HUKAM CHAND v. DISTRICT MAGISTRATE, NEW DELHI — 1966 DIGILAW 49 (DEL)

R. S. Narula ( 1 ) HUKAM Chand, petitioner has submitted this application under section 491 of the Code of Criminal Procedure on the allegation that he has been illegally and improperly detained in public custody by respondent No. 3, the Superintendent, Central Jail, Tehar, New Delhi under the orders of respondent No. 1, the District Magistrate, Delhi acting on behalf of the Administration of the Union Territory of Delhi and praying that he be ordered to be set at liberty. The order of the District Magistrate, Delhi, dated 20th October, 1965 by which the petitioner has been detained under rule 30 of the Defence of India Rules, 1962 is in the following terms:- "where as I, S. G. Bose Mullick, District Magistrate, Delhi, am satisfied from information received that it is necessary to detain Shri Hukam Chand alias Hukarn Chand Seth alias Hukam Chand Jain alias H. C. Seth son of Shri Amar Nath, resident of 4302, Akbar Manzil Gali Khani Khana, Urdu Bazar, P. S. Jama Masjid, Delhi with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the maintenance of public order, and the maintenance of peaceful conditions in Delhi. Now, therefore, in exercise of the powers conferred upon me under Rule 30 of the Defence of India Rules 1962, read with Order No. F. 3 (2) 62-S. C. C. dated 20th November, 1932, issued by the Adminstiator of the Union Territory of Delhi, I do hereby direct that the said Shri Hukam Chand alias Hukam Chand Seth alias Hukam Chand Jain alias H. C. Seth be "detained in the Central Tail, Tehar, New Delhi in the custody of the Superintendent of the said jail. Given under my hand and seal of this court. This 20th day of October, 1965," ( 2 ) IN pursuance of the above mentioned order the petitioner was arrested on October 20th, 1965. His case was reviewed by the Administrator of the Union Territory (Chief Commissioner, Delhi) on 21st October, 1965 and his detention was confirmed. Information about the confirmation of the detention order was communicated to the petitioner by the District Magistrate, Delhi on 27th October, 1965. Though various grounds had been taken up in the petition forwarded by the petitioner from the Jail Shri D. Latifi, Advocate, who appeared for him he. Information about the confirmation of the detention order was communicated to the petitioner by the District Magistrate, Delhi on 27th October, 1965. Though various grounds had been taken up in the petition forwarded by the petitioner from the Jail Shri D. Latifi, Advocate, who appeared for him he. fore me expressly stated that he was not pressing the same. He urged only the following four grounds against the petitioner s detention;- (I) that the notifications of the President of India dated 3rd and 11th November, 1962 under Article 359 of the Constitution do not save detentions made under the Defence of India Rules after the cesser operation of the Defence of India Ordinance, 1962 i. e. after December 12,1962; (ii) even if the above-said notification under Article 359 of the Constitution can be set up as a defence to the normal fundamental rights of the petitioner under Articles 21 and 22 of the Constitution those notifications do not save detentions made under that part of rule of the Defence of India Rules which was added thereto on December 28, 1962 after the repeal of the Defence of India Ordinance by the Defence of India Act ; (iii) that the impugned order of detention shows that the District Magistrate of Delhi had not in fact applied his mind before passing the impugned order ; and (iv) that the detention of the petitioner was improper as it had been sought to be supported in the Written statement filed in reply to the writ petition on grounds which are not identical in all respects with those given in the order of detention ( 3 ) IN order to decide the first two questions raised by the learned counsel for the petitioner, both of which are inter-connected, certain statutory provisions and rules may first be noticed. Part XVIIT of the Constitution (Articles 352 to 359) deals with the emergency provisions. The declaration of emergency is left by Article 359 (1) to the President of India. It is not disputed that emergency under that Article was declared in this country on October 26, 1962 immediately on the out-break of hostilities with China. Part XVIIT of the Constitution (Articles 352 to 359) deals with the emergency provisions. The declaration of emergency is left by Article 359 (1) to the President of India. It is not disputed that emergency under that Article was declared in this country on October 26, 1962 immediately on the out-break of hostilities with China. Article 359 (1) provides that where aproclamation of emergency is in operation the President may by order declare that the right to move any Court for the enforcement of any of the fundamental rights (conferred by Part III of the Constitution) as may he mentioned in the order shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. In exercise of the powers conferred by Article 359 (1) of the Constitution the President of India issued a notification on the 3rd of November, 1962 providing that the right of any person to move any Court for the enforcement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 of the Constitution on 26th October, "1962 remained in force if such person has been deprived of any such rights "under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder. ". ( 4 ) THE second notification under Article 359 (1) of the Constitution was dated November 11, 1962 and similarly abrogated the rights of citizens to invoke Article 14 of the Constitution in relation to orders passed under the Defence of India Ordinance or the rules made thereunder. In exercise of the powers conferred by Article 123 of the Constitution the President promulgated the Defence of India Ordinance 4 of 1962 on 26th October, 1962. The Ordinance 4 of 1902 was amended by ordinance 6 of 1962. The Ordinance as amended was repealed by section 48 of the Defence of India Act, 1962 which Act was passed on the 12th December, 1962. Sub-section (2) of section 48 of the Act reads as follows:- "48, Repeal and saving.