JUDGMENT <NAME>, J.

1. <NAME>, respondent No. 2, was the owner of car No. O. R. P. 2848. Around 8. p. m. on 19-8-1972 this car was proceeding from Puri towards Bhubaneswar on the State Highway. Near village Talapati between Sakhigopal and Gopabandhu Sevasangha, the claimant, original respondent No. 1, was running his own cycle rickshaw on the said road at a slow speed. The car, came from the opposite direction and dashed against the rickshaw. As a result of the accident, the claimant received serious injuries over several parts of his body and remained as an indoor patient at <ORG>. It was found that his left leg and the right collar bone were fractured. He alleged that he became invalid and members of his family have been deprived of his earnings as a rickshaw puller. Claim of Rs. 22,000/- as compensation was laid before <ORG> at Puri.

The owner of the car, respondent No. 2, entered contest, filed a written statement, cross-examined the witnesses for claimant and adduced defence evidence by examining the driver of his car who was still employed under him.

This vehicle was insured with <ORG> who was impleaded as opposite party No. 2 before the <ORG>. It filed a written statement admitting that it was the insurer of the vehicle but denied each and every allegation made in the claim petition and specifically disputed the quantum. The <ORG> awarded compensation of Rs. 17,000/- with interest and consolidated cost and directed <ORG> to pay the the same. This appeal under Section 110-D of the Motor Vehicles Act (hereinafter referred to as the 'Act') has been filed by the insurer.

When the appeal came up for hearing before a learned single Judge, on behalf of the claimant it was contended that the appeal did not lie at the instance of the insurer in view of the provision of Section 96 (2) of the Act which restricts the grounds upon which a claim is open to challenge. On behalf of the insurer it was contended that it was a term in policy of insurance that the insurer could take any defence available to the insured in the name of the insured and the insured having not preferred any appeal and the entire liability for payment of compensation awarded by the <ORG> having come on the shoulders of the insurer, the insurer must be held eligible to challenge the quantum of compensation as also its basis.

Before the learned single Judge the decision of <ORG> in the case of <CITATION> , AIR 1959 SC 1331, and a Bench decision of this Court in the case of <ORG> v. <NAME>. 1972 ACJ 261 (Orissa) and a decision of a learned single Judge in the case of <ORG> y. <NAME>, 1'976 ACJ 21 (Orissa) were placed. The learned single Judge was of the view that the contention made on behalf of the appellant was correct but in view of -the observations made by this Court in the two decisions referred to above he was not in a position to dispose of the matter by overruling the respondents' contention and asked the matter to be referred to <ORG> for disposal.

2. As already indicated the appeal has been filed under Section 110-D of the Act. In such an appeal against the award of a <ORG>, the insurer is entitled to raise only those pleas which could be raised by it before the <ORG> and the appeal would not be maintainable on grounds which could not be raised before the <ORG> by the insurer. The view expressed by <ORG> in the case of <ORG>. <CITATION> , AIR 1971 Mys 207, in our view, is correct. It may be stated there that even Counsel for the appellant does not dispute this position. Section 96 (2) of the Act provides :--

"No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :--

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provision of Section 105 ; or

(b) that there has been a breach of a specified condition of the Policy, being one of the following conditions namely :--

"(i) a condition excluding the use of vehicle :--

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle, is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached, where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(c) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular."

The statutory provision is clear that an insurer who has been made a party to a proceeding for recovery of compensation can resist the claim only on those grounds mentioned in Sub-section (2) and it is not open to it to raise any other plea. The consensus of judicial opinion is to the same effect. <CITATION> , AIR 1959 Punj 297; <ORG>. <CITATION> , AIR 1971 Mys 207; <ORG> v. <NAME>, AIR 1972 <ORG> 9; <CITATION> , 1970 ACJ 245 (All); <CITATION> , 1971 ACJ 219 (Ker) and <ORG> v. <NAME>, AIR 1959 SC 1331. Reliance has been placed on the decision of <ORG> in the case of <ORG> v. <NAME> (<ORG>) in support of the contention that under the terms of the policy the right to defend the claim proceeding has been reserved to the insurer. Ext. A-II is the Policy bond. One of the express conditions being condition No. 2 therein runs thus :--

"No admission, offer, promise, payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the Insured for its own benefit any claim for indemnity or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the Company may require."

