
petitions Nos. 147, 155 and 157 of 1952, raise issues
regard

## Text

j
. '
~~> .. {"
~ '
::- __ ;,::._--::: . ..
..... f'.
ii~:
t
S.C.R.
SUPREME COURT REPORTS
SHAMARAO V. PARULEKAR
v.
THE DISTRICT MAGISTRATE, THANA,
BOMBAY AND TWO OTHERS
Petition No. 86 of 1952.
D. M. PANGARKAR
v.
THE STATE OF BOMBAY AND ANOTHER
Petition No. 147 of 1952.
MRS.GODAVARIPARULEKAR
v.
THE DISTRICT MAGISTRATE, THANA,
BOMBAY AND TWO OTHERS
Petition No. 157 of 1952.
683
GANESH LAXMAN PATIL FOR TUKARAM HARI
WAZEKAR
v.
THE DISTRICT MAGISTRATE, KOLABA
AND TWO OTHERS
THE STATE OF HYDERABAD-INTERVENER
Petition No. 155 of 1952.
[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and VIVIAN BosE JJ.]
Preventive Detention Act (IV of 1950)-Amendment Acts of .1951
and 1952-Detention order under Act of 1950 as amended in 1951
-Extension of duration of Act by Amending Act of 1952 until 1st
October, 1952-Whether extends period of detention-Amendment
Act-Rule
of
construction-"Principal
Act,"
meaning
ofValidity of s. 3 of Amending Act of 1952-Legality of detention
after 1st April, 1952-Constitution
of India, Arts. 14, 22 (4)
and (7).
1952
May 26.
1952
Shamarao
V. Parulek_at
v.
2"he District
Magistrate ..
Thana,
and Others.
684
SUPREME COURT REPORTS
[1952J
1\i1 or<lcr directing the detention of the petitioner was n1ade
on the 15th of Nove1nber, 1951, under the Preventive Detention
Act of J 950 as a1nen<led by the A111ending Act of 1951, \Vhich
pfolonged the duration of the Act of 1950 up to the 1st April,
1952.
'The
Preventive Detention
(An1en<lment)
Act
of
1952
extended the duration of the Act of 1950 for a further period of
six 1nonths, that is to say, until the 1st October, 1952.
Section 3
of the Act of 1952
provided further that detention orders con·
finned under the principal Act and in -force itnn1ediately before
the conunencement of the Act of 1952,
sh~1ll, 1,-vhere the period of
detention is not specified in the order, re1nain in force "for so
long as the principal Act (which was defined as the Act of 1950)
\\'as in force." It \Vas contended on behalf of the petitioner that
his <letention after 1st 1\pril, 1952, \Vi.ls illegal.
1-Ield, (i) \Vhen a subsequent Act an1cnds an earlier one in
such a \Vay as to incorporate itself or a part of itself into the
earlier, then the earlier 1\ct 1nust thereafter be read and construed (except where that \vould lead to a repugnancy, inconsistency
or absurdity) as if the altered \vords had been written into the
earlier Act \Vith pen and ink and the old words scored out so that
there is no need to refer to the atneuding Act at all.
After the
passing of the Act of 1952 the expressions "the Act of 1950'"
and "the principal Act" incant the 1\ct of 1950 as a111ended by
the Act of 1952, and the effect of s. 3 of the Act of I 952 was that
the detention of the petitioner \Vould re1nain in force until the
1st October, 1952, without prejudice to the po\ver of the Govern·
n1ent to 1nodify or revoke it;
(ii) section 3 did not contravene Art. 14 of the Constitution
as there \Vas a rational classificatien of the cases of
detention
orders in the section, and the period of detention was left in
every case to the discretion of the State;
(iii) the words
"any
person
in
sub-cl. (b) of cl. 7 of
Art. 22 of the Constitution do not contemplate that individual
attention should be paid to each case; on the contrary, the words
used
in
the said sub-clause
empower
the Parlian1ent to pres·
cribe the maxin1um for a class taken as a
\vholc as it has done in
s. 3, ands. 3 does not therefore offend cl. (4) or cl. (7) of Art. 22;
(iv) the
power
of
the
Parliament
to
fix
a
maxi1nu!P
period does not
exhaust
itself
once it
has
exercised 'that
power but can
be exercised again
in
respect
of the same
detention;
( v) section
3 1s
not
repugn~nt to the
Constitution on the
ground that it does
not fix a time limit, for it specifies the
•
period as
until the expiry of the Act; nor on the ground that it
...,.-1
introduces
the
idea
of
potentially
indefinite
detention
by
periodical amendments; for
the Parliament has the power to
do that.
