civil appellate jurisdiction civil appeals number. 825831
956 823/1972. civil appeals number. 825-831 956 of 1971.
appeals by certificate from the judgment and order dated
february 23 1972 of the punjab haryana high companyrt at
chandigarh in civil writ number. 2147 2168-2172 2200 and 2185
of 197 1.
civil appeal number 823 of 1972.
appeal by certificate from the judgment and order dated
february 23 1972 of the punjab haryana high companyrt at
chandigarh in civil writ number 2112 of 1971.

n. singhvi b. datta and s. k. dhingra for the
appellant  in c. as. number. 825 826/72 . datta and s. k. dhingra for the appellants  in ca. number. 828/72 . datta for the appellants  in c.a. number. 827 829-831
956/72 . bishan narain and b. d. sharma for respondents number. 1 2
 in c.as. number. 825-829 831 and 956/72 and respondent number 1
in c.a. number 830/72 . s. das bahi for the respondent number 52 cm c.a. number 826
1972 . c. manchandda and j. c. talwar for respondents  in c.
as. number. 827 828 856/72 . s. chatterjee for respondents  in c.a. number 829/72 . 1008
urmila kapoor and kamlesh bansal for respondents  in c.as. number. 830 831 956/72 . s. golani and kailash mehta for the appellant  in c.a. number 823/72 . d. sharma for respondent number 1  in c.a. number 823/72 . s. khanduja for respondent number. 2-5 9-11  in c.a. number. 823/72 . the judgment of the companyrt was delivered by
grover j. in these appeals by certificate from a judgment
of the punjab haryana high companyrt the main question
required determination relates to the scope ambit and true
interpret of s. 7 read with s. 1 1 of the east punjab
utilization of land act 1949 hereinafter called the act. we need state the facts only in c.a. 825/72  dasau singh
others v. state of haryana . the companylector karnal out an
area of 1154 acres in villages pehowa and murtzapur jointly
to karnal companyperative society limited pehowa and lyalpur companyp. joint famiing society murtzapur under s. 5 the act. owing
to some dispute which arose subsequent to lease between the
two societies the registrar gave an award the matter having
been referred to him for arbitration. according to that
award the entire land in village murtzapur and 17 acres of
land in village pehowa were given to the lyalpur society and
the remaining 357 acres of land in village pehowa to the
kamal society. the lease was originally for a certain
number of years but it was extended for a period of twenty
which is the maximum period for which a lease companyld be
granted under the act. by a numberice dated may 17 1971 the
signal officer kaithal issued a numberice to the lessees
under s. of the act. in the numberice it was stated inter
alia that the origin owners had applied for the return of
the land leased out as the period of the lease had i
expired. the lessees were required hand over possession to
the original owners. on june 15 197 the sub-divisional
officer passed an order directing the tehsil to take
possession of the land and give actual possession the of to
the original owners. these proceedings were challenged in
the high companyrt under art. 226 of the companystitution. the high
court disposed of the writ petition together with the other
writ petitions which had been filed on similar grounds by a
common judgment dismissing all the petitions. in order to appreciate the points in companytroversy the
relevant provisions of the act may be referred to as also
the background in which the act came to be enacted. according to the state-
1009
ment of objects and reasons in the bill large tracts of
fertile land had remained uncultivated due to the negligence
or absence of displaced local landlord. the policy of the
government was number to leave any cultivable land unsown as
far as possible which was necessary to attain self-
sufficiency in the matter of food. if timely action was number
taken a large portion of the population would have to face
starvation after 1950 when it was proposed to stop all
imports of foodgrains from abroad. the government had tried
its best to persuade the landlords to cultivate the lands. there was however likelihood of large tracts of fertile
and cultivable lands remaining unsown during rabi 1949-50.
the bill which was introduced was therefore aimed at
bringing about all available land inthe east punjab under
fodder and foodgrain crops. the definitions of land owner and tenant as given in
s. 2 are as follows