A Bench of <ORG> in the case of <CITATION> , AIR 1955 Bom 39, was called upon to deal with the situation where the owner of the vehicle did not resist the claim and the insurer wanted to step in to dispute the claim but there was no term in the policy bond as referred to above. <NAME>, C. J. spoke for the Court thus :--

"Therefore, clearly implicit in this decision (AIR 1953 Bom 109) is the principle that in the interests of justice the insurance company may be allowed to defend the action in the name of the defendant although the insurance company was not entitled to defend it in its own name and in its own right under Section 96 (2). We have also pointed out at pp. 110, 111 that the object of giving the notice to the insurance company was obviously to enable it to defend the action through the defendant, but that no right had been given to the insurance company to defend the action in all cases in its own right or in its own name. Therefore, the object of providing for a notice to the insurance company is really two-fold. One is to enable it to defend the action in its own right and in its own name if it is challenging the claim on any of the grounds mentioned in Section 96 (2). But the other purpose and object of the notice, which is equally important, is to give intimation to the insurance company that an action has been started against the defendant so as to enable the insurance company to see that that action is properly defended and that the decree does not go against the defendant by default or that a decree is not passed collu-sively against the defendant. Therefore, when in this case a notice was served upon the insurance company and when the insurance company found that the defendant had left India and was not likely to defend the action, it was open to the insurance company to come to Court and apply that it should be permitted to defend the suit in the name of the defendant."

Repelling the contention against the insurer, the learned Chief Justice further observed :--

"We are also unable to accept the view of the learned Judge that, in the absence of any specific clause in the insurance policy entitling <ORG> to defend the action in the name of the defendant, the <ORG> would not be entitled under its inherent powers to allow the insurance company to defend in the name of the defendant."

We may now refer to the decision of <ORG> in the case of <ORG> v. <NAME>, (AIR 1959 SC 1331) (<NAME>). This was a case where in the policy bond there was a condition as in this case. First dealing with the provision of Section 96 of the Act, the <ORG> observed :--

"To start with it is necessary to remember that apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on the provisions of the statute. The question then really is, what are the defences that Subsection (2) makes available to an insurer ? That clearly is a question of interpretation of the sub-section.

Now the language of Sub-section (2) seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given 'shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely', after which comes an enumeration of the grounds. It would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. If it were not so, then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute."

Coming to deal with the terms of the policy bond the <ORG> further observed :--"We think that this contention is without foundation. Sub-section (2) in fact deals with defences other than those based on the conditions of a policy. Thus Clause (a) of that sub-section permits an insurer to defend an action on the ground that the policy has been duly cancelled provided the conditions set out in that clause have been satisfied. Clause (c) gives him the right to defend the action on the ground that the policy is void as having been obtained by non-disclosure of a material fact or a material false representation of fact. Therefore, it cannot be said that in enacting Sub-section (2) the legislature was contemplating only those defences which were based on the conditions of the policy, It also seems to us that even if, Sub-section (2) and Sub-section (3) were confined only to defences based on the conditions of the policy that would not have led to the conclusion that the legislature thought that other defences not based on such conditions, would be open to an insurer. If that was what the legislature intended, then there was nothing to prevent it from expressing its intention. What the legislature has done is to enumerate in Sub-section (2) the defences available to an insurer and to provide by Sub-section (6) that he cannot avoid his liability excepting by means of such defences. In order that Sub-section (2) may be interpreted in the way the learned Solicitor-General suggests we have to add words to it. The learned Solicitor-General concedes this and says that the only word that has to be added is the word 'also' after the word 'grounds'. But even this the rules of interpretation do not permit us to do unless the section as it stands is meaningless or of doubtful meaning, neither of which we think it is. The addition suggested will, in our view, make the language used unhappy and further effect a complete change in the meaning of the words used in the sub-section." Next comes the observation on which full reliance has been placed by the insurer.