S.C.R.
SUPREME COURT REPORTS
685
ORIGINAL
JumsorcnoN : Petitions
(Nos.
86,
147,
157 and 155 of 1952) under article 32 of the Const'itution for writs in the nature of habeas corpus.
Petitioners in person in petitions Nos. 86, 147 and
157 of 1952.
Rajani Patel for the petitioner in petition No. 155.
M. C. Setalvad, Attomey-General for India, ( G. N.
/oshi, with him) for the respondents.
R.
Ganapathi Iyer
for
the
intervener (State
of
Hyderabad).
1952.
May 26.
The Judgment of the Court was
delivered by
BosE
J.-This petition and three others,
namely
petitions Nos. 147, 155 and 157 of 1952, raise issues
regarding the vires and applicability to these cases of
section 3 of the Preventive Detention (Amendment)
Act, 1952.
This judgment is confined to those points
and will govern these cases only in so far as they raise
those points.
The remaining points
wliich do
not
touch these issues will
be dealt with by
another
Bench.
The only exception is a point raised in petition No. 155 of 1952 with which the other petitions
are not concerned. \Ve will deal with that separately.
The present petition (No. 86 of 1952) was argued
very ably and with commendable conCiseness by the
petitioner in person.
The fact that he has not been
able to persuade us to his view is not due to any defect
in his presentation of the case.
The petitioner was arrested on the 15th of NoYembcr,
1951, and an order of detention under the Preventive
Detention Act of 1950 was served on him the same
.day, and he was given the grounds of detention on the
following day, the 16th. His case was placed before
an Advisory Board and on the 8th of February, 1952,
the Bombay Government "confirmed and continued"
the detention under section 11 (1) of the Preventive
Detention Act of 1950.
This Act, as it originally stood, was due to expire
<>n the 1st of April, 1951, but in that year an amending
1952
Shamarao
V. Parttlekar
v.
The Dfrtrict
Magistrate,
Thana,
and Others.
Bose /.
1952
Shamarao
V. Parulekar
v.
The District
Magistrate,
Thana,
and Others.
Bose f.
686
SUPREME COURT REPORTS
[1952}
Act
was
passed
which,
among other things..
prolonged its life to the 1st of April, 1952. The order of
detention in
th~s case was passed under tl1e Act of
1950 as amended by the Act of 1951. According to
past decisions of this Court, the detention would have
expired on the 1st of April, 1952, when the Act of 1950
as amended in 1951 would itself have expired.
But a
fresh Act was passed in 1952
(Act XXXIV of 1952),
the Preventive
Detention
(Amendment)
Act,
1952.
The effect of this Act was to prolong the life of the
Act of 1950 for a further six months, namely till the
1st of October, 1952.
The question is whether that
Act also prolonged the deten6on and whether it had
the vires to do so.
It was contended that the mere prolongation of the
life of an Act does not, by reason of that alone, prolong
the life of a ·detention which was due to expire when
the Act under which it was made expired. Therefore,
as the Act under which the present detention was
made was due to expire on the 1st of April, 1952, the
mere prolongation of its life by the amending Act did
not affect a prolongation of the detention.
