# The UniMi of l•dia v. Tiu CatRmucia Tax Ojfiar, Wis B•ngal and othtTJ Sinha J

- **Citation:** [1955] 2 S.C.R. 1101
- **Court:** Supreme Court of India
- **Decided:** 1955-10-04
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-unimi-of-l-dia-v-tiu-catrmucia-tax-ojfiar-wis-b-ngal-and-othttj-sinha-j-1236
- **Pages:** 13

## Headnote

2S.C.R.
SUPREME COURT REPORTS
1101
neither the Act nor the rules framed thereunder define
those
departments.
If the
nomenclature
only
matt-
·ered, then there is no escape from the conclusion
that
whatever
articles
and
commodities were
purchased by the Indian Stores Department or its later
substitutes, of whatever magnitude and value, would
be within the mischief of the exemption clause in
question. But that, in my opinion, was not the intention of the framers of the Act. They knew what
the activities of the Government through those departments were
and
the exemption
was
granted
only in respect of those functions of the Government,
as already indicated.
For the aforesaid reasons I would allow these appeals, set aside the orders of the Letters Patent Bench
and restore the orders passed by the Single Judge of
the Calcutta High Court, with costs throughout.
BY THE COURT.
in accordance with the Judgment of the majority
the appeals are dismissed with costs.
P. L. LAKHANPAL
v.
THE STATE OF JAMMU AND KASHMIR.
ls. R. DAS, ACTING C.J.,
BHAGWATI, }AGANNADHADAS, B. P. SINHA and }AFER IMAM JJ.]
Constitution of .India, Arts. 13, 21, 22 and 35(c)-/ammu and
Kashmir Preventive Detention Act, 2011 (Act VI of 2011), s. 3(1)
(a )(i) and s. 8(1) Proviscr-Constitution (Application to /am mu and
Kashmi,.) 01·der, 1954-Detention order under the provisions of ss. 3
(J)(a)(i) and 8(1) Proviso of the Act-Whether violates fundamental
.-ights guaranteed under Arts. 21 and 22 of the Constitution-Nonsupply of grounds of detention to Detenu-Whether violates his fundamental right-Addition of clause (c) to Art. 35 of the ConstitutionEffect of.
The petitioner was detained in Kothibagh sub-jail in Srinagar
by the order of Jammu and Kashmir Government under the provisions of s. 3(1)(a) (i) of the Jammu and Kashmir Preventive Detention Act, 2011.
·
1955
The UniMi of l•dia
v.
Tiu CatRmucia
Tax Ojfiar, Wis
B•ngal and othtTJ
Sinha J
1955
D1ctmher 20.
1955
P. L. Lakhanpal
v.
The Stat1 of
Jammu and
Kashmir
1102
SUPREME COURT REPORTS
[19551
The petitioner challenged the order of detention on the grounds,.
inter alia, (i) that it cncroacheJ on
his fundamental right to life
an<l personal liberty guaranteed to hi1n under 1\rt. 21 of the Consti·
tution as extended to the State of Jam1nu and Kash1nir, (ii) that it
\'i_olated his fundamental right guaranteed to him under clause (5)
to Art. 22 cf the Constitution as
extended to Jammu and Kashmir
State inas:nuch as the petitioner \Vas not supplied \Vith the grounds
on 'vhich the order of detention \Vas based.
It \Vas contended that
s. S( 1)
Proviso, of Ja111mu and l<.ashmir Preventive Detention Act,
2011, under \vhich the grounds of detention were
not supplied to
hin1, \Vas unconstitutional as being
inconsistent with Arts. 21 and
22 of: the Constitution and thus void to the extent of that inconsistency in Yie,;;,.· of the provisions of ,\rt. 13 of the Constitution.
Held (overruling the contention) that s. ti(l) Proviso is not
unconstitutional in vie\V of the provisions of Constitution (Applicatic:1 t"J j:.J.111111u and Kashrnir) Order, 195-l- which supersedes the Con·
stitution (Jan1mu and Kashmir) ()rder, 1950, and of clause (..::) which
has been .:id<l..::<l to Art. 35 of the Consti.tution.