"..... The Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it It is not for us to add to those grounds and therefore to the statute for reasons of hardship. We are furthermore not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship, if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do....."

From this decision of <ORG>, three propitions seem to have become settled; (i) an insurer is not entitled to resist a claim on a ground not enumerated under Section 96(2) of the Act, (ii) Section 96 (2) of the Act deals with defences other than those based on conditions of a policy, and (iii) where conditions of the policy so provide, an insurer has the right to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by the insurer. There seems to have been some dispute as to what exactly was meant by <ORG> when it observed :--

"..... the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him....."

On a plain reading of the lines quoted above from the judgment of <ORG>, it appears to us that the <ORG> has said that the insurer must have reserved to it by the policy the right to defend the action in the name of the assured and the insurer must defend in the name of the assured in order that the restriction put under Section 96 (2) of the Act goes and all the defences available to the assured are available to the insurer. The phrase 'if he does so' does not have the narrow interpretation, as given to it by Counsel in support of the appeal, namely, that the insurer has reserved to it the right to defend in the name of the assured. If that was the real meaning intended to be given to the phrase, after it has already been said that the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured there was no necessity to add. What was really intended to be said was that such a condition was there under the terms of the policy and the insurer was out to raise the defence in exercise of the right. Most of the cases cited to us have followed the dictum of <ORG> in this sense though in one or two <ORG>s a different view has been taken. Each of the cases that was cited to us at the <ORG>, however, seems to be one where the insured had not entered contest, i. e. both the insurer and the insured were not contesting simultaneously. It is unnecessary to give a catalogue of such cases. Where the insured appears and defends the claim and the insurer intends to defend in his own name, the condition in the policy bond does not provide shelter to the insurer.

3. <ORG> has dealt with an appeal arising out of the suit. By then <ORG> had not been constituted under Section 110 (1) of the Act, and, therefore, a suit had been instituted. We have been shown the decision of <ORG> in the case of <NAME> v. <NAME>, AIR 1968 Mad 436, wherein in paragraph 25 of the decision at page 446 of the Reporter, <NAME>, J. speaking for the <ORG> has observed :--

"..... Thus the insurer is an important party in the claim before the <ORG> as the amount payable by it should be clearly specified in the award. The Claims <ORG> has restricted the rights of the insurance company to cross-examine the claimant and his witnesses on its construction of Section 96 of the Act. It should be noted that Section 96 of the act was introduced several years before the constitution of the Claims <ORG> by the present Section 110 of the Act. At the time when Section 96 of the Act first came into force there was no claims tribunal. Section 96 was introduced in order to enforce the duty of insurers to satisfy judgments against persons insured in respect of third party risk by giving them notice after judgment obtained by third party against persons insured in respect of third party risk. It is only in such cases the defences open to the insurer are restricted to the grounds mentioned in Section 96 (2) of the Act. A reading of Section 96 would clearly show that it was not intended to govern enquiry before a claims tribunal. Section 96 contemplates proceedings in a <ORG> and not a proceeding before a <ORG>. It contemplates notice being given to the insurer which may be before or after judgment is obtained against the person who had effected insurance for third party risk. The insurer is no doubt entitled to be made a party and defend the action on the grounds mentioned in that section. But in the proceedings before a Claims <ORG> the insurer is a party. The decisions in <CITATION> , AIR 1959 Punj 297 and <CITATION> , AIR 1959 SC 1331 holding that an insurer is not entitled to take any defence which is not mentioned in Sub-section (2) of Section 96 of the Act are all decisions in which the insurers were given notice in proceedings by way of suit as contemplated under the provisions of Section 96 of the Act. It has been rightly pointed out in those decisions that apart from the statute, an insurer has no right to be made a party to the action by the injured person against the insured causing the injury and that the rights open to the insurer are therefore governed by those provided in the section. The decisions do not relate to proceedings before a Claims <ORG> where the insurers are made parties and the scope of the defences which they were to put forward has not in any way been restricted. The contention of Sri <NAME> is that if Section 96 could have no application to proceedings before the Claims <ORG>, it would have been deleted after Section 110 was introduced in the Act. But the obvious answer is that it is only after a Claims <ORG> is constituted by the State Government by a notification in the Official Gazette, the Civil <ORG>'s jurisdiction would be barred. There may be States where a Claims <ORG> may not have been constituted and in those States Section 96 of the Act could be invoked and the insurance company could be permitted to take only the defences allowed under Section 96 of the Act in respect of the judgment obtained by a third party. In our opinion, the insurance companies who are mainly responsible to satisfy the claims of third parties and who are parties to the proceedings before the Claims <ORG> (sic-and who ?) are entitled to cross-examine cannot be restricted to the defences specified in Section 96 (2) of the Act."