- (1) The Defence of India Ordinance, 1962 (4 of 1962), and the Defence of India (Amendment) Ordinance, 1962 (6 of 1962) are hereby repealed (2) Notwithstanding such repeal, any rules made, anything. Sub-section (2) of section 48 of the Act reads as follows:- "48, Repeal and saving.- (1) The Defence of India Ordinance, 1962 (4 of 1962), and the Defence of India (Amendment) Ordinance, 1962 (6 of 1962) are hereby repealed (2) Notwithstanding such repeal, any rules made, anything. done or anyaction taken under the Defence of India Ordinance 1962 (4 of 1962), as amended by the Defence of India (Amendment) Ordinance, 1962 (6 of 1962), shall be deemed to have been made, done or taken under this Act as if this Act had commenced on the 26th October, 1962. " ( 5 ) MR. Latifi has asked me to take judicial notice of the fact that a ceasefire had been effected beteween India and China on November 21, 1962 before the repeal of the Ordinance and before the passing of the Act. ( 6 ) THE Defence of India Rules had been framed under the Ordinance. By operation of sub-section (2) of section 48 of the Act the said rules made under the Ordinance continued in force and are deemed to have been made under the Act as if the Act itself had commenced on the 26th October, 1962, the date of the Ordinance. The opening part of rule 30 (1) of the said rules as originally framed under the Ordinance was in the following terms :- "the Central Government or the State Government, if it is satisfied with respect to any particular parson that with a view topreventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India s relations with foreign powers, it is necessary so to do, may make an order. . . . . . . . . . . . ". ( 7 ) BY another amendment dated December 28, 1962 the following words were added to the above-said portion of rule 30 (1) after the words "india s relations with foreign powers" and before the words "it is necessary so to do" :- "the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations or the maintenance of supplies and services easential to the life of the community". ( 8 ) IT may be remembered that the above mentioned amendment and addition to rule 30 was made after the cesser of operation of the Ordinance and after the Act had come into force. The factum and validity of the order of the State Government dated November 20, 1962 delegating its powers under rule 30 of the District Magistrate of Delhi have not been disputed before me. ( 9 ) THE first argument of Mr. Latifi is that the petitioner is entitled to invoke Article 21 and 22 of the Constitution against his preventive detention because the notification dated 3rd November, 1962 could be invoked only if the petitioner had been detained under the "defence of India Ordinance, 1962" or any rule or order made under that Ordinance. The argument proceeds that since the petitioner has not been detained under the Ordinance and has in fact been ordered to be detained after the Ordinance had been repealed, the presidential proclamation under Article 359 (1) of the Constitution is of noava. il against the petitioner and does not save his detention. ( 10 ) WHEN Mr. P. C. Khanna, the learned counsel for the respondents invoked section 8 of the General Clauses Act to apply the Presidential notifications under Article 395 (1) of the Constitution to detentions under the Act which replaced the Ordinance, Mr. Latifi objected that this cannot be done as an Ordinance is not an "enactment" within the meaning of that expression used in section 8. The said section reads as follows :- "8. Construction of references to repeated enactments.- (1) where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. (2) Where ha fore the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted with or without modification, any provisions of former enactment, then references in any Central Act or in any Regulation or instrument to the provisions so repealed shall, unless different intention appears, be construed as references to the provisions so re-enacted. ( 11 ) I do not think, there is any force in this contention of Mr. ( 11 ) I do not think, there is any force in this contention of Mr. Latifi The expression "enactment" as used in the phrase "former enactment" in section 8 of the General Clauses Act is of wide amplitude. It includes within its purview legislative enactments as well as ordinances. The literal meaning of "enactment is "en" and "act" i. e. to put into act. "enactment" according to its meaning given in a Dictionary of synonymous words in the English language by Charles John Smith (G. Bell and Sons Ltd. London) is the making of thing into a law, the giving to it the legal validity and authority. This may be the act of one or many, according as the source of authority is personal or collective. The word "ordinance" is derived from the Latin word "ordinare" or "ordinern" i. e. , an order. It is a rule of action permanently established by authority. Literally, any statute, law, edict, decree or rescript may be called an ordinance. But an ordinance is always a thing of wide establishment and is not applicable to matters of domestic management or connected with the administration of minor associations. In its historicalsense an ordinance is an operative act of a sovereign power. The meaning of "enactment" given in Shorter Oxford English Dictionary, Vol. I at page 604 (Third Edition) is in there terms : - "the action of enacting a law ; the state of being