The effect of the
modification
of Art. 35 by the addition of
chtu!>C ( c) thereto is that su...:h of the provisions of the 1\ct <lS are inconsistent with Part III of the Constitution shall he valid until the
cxpiration of fiye years fron1 the commencem~nt of the Order.
ORIGINAL
1955.
J UR!SD!CT!ON :
Petition
No.
396
of
Under
Article
32 of the Constitution for
a writ
m the nature of Habeas Corpus.
R. Patnaik, for the petitioner.
M. C. Setaivad, Attorney-General of
India,
C. K.
Daphtary,
Solicitor-Genera!
of
India,
Raja
faswant
Singh,
Advocatc-G~ncrn!, fammu and Kashmir
(P. A.
Mehta and R. H. Dheb11r, with them) for the respondent.
M. C. Seta/wad,
Attorney-General of fodia (P. A.
Mehta and R. H. Dhebar, with him) for the Intervener.
1955. De

## Text

2S.C.R.
SUPREME COURT REPORTS
1101
neither the Act nor the rules framed thereunder define
those
departments.
If the
nomenclature
only
matt-
·ered, then there is no escape from the conclusion
that
whatever
articles
and
commodities were
purchased by the Indian Stores Department or its later
substitutes, of whatever magnitude and value, would
be within the mischief of the exemption clause in
question. But that, in my opinion, was not the intention of the framers of the Act. They knew what
the activities of the Government through those departments were
and
the exemption
was
granted
only in respect of those functions of the Government,
as already indicated.
For the aforesaid reasons I would allow these appeals, set aside the orders of the Letters Patent Bench
and restore the orders passed by the Single Judge of
the Calcutta High Court, with costs throughout.
BY THE COURT.
in accordance with the Judgment of the majority
the appeals are dismissed with costs.
P. L. LAKHANPAL
v.
THE STATE OF JAMMU AND KASHMIR.
ls. R. DAS, ACTING C.J.,
BHAGWATI, }AGANNADHADAS, B. P. SINHA and }AFER IMAM JJ.]
Constitution of .India, Arts. 13, 21, 22 and 35(c)-/ammu and
Kashmir Preventive Detention Act, 2011 (Act VI of 2011), s. 3(1)
(a )(i) and s. 8(1) Proviscr-Constitution (Application to /am mu and
Kashmi,.) 01·der, 1954-Detention order under the provisions of ss. 3
(J)(a)(i) and 8(1) Proviso of the Act-Whether violates fundamental
.-ights guaranteed under Arts. 21 and 22 of the Constitution-Nonsupply of grounds of detention to Detenu-Whether violates his fundamental right-Addition of clause (c) to Art. 35 of the ConstitutionEffect of.
The petitioner was detained in Kothibagh sub-jail in Srinagar
by the order of Jammu and Kashmir Government under the provisions of s. 3(1)(a) (i) of the Jammu and Kashmir Preventive Detention Act, 2011.
·
1955
The UniMi of l•dia
v.
Tiu CatRmucia
Tax Ojfiar, Wis
B•ngal and othtTJ
Sinha J
1955
D1ctmher 20.
1955
P. L. Lakhanpal
v.
The Stat1 of
Jammu and
Kashmir
1102
SUPREME COURT REPORTS
[19551
The petitioner challenged the order of detention on the grounds,.
inter alia, (i) that it cncroacheJ on
his fundamental right to life
an<l personal liberty guaranteed to hi1n under 1\rt. 21 of the Consti·
tution as extended to the State of Jam1nu and Kash1nir, (ii) that it
\'i_olated his fundamental right guaranteed to him under clause (5)
to Art. 22 cf the Constitution as
extended to Jammu and Kashmir
State inas:nuch as the petitioner \Vas not supplied \Vith the grounds
on 'vhich the order of detention \Vas based.