With due respect to the learned Judges in <ORG>, we are afraid that the conclusion is not correct. It is true that when the decision of <ORG> was given <ORG> had not been constituted under Section 110 of the Act. The Act has undergone in recent years copious amendments and if the view indicated by <ORG> was in accord with the intention of <ORG>, we think, <ORG> would have taken steps to delete Section 96 (2) of the Act, In a series of cases coming from different High <ORG>s and arising out of proceedings before <ORG>, Section 96 (2) has been applied and in fact the Madras decision, more or less a solitary one, has taken the view indicated above. There may be some force in say-Ing that Section 96 (2) of the Act should have been adapted after <ORG>s came into existence and the reference to 'court' appearing therein should have been substituted by '<ORG>'. We do not think Section 96 (2) of the Act was intended to apply to claims proceedings before the <ORG> and not the <ORG>.

4. On behalf of the respondents it has been claimed that <ORG> took notice of the judicial opinion expressed by different Courts and while amending the Motor Vehicles Act by Central Act 56 of 1969 incorporated into Section 110-C , a sub-section, numbered as (2-A), running thus :--

"Where in the course of any inquiry, <ORG> is satisfied that-

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made." Undoubtedly there have been many amendments to the Statute to bring the law in accord with the judicial opinion. We are, however, not prepared to accept Mr. <NAME>'s contention that Sub-section (2-A) is a statutory incorporation of the judicial opinion. On the other hand, Sub-section (2-A), appears to be a provision in the background of Section 96 (2) of the Act. In the eventuality indicated in Section 110-C (2-A) and in the absence of a provision in the policy bond in the line indicated above, it is open to the <ORG> to permit <ORG> to step in to defend. Sub-section (2-A) is more in accord with the view indicated by <NAME>, C. J. in the decision dealt with earlier in our judgment The power under Section 110-C (2- A) of the Act can be exercised even when the insured has entered contest and, while giving an appearance of contest, is actually colluding with the claimant. The insurer is not required to defend with the leave of the <ORG> in the name of the insured. It can enter contest in its own right once permitted by the <ORG>. Thus the contractual right under the policy bond may well be exercised in addition to the enabling provision under Sub-section (2-A) of Section 110-C of the Act.

5. In the order of reference, the learned Single Judge observed that the view of <ORG> was contradictory to what was expressed by a learned Single Judge in the case of <ORG> v. <NAME>, 1976 ACT 21. In the Bench decision of this Court, the question now posed did not arise for consideration and all that was taken note of was the restriction imposed under Section 96- (2) of the Act. The learned Single Judge in the subsequent decision (1976 ACJ 21) (Orissa) was indeed not dealing with the term of the policy bond reserving the right to defend to the insurer in the name of the insured, but was considering the scope and ambit of Section 110-C (2- A) of the Act .

