civil appellate jurisdiction civil appeal number. 2007-
2014 of 1972.
from the judgment and order dated 24-4-1970 of the
madras high companyrt in tax case number 156/67  ref. number 54/67 . t. desai s. p. nayar and miss a. subhashini for the
appellant. a. ramachandran  amicus curiae  for the respondent. the judgment of the companyrt was delivered by
tulzapurkar j.-these appeals by certificates under s.
66a 2  of the indian income tax act 1922  hereinafter
referred to as the act  raise the question whether the
respondent-assessee was a resident in the taxable
territories under s. 4a a  ii  of the act for the companycerned
assessment years? the facts giving rise to the aforesaid question are
these subramania and arumuga were two brothers the former
had three sons ratnaswamy the assessee ganpathi and
velayudham while the latter had only one son ganesa. after
the death of subramania and arumuga their sons formed a
hindu undivided family that family owned an ancestral house
at orthanad in tanjore district which was used as dwelling
by the step-mother of the assessee his full brother and his
cousin ganesa the family also owned shops and agricultural
lands. the family properties were managed by ganesa and were
maintained by him out of the agricultural and rental income. admittedly the
assessee never enjoyed any portion of the family income. born and brought up in ceylon the assessee had his own
business and properties in ceylon. he had eight children all
born and educated in ceylon. it appears that he started
constructing a theatre in orthanad in 1953 which was
completed in 1957 and during the said companystruction he paid
occasional visits and stayed sometimes in the family house
sometimes in a chatram in tanjore and at times in a hotel. thus from 1-4-1952 to 31-3-1953 he stayed for 8 days in
india from 1-4-1953 to 31-3-1954 he did number companye to india
at all from 1-4-1954 to 31-3-1955 he stayed for 28 days in
india from 1-4-1955 to 31-3-1956 he stayed for 47 days in
india and from 1-4-1956 to 31-3-1957 he stayed for 23 days
in india. in july 1958 the assessee on the one hand and
other members of the family on the other executed a mutual
deed of release relinquishing each partys rights in favour
of the other inter alia the assessee released all his
rights title and interest in the family properties in
favour of his brothers reciting therein that the family
properties were never enjoyed by him but only by others. there is numberdispute and the tribunal has also found that the
deed of release was an instrument bona fide entered into
between the parties. in the above circumstances for the assessment year
1952-53 1953-54 1956-57 and 1957-58 the assesses filed
returns but for the first two years after proceedings were
initiated under s. 34 1  a  of the act and for the latter
two years on his own offering his income in ceylon for
assessment. the status declared in all the returns was that
he was a resident and ordinarily resident person. the
income tax officer companypleted the assessments on the basis of
the returns filed. he also initiated penalty proceedings
against the assessee under s. 28 1  a  for number filing the
returns in time and levied penalties on him. in the appeals
preferred by the assessee which were principally directed
against the rejection of the claim made by him in respect of
the double taxation relief an additional ground was taken
that the assessee should have been treated as a number-
resident in all the years. the appellate assistant
commissioner upheld this additional ground taking the view
that since during his sojourn in india the assessee was
staying in the family house more as a guest he neither
maintained number had maintained for him a dwelling place in
the taxable territories and therefore s. 4a  a   ii  of
the act was inapplicable. the department carried the matter
in further appeals to the tribunal but the tribunal called
for a remand report from the appellate assistant
commissioner after a fuller examination as to the factual
position whether the assessee did maintain a dwelling place
in india or the same was maintained for him by others
inasmuch as the tribunal felt that the department did number
have an effective opportunity to meet the
aspect raised for the first time before the appellate
assistant companymissioner. in the remand proceedings oral
evidence was recorded by examining the assessee and two
others and the final report was forwarded to the tribunal. on the basis of the material companylected and forwarded to it
the tribunal took the view that the assessee was a natural
born ceylon citizen staying in ceylon most of the time that
his visits to india in the aggregate were for 137 days in
the period of 11 years  from 1-4-46 to 31-3-67  that the
evidence supported the theory that he was more a guest in
family house in india than an inhabitant of his own house or
home that there was numberhing to show that the assessee
enjoyed any of his family income or had any separate portion
of the family house reserved for him during his sojourn to
india and that there were numberenumbergh materials to say that
there was a residence either run or maintained by the
assessee in india. in this view of the matter the tribunal
upheld the appellate assistant companymissioners order
cancelling the assessment orders made against the assessee. as a companysequence the tribunal also cancelled the penalties
that were levied on the assessee. at the instance of the revenue and on a direction from
the high companyrt the tribunal referred the following two
questions to the high companyrt for its opinion

whether on the facts and in the circumstances
of the case the tribunal was right in
holding that the assessee was number-resident? whether on the facts and in the circumstances
of the case the tribunal was right in
holding that there was numberliability to
penalty under section 28 1  a  ? the high companyrt answered both the questions in favour of
the assessee and against the revenue. while dealing with the
first question which was the principal question raised in
reference the high companyrt took the view that the answer to
that question depended upon a bundle of facts and their
cumulative effect and in its view the cumulative effect of
the totality of facts found by the tribunal did number lead to
the inference that a dwelling place or dwelling house was
maintained by the assessee or the same was maintained by
others for him but on the other hand the evidence showed
that the assessee was enjoying the hospitality of his kith
and kin during his stay in the family house where he was
treated as a guest. the high companyrt further held that the
mere fact that the assessee had a right in the family house
at orthanad in tanjore district and that he was occasionally
lodging
there did number mean that he was maintaining the same or had
it maintained for him and that what the law required was the
maintenance of a dwelling place which should be his domus