It \Vas contended that
s. S( 1)
Proviso, of Ja111mu and l<.ashmir Preventive Detention Act,
2011, under \vhich the grounds of detention were
not supplied to
hin1, \Vas unconstitutional as being
inconsistent with Arts. 21 and
22 of: the Constitution and thus void to the extent of that inconsistency in Yie,;;,.· of the provisions of ,\rt. 13 of the Constitution.
Held (overruling the contention) that s. ti(l) Proviso is not
unconstitutional in vie\V of the provisions of Constitution (Applicatic:1 t"J j:.J.111111u and Kashrnir) Order, 195-l- which supersedes the Con·
stitution (Jan1mu and Kashmir) ()rder, 1950, and of clause (..::) which
has been .:id<l..::<l to Art. 35 of the Consti.tution.
The effect of the
modification
of Art. 35 by the addition of
chtu!>C ( c) thereto is that su...:h of the provisions of the 1\ct <lS are inconsistent with Part III of the Constitution shall he valid until the
cxpiration of fiye years fron1 the commencem~nt of the Order.
ORIGINAL
1955.
J UR!SD!CT!ON :
Petition
No.
396
of
Under
Article
32 of the Constitution for
a writ
m the nature of Habeas Corpus.
R. Patnaik, for the petitioner.
M. C. Setaivad, Attorney-General of
India,
C. K.
Daphtary,
Solicitor-Genera!
of
India,
Raja
faswant
Singh,
Advocatc-G~ncrn!, fammu and Kashmir
(P. A.
Mehta and R. H. Dheb11r, with them) for the respondent.
M. C. Seta/wad,
Attorney-General of fodia (P. A.
Mehta and R. H. Dhebar, with him) for the Intervener.
1955. December 20. The Judgment of the Court
was delivered by
SI':IH ! --This application for a writ of habeas
corpi1s is
directed against the State of Jammu and
Kashmir which has by its order dated the 4th October,
1955,
directed
the detention
of the
petitioner
under section 3 of the J ammu and Kashmir Preven-
2S.C.R.
SUPREME COURT REPORTS
1103
tive Detention Act,
(Jammu and Kashmir Act IV of
2011 ), hereinafter to be
referred to as
"the Act".
Originally
the
sole
respondent
impleaded
was
the
State of
Jammu and Kashmir. After a rule nisi was
issued to
the respondent, fhe
Union of India intervened because
the
petitioner had challenged the validity of the Constitution (Application to Jammu and
Kashmir) Order, 1954.
The
petitioner,
P. L. Lakhanpal, aged
approximately 28 years, describing himself as the Chairman,
End Kashmir Dispute Committee, has
moved
this
Court against the order of the State detaining him in
Kothi
Bagh sub-jail
in Srinagar.
The application
is
based on
the
following
allegations.
The
petitioner
is normally a resident of 9821, Nawabganj, Delhi 6.
He went to Kashmir on a permit on the 24th September
this year
"on a study-cum-pleasure trip". He
has been evincing keen interest in Kashmir politics
since the year 1946, when as General Secretary of the
Co:igress Socialist
Party,
Lahore,
he was closely associated
with
the
"Quit
Kashmir
movement".
Last
year he wrote
a book entitled "Communist Conspiracy
in Kashmir", copies of which had been seized by the
Delhi
Police but
were
subsequently
released.
The
petitioner in the book aforesaid, as also elsewhere in
the press and on the platform, claims to have been
making "trenchant criticism of the Kashmir cabinet
headed by
Bakshi
Ghulam Mohammed and also of
the Government of India's policy
in regard to Kashmir".
He claims to be
known as the supporter of
Sheikh · Mohd. Abdullah; the former Prime Minister
of Kashmir, and to have
expressed
the
opinion that
he "has been the victim of a heinous conspiracy motivated by lust for power between the communists and
the rightists
on the one hand and Bakshi Ghulam
Mohammed, the present Kashmir Prime Minister, on
the other".
He also
claims to have
been
advocating
the cause of the ex-Prime Minister aforesaid of Kashmir whose detention has been severely criticized by
him.
He has "also
publicly
exposed
and denounced
tlh'
brntal
excesses
committed
by
the
police
and
auth·.irities under the Bakshi Government throughout
1955
P, L. Lakhanpal
v.