Accordingly, the petitioner should have been released on
the
1st of April,
1952, and as tl1ere is no fresh order of
detention he is entitled to immediate release.
We need not express any opinion on that point
because there is present in the amending Act something more than a mere prolongation of tl1e life of the
old one. There is section 3 which is in these terms :
"Validity and duration of dete11tio11 in certain cases.-
Every
detention order
confirmed
under section
11
of the principal Act and in force immediately before
the commencement of this Act shall have effect as if
it had been confirmed under the provisions of the
principal Act as amended by this Act; and accordingly,
where the period of detention is either not specified
in such detention
order or specified (by whatever
form of words) to be for the duration or un.til the
-d
expiry· of the principal Act or until the 31st day of
March. 1952, such detention order shall continue
te>
.•
i
t
''
·'
•
t,
.
S.C.R.
SUPREME COURT REPORTS
687
. 1952
remain in force for so long as the principal Act is in
force, but without prejudice to the power of the appropriate Government. to revoke or modify it at any
tirrie. "_ - ---- --·
ShamaraQ
V .. Paroleka'I'
v,
It will be noticed that the concluding part of this
section states that the detention order shall remain in
force "for so long as the principal Act is in force."
Section 2 of the amending Act defines the "principal
Act" to mean the Act of 1950. Therefore, it was
argued, as the Act of 1950 was due to expire on 'the 1st
of April, 1952; the. present detention also came to an
end on that date and so, in the absence of a.fresh
·order of detention, the petitioner's detention after that··
date was illegal. .This argument; though ingenious, -
The District
..;.lJagistrate.
is fallacious.
-
The construction of an Act which has been amended
is now governed by technical rules and we. must first·
be clear regarding the proper canons of construction.
The rule is that when a subsequent Act amends an ·
earlier one in such a way as to incorporate itself, or
a part of itself, into the earlier, then the earlier Act
must thereafter be read and construed (except where
that would lead to . a _repugnancy, inconsistency or
absurdity) as if the altered word~ had been written
into the earlier Act with pen and ink and the old
words scored out so that thereafter there is no need
to refer to the amending Act at all. This is the rule
in England: see Craies on· Statute Law, 5th edition,
page 207; it is the law in America: see Crawford on
Statutory Construction, page 1 IO; and it is the law .
which the Privy Council applied to India in Keshoram ·
Poddar v. Nundo Lal l.1allick('). Bearing this in mind
it will be seen that the Act of 1950 remains the Act
of 1950 all the way through even with its subsequent
amendments. · Therefore, the moment the Act of 1952
was passed and·section 2 came into operation, the Act
of 1950 meant the Act of 1950 as ·amended by section
2, that is to say, the Act of 1950 now due to expire on
the 1st of October; 1952; ·
·
·
· ·
(1) (1927) 54 I:A• 152 at 155·
T~na,
and Otha-a.
Bo,eJ.
1952
Shamarao
V. Parulek.ar
v.
The District
'Magistrate,
Thana,
1md Others.
Bose /.
688
SUPREME COURT REPORTS
[1952]
Turning now to section 3, whose vires is questioned,
and examining it clause by clause we first get these
words:
"Every detention order confirmed under seetion
II of the principal Act and in force immediately
before the commencement of this Act."
According to the rule of construction just examined,
the words "'principal Act" means the Act of 1950 as
amended by the Acts of 1951 and of 1952, that is to
say, the Act of 1950 due to expire on the 1st of
October, 1952.
Incidentally, in the particular centext
it could not mean the Act of 1950 as it stood in 1950
because no order confirmed under it · as it then stood
could have been alive "at the commencement of this
Act", namely .on the 15th of March, 1952.
The section continues-
"shall have effect as if it had been cunfirmcd
under the provisions of the principal ·Act as amended
by this Act."
The underlined words "as amended by this Act"'
were relied on to show that wherever the words "the
principal Act" were referred to they meant the unamended original Act of 1950, otherwise these words
would have been unnecessary.