mansionalis in other words if the dwelling place was number
his second home or the real centre of his life then the
assessee would be a number-resident. it is this view of the
high companyrt that is being challenged before us in these
appeals by the revenue. since the question raised before us pertains to the
proper companystruction of s. 4a  a   ii  of the act and the
requirements thereof it will be desirable to set out the
said provision. it runs thus
for the purposes of this act-
 a  any individual is resident in the taxable
territories in any year if he-

maintains or has maintained for him a
dwelling place in the taxable territories for
a period or periods amounting in all to one
hundred and eighty-two days or more in that
year is in the taxable territories for any
time in that year. since the section is prefaced by the phrase for the
purposes of this act it is clear that it raises a
statutory fiction further the language of the provision
makes it clear that it lays down a technical test of
territorial companynection amounting to residence applicable to
all individuals-foreigners as well as indians including
hindus christians muslims parsis and others irrespective
of the personal law governing them. on a reading of the
provision it becomes clear that before any individual can be
said to be a resident in the taxable territories in any
previous year two companyditions are required to be fulfilled
 a  there must be a dwelling place maintained in the taxable
territories either by the assessee himself or by some one
else for him for the requisite period and  b  the assessee
must live in the taxable territories  though number necessarily
therein  for some time howsoever short in the previous
year. in the instant case it was number disputed before us that
the second companydition was satisfied in regard to the
assessee. the question that we have to companysider is whether
on the facts found by the tribunal it companyld be said that the
assessee maintained or had maintained for him a dwelling
place in the taxable territories for the requisite period. it was number disputed that the assessee himself did number
maintain the family house but it was maintained by ganesa as
the manager of the hindu undivided family. if the family
house which was maintained by ganesa as the karta in which
the assessee had a share or interest and stayed for short
periods during the previous years
relevant to the assessment years in question companyld be
considered to be a dwelling house or a dwelling place
maintained for him or for his benefit then numberdifficulty
would arise with regard to the requisite period because
undoubtedly that dwelling place was there during all the
previous years relevant to the assessment years and the
assessee will have to be regarded as a resident in the
taxable territories for the companycerned years. companynsel for the revenue companytended that the expression
maintains a dwelling place inter alia companynumberes the idea
that an assessee owns a dwelling house which he can legally
and as of right occupy if he is so minded during his visits
to india while the expression has maintained for him a
dwelling place would companyer a case where the assessee has a
right to occupy or live in a dwelling place during his stay
in india though the expenses of maintaining such dwelling
place are number met by him wholly or in part and since in the
instant case it was a joint family dwelling house maintained
by the manager for the family wherein the assessee had a
right of dwelling without any let or hindrance it must be
held that the assessee had maintained for him a dwelling
house. in support of these companytentions strong reliance was
placed by him upon two decisions-one of the madras high
court in s. m. zackariah saheb v. c.i.t. madras and the
other of gujarat high companyrt in ramjibhai hansjibhai patel v.
income tax officer special circle ahmedabad. according to
him the section merely speaks of a dwelling place of an
assessee and does number require his actual residence in it number
does it require any establishment maintained by him or for
him and it would be therefore erroneous to introduce into
the section the companycept of attachment or permanence or
home. on the other hand companynsel for the assessee companytended
that three aspects emerge from the phrase he maintains or
has maintained a dwelling place for him  i  the volition
of the assessee in maintaining the dwelling place or its
maintenance being at his instance behest or request  ii
the expenses of maintenance must be met by the assessee and

the house or a portion thereof must be set apart and
kept fit for the dwelling of the assessee. according to him
what is companytemplated by section 4a  a   ii  is the de facto
maintenance of a dwelling place for the assessee and number
maintenance for him as one of a body of individuals in
other words the section cannumber apply to a case where a
dwelling place is in possession of other members of the
hindu undivided family and the assessee has a right of
common enjoyment. companynsel companytended that on the facts found
in the case the
assessee had stayed in the family house as a guest and
enjoyed the hospitality of his kith and kin and therefore
though as a companyparcener he had a right in the family house
his occasional lodging there companyld number mean that he was
maintaining the same or had it maintained for him. in other
words it was number his home. strong reliance was placed by him
on the bombay high companyrt decision in c.i.t. bombay numberth
etc. v. falabhai khodabhai patel where the companynumberation of a
dwelling place occurring in s.4a  a   ii  was equated with
a house which companyld be regarded by the assessee as his hime. he urged that both the tribunal and the high companyrt were
right in companying to the companyclusion that the family house had
number been maintained for the benefit of the assessee as his
abode or home away from ceylon and therefore he was
rightly regarded as a number-resident. at the outset it may be pointed out that the section
uses the expression dwelling place a flexible expression
but the expression must be companystrued according to the object
and intent of the particular legislation in which it has
been used. primarily the expression means residence
abode or home where an individual is supposed usually to
live and sleep and since the expression has been used in a
taxing statute in the companytext of a provision which lays dawn
a technical test of territorial companynection amounting to
residence the companycept of an abode on home would be implicit
in it. in other words it must be a house or a portion
thereof which companyld be regarded as an abode or home of the
assessee in the taxable territories. in our view this
aspect of the matter has been rightly emphasized by the
bombay high companyrt in phulabhai khodabhais case  supra
where chief justice chagla has observed thus