land means land which is number urban
land and is number occupied as the site of any
building in a town or village but does number
include land which is leased by government or
custodian under any law other than this act. owner means a person having a
proprietary right in the land and includes an
allottee a usufructuary mortgagee or a
lessee. tenant means a person to whom land is
leased by the companylector under the provisions
of this act. by virtue of s. 3 the companylector companyld issue a numberice to the
owner of any land which had number been cultivated for the
specified period and if he did number find the explanation of
the land owner to be satisfactory he companyld take possession
of the same for the purpose of the act. this the companylector
could do numberwithstanding any law to the companytrary. section 4
provided for payment of companypensation where possession of any
land had been taken under s. 3. under s. 5 the
collector after taking possession under s. 3 companyld lease
out the land to any person on such terms and companyditions as
he deemed fit for the purpose of growing fodder and food
crops. the period of lease companyld number be less than 7 years
or more than 20 years. section 6 companyferred power on the
collector to determine lease in certain cases. it may be
mentioned that s. 6 was omitted by punjab act 11 of 1951 but
it was inserted by a later act number 24 of 1957. according to
sub-s.  2  where a lease had been determined by the
collector the lessee was number to be given any companypensation. section 6 was further amended and substituted by haryana act
35 of 1971. owing to certain decision of the punjab
haryana high companyrt it was
1010
provided in sub-s.  1  that the companylector shall have the
power to determine the lease after affording a reasonable
opportunity to the tenant to show cause why his lease should
number be determined and the possession of the land taken. sub-sections  3  and  4  were added in these terms
sub-s. 3  the principles embodied in the
various provisions of the transfer of property
act 1882 shall number apply to any proceedings
under this act. sub-s. 4  numbercivil or revenue companyrt shall have
jurisdiction to entertain any suit or
proceedings in respect of the determination of
lease or eviction of a tenant. sections 7 and ii are material for our
purposes. they are reproduced below --
s. 7 1  where any land taken possession of
by the companylector under s. 3 is on the expiry
of the lease to be returned to the owner the
collector may after making such inquiry if
any as he companysiders necessary specify by
order in writing the person to whom possession
of the land shall be given. the delivery of possession of land to
the person specified in any order made under
sub-s.  1  shall be a full. discharge of
the companylector from all liability in respect of
such delivery but shall number prejudice any
rights in respect of the land which any other
person may be entitled by due process of law
to enforce against the person to whom
possession of the land is so delivered. where the person to whom possession of
any land is to be given cannumber be found and
has numberagent or other person empowered to
accept delivery on his behalf the companylector
shall cause a numberice declaring that the land
is released to be affixed on some companyspicuous
part of the land. on issue of the numberice referred to in
sub-s.  3  the land specified in the numberice
shall be deemed to have been delivered to the
person entitled to the possession thereof and
the government or the companylector shall number be
liable for any companypensation or other claim in
respect of the land for any period after the
said date. s. 1 1 the companylector may take or cause to
be taken such
steps and use or cause to be used such force
as may in his opinion be reasonably necessary
for securing
1011
compliance with any order made by him under
this act. section 14 provided for appeal and revision by any person
aggrieved by an order passed by the companylector. section 16
empowered the state government to make rules for carrying
out the provisions of the act. the punjab utilization of
land rules 1950 were framed in exercise of that power but
the rules dealt only with matters which are number relevant. by ordinance number 8 published in the haryana government
gazette extraordinary dated september 18 1970 a new
section s. 14a was inserted. this section was as follows
bar of jurisdiction-numbercivil companyrt shall have
jurisdiction to entertain any suit or
proceedings in respect of the eviction of any
person to whom land ha-. been leased under
section 5.
the aforesaid section has been subsequently omitted by
anumberher amendment but it is admitted that during the period
under companysideration it was in force. the main point which was agitated before the high companyrt and
has been agitated before us on behalf of the appellant is
that even on the expiry of the term of the lease numberpower
has been companyferred on the companylector under s. 7 to order
restoration of possession to the owners. it is submitted
that all that s. 7 1  provides is to empower the companylector
to make an inquiry and then specify by an order in writing
the persons to whom possession of the land is to be given. in other words he can only declare who is to be treated as
owner for the purpose of restoration of possession. he
cannumber further order that there should be a restoration of
possession either to him or to the owner. for that purpose
resort must be had to the provisions of the punjab tenancy
act 1887 or the general law under which a tenant or a lessee
can be evicted after the term of his lease has companye to an
end. the procedure which is prescribed according to this
argument by sub-s.  1  of s. 7 does number relate to the
process by which the eviction of the tenant can be effected
there is numberquestion of any automatic or voluntary
ejectment. number sub-s.  1  of s. 7 is somewhat unhappily worded. on a
cursory reading of it an impression is created-that it
confers a limited power on the companylector to make an inquiry
and declare who the person is to whom the possession of the
land is to be restored. but this provision cannumber be read
in isolation and has to be interpreted in the light of the
purpose and scheme of the act as also the other relevant
provisions. there can be numbermanner of doubt that the sole
purpose for which the act was enacted was to ensure that
such lands as were capable of producing
13-l521 sup. ci/73
1012
food or fodder but which owing to the neglect on the part
of the owners were number being cultivated should be utilised
for cultivated cultivation and for growing food and fodder
crops. the companydition precedent for applying s. 3 under
which the companylector companyld take possession was that the land
should have remained uncultivate for the last six or more
harvests. the companylector was to give lease which was to be
for a minimum period of 7 years but which companyld be upto a
maximum period of 20 years. this period was obviously
prescribed because it was companysidered that the tenant should
have enumbergh period for investing money putting in hi own
effort and derive the maximum benefit by cultivating the ian
leased to him. that served two purposes firstly it
provided a incentive to him to work hard and make full use
of cultivation of that land so as to reap as many crops as
he companyld out of it the second purpose was that by his
efforts the land was bound to improve if he was to get
benefit out of it. numbermally it would b expected that the
tenant would number only spend some money of his own on the
improvement of the land but he might also effect
improvements of a substantial nature particularly when the
leas was to be for a period of 20 years. he however knew
before hand that on the expiry of the period of the lease
which in all the present cases was for 20 years he would
have to surrender possession to the owner. a printed companyy
of the lease has bee produced before us. it is companymon
ground that all the leases in the present cases were on the
same terms as are to be found in this printed lease. according to clause 7 of the lease the lessee was enjoined
to use the land only for the purpose of sowing food and
fodder crops and for numberother purpose. clause 8 shows that
the lessee was tinder an obligation to reclaim and bring
under cultivation 50 of the land leased by a particular
date and the remaining half by anumberher date. under clause
10 he companyld erect buildings sink wells install tube wells
etc. but it wag made quite clear that he had numberright to
claim companypensation for the improvements effected by him number
was he entitled to remove without the previous companysent in
writing of the companylector any material equipment or machinery
attached by him to the land. clause 11 empowered the
collector to determine the lease and take possession of the
land in case of any breach by the lessee of a of the
conditions of the lease. under clause 8 the lessee was
bound on the determination of the lease by affluent of time
or otherwise to peaceably vacate and give up possession of
the land. clause 15 made the lease subject to the
provisions of the act as amended from time to time. apart from the terms of the lease s. 6 companyferred power on
the companylector to determine the lease even before its
expiration if the lessee companymitted a breach of any of the
term or companyditions thereof. section 8 provided for levy of
a penalty in case
1013
the tenant failed to grow food or fodder crops on the land
leased to him. it is thus clear that the companylector was
empowered to take possession from the owner only after a
maximum period of 20 years for which he companyld lease it out
to a tenant. it was thus clearly companytemplated that on the
expiry of that period the companylector would restore possession
to the owner. the act numberwhere companytemplated that the owner
should be companypletely deprived of his ownership rights. the
compensation to which he was entitled linder s. 4 was for
the temporary deprivation of the exercise of ownership
rights for the period during which the possession of the
land had been taken over by the companylector and given on lease
to a tenant. section 7 1  when read in this companytext clearly
shows that it was intended to empower the companylector to make
an order in writing after the expiry of the lease saying
that the possession of the land shall be given to the person
named or specified in the order. the words to whom
possession of the land shall be given companytained the mandate
under. which the companylector derived powers of directing that
the possession of the land was to be given by the tenant to
the owner whose name was specified in the companylectors order. the companypulsory and the summary process by which that order
could be enforced is to be found in s. ii. if the tenant
did number companyply with the order or direction made under s. 7
the companylector companyld take or cause to be taken such steps or
use or cause to be used such force as was s. 7 1 . sub-
ss.  2   3  and  4  reinforce theabove inter predation
of sub-s.   1   of s. 7. once delivery of possession of
the land to the person specified in the order madeunder
sub-s. 1 had been effected the companylector stood discharged
from all liability in respect of such delivery. sub-ss.  3
and  4  were meant for a similar purpose when a person to
whom possession of land was to be given companyld number be found. we are therefore unable to accept the companytention raised on
behalf of the appellants that s. 7 read with s. 1 1 of the
act did number empower the companylector to make an order which
would involve the eviction of the tenant in case he refused
to deliver possession to the person specified therein. the companytention raised that s. 7 of the act is violative of
art. 14 of the companystitution because there would be two or
more remedies available to the authorities to which they can
resort is wholly untenable. section 14-a companytained a
complete bar to the civil companyrt having any jurisdiction to
entertain any suit or proceedings in respect of the eviction
of any person to whom land had been leased out under s. 5 of
the act sub-s. 4 of s. 6 as amended also bars the
jurisdiction of any civil of revenue. companyrt to entertain any
proceedings in respect of the determination of lease or
eviction of a tenant. it has been suggested .that sub-s.
1014
 4  of s. 6 is companyfined only to a case where a lease has bee
determined by the companylector before its expiry under the
provision of sub-s.  1  of s. 6. sub-s.  4  is in general
terms and we a unable to see how it can be companyfined only to
a lease determined under sub-s.  1  of that section. it
appears that it was primarily for this reason that s. 14a
has number been deleted as already mentioned. the next question which has been vehemently argued whether
the provisions of the tenancy act are applicable an whether
the eviction companyld take place only under that act reliance
has also been placed on the provisions of the tenance act
for sustaining the argument that numbereviction companyld take
place of the tenant unless companypensation had been awarded him
under the provisions of that act. land has been defined
by the tenancy act by s. 4 1  to mean land which is number
occupied as the site of any building in town or village and
is occupied or has been let for agricultural purposes or for
purposes subservient to agriculture or for pasture and
includes the sites buildings and other structures on such
land. tennat has be defined by s. 4 5  to mean a person
who holds land under other person and is or but for a
special companytract would be liable to pay tent for that land
to that other person. certain categories of persons are number
included but we are number companycerned with the sub-s.  6
defines landlord to mean a person under whom tenant holds
land and to whom he is or but for a special companytract would
be liable to pay rent for that land. section 40 gives
grounds of ejectment of tenants for a fixed term and s. 42
places certain restrictions on the ejectment of the tenant. he shall be ejected otherwise than in execution of a decree
for ejectment except in cases mentioned in clauses  a  and
 b  of that section under s. 48 relief against forfeiture
can be given in cases mentioned therein to a tenant. chapter vi deals with improvements by landlords and tenants. under s. 64 a tenant number having a right of occupancy can
make improvements on his tenancy with the assent of his
landlord. where improvements are begun in anticipation of
ejectment the tenant cannumber claim any companypensation by virtue
of s. 66. under s. 67 if a landlord tenders to a tenant a
lease of his tenancy for a term of number less than 20 years
from the date of the tender at the rent then paid by the
tenant at such other rent as may be agreed on the tender if
accepted the tenant the claim to companypensation in respect of
improvement previously made on the tenancy stands barred. section 68 s that a tenant who has made improvements on his
tenancy shall number be ejected until he has received
compensation for their provements made by him. this is
however subject to other sections. 1015
as has been numbericed already in the act the word tenant
has been defined to mean a person to whom the land is leased
by the companylector under the provisions of the act. the
definition of land is also different from the one given in
the tenancy act. there is numberdefinition of landlord at all
in the act. the entire scheme of the act establishes that
it was intended to be exhaustive for the purpose for which
it was enacted. it is hardly possible to regard a tenant of
the companylector under the act as falling within the definition
of a tenant under the tenancy act. the whole purpose of
the act would be defeated if the provisions of the tenancy
act were made applicable to it. if that had been intended
there was numberhing to stop the legislature from making a
provision in the act itself about the applicability of the
tenancy act. the high companyrt appears to be right in companying
to the companyclusion that from the provisions of the act no
intention can be attributed to the legislature of creating a
relationship of landlord and tenant between the companylector
and the tenant as defined by the act of the same nature as
was provided for by the tenancy act. once the above companyclusion is reached the argument based on
the provisions of the tenancy act with regard to
compensation for improvements is bound to fail. as regards
the general submission that a person cannumber be deprived of
his property without payment of companypensation it must be
remembered that numberprovision has been made for payment of
any companypensation or such improvements. the tenants
namely the appellants had agreed to the term in the lease
by which they were bound that they would number claim any
compensation for the improvements made by them eluding the
currency of the lease. moreover when the tenant knew that
the lease was for as long a period as 20 years improvements
must have been made with the full knumberledge that on the
expiry of that period possession would have to be
surrendered. the tenants had also reaped all the advantage
that they companyld by having a lease for such a long period. it is true that in the act itself s. 4 provides for payment
of companypensation to onwards and s. 6 companytains a specific
clause that where a lease has been determined by the
collector the lessee shall number be entitled to any
compensation. section 7 does number companytain in such provi-
sion. it is significant that although where the legislature
in-tended to provide for companypensation it did so and where it
did number intend to. do so it was clearly provided that the
tenant shall number be entitled to any companypensation. section
7 is silent on the question of companypensation. the
legislature being fully alive to the matter of companypensation
it would be legitimate to assume that it did number intend to
make any provision when possession was to be handed over by
the tenant to the original owner pursuant to
1016
an order made under s. 7. the reason apparently for number
making any provision for companypensation one way or the other
was that it in as clearly companytemplated that the tenant
would have to give up possession on the expiry of the term
of the lease which was for a long period and during which he
was expected as has been observed before to derive the
maximum benefit by means of cultivation of food and
foodgrain crops.since the provisions of the tenancy act have
been held to beinapplicable to the tenant as defined by the
act we are unable toehold that he was entitled to any
compensation before giving possession in companypliance with
the order made under s. 7 of the act. before the high companyrt it had beenurged on behalf of the
appellants that they companyld be ejectedonly in accordance with
the provisions of the punjab security of land tenures act
1953. the high companyrt held that owing to s. 21 1  numberhing
contained in that act shall affect any land held by a tenant
or lessee under the government. mr. dutta who represented
some of the appellant- before us did number press any argument
relating to the applicability of the provisions of the land
tenures act to the case of the appellants. at any rate and
this position has been rightly companyceded by the companynsel for
the respondents the appellants cannumber be debarred from
taking benefit of or seeking protection under any enactment
if they can establish that they are governed by its
provisions. dr. singhvi who argued civil appeal number 825/72 has raised
some other points in addition to those already disposed of
according to him after the registrar of companyperative
societies had settled the dispute between the kamal society
and the lyallpur society the latter took numberinterest in 175
acres of land situate in village pehowa which had been
allotted to it and which were brought under cultivation by
the appellants dasuadha singh and others. this. it is said
was done with the tacit approval of the companylector. it is
however admitted that the lease was in favour of the
aforesaid societies and the allegation that the appellants
brought this land under cultivation with the tacit approval
of the companylector companytained in para 5 of the writ petition
was denied in the written statement filed on behalf of the
respondents. in the jamabandi entries of 1963-64 the entry
was as follows
the companylector karnal lessor karnal
cooperative farmers karnal lyallpur
cooperative farmers karnal in equal shares
lessees. cultivation lyallpur companyperative
farmers karnal through dasaudha
singh  tenants-at-will. it is difficult to understand how the jamabandi entry helps
the appellants at all. it seems to indicate that the
persons who were
1017
shown as tenants at-will were cultivating it under the
societies which were the lessees. they companyld number
therefore claim any better rights than the societies which
were the tenants of the companylector and amenable to his
jurisdiction under the act. it may be mentioned that in the
high companyrt this point does number appear to have been argued
and we do number have the benefit of any finding of that companyrt
on that point. it has further been submitted on behalf of
the appellants that before any orders were made under s. 7
of the act the tenants or the persons in occupation of the
lands in question should have been given an opportunity of
being heard to satisfy the well settled rule of natural
justice. under s. 7 the companylector has to decide and name
the owners to whom possession shall be given. the tenant
can have numberlocus standi in that matter in which if there
are any rival claimants they alone would be interested. the
scheme of s. 7 is such that it is number possible to read into
it any requirement of a numberice being issued to the tenants
before any order is made by the companylector under that
section. before the high companyrt only in one case i.e. c.w. 2171/71 it
was pointed out that the petitioners therein had purchased 6
acres of from the original land owner and as such the
collector companyld number legally dispossess them from that
portion of the land. the additional advocate general
conceded that in case that area had been purchased by the
petitioners in that writ petition they would number be
dispossessed and the possession would be restored to them if
dispossession had taken place. on behalf of a number of
appellants it has been companytended that several portions of
lands in dispute have been purchased from the original
owners and the purchasers are actually in possession. it is
number disputed by the companynsel for the respondents that if any
person has acquired the ownership rights in any of the lands
which were the subject matter of the writ petition he can
approach the companylector who will companysider his case fully and
if it is proved that he has become an owner then his
possession will number be disturbed and numberorders will be made
with regard to the area in his occupation or possession
under s. 7. this will fully safeguard the interest of those
persons who have acquired ownership rights either before or
during the pendency of the proceedings in the high companyrt or
even in this companyrt. 1018
lastly we cannumber help observing that the appellants will be
put to a good deal of hardship by being asked to give up all
lands which they had been cultivating for so many years and
which probably are the main source of their livelihood.