In our opinion, they
were
unnecessary
in
the
sense
that their absence
would not have made any difference to the interpretation though it would have made the section barder to
follow and understand.
We say that for this reason.
Without the underlined words the section paraphrased
would read-
"Every
detention
order
confirmed
under
the
original Act shall have effect as if confirmed under its
. '
,,
prov1s10ns.
If this were to be read literally it would lead to an
absurdity, for if the order is actually confirmed
under
the original unamended Act it would be
pointless
to
introduce a fiction and say that the order shall be
deemed to be confirmed under that Act as unamended.
But even apart from a strictly technical construction,
the language of the section is accurate because, as we
,.._ -
--
T'
S.C.R.
SUPREME COURT REPORTS
689
have said, the rule is that an amended Act must be
:ead as if the words of amendment had been written
into the Act except where that would lead to an 111consistency, and this woul<l be one of those cases
unless the words are construed in a sensible and
commonsense way.
The draughtsman therefore had
either to leave the words as they were, with an apparent inconsistency, or make
his
meaning clear
by
adding the words he did.
But we do not think the
addit1on made any difference to the result.
We now turn to the second half of section 3, that is
to say, to the words following the semi-colon.
It is
important to note here that this part is
con~equential
on the first and merely explains the effect of the first
half.
It is also relc\'ant to note that it deals with
four different kinds of orders, different, that is to say,
in the form of the words used though in the end they
all come to the same thing. It deals with the following kinds of order :-
(1) an order in which the period of detention is
not specified at all; in that event the detention would
end at midnight on the night of the 31st of March,
1952.
It is clear that in this context the words "the
principal Act" cam1ot mean the Act expiring on the
1st of October, 1952, because it envisages an order
made before the Act of 1952 was in being and so on
the date of its making the order could only refer to
the Act then in being;
(2) an order in which the period is stated to be
"fo1 the duration of the principal Act", that is to ~ay,
till the 31st of March, 1952 ;
(3) an order in which the period is specified to
be until the expiry of the principal Act, which again
brings us back to the 31st of March, 1952, as the last
day of detention;
(4) an order in which the period is specified to be
till the 31st of March, 1952. In all these four cases the
section says that the detention order shall "continue
to remain in force, for so long as the principal Act is
iFl force'', that is to say, till the 1st October, 1952.
1952
Shamarao
V. Parulekar
v.
The District
Magistrate,
Thana,
and Others.
Bose f.
1952
Shamarao
V. Parulekar
v.
The District
Magistrate,
Thana,
Qnd Others.
Bose/.
690
SUPREME COURT REPORTS
[1952]
That follows from the first part of the section because
that is the meaning which the law directs shall be
placed on these words unless the context otherwise
directs and the context does not direct otherwise here.
This part of the section is only explanatory.
But we wish to found deeper than this.
It is the
duty of Courts to give effect to the meaning of an Act
when the meaning can be fairly gathered from the
words used, that is to say, if one construction will
lead to an absurdity while another will give effect to
what common sense would show was obviously intended the construction which would defeat the ends of
the Act must be rejected even if the same words used
in the same section, and even the same sentence, have
to be construed differently.
Indeed, the law goes
so
far as to require the Courts sometimes even to modify
the grammatical and ordinary sense of the words if by
doing so absurdity and inconsistency can be avoided.
Sec the speech of Lord Wensleydale in Grey v. Pearson(') quoted with approval by the Privy Council in
Narayana Swami v. Emperor('); also Salmon v. Duncombe("). The rule is also set out in the text books =
See Maxwell on the Interpretation
of Statutes, 9th
edition, page 236, and Craies on Statute Law, 5th.
edition, pages 89 to 93. The meaning of section 3 is
quite plain
ancl
only desperate
hair· splitting
can
reduce it to an absurdity. Courts should not be astute
to defeat the provisions of an Act whose meaning is,
on the face of it, reasonably plain.