6. As the facts of this case show, the insured had entered contest and there is no reason to hold in the absence of any allegation, and something more, that the insured has been colluding with the claimant. Leave of the <ORG> had admittedly not been taken under Section 110-C (2- A) of the Act . There exists a clause in the policy bond authorising the insurer to defend in the name of the insured. As we have already noted, the insured and the insurer simultaneously wanted to defend, the insured defending in his own name and the insurer in its own name. The term in the policy bond did not authorise such defence by the insurer. In the instant case, therefore, to the insurer the restriction under Section 96 (2) of the Act applies and he could not travel beyond the restriction imposed by the Statute either before the <ORG> or in appeal before this Court. None of the Grounds in the memorandum of appeal appertains to a defence raised within Section 96 (2) of the Act and what is being mainly challenged is the quantum and liability on a ground not covered by Section 96 (2) of the Act. On these grounds the insurer was not entitled to contest the claim nor the award. The appeal filed on! its behalf, therefore, is not maintainable.

7. We accordingly dismiss the appeal. The interests of justice, in our view, would be adequately satisfied if parties are directed to bear their own costs.

<NAME>, J.

I agree.

<NAME>, J.

I agree.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT: 27/07/1966 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M. SHELAT, J.M. CITATION: 1967 AIR 483 1966 SCR 464 CITATOR INFO : F 1967 SC1081 (8) RF 1971 SC 530 (223) RF 1976 SC1207 (116,192,367,477) RF 1977 SC 183 (33) ACT: Defence of India Rules, 1962. r. 30-Detention under-Plea of mala fide whether can be raised-Detenue whether entitled to inspect file containing order of detention-No mala fides alleged against Chief Minister who passed order-His affidavit not necessary. HEADNOTE: The appellant was detained under r. 30 of the Defence of India Rules, 1962. He challenged the order of detention by a petition under , Art. 226 of the Constitution which was dismissed. In appeal before this Court by special leave it was urged on behalf of the appellant that:- (i) the order of detention was mala fide; (ii) <ORG> in not calling for the file of the case and permitting the appellant to inspect the material on the basis of which the order of detention was made, community an error of law; (iii) <ORG> should have asked for an affidavit from the Chief Minister of the State who passed the order of detention. HELD:-(i) Although in view of the decisions of this Court the appellant was entitled to raise the plea of mala fides despite the Proclamation of Emergency and the President's Order which followed, the facts of the present case did not justify the plea. [468 <CITATION> ,  4 S.C.R. 932 and <CITATION> .  2 S.C.R. 573 referred to. (ii)The satisfaction of the Government which justifies the order of detention under r. 30 is a subjective satisfaction. A court can not nor,ally enquire whether created that satisfaction on made, in the mind of a reasonable acted order of detention is on with the language of r.30. it is enter into an investigation about which the order of detention is King Emperor v. <NAME> grounds existed which would have which alone the order could have been person. If therefore an authenticated face regular and in conformity not ordinarily open to a court to the sufficiency of the material on based. [469 C-D] King Emperor v. <NAME> Banerjee, 72 I.A. 241, <NAME> v. Sir <NAME>  A.C. 206 and <NAME> v, Secretary of State for Home Affairs  A.C. 284, referred to. Even though the order as drawn up recites that <ORG> was satisfied the accuracy of that recital can be challenged in court to a limited extent. The accuracy can be challenged in two ways, either by proving that <ORG> never applied its mind to the matter or that the authorities of <ORG> acted mala fide. In a normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by the court as establishing that the necessary condition was fulfilled. However, if the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister concerned or to call for- the relevant file from <ORG> in order to satisfy itself as to the accuracy of the recital made in the order of detention. [470 F-H] 465 Biren Dutta etc. v. Chief Commissioner of Tripura,  6 S.C.R. 295 and <CITATION> .  3 S.C.R. 134 referred to. In the circumstances of the present case summoning of the file by <ORG> was not necessary, and <ORG> rightly rejected the appellant's prayer for inspection of the file. [471 E-F] (iii)As there was no allegation of mala fides or lack of bona fides with regard to the Chief Minister, it was not necessary for <ORG> to call for his affidavit. The affidavit of the Deputy Secretary to <ORG> was in the circumstances of the case, sufficient. [471G- 472A] 1966. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION :- Criminal Appeal No, 110 of 1966.