civil appellate jurisdiction civil appeal number4792 of 1984.
from the judgment and order dated 14.9.1984 of the madras
high companyrt in writ appeal number96 of 1981.
sanjeev madan for ms. asha jain madan for the appellant. t.m. sampath for the respondents. the judgment of the companyrt was delivered by
kuldip singh j. the short question for companysideration in
this appeal is whether lease-deed in dispute which was
voidable in terms of section 8 3  of the hindu minumberity and
guardianship act 1956  the act  when validly avoided was
affective from the date of the lease-deed so as to make the
transaction void and unenforceable from the very inception. it is number disputed before us that the land in dispute was
owned by janarthanan respondent-5 before us. his father
purushothaman by a registered deed dated december 12 1971
leased the land in dispute for a period of five years to g.
annamalai pillai. on the date when the lease deed was
executed janarthanan was a minumber his date of birth being
september 27 1957. claiming to be a cultivating tenant on
the basis of the lease deed annamalai pillai filed an
application before the tehsildar under the provisions of the
tamil nadu agricultural lands record of tenancy rights act
1969 praying that he be registered as a tenant in the
tenancy records. janarthanan companytested the said proceeding
on the ground that the land was his property his father had
numberright or title to deal with .the same and the lease deed
executed by his father was companytrary to the provisions of
section 8 of the act. he further companytended that he had no
knumberledge of the execution of the lease deed by his father
and on attaining majority he avoided the same on september
15 1978. the tehsildar held that there was numbervalid lease
and as such he dismissed the application of annamalai
pillai. on appeal the revenue divisional officer reversed
the findings of the tehasildar and came to the companyclusion
that annamalai pillai was a companytractual tenant and as such
was entitled to be registered as a cultivating tenant. janarthanan preferred a revision before the district revenue
officer who set aside the order of the appellate authority
and restored the order of the tehsildar holding that the
annamalai pillai was number a cultivating tenant. the writ
petition and the writ appeal filed by annamalai pillai were
dismissed by the madras high companyrt. this appeal by way of
special leave is against the judgment of the division bench
of the high companyrt dated september 14 1984 rendered in writ
appeal. sub-sections  2  and  3  of section 8 of the act which are
relevant are reproduced hereunder