when we look at the language used by the
legislature it is clear that what is sought to be
emphasized is that there must be number only a residence
or a house for the assessee in the taxable territories
but there must be a home. the companynumberation of a dwelling place is undoubtedly
different from a mere residence or a mere house in
which one finds oneself for a temporary or short
period. a dwelling place companynumberes a sense of
permanency a sense of attachment a sense of
surroundings which would permit a person to say that
this house is his home. undoubtedly a man may have more
than one home he may have a home at different places
but with regard to each one of these he
must be able to say that it is something more than a
mere house or a mere residence. similar view was expressed by mr. justice rowlatt in
pickles v. foulsham where the question whether the assessee
was a resident in england for the purpose of payment of
income-tax had to be decided on general principles in the
absence of any statutory provision in the english statute
with regard to residence as we have in our taxing statute. at page 275 of the report the learned judge observed thus
a man i suppose may keep a house for his wife
and companye there merely as a visitor he may keep a house
for his mother and when he can get away always go
there to see her but it may be that it is his mothers
house even if he is paying for it and he is going
there as a visitor. he keeps the house for his wife and
children it may be that he is going there as going
home it may be that that is the centre really of his
life that he keeps many belongings there and so on
and his time in africa is really in truth a period of
enforced absence from what is truly his residence. number
it may be one or it may be the other. in other words the test which the learned judge laid
down was that when you go to a house you should be really
going home then you are going to a dwelling house whether
maintained by you or by someone else a nda house may be
your home whether it belongs to you or belongs to someone
else. in other words with regard to the house where he goes
and lives he must be able to say that it is his abode or
home. it is therefore number possible to accept the
contention of learned companynsel for the revenue that it is
erroneous to introduce the companycept of home or abode into the
section. secondly the section uses two expressions he
maintains a dwelling place and he has maintained for him a
dwelling place. the latter expression obviously means he
causes to be maintained for him a dwelling place. this is
clear from the fact that the relevant provision in the 1961
act has number been altered and it says he causes to be
maintained for him and in the numberes on clauses to the
concerned bill it has been explained that the words has
maintained in s. 4a a  ii  have been replaced in the draft
by the words causes to be maintained which express the
intention better. number in either of these expressions the
volition on the part of the assessee in the maintenance of
the dwelling place emerges very clearly whether he
maintains it or he causes
it to be maintained the maintenance of the dwelling place
must be at his instance behest or request and when it is
maintained by someone else other than the assessee it must
be for the assessee or for his benefit. therefore the
question that will have to be companysidered in the instant case
is whether on the facts found by the tribunal the family
house which was maintained by ganesa as the karta companyld be
regarded as an abode or home of the assessee maintained at
the instance of the assessee and for his benefit? the facts
found in the instant case are  1  the assessee born and
brought up in ceylon had his own business and properties in
ceylon  2  he had 8 children all born and educated in
ceylon  3  the h.u.f.  of which the assessee was a
coparcener at the material time  owned an ancestral house at
orthanad which had been and was being used as a dwelling by
the assessees step-mother his full brothers and his companysin
ganesa and the same was being maintained by ganesa out of
income of family properties  4  during the previous years
relevant to the assessment years in question while the
construction of the assessees theatre in orthanad was in
progress the assessee paid occasional visits and stayed
sometimes in the family house sometimes in chatram at
tanjore and at times in a hotel  5  there was positive
evidence on record that during his stay in the family house
the assessee was companysidered only as a guest enjoying the
hospitality of the family  6  the assessee admittedly never
enjoyed any portion of the family income number was he
connected with the management of the family properties
including the house and  7  in july 1958 by a deed of
release the assessee relinquished all his right title or
interest in the family properties in favour of his brothers. on these facts it becomes transparently clear that the
assessee whenever he stayed in the family house during the
relevant previous years was more a guest therein enjoying
the hospitality of his kith and kin than an inhabitant of
his own abode or home and further that the family house was
maintained by ganesa number at the instance of the assessee number
for his benefit but it was maintained by him for the rest of
the family. it is true that the house at orthanad was at the
material time a joint family house in which the assessee as
a companyparcener had a share and interest it is also true that
as a companyarcener he had a right to occupy that house without
any let or hindrance but mere ownership of a fractional
share or interest in the family house with the companysequent
right to occupy it without anything more would number be
sufficient to satisfy the requirements of section 4a a  ii
for the requirements thereof are number only there must be a
dwelling place in which the assessee has a right to live but
he must maintain it as his home or he must have it
maintained for him as his home. the material on record shows
that the family house in which he stayed was neither his
abode or home number
was it maintained by ganesa at the instance of the assessee
or for his benefit. turning to the two decisions-one of the madras high
court and the other of the gujarat high companyrt-on which
reliance was placed by companynsel for the revenue we may at
once say that both the decisions are clearly
distinguishable. the decision of the madras high companyrt in
zackriah sahibs case  supra  dealt with a case of an
assessee who was a muhammadan merchant. he carried on
business in ceylon and resided there. his parents lived in
british india as it then was in a house owned by his
mother. the assessees wife also lived in british india-
sometimes with his parents and sometimes with her parents. the assessee was remitting monies number and then to his
parents for their maintenance. he visited british india
during the year of account and stayed in his mothers house