Appeal by special leave from the judgment and order dated February 8, 1966 of <ORG> in Criminal Case No. 266 of 1965.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, Attorney-General, <NAME>, <NAME> and <NAME>, for the respondents.

The Judgment of the Court was delivered by <NAME>, J. This appeal is brought, by special leave, against the judgment of <ORG> dated February 8. 1966 in Criminal Misc. Case No. 266 of 1965 refusing to grant a writ in the nature of habeas corpus ordering the release of the appellant, <NAME> from detention under an order passed by <ORG> under r, 30 of the Defence of India Rules. After the conclusion of arguments in this case on May 3. 1966 we expressed the view that this appeal should be dismissed and the reasons will be stated later. We now proceed to express those reasons.

The case of the appellant is that he was carrying on business of purchasing and selling goods like cloves, cinnamon, dye-stuff etc. in the city of Calcutta. In the month of January, 1963 the appellant had some trouble with the police of Burrabazar, P.S. in Calcutta, particularly with the Sub-Inspector <NAME>. Officer-in-charge of that Police Station.. The appellant also said that he incurred the displeasure of the officers of the <ORG> De- partment who had illegally seized the goods of the appellant and also prevented him from participating at the auction- sales of <ORG> Department. The appellant had made a complaint to the higher authorities of the <ORG> Department in this respect. On September 27, 1965 the order of detention of the appellant was made by <ORG> under r. 30 of the Defence of India Rules and in pursuance of that order the appellant was detained in the Presidency jail at Calcutta. The order of detention being No. 7422 H.S. of <ORG> Home Department Special Section reads as follows:-

"Whereas the Governor is satisfied that with a view to preventing <NAME>, son of <NAME> of 9 Decres Lane, Calcutta from acting in any manner prejudicial to the maintenance of Public Order, it is necessary to make an order directing that he be detained.

Now, therefore. the Governor in exercise of the power conferred by Rule 30 of the Defence of India Rules, 1962, is pleased hereby to direct that the said person be detained and be kept in custody in the Presidency Jail during the period of such detention."

The appellant obtained a rule from <ORG> asking the respondents to show cause why a writ in the nature of habeas corpus should not be granted directing the release of the appellant from detention. The case of the appellant was that the order of detention was made mala fide because the appellant had incurred the personal hostility of some officers in the police and <ORG> Departments. It was contended that the order of detention was procured mala fide upon false reports made vindictively under the Defence of India Rules by the officers in the police and <ORG> Departments. It was said that the order was made by the Chief Minister, West Bengal not because he was satisfied about the necessity of detaining him in the interest of public order but for ulterior considerations. In response to the notice an affidavit was filed on behalf of the State of West Bengal denying the allegations of the appellant. Affidavits were also filed by <NAME> and <NAME> controverting the allegations of the appellant so far as they were concerned., After hearing the parties, <ORG> hold that the order of detention was lawfully made by the Chief Minister of West Bengal and the allegation of mala fide had not been established by the appellant. <ORG> accordingly dismissed the application of the appellant for grant of a writ of habeas corpus.