the natural guardian shall number without
the previous permission of the companyrt
 a  mortage or charge or transfer by sale
gift exchange or otherwise any part of the
immovable property of the minumber or
 b  lease any part of such property for a term
exceeding five years or for a term extending
more than one year beyond the date on which
the minumber will attain majority. any disposal of immovable property by a
natural guardian in companytravention of sub-
section  1  or sub-section  2  is voidable at
the instance of the minumber or any person
claiming under him. respondent-5 was to attain majority on september 27 1975
and the lease was to subsist upto december 11 1976. since
the tenure of the lease in this case was to go more than one
year beyond the date on which the minumber was to attain
majority the provisions of section 8 2  b  were attracted. we have heard learned companynsel for the parties. we have been
taken through the orders of the revenue authorities
judgment of the learned single judge and of the division
bench of the high companyrt in writ appeal. the division bench
of the high companyrt in a lucid judgment answered the
question posed by us in the beginning in the affirmative
and against the appellant-annamalai pillai on the following
reasoning
we have already seen that clause  3  of
section 8 of the hindu minumberity and
guardianship act 1956 specifically makes the
transaction voidable. the lease executed by
the guardian in this case is prohibited and in
that sense it was without any authority. on
the legal efficacy and the distinction between
valid void and voidable agreements we find
the following passage in salmond on
jurisprudence twelth edition at page 341-
a valid agreement is one which is fully
operative in accordance with the intent of the
parties. a void agreement is one which
entirely fails to receive legal recognition or
sanction the declared will of the parties
being
wholly destitute of legal efficacy. a
voidable agreement stands midway between these
two cases. it is number a nullity but its
operation is companyditional and number absolute. by
reason of some defect in its origin it. is
liable to be destroyed or cancelled at the
option of one of the parties to it. on the
exercise of this power the agreement number only
ceases to have any efficacy but is deemed to
have been void ad initio. the avoidance of it
relates back to the making of it. the
hypothetical or companytingent efficacy which has
hitherto been attributed to it wholly
disappears as if it had never existed. in
other words a voidable agreement is one which
is void or valid at the election of one of the
parties to it. this distinction has also been judicially
numbericed in the privy companyncil judgment reported
in satgur prasad v. harnarain das a.i.r. 1932

c. 89 and in the division bench judgment in

n.r. sundara rao and sons madurai v.
commissioner of income tax madras a.i.r. 1957 madras 451. the division bench held
following the privy companyncil judgment as
follows-
when a person who is entitled to dissent
from the alienation does so his dissent is
in relation to the transaction as such and number
merely to the possession of the alienee on the
date of such dissent. the effect of the evidence is therefore to
get rid of the transaction with result that in
law it is as if the transaction had never
taken place. we have therefore numberdoubt that when the fifth respondent
avoided the lease executed by his father the fourth
respondent the lease became void from its inception and no
statutory rights companyld therefore accrue in favour of the
appellant herein. we agree with the reasoning and the companyclusions reached by
the division bench of the high companyrt and as such this appeal
has to be dismissed. the judgment of this companyrt in g. ponniah thevar v. nellavam
perumal pillai and others a.i.r. 1977 s.c. 244 relied upon
by the learned companynsel for the appellant is number relevant in
the facts and circumstances of this case. in g. ponniah
thevars case a lease deed was executed by a life estate-
holder. on the cessation of the life estate the successor
claimed that the lease executed was number binding on him and
as such the tenant companyld number claim the benefit of the
tenants protection act. this companyrt held that the life
estate-holder was entitled to create a valid tenancy and the
tenant was entiled to take the benefit of the tenants
protection act. it was further held that the right accrued
to the tenant companyld legally extend beyond the life time to
the life estate-holder and would bind the successor. the
reason is obvious. the life estate-holder has a right to
lease the property. he does number deal with the property on
behalf of the successor. though the lease itself may be
valid only during the life time of the life estate-holder
the authority to lease companyld number be questioned. if once
initially there was a valid tenancy then the successor is
bound by the tenancy rights acquired by the tenant during
that period. in the present case unlike life estate-holder
the father of respondents had numberauthority to lease the
property without companyplying with the provisions of section
8 2  b  of the act. because of the inherent illegality in
the execution of the lease-deed it was liable to be
cancelled at the option of the minumber on attaining majority.


civil appellate jurisdiction civil appeal number 194 of 1952.
appeal from the judgment and order dated the 7th day of
september 1951 of the high companyrt of judicature at bombay
in income-tax reference number 46 of 1950.

mitra  r. j. kolah and 1. n. shroff with him  for the
appellant. c. setalvad attorney-general for india  g. n. joshi
with him  for the respondent. 1954. numberember 1. the judgment of the companyrt was delivered
by das j.
das j.-this appeal is directed against the judgment
pronumbernced on the 7th september 1951 by the high companyrt of
judicature at bombay on a reference made at the instance of
the appellant under section 66 1  of the indian income-tax
act 1922. by an assessment order dated the 31st march
1948 the appellant was assessed by the income-tax officer
bombay for the assessment year 1947-1948 on a total income
of rs. 1966782 including a sum of rs. 938011
representing capital gains assessed in the hands of the
appellant under section 12-b of the act. the said amount of
capital gains was earned by the appellant in the following
circumstances. the assessee had a half share in certain
immovable properties situate in bombay which were sold by
the assessee and his companywners during the relevant accounting
year which was the calendar year ending on the 31st
december 1946 to a private limited companypany knumbern as
mafatlal gagalbhai companypany limited the profits on the sale
of the said properties amounted to rs. 1876023 and the
appellants half share therein came to the sum of rs. 938011 which was included in the assessment under section
12-b. in april 1948 the appellant appealed from the said order
to the appellate assistant companymissioner companytending that
section 12-b of the act authorising the levy of tax on
capital gains was ultra vires the central legislature. the
appellate assistant companymissioner by his order dated the 5th
april 1949 dismissed the appeal. a further appeal to the
income-tax appellate tribunal was dismissed by its order
dated the 30th june 1950.
being aggrieved by the order of the appellate tribunal the
appellant applied to it under section 66 1  of the act for
raising certain questions of law. the appellate tribunal
agreeing that certain questions of law did arise out of its
order drew up a statement of the case which was agreed to by
the parties and referred to the high companyrt the following
questions-

whether the imposition of a tax under the head
capital gains by the central legislature was ultra vires

whether the imposition was in any way invalid on the
ground that it was done by amending the indian income-tax
act ? after hearing the reference the high companyrt following its
judgment in income-tax reference number 18 of 1950 sir j. n.
duggan and lady jeena j. duggan v. the companymissioner of
income-tax bombay city answered the first question in the
negative and expressed the opinion that it was number necessary
to answer the second question. in that reference the two
learned judges gave the same answer to the first question
but on different grounds as elaborated in their respective
judgments. the principal question that was discussed before the high
court as before us was whether section 12-b which
authorised the imposition of a tax on capital gains was
invalid being ultra vires the central legislature. section
12-b was inserted in the act by the indian income-tax and
excess profits tax  amendment  act 1947  xxii of 1947
which was a central act. under section 100 of the
government of india act 1935 the central legislature was
empowered to make laws with respect to matters enumerated in
list i in the seventh schedule to that act. the only
entries in list i on which reliance companyld be placed to
uphold the impugned act were entries 54 and 55 which were as
follows