TluStak of
]ammu and
Kas/tmjr
Sinha ].
1955
P. L. Lalcha'flpal
v.
TJr. Stau of
Jammu ar1d
Ktultmir
Sinha].
~104
SUPREME COURT REPORTS
[1955]
the State".
He has
characterized the State
Constituent Assembly as having forfeited the confidence of
the people.
He claims to have "declared
that the
Bakshi cabinet, which in his view is dominated by
the communists, is the corruptest, the most tyrannical and the most hated Government that the State
has ever had". Similar views were expressed by him
in telegrams said to have been sent to the Sadar-iRiyasat
of Jammu and Kashmir,
to the President of
India and to the Prime Minister of India. He claims
to have
organized
a "persistent campaign
to secure
support .for his views on Kashmir among the public
and
leaders
of
political
thought".
The
aforesaid
activities
of
the
petitioner, he further
claims,
have
"provoked
a bitter controversy between him and the
Indian Prime Minister". In this connection he makes
reference
to
certain
statements
said
to
have been
made by the Prime Minister of India which it is not
necessary to detail here. except the following :-
"During the last few
months, however, I have
become aware of his (the petitioner's) activities and
have inquired into them. These inquiries led me to
the
conclusion
that
these
activities
are
of a most
objectionable character which can only
help the enemies of our country".
The petitioner also claims to be the General Secretary
of the World Democratic Peace
Congress. In this
connection he makes certain other allegations against
the Prime Minister of India which are not relevant
to the case.
He also makes a grievance that it was
reported in a daily
newspaper of Srinagar called
Khidmat that the present Prime Minister of Jammu
and Kashmir had described him as "a traitor and an
enemy of the nation".
He then describes his activities during three days in Srinagar meeting people
from various walks of life, including editors of the
newspapers and members of the State Assembly.
On
the 29th
September, he
says, he left Srinagar for
Anantnag in the company of the alleged leader of the
opposition in
the Assembly
and President
of the
Jammu and Kashmir Plebiscite Front, named Mirza
Afzal Mohd. Beg, who, it may be added, has also
2S.C.R.
SUPREME COURT REPORTS
1105
been in detention under the orders of the Jammu and
Kashmir
Government,
as
stated
by
the
AdvocateGeneral of that State. At Anantnag he claims
to
have spent two days as the guest of Mr. Beg meeting
people
of the town
and neighbouring areas "listening
to their
harrowing tales of woe".
On the 30th
September he
"addressed an informal meeting of the
Plebiscite
Front Workers
at
Mr.
Beg's
residence".
He came back to Srinagar on the 1st October and
left for Sopore on the 2nd
October.
There
he
addressed
an informal gathering of a few
hundred
workers on the same lines as he had done at Anantnag.
On the 3rd
October he personally
handed to
the P.A. to the Chief Secretary of J ammu and Kashmir an application
seeking permission for an interview with Sheikh Abdullah in the Kud jail where he
has been in
detention. During his stay
in Srinagar,
he states, he made unsuccessful attempts to contact
the State Prime Minister for a meeting. In the afternoon of the 4th October he held a press conference at
which he "made a written statement" complaining
of "such barbaric
brutalities,
such
insecurity
of life,
property and honour and such callousness on the part
of the administration
as are evidenced in your
valley
only go to show
rhat the Bakshi Government is just
another name for legalized lawless, disorder, corruption and nepotism". In the early hours of the morning of the 5th October the
Superintendent of Police,
Srinagar, read out to him the
order of detention
passed by the Cabinet and took him into .custody and
detained him in the sub-jail Kothi Bagh. The order
of detention (Annexure "D" at page 20 of the paperbook) is in these terms :-
"GOVERNMENT OF JAMMU AND KASHMIR
CHIEF SECRETARIAT
(GENERAL DEPARTMENT)
Subject :-Detention of P. L. Lakhanpal,
Chairman,
End Kashmir
Dispute
Committee at present
residing in Kashmir Guest House, Lal Chowk, Amira
Kadal, Srinagar, under section 3(1)(a)(i) of the Jammu
and Kashmir Preventive Detention Act, 2011.