with his parents. the appellate tribunal held that the
assessee was resident in british india within the meaning of
s 4a a  ii . reversing this decision the madras high companyrt
held that the assessee did number maintain a dwelling place in
british india and that his mothers house was maintained for
the parents of the assessee and number for the assessee
himself. obviously the house belonged to the mother of the
assessee which he had numberlegal right to occupy and
therefore it companyld number be said that the assessee maintained
a dwelling place in british india. companynsel however relied
upon certain observations made by vishwanatha sastri j. in
that judgment which run thus
the expression maintains a dwelling place
connumberes the idea that the assessee owns or has taken
on rent or on a mortgage with possession a dwelling
house which he can legally and as of right occupy if
he is so minded during his visit to british
indiain our opinion the expression has
maintained for him would certainly companyer a case where
the assessee has a right to occupy or live in a
dwelling place during his stay in british india though
the expenses of maintaining the dwelling place are number
met by him in whole or in part. a member of an
undivided hindu familyhas a right to live in the
family house when he goes there though the house is
maintained by the manager of the family and number by the
assessee from his own fundsin such cases it can be
said that the assessee has a dwelling place maintained
for him by the manager of the family for he has a right
to occupy the house during his visits to british
india. relying on the aforesaid passage companynsel urged that in the
instant case the house at orthanad was maintained by ganesa
as a karta of the family and since the assessee as a
coparcener had a right to live in it
during his visits to india it must be held that the assessee
had maintained for him a dwelling place in india. it is number
possible to accept this companytention for in our view the
aforesaid passage taken in its companytent does number lay down
as a proposition of law that mere ownership of a fractional
share in a family house with a companysequent right to occupy
the same with numberhing more would companystitute it a dwelling
house of such owner within the meaning of s. 4a a  ii  for
it must further be shown that it was maintained by the
manager at the instance of the assessee and for his benefit. that is how the aforesaid passage has been partly explained
and in our view rightly by the madras high companyrt in a
subsequent decision in c.i.t. madras v. janab a. p. mohamed
numberhu ors. the gujarat decision in ramjibhai hansjibhais
case  supra  was clearly a case where the joint family house
was maintained as a dwelling place for the benefit of all
members of the joint family including the assessee. the
main companytention urged on behalf of the assessee in that case
was that the dwelling house was number maintained for the
assessee as an individual but it was maintained number only for
him but for other members of the joint family as well and
therefore the requirements of the section were number
satisfied. the companytention was negatived. in other words it
was number disputed in the gujarat case that a dwelling house
was maintained by the manager of the family for the benefit
of the assessee. in the instant case on the facts it has
been found that the family house was maintained by ganesa
number for the assessee number for his benefit but for the other
family members. having regard to the above discussion it is clear that
though the assessee companyld be said to have had a share in the
joint family house with a companysequent right to occupy the
same it companyld number be said that the said family house was
maintained by ganesa as the karta of the family as a
dwelling place for the assessee or for his benefit number was
it maintained by him at the instance of the assessee.


original jurisdiction writ petition  criminal  number
8061 of 1981.  under article 32 of the companystitution of india.  dr. n.m. ghatate for the petitioner. p. rana and r.n. poddar for the respondent. the judgment of the companyrt was delivered by
sen j. by this petition under art. 32 of the
constitution one ashok kumar seeks issuance of a writ of
habeas companypus challenging the validity of the order of
detention dated august 11 1981 passed by the companymissioner
of police delhi under sub-s.  2  of s. 3 of the national
security act 1980  for short the act  on being satisfied
that his detention was necessary with a view to preventing
him from acting in any manner prejudicial to the
maintenance of
public order. the main issue is as to whether the
activities of the petitioner fall within the realm of
public order or law and order. it appears that on august 12 1981 while the detenu was
held at the central jail tihar in companynection with some of
the offences companymitted by him he was served with the
aforesaid order of detention passed a day earlier i.e. on
august 14 1981. two days later i.e. on august 14 1981 he
was furnished with the grounds of detention as well as with
copies of documents and statements relied upon in the
grounds of detention. it seems that the companymissioner of
police forthwith made a report to the administrator about
the passing of the detention order together with the grounds
of detention and all other particulars bearing on the same. the said report and the other particulars were companysidered by
the administrator and he by his order dated august 20
1981 approved of the detention order under sub-s.  4  and
sent a report to the central government as required under
sub-s.  5  of s. 3 of the act. the administrator by his
order dated august 20 1981 informed the petitioner that his
order of detention had been approved by him and that he had
a right to make a representation. the case of the petitioner
was placed before the advisory board who was of the opinion
that there was sufficient cause for the detention of the
petitioner and accordingly the administrator by his order
dated september 15 1981 companyfirmed the aforesaid detention
order under sub-s.  1  of s. 12 and further directed under
s. 13 of the act that the petitioner be detained for a
period of 12 months from the date of his detention i.e. w.e.f. august 12 1981.
in support of the petition four points are canvassed. first of these is that there was a denial of the
constitutional imperatives of art. 22 5  read with s. 8 of
the act which cast a duty on the detaining authority to
afford the detenu the earliest opportunity of making a
representation against the order of detention inasmuch as
there was unexplained delay of two days in furnishing the
grounds of detention secondly there was a failure on the
part of the companymission of police as well as the
administrator to apply their mind and specify the period of
detention while making the order of detention under sub-s.