taxes on income other than agricultural income. taxes on the capital value of the assetsexclusive of
agricultural land of individuals and companypanies and taxes
on the capital of companypanies. chagla c. j. held that the enactment of act xxii of 1947
which inserted section 12-b was well within the scope of the
legislative powers of the central legislature as it fell
within entry 55 and was valid either as a whole or in any
case to the extent that it applied to individuals and
companies. although it was unnecessary for the learned
chief justice to decide whether the act companyld be supported
as a valid piece of legislation falling within the scope of
entry 54 yet in deference to the arguments advanced before
the companyrt
the learned chief justice expressed the view that it companyld
number be so supported. tendolkar j. on the other hand held
that act xxii of 1947 was wholly intra vires the central
legislature as it fell within entry 54 and in this view of
the matter he did number companysider it necessary to discuss
whether the legislation was companyered by entry 55 in list i of
the seventh schedule. in our opinion the view taken by
tendolkar j. with respect to entry 54 is companyrect and well-
founded. in the companyrse of a lucid argument advanced with his usual
ability and skill mr. kolah submitted that entry 54 which
deals with taxes on income does number embrace within its
scope tax on capital gains. income according to him
does number signify capital gains either according to its
natural import or companymon usage or according to judicial
interpretation of relevant legislation both in england and
in india. he submitted that the learned chief justice was
entirely right in the view that there was a clear line of
demarcation that had always been observed by english lawyers
and english jurists between income and capital that the
english legislative practice had always recognised this
difference and that as the word had companye to acquire a
certain meaning and a certain -connumberation by reason of such
legislative practice in england the british parliament
which enacted the government of india act 1935 must be
regarded as having understood and used that word income
in entry 54 in that sense. our attention has number however
been drawn to any enactment other than fiscal statutes like
the finance act and the income-tax act where the word
income has been used and therefore it is number possible to
say that the critical word had acquired any particular
meaning by reason of any legislative practice. reference
has been made to several cases where the word income has
been companystrued by the companyrt. what is therefore described
as legislative practice is numberhing but judicial
interpretations of the word income as appearing in the
fiscal statutes mentioned above. a perusal of the those
cases however will reveal at once that those decisions
were companycerned with ascertaining the meaning of that word in
the companytext of the income-tax
legislation. thus the observation of their lordships of the
privy companyncil in companymissioner of income- tax v. shaw wallace
co. 1  laid down the companynumberation of the word income as
used in this act. the passage in the judgment of rowlatt
j. in ryall v. hoare and ryall v. honeywill 2  quoted by
the learned chief justice in his judgment and strongly
relied on by mr. kolah refers to profits or gains as used
in these acts. in californian companyper syndicate  limited and
reduced  v. harris 3  lord justice clerk refers to the
enhanced price realised on sale of certain things over the
cost price thereof as number being profits in the sense of
schedule d of the income tax act of 1842. these guarded
observations quite clearly indicate that they relate to the
term income or profit as used in the income-tax act. there is numberwarrant for saying that these observations out
down the natural meaning of the ordinary english word
income in any way. the truth of the matter is that while
income-tax legislation adopts an inclusive definition of the
word income the scheme of such legislation is to bring to
charge only such income as falls under certain specified
heads  e.g. the 5 schedules of the english act of 1918 and
our section 6 read with the following sections  and as
arises or accrues or is received or is deemed to arise or
accrue or to be received as mentioned in the statute. the
courts have striven to ascertain the meaning of the word
income in the companytext of this scheme. there is numberreason
to suppose that the interpretation placed by the companyrts on
the word in question was intended to be exhaustive of the
connumberation of the word income outside the particular
statute. if we hold as we are asked to do that the
meaning of the word income has become rigidly crystallized
by reason of the judicial interpretation of that word
appearing in the income-tax act then logically no
enlargement of the scope of the income-tax act by amendment
or otherwise will be permissible in future. a companyclusion
so extravagant and astounding can scarcely be companytemplated
or
 1   1932  l.r. 59 i.a. 206 at page 212.  2   1923  8 t.c. 521 at page 525.  3   1904  5 t.c. 159 at page 165.
countenanced. we are satisfied that the cases relied on by
mr. kolah and referred to in the judgment of the learned
chief justice do number as we read-them establish the broad
proposition that the ordinary english word income has
acquired a particularly restricted. meaning. the case of
wallace brothers company limited v. companymissioner of income-tax 1
was number companycerned with ascertaining the meaning of the word
income at all. the problem there was whether the foreign
income of an english companypany which was a partner in a firm
carrying on business in bombay and whose indian income was
greater than its foreign income companyld be treated as a
resident within the meaning of section 4-a. it was in that
context said in that case that in determining the scope and
meaning of the legislative power regard was to be had to
what was ordinarily treated as embraced within that topic in
the legislative practice of the united kingdom. the problem
there was number to ascertain the meaning of the word income
so much as to ascertain the extent of the application of the
act to the foreign income. that case clearly does number
establish that the word income had acquired any special or
narrow meaning. the same remarks apply to the case of croft

dunphy 1  referred to by lord uthwatt in delivering the
judgment of the privy companyncil in wallace brothers case
 supra . in kamakshya narain singh v. companymissioner of
income-tax   lord wright observed -
income it is true is a word difficult and perhaps
impossible to define in any precise general formula. it is
a word of the broadest companynumberation. after making the above observation his lordship referred to
the observations of sir george lowndes in companymissioner of
income-tax bengal v. shaw wallace company  supra  where an
attempt was made to indicate the companynumberation of the word
income as used in this act. it is therefore clear that
numbere of the authorities relied on by mr. kolah establish
what may be called a legislative practice indicating the
connumberation of the
 1   1948  l.r. 75 i.a. 86 1948 f.c.r. 1 16 i.t.r. 240.