1955
P. L. Lakhanpal
v.
Thi State of
Jammu and
Kashmir
Sinha J.
1955
P. /,. IAkharipal
v.
'FhtStait of
.7ammu and
f:ashmir
Sinha J.
1106
SUPREME COURT REPORTS
[1955]
Read :-Memorandum
No.
IS-164-0/55
dated
4-10-1955,
from the
Minister
Order.
Incharge,
Law and
Order No. 1644-C of 1955
T)ated 4th October, 1955.
The Government
having considered
the
facts
stated in the memo of the Minister Incharge, Law
and Order are satisfied that it is necessary to detain
P. L. Lakhanpal,
Chairman,
End Kashmir Dispute
Committee
at present
residing
in
Kashmir Guest
House, Lal Chowk, Amira Kadal, Srinagar, with a
view to preventing him from acting in any manner
prejudicial to the security of the State. Acwrdingly
the Government hereby accord sanction to the Order
annexed hereto and authorize the Chief Secretary to
Go•:ernment to issue
the ~ame over his signature.
By Order of the Cabinet,
Sd. G. M. Bakshi
Prime Minister".
The order actually served on the petitioner is an
annexure to the cabinet order ( Annexure 'E' at
page
21 of the paper-book) which is in these terms :
"GOVERNMENT OF JAMMU AND KASHMIR.
Annexure to Cabinet Order No. 1644-C of 1955,
dated 4-10-1955.
0 rd er.
Whereas the
Government
are
satisfied
with
respect to P. L. Lakhanpal, Chairman, End Kashmir
Dispute .Committee, at present residing in Kashmir
Guest House, Lal Chowk, Amirakadal, Srinagar that
with a view to preventing him from acting
in a manner
prejudicial to the security of the State it is necessary
to make an
order directing that the said P. . L.
Lakhanpal be detained ;
Now, ·therefore,
in exercise
of the powers
conferred by
sub-section (I) of section 3 of the Jammu
and
Kashmir
Preventive
Detention
Act,
2011,
the
Government are pleased to order that the said P. L.
I
',.
-·
2S.C.R.
SUPREME COURT REPORTS
1107
Lakhanpal
be
detained
in sub-jail,
Kothibagh,
Srinagar;
Notice of this Order shall be given to the said
P. L. Lakhanpal by reading over the same to him.
By order of Government.
Sd. Ghulam Ahmad
Chief Secretary to Government".
It is
this order which the petitioner challenges as
"malicious,
mala fide, vague and capricious, illegally
depriving the petitioner of his fundamental right to
life and personal liberty guaranteed under article 21
of the Constitution as extended to the State of Jammu
and Kashmir". The order of the petitioner's detention
is also challenged as unwarranted and illegal as the
order sent to
the
jail authorities does not bear the
signature
of
the
Prime
Minister
of
Jammu
and
Kashmir and also because the petitioner has not been
suprilied, in spite of demands made by him, with the
grounds on which the order of his detention is based,
"in
clear
violation
of
his
fundamental
rights
guapnteed under clause (5) of article 22 of the Constitution
as
extended to the
State of
Jammu
and
Kashmir by the Constitution (Application to Jammu
and Kashmir) Order, 1954".
The State has filed an answer to the petitioner's
affidavit in support of his petition. The affidavit filed
on behalf of the State is sworn to by
Shri Pirzada
Ghulam Ahmad, Chief Secretary to the Government.
In this affidavit he denies that the petitioner had
come
to Kashmir
on a
study-cum-pleasure
trip as
alleged by him. He further states that the petitioner
during his stay in Kashmir "actually_ engaged himself in activities
prejudicial
to
the
security
of
the
State" and that the
Government was "satisfied
that
it is not in the public interest to communicate to the
petitioner
the grounds of the said
detention order".
The
affidavit
further
states
that
the
petitioner's
"detention was ordered by
the Cabinet not for any
collateral purpose but because the Government was
satisfied
that the
activities
of
the
petitioner
were
calculated
to
prejudice
the security
of
the State".