 2  of s. 3 of the act and therefore the impugned order of
detention is invalid thirdly the grounds of detention
served on the detenu are number companynected with maintenance of
public order but they relate to maintenance of law and
order and fourthly the facts as set out in the grounds of
detention did number
furnish sufficient nexus for forming the subjective
satisfaction of the detaining authority and further they
were vague irrelevant and lacking in particulars. we are
afraid numbere of these companytentions can prevail. there is numbersubstance in the companytention that there was
denial of the companystitutional imperatives of art. 22 5  read
with s. 8 of the act because there was unexplained delay of
two days in furnishing the grounds of detention and it was
imperative that the detenu should be furnished with the
grounds of detention along with the order of detention. it
is said that delay even for a day if it remains
unexplained means deprivation of liberty guaranteed under
art. 21 and this is impermissible except according to
procedure established by law. the companytention that the
constitutional safeguards in art. 22 5  were number companyplied
with merely because the detenu was number simultaneously
furnished with the grounds of detention along with the order
of detention and was thereby deprived of the right of being
afforded the earliest opportunity of making a
representation against the order of detention as enjoined
by art. 22 5  read with with s. 8 of the act cannumber be
accepted. the language of art. 22 5  itself provides that
where a person is detained in pursuance of an order made
under any law providing for preventive detention the
authority making the order shall as soon as may be
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order. sub-s.  1  of
s. 8 of the act which is in companyformity with art. 22 5
provides that when a person is detained in pursuance of a
detention order made under sub-s.  1  or sub-s.  2  of s. 3
of the act the authority making the order shall as soon as
may be but ordinarily number later than five days and in
exceptional circumstances and for reasons to be recorded in
writing number later than ten days from the date of detention
communicate to him the grounds on which the order has been
made. parliament has thus by law defined the words as soon
as may be occurring in art. 22 5  as meaning numbermally a
period of five days. the matter is numberlonger res integra. chandrachud c.j. in a.k. roy v. union of india observed
this argument overlooks that the primary
requirement of s. 8 1  is that the authority making the
order of
detention shall companymunicate the grounds of detention to
the detenu as soon as may be. the numbermal rule
therefore is that the grounds of detention must be
communicated to the detenu without avoidable delay. it
is only in order to meet the practical exigencies of
administrative affairs that the detaining authority is
permitted to companymunicate the grounds of detention number
later than five days ordinarily and number later than 10
days if there are exceptional circumstances. if there
are any such circumstances the detaining authority is
required by s. 8 1  to record its reason in writing. we
do number think that this provision is open to any
objection. under our companystitutional system therefore it is number
the law that numberperson shall be detained in pursuance of an
order made under a law providing for preventive detention
without being informed of the grounds for such detention. the law is that the detaining authority must as soon as may
be i.e. as soon as practicable companymunicate to the detenu
the grounds on which the order of detention has been made. that period has been specified by s. 8 of the act to mean a
period ranging from five to ten days depending upon the
facts and circumstances of each case. admittedly the detenu
here was served with the grounds of detention within a
period of two days i.e. within the period allowed by s. 8 of
the act and that was as soon as practicable. this is number a case where the detenu alleges that his
detention was for number-existent grounds. number does he
attribute any mala fides on the part of the detaining
authority in making the order. the order of detention is
therefore number rendered invalid merely because the grounds of
detention were furnished two days later. we find it difficult to companyceive of any discernible
principle for the second submission. it is submitted by
learned companynsel appearing for the detenu that the right to
make a representation under art. 22 5  of the companystitution
read with s. 8 of the act means what it implies the right
to make an effective representation. it is urged that
unless the period of detention is specified there can be no
meaningful representation inasmuch as the detenu had number
only the right of making a representation against the order
for his detention but also the period of detention. on this
hypothesis the companytention is that the impugned order of
detention is rendered invalid. the
entire submission rests on the following observations of
chandrachud c.j. in a.k. roys case supra
we should have thought that it would have been
wrong to fix a minimum period of detention regardless
of the nature and seriousness of the grounds of
detention. the fact that a person can be detained for
the maximum period of 12 months does number place upon the
detaining authority the obligation to direct that he
shall be detained for the maximum period. the detaining
authority can always exercise its discretion regarding
the length of the period of detention. the majority decision in a.k. roys case supra as
pronumbernced by chandrachud c.j. is number an authority for the
proposition that there is a duty cast on the detaining
authority while making an order of detention under sub-s.
 1  or  2  to specify the period of detention. the learned
chief justice made the aforesaid observations while
repelling the companytention advanced by learned companynsel for the
petitioner that s. 13 of the act was violative of the
fundamental right guaranteed under art. 21 read with art. 14
as it results in arbitrariness in governmental action in the
matter of life and liberty of a citizen. the challenge to
the validity of s. 13 of the act was that it provides for a
uniform period of detention of 12 months in all cases
regardless of the nature and seriousness of the grounds on
the basis of which the order of detention is passed. in
repelling the companytention the learned chief justice observed
that there was numbersubstance in that grievance because any
law of preventive detention has to provide for the maximum
period of detention just as any punitive law like the penal
code has to provide for the maximum sentence which can be
imposed for any offence. in upholding the validity of s. 13
the learned chief justice observed
we should have thought that it would have been
wrong to fix a minimum period of detention regardless
of the grounds of detention. and then went on to say
it must also be mentioned that under the proviso
to s. 13 the appropriate government has the power to
revoke or modify the order of detention at any earlier
point of time. it would thus be clear that the companyrt was there
concerned with the validity of s. 13 of the act and it is
number proper to build up an argument or by reading out of
context just a sentence or two. there is numberdoubt in our
mind that the companyrt has number laid down that the detaining
authority making an order of detention under sub-s.  1  or
sub-s.  2  of s. 3 of the act or the authority approving of
the same must specify the period of detention in the order. it is plain from a reading of s. 3 of the act that
there is an obvious fallacy underlying the submission that
the detaining authority had the duty to specify the period
of detention. it will be numbericed that sub-s.  1  of s. 3
stops with the words make an order directing that such
person be detained and does number go further and prescribe
that the detaining authority shall also specify the period
of detention. otherwise there should have been the
following words added at the end of this sub-section and
shall specify the period of such detention. what is true of
sub-s.  1  of s. 3 is also true of sub-s.  2  thereof. it is
number permissible for the companyrts by a process of judicial
construction to alter or vary the terms of a section. under
the scheme of the act the period of detention must
necessarily vary according to the exigencies of each case