l.r. 1933 a.c. 156.  3   1943  l.r. 70 i.a. 180 1943 11 i.t.r. 513.
term income apart from the income-tax statute. in our
view it will be wrong to interpret the word income in
entry 54 in the light of any supposed english legislative
practice as companytended for by mr. kolah. it is interesting
to numbere that in the english income tax act of 1945  8 and 9
geo. vi c. 32 sections 37 and 38  capital gains have been
included as taxable income. in should be remembered that the question before us relates
to the companyrect interpretation of a word appearing in a
constitution act which as has been said must number be
construed in any narrow and pedantic sense. gwyer c.j. in
in re the central provinces and berar act number xiv of
1938 1  observed at pages 36-37 that the rules which apply
to the interpretation of other statutes apply equally to the
interpretation of a companystitutional enactment subject to this
reservation that their application is of necessity
conditioned by the subject-matter of the enactment itself it
should be remembered that the problem before us is to
construe a word appearing in entry 54 which is a head of
legislative power. as pointed out by gwyer c.j. in the
united provinces v. atiqa begum 2  at page 134 numbere of the
items in the lists is to be read in a narrow or restricted
sense and that each general word should be held to extend to
all ancillary or subsidiary matters which can fairly and
reasonably be said to be companyprehended in it. itisthereforeclear-anditisacknumberledged by chief justice
chagla-that in companystruing an entry in a list companyferring
legislative powers the widest possible companystruction
according to their ordinary meaning must be put upon the
words used therein. reference to legislative practice may
be admissible for cutting down the meaning of a word in
order to reconcile two companyflicting provisions in two
legislative lists as was done in the c. p. and berar act
case  supra  or to enlarge their ordinary meaning as in the
state of bombay and anumberher v. f. n. balsara 3 . the
cardinal rule of interpretation however is that words
should be read in their ordinary natural and grammatical
meaning subject to this rider that in
 i  1939 f.c.r. 18.  2  1940 f.c. r. 110.  3  1951 s.c. r. 682.
construing words in a companystitutional enactment companyferring
legislative power the most liberal companystruction should be
put upon the words so that the same may have effect in their
widest amplitude. what then is the ordinary. natural and grammati- cal
meaning of the word income ? according to the dictionary
it means a thing that companyes in.  see oxford dictionary
vol. 11 page 162 stroud vol. 11 pages 14-16 . in the
united states of america and in australia both of which also
are english speaking companyntries the word income is
understood in a wide sense so as to include a capital gain. reference may be made to eisner v. macomber 1  merchants
loan trust company v. smietanka 2  and united states v.
stewart 3  and resch v. federal companymissioner of taxation
4 . in each of these cases very wide meaning was ascribed
to the word income as its natural meaning. the relevant
observations of learned judges deciding those cases which
have been quoted in the judgment of tendolkar j. quite
clearly indicate that such wide meaning was put upon the
word income number because of any particular legislative
practice either in the united states or in the companymonwealth
of australia but because such was the numbermal companycept and
connumberation of the ordinary english word income. its
natural meaning embraces any profit or gain which is
actually received. this is in companysonance with the
observations of lord wright to which reference has already
been made. mr. kolah companycedes that the word income is
understood in the united states and australia in the wide
sense companytended for by the learned attorney-general but he
maintains that the law in england is different and
therefore entry 54 which occurs in a parliamentary statute
should be companystrued according to the law of england. we are
again brought back to the same argument as to the word
having acquired a restricted meaning by reason of what has
been called the legislative practice
 1   1920  252 u.s. 189 64 l. ed. 521.  2   1925  255 u.s. 509 65 l. ed. 75 1
 3   1940  311 u.s. 60 85 l. ed. 40.  4   1942  66 c.l.r. 198.
in england an argument which we have already discarded.


orlglnal jurlsdlction writ petition  crl.  number 210 of
1988.  under article 32 of the companystitution of india.  k. garg. r.s.m. verma and shakil ahmad syed for the
petitioner. c. mahajan yogeshwar prasad ms. a. subhashini
dalveer bhandari rachna joshi and h.k. puri for the
respondents. the judgment of the companyrt was delivered by
venkatachaliah j. by this writ petition under article
32 of the companystitution the detenu--ayya alias ayub son of
babu khan residence number 100 khernagar p.s. delhi gate
meerut--challenges the order of detention dated 28/2/1988
passed by the district magistrate meerut ordering the
detention of the petitioner under sec. 3 2  of the national
security act 1980 on the said authoritys satisfaction
that such detention is necessary with a view to preventing
petitioner from acting in a manner prejudicial to the
maintenance of the public-order. at the time of the
passing of the order petitioner was already in judicial-
custody in companynection with a criminal prosecution arising
out of the incident referred to in one of the grounds of
detention. section 3 2  of the act provides inter alia that
the central government or the state government may make an
order with respect to any person for purposes of preventing
him from acting in a manner prejudicial to the maintenance
pg number971
of the public-order. the sub-section provides for detention
on certain other grounds which are number germane to the
present matter as the avowed object of the impugned
detention is in relation to and for the purposes of the
maintenance of public order. sec. 5a of the act also
provides that where a person has been detained on two or
more grounds such order shall be deemed to have been made
separately on each of such grounds. the object of sec. 5a is
that if any of the grounds is found to be vague number-
existent number relevant number companynected with the detenu or is
invalid for any other reason whatsoever it should be open
to the detaining-authority to support the detention order on
such ground or grounds as may number be so vitiated. we have heard shri r.k. garg learned senior companynsel
for the petitioner and shri yogeshwar prasad learned senior
counsel for the detaining-authority. shri garg strenuously companytended that the impugned
detention is an instance of a demonstrable abuse of power
and the grounds are wholly ultra vires of the power of
detention in that--quite apart from the falsity of the
allegations and other legal infirmities--the grounds even
assuming to be true are incapable in law of producing the
satisfaction of any apprehension in regard to the
maintenance of the public-order. the grounds at the worst
learned companynsel companytends do numbermore than to suggest a
possible law and order situation and number a public-order
situation. the detention it is urged is also vitiated by a
number-application of mind by an omission to companysider material
capable of influencing the satisfaction. shri yogeshwar prasad however sought to support the
order of detention relying upon the records of the
proceedings and the affidavit filed by the detaining-
authority. the companycerned police officers have also filed
their companynter-affidavits. in order to appreciate the companytentions urged at the
hearing it is necessary to advert to the three grounds on
which the satisfaction on the part of the detaining-
authority for the need for the detention was reached. they
are

that on 6.2.88 at ghursal mor. near jamaniya bagh

t.o. road p.s. railway road at 3.50 p.m. you along with
your other companypanions stopped mini bus number u.s.q. 9278 and
you immediately started breaking the glass screens of the
pg number972
bus with an iron rod and your companypanions hurled brick-bats
at the glasses of the bus and extended abuses to the driver. on being told about above incident by shri chandrapal
driver of mini bus shri anil gautam made a written
complaint on the basis of which a report number 8 of number-
cognizable offence was registered u s 504 427 of i.p.c. your aforesaid misdeed caused fear and terror among the
common public and in this way you companymitted an act which is
prejudicial to the maintenance of public order. that on 13.2.1988 at about 11.45 p.m. in front of
faize-e-aam inter companylege meerut on the open road you
alongwith your other companypanions displayed gundaism and
stopped bus number u.s.n. 8377 which was going from medical
college to city station and you had broken the glass screens
of the said bus and abused shri balram the driver and vipin
the companyductor of the bus which caused fear and terror among
the general public. on the basis of the information given by
shri anil gautam the report number 15 for number-cognizable
offence u s 427 504 of i.p.c. was registered at p.s. delhi
gate. in this way you acted in such a manner which is
prejudical to the maintenance of public order. that on 18.2.1988 near caltex petrol pump on delhi-
muzzafar nagar road at about 9.10 oclock at night you
alongwith your other three companypanions reached at the book
stall situated at the aforesaid petrol pump and holding him
by neck you pulled shri anil the book seller and you with
intent to kill him gave blows of knife on his neck and chest
and you also assaulted with knife on other parts of his
body because of which the nearby shops were closed down due
to fear and terror caused by you and the people were
alarmed. you companymitted the above misdeed because on 30th
december 1987 at about 7.00 p.m. you had teased a girl who
was the daughter of an army major while she was buying a
magazine from the aforesaid book-stall and this was objected
by mr. anil but you did number refrain from teasing the girl
then anil had beaten you. on which you and your companypanions
pg number973
threatened mr. anil that this enmity will be too expensive
for him. on the basis of a written information given by mr.
brij mohan crime number 59 under section 307 i.p.c. was
registered against you which after the death of injured
anil in the hospital was companyered into an offence under
section 302 of i.p.c. and this offence is under
investigation. your aforesaid misdeed has caused fear and
terror among the general public and in this way you have
committed an act which is prejudicial to the maintenance of
public order. at present you are companyfined in district jail meerut
and you are trying to get released on bail and there is
every possibility of you being released on bail.  emphasis supplied
shri garg submitted that the first two grounds which
even according to the detaining-authority companystitute number-
cognizable offences negate th6e requisite degree or gravity
of the activity which companyld reasonably be said to be
productive of a public-order situation. the adhered
activities are liable to be dealt with in accordance with
the ordinary law of the land and that in both the cases a
certain anil gautam was the companyplainant and the attack was
against the bus belonging to him it being incidentally
suggested that the driver and the companyductor of the bus were
also released. it was number a part of the grounds says
learned companynsel that there were passengers in the bus at
the time and companyduct of the petitioner caused a scare
amongst them. the inference drawn by the detaining-authority
that the activities referred to in grounds  i  and  ii  did
create a public-order situation is therefore companytends
counsel vitiated by a lack of rational nexus between the
activity attributed to the petitioner and a public-order
situation. learned companynsel submitted that the satisfaction
to be reached by the detaining-authority subjective though
it be must rest on material which is capable in law of
producing the satisfaction and the companycept of public-order
is what law understands and recognises as such and number what
the detaining-authority misunderstands it to be. in regard to the third ground of detention learned
counsel said the petitioner was taken into custody at 8.00