enacted, that which is enacted ; an ordinance, a statute, one of the provisions of a law". " ( 12 ). According to the same dictionary "to enact" means to enter among the acta or public records, or in a chronicle ; to make into an act; hence to ordain, decree, to declare officially, etc. Whatever may the scope of the expression "ordinance" there appears to me to be doubt about the fact that the word enactment" is wide enough to elude within it an ordinance. ( 13 ) THOUGH the above point now raised before me by Mr. Whatever may the scope of the expression "ordinance" there appears to me to be doubt about the fact that the word enactment" is wide enough to elude within it an ordinance. ( 13 ) THOUGH the above point now raised before me by Mr. Latifi as to the effect and scope of the word "enactment" in section 8 of the General Clauses Act does not appear to have been specifically raised or argued before their Lordships of the Supreme Court in Mohan Chowdhurv v. The Chief Commissioner-, and the principal point raised there was whether a Presidential order under Article 359 (1) of the Constitution can he described as an "instrument" within the meaning of section 8 of the General Clauses Act or not, I think their Lordships of the Supreme Court have decided in so many words in that case that the Presidential notification dated 3rd November, 1962 does save detention made under the Defence of India Rules even after therepea. l if the ordinance, lam conscious of the fact that in Mohan Chowdhury s case the order of detention had been passed under the Ordinance and the question raised before the Court was whether the order ceased to be operative after the repeal of the Ordinance or not. But the ultimate finding of the Supreme Court in that case is couched in the following language :- "the President s order would, even after the repeal of the Ordinance aforesaid continue to govern cases of detention made under R. 30 aforesaid under the Ordinances. It must, therefore, be held that there is no substance in the contention that the petitioner s dentention onginally made under the rule under the Ordinance would not be deemed to have continued under the Act (LI of 1962 ). Equally clearly, there is no substance in the contention that the same order should have been repeated by the President after the enactment of the Act. It would have been a sheer act of supererogation and the legal fiction laid down is S. 8 is meant to avoid such unnecessary duplication of the use of the constitutional machinery. " (Underling by me ). ( 14 ) I think, the portion in the above-quoted observations of their Lordships of the Supreme Court in Mohan Chowdhmy s case, which has been underlined by me, completely answers the argument of Mr. " (Underling by me ). ( 14 ) I think, the portion in the above-quoted observations of their Lordships of the Supreme Court in Mohan Chowdhmy s case, which has been underlined by me, completely answers the argument of Mr. Latifi and it is not open to me to consider the contention of the learned counsel that the above decision has been given without considering the new point which is now sought to be canvassed. The decision of the Supreme Court is the law declared by it and is binding on all Courts and it is not open to this Court even to try to see whether the said decision would stand the test of some additional or new arguments or not. In this connection Mr. Latift referred to the judgment of the Supreme Court in the Searchlight case M. S. M. Sharma v. Sri Krishan Sinha and others, wherein it has been observed that the earlier decision of their Lordships in Gunnupati Keshavram Reddy v. Nafisul Hasan , proceeded entirely on a concession of the counsel and could not, therefore, be regarded as considered opinion on the subject. Mr. Latifi says that the judgment of the Supreme Court in Mohan Chowdhurv s case in so far as it relates to the question whether an ordinance is or is not an enactment is based on a concession and does not, therefore, amount to a considered judgment of their Lordships on that point and is, therefore, no law laid down for the country. I do not think, it is correct to describe the situation in the manner Mr. Latifi chooses to picture it. According to my reading of the judgment of the Supreme Court in Mohan Chowdhwy s case the decision was not based on a concession but on a consideration of the entire arguments addressed before their lordships. As already observed, the dictum of the Supreme Court is law laid down irrespective of whether a particular additional or new argument was or was not considered by the Supreme Court while laying down that law. As already observed, the dictum of the Supreme Court is law laid down irrespective of whether a particular additional or new argument was or was not considered by the Supreme Court while laying down that law. ( 15 ) IN support of his contentions on the first point Mr Latifi also referred to various passages in Halsbury s Laws of England (Simond s edition) Volume 36, where it has been stated (para 545 at page 371) that the enacting formula now used in various statutes runs as follows-Be it enacted by the Queen s Most Excellent Majesty - and that, therefore, the word "enactment is used". On this basis it is argued that the word "enactment" is used only for legislative enactments and not for ordinances. The fallacy in this argument of Mr. Latifi is apparent. The fact that law is enacted by the Parliament does not by itself mean that an ordinance is not enacted by the President of India. Similarly the reference to para 561 at page 380 of the same volume of Halsbury s Laws of England, wherein it is laid down that an enactment may be cited in any Act, and in any instrument or document, by reference to the section or sub-section of the Act in which it is contained, does not in any manner