Of course, this
does not mean that an Act, or any part of it, can be
recast. It must
be
possible
to
spell
the meaning
contended for out of the words actually used. We
hold that there is no difficulty of construction.
It was next argued that in any event the extended·
detention became a fresh detention (because of the
Act of 1952) from the date the Act came into force,
and reliance was placed upon the judgments of two of
us, Mahajan and Das JJ. in S. Krishnan v. The State
of Madras('). It is enough to say that that was not the
(') [1857] 6 H.L.C. 61 at 106. (') 1l App. Cas. 627 at 634.
(') A.I.R.1939 P. C.47.
(') [1951] S.C.R.621 at635and640.
\.-----
......
S.C.R.
SUPREME COURT REPORTS
ti9I
decision of the Court in that case, and further, that the
two Judges who held it was a fresh detention nevertheless considered that a fresh order with its concomitant fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way
the petitioner must fail.
Reference was made to the equality clause in article
14 of tlte Constitution· but that argument is easily met
because
the classification which
section 3 makes is
reasonable.
In one class it places all those whose
cases have already been considered by the Advisory
Board and in the other those whose cases have yet to
go before it; also the law is fair, or at any rate as fair
as
detention laws
can
be,
despite
this
distinction
because power is left to the appropriate Government
to revoke or modify these orders, or any of them, at
any time.
Substantially therefore there is no _differentiation.
Article 14 was considered at length in The State of
West Bengal v. Anwar Ali Sarkar(1), and according
to the law laid down there, the Court must be satisfied
on two points before it can strike at a law on the
ground of unlawful discrimination. It must be satisfied (1) that the law in fact discriminates and (2) that
such discrimination is not permissible on the prindple
---
of a rational classification made for the purposes of
the legislation.
The argument here was that section 3 discriminated
against those detenus whose cases had been referred to
the Advisory Board and whose detention was confirmed, on the strength of its report, under section 11 ( 1)
before the amending Act of 1952 was passed. The
reason given was that these detentions are automatically extended up to the 1st of October, 1952, by section 3 without further reference to an Advisory Board,
whereas in other cases, that is to say, in the case of
those who were detained before the amending Act but
whose cases had not been referred at the date it came
into force, and in the case of those detained after the
(t) [1952] S.C.R. 284.
1952
Shamarao
V. Parvlek.ar
v.
The District
Magistrate,
Thana,
and Others.
Bose /.
1952
Shamarao
V. Parulekar
• v.
The District
Magistrate,
Thana,
and Others.
Bose /.
692
SUPREME COURT REPORTS
[1952]
amending Act, the Advisory Board is called into play
an,\ individual attention is given to each case with the
result that many of those detentions might not be for
as long as six months. They might, for example. be
only for one month or two .. It was urged that this was
discrimination of a kind which cannot be supported
by any principle of permissible classification because
classification into the above categories has llC\ reasonable relation to the objects of tl1e legislation, such as
security ' of the
State, maintenance of public order
and so forth.
We are unable to accept this line of reasoning. To
say that section 3 automatically extends the detention
of persons in the petitioner's position to the 1st of
October, 1952, and stops iliere, is only to make a partial statement of the effect of section 3 because the
extension is subject to the power of the appropriate
Government to revoke or modify it at any time.
In
other words, the automatic continuation of the detention till the 1st of October is not
absolute and irrevocable but is made dependent on the power of the appropriate Government to revoke or modify it at its discretion under section 13 of the Act. The State may or
may not continue the detention for the whole of t·hc
extended period.
In both classes of cases the duration
of the detention within the overall limit of the· life of
the Act is
left to the discretion of the State. The only
difference is that in the one class of cases the discretion
is exercised after the period has been extended by the
amending Act, in the other the appropriate Govtrnment fixes the period itself in its discretion and can
again at its discretion revoke or modify '1t.