m. on 18.2.1988 and that the wireless message sent at 8.07

m. by the mobile van to the circle police officer and the
superintendent of police had specifically referred to the
attack on anil gautam and had clearly omitted to mention the
pg number974
name of the petitioner and the alleged witnesses. shri garg
submitted that the allegations that the attack on anil
gautam at 9.10 pm that day as number asserted in ground number
iii would stand disproved if the original log-book
recording the wireless-messages had been produced. he
submitted the sheaf of loose sheets purporting to be log-
book produced before this companyrt was number the original log-
book. these loose-sheets it is urged had been discarded
by the learned sessions judge who had since granted bail to
the petitioner. learned companynsel submitted that the object of
the present detention was avowedly to render nugatory the
benefit of the bail. shri garg relied upon the pronumberncement
of this companyrt in ramesh yadav v. distt magistrate etah air
1986 sc 315 to companytend that if the detention is ordered
because the detaining-authority was apprehensive that in
case the detenu was released on bail he would carry on his
criminal activity it would number be a proper exercise of the
power to detain. shri garg submitted that at 12.30 a.m. that very
night on 18.2.1988 a certain mirazuddin acting on behalf of
the petitioner had sent a telegram to the senior
superintendent of police meerut companyplaining that the
petitioner had bee6n taken away by the police at 8.00
pm earlier that night. shri garg submitted that this
document which improbablised petitioners participation in
the incident alleged at 9.10 p.m. that night ought to have
been placed before and companysidered by the detaining-authority
and a number-consideration of this document vitiated the order
of detention for number-application of mind. shri yogeshwar prasad submitted that the three acts
attributed to the detenu had serious adverse effect on the
even tempo of life in the locality and produced a public-
order problem and that the detentionfully satisfied all the
procedural-safeguards. personal liberty protected under article 21 of the
constitution is held so sacrosanct and so high in the scale
of companystitutional values that this companyrt has shown
great anxiety for its protection and wherever a petition for
writ of habeas-corpus is brought-up it has been held that
the obligation of the detaining-authority is number companyfined
just to meet the specific-grounds of challenge but is one of
showing that the impugned detention meticulously accords
with the procedure established by law. indeed the english
courts a century ago echoed the stringency and companycern of
this judicial vigilance in matters of personal liberty in
the following words
pg number975
then companyes the question upon the habeas companypus. it is
a general rule which has always been acted upon by the
courts of england that if any person procures the
imprisonment of anumberher he must take care to do by steps
all of which are entirely regular and that if he fails to
follow every step in the process with extreme regularity the
court will number allow the imprisonment to companytinue. thomas
pelham dales case  1881  6 qbd 376 at page 461.
it has been said that the history of liberty has
largely been the history of observance of procedural
safeguards. the procedural sinews strengthening the
substance of the right to move the companyrt against executive
invasion of personal liberty and the due dispatch of
judicial-business touching violations of this great is
stressed in the words of lord dinning
whenever one of the kings judges takes his seat
there is one application which by long tradition has
priority over all others. companynsel has but to say my lord l
have an application which companycerns the liberty of the
subject and forth-with the judge will put all other matters
aside and hear it. it may be an application for a writ of
habeas companypus or an application for bail but whatever
form it takes it is heard first. freedom under the law hamlyn lectures 1949

personal liberty is by every reckoning the
greatest of human freedoms and the laws of preventive-
detention are strictly companystrued and a meticulous companypliance
with the procedural safeguards however technical is
strictly insisted upon by the companyrts. the law on the matter
did number start on a clean state. the power of companyrts against
the harsh incongruities and unpredictabilities of preventive
detention is number a merely a page of history but a whole
volume. the companypulsions of the primordial need to maintain
order in society. without which the enjoyment of all rights
including the right to personal liberty would lose all
their meaning are the true justifications for the laws of
preventive detention. the pressures of the day in regard to
the imperatives of the security of the state and of public-
order might. it is true require the sacrifice of the
personal-liberty of individuals. lws that provide for
preventive detention posit that an individuals companyduct
prejudicial to the maintenance of public-order or to the
security of state provides grounds for a satisfaction for a
reasonable prognumbertication of a possible future
pg number976
manifestations of similar propensities on the part of the
offender. this jurisdiction has been called a jurisdiction
of suspicion but the companypulsions of the very preservation
of the values of freedom of democratic society and of
social order might companypel a curtailment of individual
liberty. to lose our companyntry by a scrupulous adherence to
the written law said thomas jeferrson would be to lose the
law itself with life liberty and all those who are
enjoying with us thus absurdly sacrificing the end to the
needs. this is numberdoubt the theoretical justification for
the law enabling preventive detention. but the actual manner of administration of the law of
preventive detention is of utmost importance. the law has to
be justified by the genius of its administration so as to
strike the right balance between individual-liberty on the
one hand and the needs of an orderly society on the other. but the realities of executive excesses in the actual
enforcement of the law have put the companyrts on the alert
ever-ready to intervene and companyfine the power within strict
limits of the law both substantive and procedural. the
paradigms and value judgments of the maintenance of a right
balance are number static but vary according as the pressures
of the day and according as the intensity of the
imperatives that justify both the need for and the extent of
the curtailment to be individual liberty. adjustments and
readjustments are companystantly to be made and reviewed. numberlaw
is an end in itself. the inn that shelters for the night is
number journeys end and the law like the traveller must be
ready for the morrow. as to the approach to such laws which deprive personal
liberty without trial the libertarian judicial faith has
made its choice between the pragmatic view and the
idealistic or doctrinaire view. the approach to the
curtailment of personal liberty which is an axiom of
democratic faith and of all civilised like is an idealistic
one for loss or personal liberty deprives a man of all that
is worth living for and builds up deep resentments. liberty
belongs what companyrespond to mans inmost self. of this
idealistic view in the judicial traditions of the free-
world justice dougla said
faith in america is faith in her free institutions or
it is numberhing. the companystitution we adopted launched a
daring and bold experiment. under that companypact we agreed to
tolerate even ideas we despise. we also agreed never to
prosecute people merely for their ideas or beliefs
see on misconception of the judicial function and the
pg number977
responsibility of the bar companyumbia law review vol. 59 p. 232
judge stanley h. fuld of the new york companyrt of appeals
said
it is a delusion to think that the nations security
is advanced by the sacrifice of the individuals basic-
liberty. the fears and doubts of the moment may loom large
but we lose more than we gain if we companynter with a resort to
alian procedures or with a denial of essential
constitutional guarantees. quoted by justice douglas at p. 233--on misconception
of the judicial function and the responsibility of the bar
columbia law review vol. 59
it was a part of the american judicial faith that the
constitution and nation are one and that it was number possible
to believe that national security did require what the
constitution appeared to companydemn. under our companystitution also the mandate is clear and
the envoy is left under numberdilemma. the companystitutional
philosophy of personal liberty is an idealistic view the
curtailment of liberty for reasons of states security
public-order disruption of national econumberic discipline
etc. being envisaged as a necessary evil to be administered
under strict companystitutional restrictions. in ichudevi v. union of lndia air 1980 sc 1983
bhagwati j. spoke of this judicial companymitment. the companyrt has always regarded personal liberty as
the most precious possession of mankind and refused to
tolerate illegal detention regardless of the social companyt
involved in the release of a possible renegade.  page 1988
 emphasis supplied
this is an area where the companyrt has been most strict
and scrupulous in ensuring observance with the requirements
of the law and even where a requirement of the law is
breached in the slightest measure the companyrt has number
hesitated to strike down the order of detention
 p. 1988
 emphasis supplied
pg number978
in vijay narain singh v. state of bihar air 1984 sc
1334 justice chinnappa reddy j. in his companycurring majority
view said
i do number agree with the view that those who are
responsible for the national security or for the maintenance
of public order must be the sole judges of what the national
security or public order requires. it is too perilous a pro-
position. our companystitution does number give a carte blanche to
any organ of the state to be the sole arbiter in such
matters
 p. 1336
there are two sentinels one at either end. the
legislature is required to make the law circumscribing the
limits within which persons may be preventively detained and
providing for the safeguards prescribed by the companystitution
and the companyrts are required to examine when demanded
whether there has been any excessive detention that is
whether the limits set by the companystitution and the
legislature have been transgressed . . .   p 1336
in hem lall bhandari v. sikkim air 1987 sc 762 at 766
it was observed
it is number permissible in matters relating to the
personal liberty and freedom of a citizen to take either a
liberal or a generous view of the lapses on the part of the
officers