1955
P. L. Lakhanpal
v.
T"8Stau
Jammu and
Kashmir
Sinha ].
1955
P. L. Lakhanpal
v.
T/reStal4 of
]ammu and
Kashmir
Sinha :f.
ll08
SUPREME COURT REPORTS
[1955)
The allegations of improper motive and mala fides
made by
the petitioner are denied as wholly "unfounded
and
baseless". It is
also denied
that the
petitioner's detention was
illegal or that the provisions of the Act under which the order had been passed
were
unconstitutional.
The
affidavit
ends
by
stating that it is apprehended that if the petitioner were
to be released, he is 'likely to indulge further in activities
which would greatly jeopardize
the security of
the State" and that the detention order had been
made solely with a view to preventing the petitioner
from doing any further mischief.
The Act impugned in this case provides that it shall
remain in force for a period of five years from the
date of its commencement. The relevant portion of
section 3 is in these terms :-
" ( 1) The Government may-
( a) if satisfied
with respect
to any person
that
with a view to preventing him from acting in any
manner prejudicial to-
(i) the security of the State ; or ...... it is necessary so to do, make an order directing that such per.
son be detained".
The main attack against the orders served upon the
petitioner is against the following paragraph in the
order dated the 7th October 1955 :-
"Now, therefore, the
Government, in exercise of
the powers conferred by the proviso to sub-section ( 1)
of section 8 bf the said Act, hereby declare that it
would be against the public interest to communicate
to the said P. L. Lakhanpal the grounds on which
the detention order has been made".
That part of the order of detention passed against
the petitioner is in consonance with section 8 of the
Act which is in these terms :-
" ( 1) When a person is detained in
pursuance of
a detention order, the authority making the order
shall, as soon as may be, communicate to him the
grounds on which the order has been made, and shall
afford him the earliest
opportunity of making
a representation against the order to the Government ;
Provided that nothing contained. in this sub-sec-
•
2 S.C.R.
SUPREME COURT REPORTS
1109
tion shall apply to the case of any person detained
with a view to preventing him from acting in any
manner prejudicial to the security of the State if the
Government by order issued in this behalf declares
that it would be against the public interest to communicate to him the grounds on which the detention
order has been made.
(2) Nothing in sub-section (1) shall require the
authority to disclose facts which it considers to be
against the public interest to disclose".
The proviso to the section just quoted makes provision for such cases as come within the purview of
section 3(1)(a)(i) of the Act; that is to say, a person
in the position of the petitioner who has been detained for preventing him from acting in any manner
prejudicial to the security of the State of Jammu and
Kashmir is outside the general rule laid down in section 8 ( 1) if the Government declares, as it has done
in this case, that it would be against the public interest to communicate to him the grounds on which
the detention order has been made.
It is not contended that the orders served upon the petitioner are
not justified by the terms of the section quoted above.
But it has been argued by the learned counsel for the
petitioner that
the terms of the section are unconstitutional inasmuch as they are inconsistent with the
provisions of articles
21
and 22 of the Constitution
and are therefore
to the extent of such inconsistency
void in view of the provisions of article 13 of the
Constitution.
This
argument
presupposes that the
petitioner can invoke the aid of those articles. It has
not been contended on behalf of the petitioner that
apart from the provisions of Part III of the Constitution the
petitioner has any
fundamental
rights
guaranteed to him. Therefore, if articles
21
and
22 are out of the way, as will presently appear, the
argument is without any force.
The Constitution does not apply to the State of
Jammu and Kashmir in its entirety. On the 14th
May, 1954, the President of India in exercise of the
powers conferred by clause ( 1) of article 370 of the
Constitution made and promulgated with the concur1955
P. L. Lakhanpal
"·
The Stall of
Jammu and
Kashmir
Sinha J.
1955
P. L. LaJ./wnpal
v.
The Slat1 of
Jammu and
Kaslimir
Sinha ].