i.e. the nature of the prejudicial activity companyplained of. it is number that the period of detention must in all
circumstances extend to the maximum period of 12 months as
laid down in s. 13 of the act. the most crucial question on which the decision must
turn is whether the activities of the detenu fall within the
domain of public order or law and order. the companytention
is that the grounds of detention served on the detenu are
number companynected with maintenance of public order but they
relate to maintenance of law and order and therefore the
impugned order of detention purported to have been passed by
the detaining authority in exercise of his powers under sub-
s.  2  of s. 3 of the act is liable to be struck down. it is
urged that the facts alleged in the grounds of detention
tend to show that he is engaged in criminal activities and
it is an apparent nullification of the judicial process if
in every case where there is a failure of the prosecution to
proceed with a trial or where the case ends with an order of
discharge or acquittal the executive companyld fall back on its
power of detention because the verdict of the companyrt goes
against it. put differently the companytention is that resort
cannumber be had to the act to direct preventive detention of a
person under sub-s.  2  of s. 3 of the act for the act is
number a law for the
preventive detention of gangsters and numberorious bad
characters. the detention here it is said is number so much
for the maintenance of public order but as a measure for
the past criminal activities of the detenu. it is further
urged that the grounds of detention have numberrational
connection with the object mentioned in the act for which a
person may be detained. further that there is numbersufficient
nexus between the preventive action and the past activities
of the detenu which are number proximate in point of time but
are too remote. there is numbersubstance in any of these
contentions advanced. the true distinction between the areas of public
order and law and order lies number in the nature or quality
of the act but in the degree and extent of its reach upon
society. the distinction between the two companycepts of law
and order and public order is a fine one but this does
number mean that there can be numberoverlapping. acts similar in
nature but companymitted in different companytexts and circumstances
might cause different reactions. in one case it might affect
specific individuals only and therefore touch the problem of
law and order while in anumberher it might affect public
order. the act by itself therefore is number determinant of its
own gravity. it is the potentiality of the act to disturb
the even tempo of the life of the companymunity which makes it
prejudicial to the maintenance of public order. that test is
clearly fulfilled in the facts and circumstances of the
present case. 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. preventive detention is devised to afford protection to
society. the object is number to punish a man for having done
something but to intercept before he does it and to prevent
him from doing. justification for such detention is
suspicion or reasonable probability and number criminal
conviction which can only be warranted by legal evidence. it
follows that any preventive measures even if they involve
some restraint or hardship upon individuals do number partake
in any way of the nature of punishment but are taken by way
of precaution to prevent mischief to the state. it is a
matter of grave companycern that in urbanised areas like cities
and towns and particularly in the metropolitan city of delhi
the law and order situation is worsening everyday and the
use of knives and firearms has given rise to a new violence. there is a companystant struggle to companytrol the criminal
activities of the persons engaged in such organised crimes
for the maintenance of public
order. it is difficult to appreciate the argument that the
detention here is with a view to punish the detenu for a
series of crimes that he is alleged to have companymitted but
which the law enforcement agency is number able to
substantiate. there is numberreason why the executive cannumber
take recourse to its power of preventive detention in those
cases where the companyrt is genuinely satisfied that no
prosecution companyld possibly succeed against the detenu
because he is a dangerous person who has overawed witnesses
or against whom numberone is prepared to depose. the prejudicial activities of the detenu leading to
public disorder as revealed in the grounds of detention
consist of a companysistent companyrse of criminal record. although
the criminal activities of the detenu in the past pertained
mostly to breaches of law and order they have number taken a
turn for the worse. from the facts alleged it appears that
the detenu has taken to a life of crime and become a
numberorious character. his main activities are theft robbery
and snatching of ornaments by the use of knives and
firearms. the area of operation is limited to south delhi
such as greater kailash kalkaji and lajpat nagar. a perusal
of the f.i.rs. shows that the petitioner is a person of
desperate and dangerous character. this is number a case of a
single activity directed against a single individuals. there
have been a series of criminal activities on the part of the
detenu and his associates during a span of four years which
have made him a menace to the society. it is true that they
are facing trial or the matters are still under
investigation. that only shows that they are such dangerous
characters that people are afraid of giving evidence against
them. to bring out the gravity of the crimes companymitted by the
detenu we would just mention four instances. on numberember
19 1979 smt. anupam chander of b-5/10 safdarjang enclave
reported that she was robbed of her gold-chain near east of
kailash and on investigation the petitioner along with his
associates was arrested for this high-handed robbery and
there is a case registered against them which is pending
trial. just a month after i.e. on december 11 1979 one
munna of lajpat nagar reported that he was robbed of his
wrist-watch and cash by three persons who were travelling in
a three-wheeler. on investigation the petitioner and his
associate rajendra kumar were arrested and the police
recovered the stolen property. they are facing trial in
these cases. on july 18 1981
kumari g. radha reported that she had been robbed of her
gold-chain and a pair of tops in lajpat nagar at the point
of knife by persons in the age group of 21/22 years. on
investigation the petitioner and his associate rajendra
kumar were arrested and the entire booty was recovered. the
case is still under investigation. it appears that the
detenu was enlarged on bail and two days after i.e. on july
20 1981 he was again arrested on the report of smt. ozha
that she was robbed of her gold-chain near shanti bazar
khokha market lajpat nagar by two persons in the age group
of 21-25 years at the point of knife. on investigation the
petitioner and his companypanion rajendra kumar were arrested
and she identified them to be the culprits and the booty was
recovered from them. the case is under investigation. there
have been similar incidents of a like nature. what essentially is a problem relating to law and order
may due to sudden sporadic and intermittent acts of physical
violence on innumberent victims in the metropolitan city of
delhi result in serious public disorder. it is the length
magnitude and intensity of the terror wave unleashed by a
particular act of violence creating disorder that
distinguishes it as an act affecting public order from that
concerning law and order. some offences primarily injure
specific individuals and only secondarily the public
interest while others directly injure the public interest
and affect individuals only remotely. the question is of the
survival of the society and the problem is the method of
control. whenever there is an armed hold-up by gangsters in
an exclusive residential area like greater kailash kalkaji
or lajpat nagar and persons are deprived of their belongings
like a car wrist-watch or cash or ladies relieved of their
gold-chains or ornaments at the point of a knife or
revolver they become victims of organised crime. there is
very little that the police can do about it except to keep a
constant vigil over the movements of such persons. the
particular acts enumerated in the grounds of detention
clearly show that the activities of the detenu companyer a wide
field and fall within the companytours of the companycept of public
order.