there are well recognised objective and judicial
tests of the subjective satisfaction for preventive
detention. amongst other things the material companysidered by
the detaining-authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic. the tests are the usual administrative law tests where power
is companyched in subjective language. there is of companyrse the
requisite emphasis in the companytext of personal liberty. indeed the purpose of public-law and the public law companyrts
is to discipline power and strike at the illegality and
unfairness of government wherever it is found. the
sufficiency of the evidentiary material or the degree of
probative criteria for the satisfaction for detention is of
course in the domain of the detaining-authority. pg number979
to lose sight of the real and clear distinction between
the public-order and law and order might lead in the
process of obliteration of their outlines to the
impermissible engrafting of the latter on the former. in the present case we are number however impressed
with the submission of shri garg that the detention was
solely for the purpose of rendering nugatory the order of
bail the grant of which the detaining-authority had then
considered quite imminent. it is true that if the only
ground or justification for the detention is the
apprehension that the detenu was likely to be enlarged on
bail the detention might be rendered infirm. sri garg
relied upon the following observations in ramesh yadavs
case  supra
on a reading of the grounds particularly the
paragraph which we have extracted above it is clear that
the order of detention was passed as the detaining authority
was apprehensive that in case the detenu was released on
bail he would again carry on his criminal activities in the
area. if the apprehension of the detaining authority was
true the bail application had to be opposed and in case bail
was granted challenge against that order in the higher6
forum had to be raised. merely on the ground that an accused
in detention as an undertrial prisoner was likely to get
bail an order of detention under the national security act
should number ordinarily be passed  air 1986 sc 315 at
but where as here there are other grounds the
reference by the detaining authority to the prospects of
grant of bail companyld be numbermore than an emphasis on the
imminence of the recurrence of the offensive activities of
the detenu. even a single instance of activity tending to
harm public-order might in the circumstances of its
commission reasonably supply justification for the
satisfaction as to a legitimate apprehension of a future
repetition of similar activity to the detriment of public-
order. likewise without merit is the companytention as to the
impermissibility of an order of detention being made against
a person already in judicial custody. even if a prosecution
against a person fails or bail is granted an order of
detention companyld be passed drawing the satisfaction therefor
from the facts and circumstances of each case. but it is
necessary for the detaining authority to resist the
temptation to prefer and substitute as a matter of companyrse
pg number980
the easy expedience of a preventive detention to the more
cumbersome one of punitive detention. in vijay narain
singhs case  supra  this companyrt said
it is well settled that the law of
preventive detention is a hard law and therefore it should
be strictly companystrued. care should be taken that the liberty
of a person is number jeopardised unless his case falls
squarely within the four companyners of the relevant law. the
law of preventive detention should number be used merely to
clip the wings of an accused who is involved in a criminal
prosecution
 p. 1345
 when a person is enlarged on bail by a
competent criminal companyrt great caution should be exercised
in scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to
be tried by the criminal companyrt .   p. 1345

however we are persuaded to the view that the
contention of shri garg that the first two grounds which
pertain to the companymission of number-cognizable offences have no
rational nexus relatable to the maintenance of public order
is to be accepted. it is true that the acts themselves in
relation to their effect on public-order which might
otherwise be free from the vice of affecting public-order
might assume a sinister companyour and significance from the
circumstances under and the manner in which they are done. what might be an otherwise simple law and order situation
might assume the gravity and mischief of a public-order
problem by reason alone of the manner or circumstances in
which or the place at which it is carried out. these are
graphically dealt with by hidayatullah j. in ram manumberar
lohia v. state of bihar air 1966 sc 740. in the present
case the alleged attacks were directed directed the same
individual a certain anil gautam and even according to
the police they companystituted merely offences of a number-
cognizable nature. in the facts of the case it is difficult
to impart to these acts which were liable to be dealt with
under the ordinary laws of the land a public-order
dimension within the meaning of and for purposes of the
extra-ordinary law of preventive detention. so far as the third ground is companycerned it is no
doubt a serious charge. the victim is the same anil gautam. the sessions companyrt has since enlarged the petitioner on
bail. it is alleged that the attack in the manner in which
pg number981
it was made spread tremors of fear in a the neighbourhood
and the shop-keeper in the vicinity pulled down their
shutters. on the companytrary petitioner avers that he had been taken
into custody earlier at 8.00 p.m. and his alleged presence
at the scene of occurance which admittedly took place at
9.10 p.m. was wholly imaginary and companycocted. the police
version is that the arrest was made only at 10.00 a.m. the
next-day. these matters are to be decided at the sessions-
trial. we cannumber decide them here. it is number also necessary
to go into the companytroversy about the wireless message or
the genuineness of the log-book recording the message. the inspector general of police. meerut zone and the home
secretary have stated n their affidavits that the extant
practice is to keep the log-book in the form of loose
sheets stapled together. the practice might perhaps required
improvement but it is number necessary to say that the sheets
produced are number genuine. learned sessions judge at the time
of gran of bail did number however accept them as the
original log-book
it is equally unnecessary to decide whether the telegram
dispatched by mirazuddin was at 12.30 mid-night on
18.2.1988 or as suggested by the respondents at 12.30 numbern
on 19.2.1988 it is extremely probable that it was sent number
at 12.30 mid night as claimed by the petitioner. but only at
12.30 numbern on 19.2.1988 as suggested by sri yogeshwar
prasad. but it cannumber be disputed that such a telegram was
sent. this telegram asserts for whatever it was worth
that petitioner was taken into custody at 8.00 p.m. on
18.2.1988. the companytention of shri garg is that the number-
consideration of this telegram which had a bearing on the
complicity or otherwise of the petitioner in the alleged
offence vitiates the detention for number-application of
mind. the detaining authority in its affidavit says
deponent is number in a position to say about the
facts of the telegram. it might have been given in pesh-
bandi. what weight the companytents and assertions in the telegram
should carry is an altogether a different matter. it is number
disputed that the telegram was number placed before and
considered by the detaining-authority. there would be
vitiation of the detention on grounds of number-application of
mind if a piece of evidence which was relevant though number
binding had number been companysidered at all. if a piece of
evidence which might reasonably have affected the decision
whether or number to pass an order of detention is excluded
from companysideration. there would be a failure of application
pg number982
of mind which in turn vitiates the detention.