In both
cases, the substance of ilie law is that tl1e period of
detention is left to the discretion of the State, and so
tbere is no substantial discrimination.
It was argued that however fair this may look t>n
paper, in pract1ice that will be grave discrimination
because, as a matter of fact, tl1e State will not apply
its mind in ilie majority of cases like the petitioner's
That is an argument we cannot accept and no material
was placed before us to justify such a conclusion.
~·
'
,
~.C.R.
SUPREME COURT REPORTS
693
We turn now to the next point. It was contended
that section 3 offends the Constitution because article
22 ( 4) and (7) do not envisage the direct intervention
of Parliament in a whole batch of cases.
The protectiem guaranteed is that there shall be individual attention and consideration to each separate case by some
duly
specified
and
constituted
authority.
In
our
opinion, this is not accurate.
Article 22 ( 4) guarantees that there shall be no preventive detention for more than ili.ree months unless
the law authorising it makes provision for an Advisory
Board and the Board after considering each individual
case separately reports . that there is in its opinion
sufficient cause
for
such detentim1.
To that extent
there must be individual consideration of ead1 case,
but once the report is made and is unfavourable to the
detenu, then the detention can be for a longer period
provided it does not exceed "the maximum period
prescribed by any law made by Parliament under subclause (b) of clause (7) ." Sub-clause (b) of clause (7)
emp0wcrs Parliament to
prescribe
"the
maximum
period for which any person may in any class or ....... .
of cases be detained under any law providing for
preventive
detention."
Parliament
is
accordingly
empowered to specify a class. It has done so. The
class is all persons whose cases have already been considered by an Advisory Board.
It is empowered to
prescribe a maximum period.
That also it has done.
The extended detention (that is to say, for more than
three months) can then be "under any law providing
for preventive detention."
A law made by Parliament
falls within these words. Parliament is equally authar'ised to say who shall determine the period of detention, and as there is nothing in the Constitution to prevent it, it can itself exercise the authority it is empowered to delegate to others.
Stress was laid on the words "any person" in sub.
clause (b) of clause (7) and it was contended that this
contemplates individual attention in each case.
But
1952
Shamarao
V. Parulek_11r
v.
The District
Magistrate,
Thana,
and Others.
Bose/.
1952
Shamarao
V. Parulekar
v.
The District
Magistrate,
Thana,
and Others.
Bose /.
694
SUPREME COURT REPORTS
[1952]
if that is so, then it means that Parliament must itself
direct the maximum period for each separate person
falling. within the class individually. The words are,
we th111k, reasonably plain and we hold that Parliament can prescribe the maximum for a class taken as
a whole as it has done in section 3.
It was next argued that once the power given under
clause (7) to fix a maximum period has been exercised
'-·
the power exhausts
itself
and
cannot be
exercised
again in respect of the same detention. In our opinion,
no such limitation is imposed upon Parliament by
the
Constitution.
Then it was said that secuon 3 stands on a footing
different from section 12 of the amending Act of 1951
as
it
introduces
the idea
of
potentially
indefinite
detention
and accordingly is repugnant to the Constitution, and in any event is a fraud upon it. In so far
as this means that section 3 fixes no time limit, the
contention is unsound because the section specifies the
exact period of the qetention, namely till the expiry
of the Act of 1950, that is to say, till the 1st of October, 1952.
In so far as it means that Parliament is
enabled
to
continue detention
indefinitely
by
the
expedient of periodic amendments in the Act of 1950,
the answer is that Parliament has the power.
This
was precisely the power exercised In the amending Act
of 1951 and upheld by this Court in S. Krishnan v.
The State of Madras('). The present Act is no different
from that in this respect.
So far, we have dealt with the facts in petition
No. 86 of 1952.
The facts in the other three petitions
naturally differ in their details but they all conform
to the same general pattern so· far as the points d!s·
cussed above are concerned, so there is no need to discuss them individually.