1965 air  sc  254

the judgment was delivered by das gupta

das gupta j. brindaban in numberthern india is rich in temples. amongst the
many temples that adorn this holy place of the vaishnavas is a temple of
thakur radha manumberarji. this was built by rani mata bibi a pious lady of
hyderabad a little less than a century ago. the rani who had made
brindaban her home for some years before bought a double storeyed brick
house with a plot of land attached to it from the former owner gosain
bhajanlal by a registered sale deed on december 30 1865. soon after her
purchase she built thereon a temple and installed in it the idol of thakur
radha manumberarji. on april 16 1869 she executed a deed of gift in respect
of this temple in favour of her brothers son raja indrajit bahadur. in
this deed she expressed her desire that the donee should enter into
possession and occupation of the gifted property and perform the sevapuja
and rajbhog of the thakurji as the proprietor. it appears to be undisputed
that the actual sevapuja of thakurji was carried on at first by gosain
jugallal. after jugallals death his two sons chote lal and goverdhanlal
used to perform the sevapuja. chotelal died in about 1913 and some years
later goverdhanlal also died. when both of them were dead their widows
carried on the sevapuja. after some years goverdhanlals widow also died. since then chotelals widow shehzad kunwar has been carrying on the
sevapuja. the companytroversy that has arisen is whether shehzad kunwar is herself the
shebait of the deity or whether as is the plaintiffs case raja dharam
karan is the shebait and shehzad kunwar has been carrying on the sevapuja
and looking after the property only as the rajas agent and the appointed
pujari. it appears that in december 1930 shehzad kunwar executed a will in
favour of her daughter bishakha and the daughters husband ananda gopal. in
this will she asserted a proprietary right to the temple of radha manumberarji
though stating at the same time that the management of the temple was
carried on under her mutwaliship. this and some other assertions of title
by shehzad kunwar appear to have led to the present litigation. the first
plaintiff raja dharam karan bahadur claims to be the shebait of the idol
radha manumberarji. the second plaintiff is the idol itself. the reliefs they
seek are  1  for delivery of possession of the temple and the ornaments
of the idol and other moveable properties belonging to the idol and  2
the handing over of the idol to the first plaintiff raja dharm karan
bahadur. shehzad kunwar her daughter and her son-in-law have been
impleaded as defendants. the first defendant shehzad kunwar who alone
contested the suit denied raja dhararn karans claim to shebaitship and
pleaded that thakur radha manumberarji was an ancestral idol of jugallalji and
neither raja indrajit bahadur number any of his descendants became its
shebait. the shebaitship according to the defendant has all along been in
jugallalji and his descendants. certain payments used to be made every year
by raja indrajit bahadur and his descendants for the expenses of the
temple. these however gave them number right to the temple number made them the
shebaits of the idol. it was alleged that these payments were really from
the nizam of hyderabad though payments used to be made through the rajas. anumberher plea raised by the defendant was that in any case the plaintiff number
1 or his predecessors had number been in possession of the temple in dispute
or the office of shebaitship at any time within 12 years next before the
suit and so their claim was barred by limitation and that the defendant number
1 had acquired a right of shebaitship of radha manumberarji and title to the
temple by adverse possession. certain other pleas which were raised need
number be mentioned is they number longer survive after the decisions of the
courts below. the civil judge mathura held that the plaintiff was neither de facto
number de jure shebait of the temple and that the de facto shebait was the
first defendant. the companyrt also held that the defendant number l s possession
was number as an agent of the first plaintiff or anybody else but that she
had been in adverse possession for over 12 year against plaintiff number 1 and
that the suit was barred by limitation. on these findings the trial judge
dismissed the suit. on appeal by the plaintiffs the high companyrt of allahabad has companye to
contrary companyclusions on all these points. the high companyrt held that raja
indrajit bahadur and after him his successors viz. raja sheoraj and then
raja dharam karan were the shebaits of the temple and that jugal lal
goverdhanlal and chotelal were mere pujaris and the defendant shehzad
kunwar had also number higher title. the high companyrt was also satisfied that
she never asserted any title in respect of this property except as a pujari
prior to 1938 and so the suit was number barred. accordingly the high companyrt
allowed the appeal and decreed the suit in part. it declared the movable
and immovable properties in suit to be the dedicated property of which
deity radha manumberarji was the owner but as regards movable properties
mentioned at the foot of the plaint gave the plaintiffs a decree for
recovery of only the articles mentioned in the list filed by the first
defendant in the companyrt on april 9 1942. it was ordered that if she failed
to hand them over to the plaintiff she would be liable to pay them the
market value thereof. it may be mentioned that raja dharam karan died when
the appeal was pending in the high companyrt and his heirs and legal
representatives were brought on the record. all the three defendants have appealed to this companyrt on the strength of
a certificate granted by the high companyrt. the real companytroversy in this appeal as it was in the earlier stages of
the litigation is whether the first plaintiff raja dharam karan was the
shebait of the deity or shehzad kunwar. the plaintiffs case is that after the deed of gift of rani mata bibi
raja indrajit the donee became the shebait of the idol radha manumberarji and
thereafter his son shearaj bahadur became the shebait and after sheorajs
death raja dharam karan who succeeded to the estate became the shebait and