advance thecase of the petitioner, Mr. Latifi says that whereas a law made by a Legislature is enacted, an ordinance made by the President is promulgated. On this basis it is argued that an ordinance cannot be an enactment. The learned counsel for the petitioner then referred to section 16 of the Essential Commnodities Act, 10 of 1955 and pointed out that in relation to the s . me expression "enactment" as used in section 6 of the General Clauses Act it has been provided in section 16 (3) of Act 10 of 1955 that the provisions of sub-section (2) of section 16 shall apply to the repeal of the Essential Commodities Ordinance, 1955 and to the repeal of any other law in force in any State immediately before the commencement of Central Act 10 of 1955 as if "such ordinance or other law had been an enactment". The argument is thit if in common parlance an ordinance were also an enactment the Parliament would never have taken the trouble of making the abovesaid deeming provision in the last line of sub-section (3) of section 16 of Act 10 of 1955. I do not find any force in this argum"nt. I think, the above-mentioned provision has been made in section 16 (3) of the Essential Commodities Act, 1955 merely by way of abundant caution and chat the word "enactment" as used in sections 6 and 8 of the General Clauses Act does include an ordinance in the absence of a different intention expressed in a particular statute. Reference was also made on behalf of the petitioner to section 5 (1) of the General Clauses Act which provides that where any Central Act is not expressed to come into operation on a particular day then it shall come into operation on the day on which it receives the assent of the appropriate authority. It is argued that in connection with this provision it has been held by the Supreme Court in Harla v. The State of Rajasthan, that whereas an order of a Food Controlier does not become operative until it is made known to the public, an Act of Parliament becomes operative as provided in section 5 of the General Clauses Act because the difference between an order of the above-mentioned kind and an Act of the Parliament lies in the latter being publically enacted. Their Lordships of the Supreme Court were not contrasting an ordinance with an Act in that case and the said judgment is, therefore, of no avail to the petitioner. No other argument was addressed by the learned counsel in support of his first contention. If the first argument of Mr. Latifi does not succeed, his second point falls automatically. It is not disputed that the amended rule was in force at the time of the passing of the impugned order. Once the notification of the President of India under Article 359 (1) of the Constitution 13 held to apply to orders of detention passed under the Defence of India Act or the rules framed thereunder, the notification would apply to the rule as amended from time to time. ( 16 ) I, therefore, find no force whatever either in the first or the second point urged on behalf of the petitioner. ( 16 ) I, therefore, find no force whatever either in the first or the second point urged on behalf of the petitioner. ( 17 ) ON the next main contention of the counsel the only argument is that the impugned order states in so many words that the District Magistrate has been statisfied "from information received and that the District Magistrate has not thereafter stated that he has been satisfied on-a consideration of that information. The contention is that the District Magistrate is not entitled to pass an order of detention merely on receiving information unless he says that on a consideration of the same he is satisfied that the conditions precedent for exercise of power under rale 30 of the Defence of India Rules exist. I regret, I am unable to find any force in his argument either. The District Magistrate has clearly stated that he is "satisfied" to take the impuged action. Merely because he has further mentioned the fact that he started taking action on receiving information does not in any way detract from his satisfaction otherwise expressed on the face of the order. ( 18 ) THE last argument of Mr. Latifi is that whereas in the impugned order of detention it has been mentioned that it is necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to :- (I) defence of India: (ii) civil defence; (iii) the maintenance of public order; and (iv) the maintenance of peaceful conditions in Delhi, the District Magistrate has tried to justify the detention in para 6 of his return to the rule issued in this case only on three out of the above- mentioned four grounds, namely, the necessity for the maintenance of (i) public order, (ii) public safety and (iii) civil defence. According to Mr. Latifi the detention is had because different grounds are being given by the District Magistrate at different times, I regret to say that this argument is wholly misconceived. What the District Magistrate says in reply to the writ petition cannot other take away from the validity of the detention or make an invalid detention valid. According to Mr. Latifi the detention is had because different grounds are being given by the District Magistrate at different times, I regret to say that this argument is wholly misconceived. What the District Magistrate says in reply to the writ petition cannot other take away from the validity of the detention or make an invalid detention valid. It is the vires and the validity of the order of detention passed by the District Magistrate under rule 30 of the Defence of India Rules under the authority of which the petitioner has been detained by the Jailor that has to be pronounced upon by this Court. I have already held that the said order is valid and no infirmity whatever has been found therein. ( 19 ) THIS petition, therefore, fails and is dismissed.