1110
SUPREME COURT REPORTS
[1955]
rence of the Government of the State of Jammu and
. Kashmir, the Constitution
(Application
to
Jammu
and Kashmir) Order, 1954 (which shall be described
hereinafter as "The Order"). It came into force on
the same <lay and superseded the Constitution (Application to
Jammu and Kashmir)
Order,
1950.
By
its terms the Order provides that in addition to articles 1 and 370, the specified provisions of the Constitution shall apply to the State of Jammu and
Kashmir
subject
to
the
exceptions
and
modifications
indicated
therein.
In so
far
as
those
exceptions
and modifications are relevant to
our
present
purpose, it is provided that in clauses ( 4) and (7) of
article 22 "The Legislature of the State of Jammu and
Kashmir" shall be
substituted for
"Parliament", so
that the Legislature of the
State of
Jammu and
Kashmir is competent to legislate in respect of preventive detention. In article 35, clause ( c) has been
added, which is in these terms :-
"No
law
with
respect
to
preventive
detention
made by the Legislature of the State of Jammu and
Kashmir, whether before or after the commencement
of the
Constitution.
(Application to
Jammu and
Kashmir)
Order, 1954, shall be
void on the ground
that it is inconsistent with any of the provisions of
this Part, but any such law shall, to the extent of
such inconsistency, cease to have effect on the expiration of five years from the commencement of the
said Order, except as respects things done or omitted
to be done before the expiration thereof".
The effect of this modification in article 35 of the
Constitution is that such of the provisions of the Act
as are inconsistent with Part III of the
Constitution
shall be valid until the expiration of five years from
the commencement of the Order. This is an exception
which has been engrafted on the Constitution in respect of fundamental rights relating to personal liberty
for the limited period of five years. The Act itself has
a limited life of five years. Thus the exception aforesaid is co-extensive with the life of the Act itself.
Hence, so long as the Act continues in force in its
present form, the provisions of articles 21 and 22 in
•
2S.C.R.
SUPREME COURT REPORTS
1111
so far as they are inconsistent with the Act are out
of the way of the respondent and the petitioner cannot
take
advantage of
those
provisions.
Therefore,
there is no question of the provisions of section 8 of
the Act being unconstitutional by reason of their being inconsistent with articles 21 and 22 of the Constitution ; ancl consequently article
13
is of no assistan.ce to the petitioner.
Wt:.
ha~e assumed that article 32 of the Constitution under which this application has been made to
this Court is available to the petitioner, though the
Attorney-General
who
appeared
to
show
cause on
behaif of the respondents, went to the length of
suggesting that even the benefit of article
~2 of the
Constitution is not available to the petitioner. As he
did not raise this point by way of a preliminary objection and as we did not hear the petitioner's counsel
on this aspect of the case, because in our view clause
( c) added to article 35 of the Constitution by the
President's Order was enough to deprive the petitioner
of the benefit of articles 21 and 22 at least, we have
not thought it necessary to examine and pronounce
upon that extreme proposition.
Realizing the difficulty in the petitioner's way in
view of the provisions of clause
( c)
added as aforesaid to article 35 of the Constitution, the learned
counsel for the petitioner faintly suggested that clause
(c) of article 35 added by the President's Order was
itself bad inasmuch as,
so the argument further ran,
that provision was in excess of the powers conferred
on the President by article 370 of the Constitution.
No attempt was m~de on behalf of the petitioner to
show how the Order promulgated by the President
was in excess of his powers under article 370 of the
Constitution. It was not contended that that article
did not authorise the President to promulgate the
Order. What was suggested was that in promulgating
the Order which the P1esident was authorised to make
under article 370 he had exceeded his powers. Beyond
saying so, no tangible reason was adduced in support
of this extreme position. It is manifest that article
370 ( 1) ( c) and ( d) authorizes the President by Order
1955
I'. L. Lakhanpal
v.
TluStt111 of
Jammu and
Kashmir
Sinha J.
1955
P. L. lA/chanpal
v.