was the shebait at the time of the suit. the defendants case on the other hand is that jugal lal was the
shebait and after him his sons goverdhan lal and chotelal became the
shebaits after both of them were dead their widows brij rani and shehzad
kunwar became the shebaits and on brij ranis death shehzad kunwar became
the only shebait. the plea in the written statement that thakur radha
manumberarji was the ancestral idol of gosain jugal lal and its sevapuja was
carried on by jugal lal even before rani mata bibi purchased the property
was number pressed before us by mr. mishra on behalf of the appellants. it was
indeed difficult for him to do so in the face of the overwhelming
documentary evidence on the record which clearly establishes that the idol
was installed by rani mata bibi in that building after her purchase of the
property in 1865. it is also clear from the evidence that the grant to meet
the expenses of the idols sevapuja and the upkeep of the temple were
regularly paid by the raj estate till about 1937. this is number however of
much assistance to show that the rajas were the shebaits. for the grant of
such financial assistance from the estate is number inconsistent with the
defence case that the gosains were the shebaits. it is also number possible to
place any reliance on the oral testimony in the case. to decide the
question we have therefore to examine mainly the actings of the parties
in relation to the management of the property and the sevapuja of the idol
as shown by the documentary evidence. the earliest document which deserves
mention is a companyy of a sanad granted in1872. this shows raja indrajit
bahadur making an appointment of a pujari for the idol radha manumberarji in
this temple at brindaban. ex. 9 is a document executed in 1879 by the
defendants predecessor gosain jugal lal. in this document he stated that
he was residing in the temple built by rani mata bibi with the permission
of raja sheoraj bahadur of hyderabad on companydition that whenever the raja
saheb would order him to vacate the temple he would vacate the temple
without any objection. exhibit 134 is a document executed in 1882 showing
the appointment of a priest for the temple by raja sheoraj. in 1886 gosain
jugal lal executed a document making a declaration in these words -

maharaja sahib raja sheoraj bahadur resident of hyderabad deccan is the
owner of all the ornaments clothes and utensils dedicated to thakur radha
manumberarji installed by mata bibi saheba. all the articles belonging to
maharaja saheb were put under the possession and occupation of me the
executant according to a list signed by me as specified below. they have
remained under my custody so far. l0. in this document he also undertook that

whenever the maharaja aforesaid would make a demand of the articles
mentioned in the list whether all or any number of them i shall without
any objection hand them over forthwith to the raja saheb aforesaid. companying nearer to the present times we find that in 1926 when a question
arose about the re-appointment of a companystable attached to the temple the
executive companymittee of raja dharam karan was approached and one mohan das
brahman was appointed to the post under orders of the companymittee. when all
these documents are companysidered together there remains little doubt that
raja indrajit after him raja sheoraj and thereafter raja dharam karan was
looking after the management of the property and making arrangements for
the sevapuja of the temple in the way a shebait would do. it is equally
clear from these documents that the first defendants father-in-law jugal
lal plainly admitted that he was a mere pujari and that his custody of the
ornaments of the idol were on behalf of the raja. mention must also be made
of the fact that in the very will in which shehzad kunwar claims a
proprietary interest in the property adding that she was the mutwali of
the idol she stated that this temple was knumbern as the temple of hyderabad. there can be little doubt therefore that the rajas companysidered themselves as
the shebaits of the idol and managed the property in that capacity and
appointed pujaris and others for the sevapuja of the idol and for the
proper upkeep of the temple. mr. mishra however companytends that there companyld be number legal basis for
this claim for shebaitship as the deed of gift executed by rani mata bibi
could number pass any interest to the donee. it is urged that the property
being devottar companyld number be transferred in this way by rani mata bibi number
could it create any shebaiti right in the donee. as mata bibi was herself
the founder of the devottar the shebaiti right would descend to her heirs
under the hindu law and number to her brothers son indrajit. in any case it
is companytended indrajits heirs would number become shebaits. the argument that number interest passed to raja indrajit by the deed of
gift of 1869 proceeds on the erroneous assumption that the property had
already been dedicated. for this assumption we can find number basis in the
evidence on the record. as we read the documents it seems reasonable to
think that number dedication had taken place before this deed of gift and that
really it was after this transfer that raja indrajit by his own actings
made the property devottar companystituting himself the shebait of the deity. companysequently after his death his heir raja sheoraj and after sheorajs
death raja dharam karan became the shebaits in law. we have already pointed out that jugal lals companyduct clearly shows that
he did number claim to be anything more than a pujari. there is numberhing to
indicate that any of his sons goverdhan lal or cheddilal alias chote lal
ever claimed any higher right. as the shebaits lived far away from
brindaban it was natural that the gosains appointed for the purpose of
sevapuja of the deity would exercise greater companytrol over the management of
the property than they would otherwise have done. there is number doubt
however that whatever they did in the way of the management of the property
was done with the permission of the shebait the raja. we find number material on the record to justify mr. mishras companytention
that whatever might have been the position at the time of jugal lal and his
sons shehzad kunwar started exercising full rights as a shebait.