\Ve hold that section 3 of
the amending Act of 1952 is intra vires and that the
detentions are not bad on any of the grounds discu5'-
ed above. The rest of the points raised in each
individual case are left open except for one point which
f1) [1951] S.C.R. 621.
,.
. - -..,.-
'
S.C.R.
SUPREME COURT REPORTS
695
anses m petition No. 155 of 1952. That point
1s as
follows.
The first ground of detention given to the petitioner
in this case reads :
"Being the President of Jamat of Agris you have
used your position as such to increase your influence
over the residents of Uran Peta, have created a band
of obedient and trusted associates, have inflicted heavy
fines on villagers in Uran Peta who have disregarded
your wishes and have imposed on them boycott or
excommunication in cases of their refusal to pay the
fines."
It was argued that at the very outset these allegations import noth'ing more than an exercise of functions such as the infliction of fines and excommuni-
<:ation which the petitioner as head of the caste had
authority to do. They do not touch any of the matters
covered by section 3 (1) (a) of the Preventive Detention Act, 1950, under which the petitioner is detained.
For example, they do not touch the security of the
State or the maintenance of public order or any of the
other matters specified in section 3. They are therefore irrelevant to the detention, and as it is impossible
to say how far these irrelevant matters influenced the
detention, the petitioner is entitled to release. Reliance
was placed upon certain observations of the Federal
Court in Rex v. Basudev(1).
We think 'it unnecessary
to examine this point because we do not think the
ground is irrelevant nor do we agree that it means
what the petitioner says.
In our opinion, the grounds of detention must be
regarded as a whole and when that is done the relevance of the first ground becomes plain.
The gravemen of the charge against the petitioner is that he
aimed at setting up a parallel government in the Uran
Peta area and that in order to achieve that end he did
various acts such as intimidating the workers in the
salt pans with threats of murder, and his own workers
with threats of death, unless they carried out his
(1) [ 1949] F.C.R. 657 at 661.
1952
Shamarao
V. Parulekar
v.
The District
Magistrate,
Thana,
and Others.
Bose /.
1952
Evacce
Evuee
v.
The District
Mllgistrttte,
Thana,
and Others.
Bose /.
1952
May 26.
696
SUPREME COURT REPORTS
[1952}
orders; and among the lesser instances given to illustrate the exercise of parallel governmental
authority
are the ones set out in the first ground, namely the
mfliction of fines with the sanction of excommunication and boycott to ensure their payment and due
obedience to his orders. This point has no force and
is decided against the petitioner.
It will not be open
to him to re-agitate this afresh when his case is
reheard on the remaining issues.
All the four cases will now be set down
for hearing
on the remaining points which arise in them. As they
do not involve constitutional issues they need not go
before a Constitution Bench.
Agent for the petitioner m Petition No. 155 : M.SK.
Sastri for P. G. Goklzale.
Agent for the respondents and Intervener : P. A.
Mehta.
EBRAHIM ABOOBAKAR AND ANOTHER
v.
CUSTODIAN GENERAL OF
EVACUEE PROPERTY.
[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and VIVIAN BosE JJ.]
Bomba)' Evacuees (Admi11istratio11 of Property) Act, 19490rdinance No. XXVII of 1949, ss. 7, 24-0rder refusing to declare
person evacuee-Whether appea/able-lnformant,
whether "person
aggrieved"-Right to appeal-CoHrts
with
limited juristliction--
Pau1er to decide facts upon which iurisdiction depends-Powers of
an appellate court-Grant of writ of certiorari-Guiding principles.
A writ of certiorari cannot be granted to quash the decision
of an inferior court within its
jurisdiction on the ground that
the decision is wrong.
It must be shown before such writ is
issued that the authority which passed the order acted without
jurisdiction or in excess of it, or in violation of the
principle~
of natural justice.
Want of jurisdiction may arise
from
the
nature
of the subject-matter, so that the inferior court might
not have authority to enter on the inquiry or upon some part of
'
•