TM Slal1 ef
,Jammu and
Kashmir
1112
SUPREME COURT REPORTS
[1955]
to specify
the exceptions and
modifications to the
provisions of the Constitution (other than articles 1
and 370) subject to which the Constitution shall apply
to the State of Jammu and Kashmir. Clause (c) as indicated above has been added to article 35 of the Constitution only
so far as the State of . Jammu and
Kashmir is concerned. Section 8 of the Act is not in
excess of or inconsistent with the provisions of clause
( c) so added to article 35 of the Constitution. That
being so the orders as served upon the petitioner arc
not inconsistent with or in excess of such provisions
of Part III of the Constitution as apply to the State
of Jammu and Kashmir. It must therefore be held
that the petitioner was not entitled to know the
grounds upon which he had been detained beyond
what is disclosed in the order itself.
It was argued that the order of detention served
on the petitioner or the oqler sent to the officer in
charge of the jail where he was detained, did not bear
the signature of the Prime Minister of J ammu and
Kashmir. But no provisions of any law have been
brought to our notice which require that the Prime
Minister himself should have signed the copy of the
order to be served on the detenu or the copy of the
order which was forwarded to the officer in charge of
the jail. Even
the long petition submitted by the
petitioner which is not characterized by sobriety of
language or strict accuracy does not contain any the
least suggestion to that effect ; and no material in
support of it has been shown to us. We cannot, therefore,
take notice of such an irresponsible and unfounded
suggestion.
It must
therefore
be held that
all the grounds of law urged or suggested in support
of the petition are without any
substance. We
may
add that we did not call upon the Attorney-General
who appeared on behalf of the respondents to show
cause with reference to the allegations of the order
impugned being malicious or wanting in bona fides
because no foundation had been laid in the petition
on the facts stated in the affidavit which could lead
us even remotely to make such an inference.
I
2S.C.R.
SUPREME COURT REPORTS
1113
For the reasons aforesaid it must be held that there
ts no merit in the application
and the rule
is accordingly discharged, and the application is dismissed.
SADHU RAM
v.
THE CUSTODIAN-GENERAL OF EVACUEE
PROPERTY.
[S. R. DAs, ACTING C.J., VIVIAN BosE, JAGANNADHADAS, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.]
Fundamental
Rights,
Infringement of-Transfer of evacuee
property-Requirement of confirmation by Custodian-Retrospective
effect, if amounts to deprivation of property-If a reasonable restriction-Refusal of confirmation by quasi-judicial order based on irrelevant material-Application under Art. 32, if
maintainable-Constitution of India, Arts. 19, 31, 32-East Punjab Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) as
amended by East Punjab Evacuees' (Administration of Pr'bperty)
(Amendment) Act, 1948 (East Punjab Act XXVI of 1948), s. 5-A.
The applicant purchased
certain
agricultural
lands
from a
Muslim evacuee. The sale deed was executed, registered and possession was delivered to the applicant in September, 1947, before the
East Punjab Evacuees' (Administration of Property)
Act of
1947
came into
operation on the 12th of December,
1947.
By subsequent amendments a new
section,
s. 5-A, was
inserted into the
Act with retrospective effect from the 15th of August, 1947, render·
ing transactions in respect
of
evacuee property
ineffective unless
confirmed by the Custodian. The applicant
applied for confirmation.
The Assistant Custodian recommended such confirmation but
the Additional Custodian, acting in terms of a circular issued by the
Custodian-General enunciating a policy
of non-confirmation with
regard
to agricultural lands,
refused to
confirm the applicant's
purchase and this order was affirmed by the Assistant CustodianGeneral in revision.
It was contended on behalf of the
applicant,
inter alia, that the retrospective oper;ition of s. 5-A of the Act was
in effect a
deprivation of property without compensation and was
hit by Art. 31 of the Constitution.
Held that s. 5-A of the East Punjab Evacuees'
(Administration
of Property) Act though retrospective in operation does not amount
to deprivation of
property in respect of
past transactions and is
valid.
In
respect of future transactions
the requirement of con1955
P. L. Laklianpal
v.
T"4 Stale of
Jammu and
Kashmir
Sinha J.
1955
Oclob.r 28.