On behalf of the appellant it was submitted by Mr. <NAME> that the order of detention was made on the basis of re. ports submitted by the police and <ORG> authorities whose enmity had been incurred by the appellant. It was pointed out that on August 16, 1964 the appellant had sent a representation to the Chief Minister of West Bengal and other higher authorities saying that the police had been creating fictitious records for putting the appellant under detention under the Defence of India Rules. In July, 1965 three defamation cases were started against the appellant at the instance of the <ORG> officers. In August and September, 1965 the appellant had sent representations against the police and <ORG> officers to the Chief Minister, West Bengal and other higher authorities. The contention of the appellant is that the order of detention was made on September 27,1965 by the Chief Minister, West Bengal not because of any material suggesting that the appellant was acting, in any manner, prejudicial to the maintenance of public order but because of the false reports made by the police and <ORG> officers. The next contention of the appellant is that there is no affidavit filed on behalf of the Chief Minister, West Bengal showing that he applied his mind to the case of the appellant and that he had the requisite satisfaction as required by the statutory rule. It was also submitted that <ORG> did not permit the appellant to inspect the material on the basis of which the order of detention was made and <ORG> committed an error of law in not permitting the appellant to go beyond the authenticated order of detention and to find out whether the satisfaction of the Chief Minister, West Bengal was based upon sufficient material.

Before proceeding to deal with these points raised on behalf of the appellant it is necessary to state that in <CITATION> (1) and in <CITATION> .(2) this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the Presidentone dated November 3, 1962 and the other dated November 11, 1962 issued in exercise of the powers conferred by cl. (1) of Art. 359 of the Constitution. It was held by this Court that the scope of Art. 359(1) and the Presidential, Order issued under it is wide enough to include all claims made by citizens in any Court of competent Jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes Arts. 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the appellant seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to the appellant to challenge the Order on the ground of contravention of Art. 19 , because as soon as a Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended. But the appellant can challenge the validity of the order on a ground other than those covered by Art. 358 , or the Presidential Order issued under Art. 359(1). Such a challenge is outside the (]-)  4 S.C.R. 932.

(2)[1966] 2 S.C.R. 573.

purview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which, the legislature has in view. It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power confer-red by the statute has been utilised for some indirect purpose not connected with the object of the statute or the mischief, it seeks to remedy. It is contended in the first place,on behalf of the appellant that the order of detention is bad because the Chief Minister had taken into account the reports from the police and <ORG> officers falsely made against the appellant. It is argued by Mr. <NAME> that the order of detention is bad because the statutory power has been exercised mala fide that is to say, it has been utilised for some indirect purpose not connected with the object of the statute or the mischief which it seeks to remedy. The allegation of the appellant has been denied by Mr. <NAME>, Deputy Secretary to <ORG>, <ORG> in his affidavit made on behalf of <ORG>' It is stated by Mr. <NAME> that in making the order of detention dated September 27, 1965 the Chief Minister, West Bengal did not take into consideration the criminal proceedings pending against the appellant before the <ORG> and <ORG> authorities. Mr. <NAME> further said that all papers available to State Government as to the activities of the appellant <NAME> were placed before the Chief Minister who was personally satisfied that the appellant was engaged in illegal activities prejudicial to the maintenance of public order and as such an order of detention of the appellant was necessary. It was also stated by Mr. <NAME> in his affidavit that the appellant was engaged not only as a dealer in spices but was engaged in procuring and selling goods illegally and clandestinely., The allegation of the appellant has also been denied by <NAME> in his affidavit. Mr. <NAME> states that he never created fictitious records against the appellant and never prepared or forwarded any history-sheet or any note to any authority recommending the detention of the appellant under the Defence of India Rules. There is also an affidavit by Mr. <NAME> denying the allegations made by the appellant. On perusal of the various affidavits filed in the case <ORG> reached the conclusion that the allegation of mala fide made by the appellant had not been substantiated and the order of detention made by <ORG> could not be held to be legally invalid on this account. We see no reason to take a view different from that of <ORG> on this point. We are accordingly of the opinion that Mr. <NAME> on behalf of the appellant is unable to make good his submission on this aspect of the case.

It was next contended on behalf of the appellant that <ORG> should have called upon <ORG> to produce the file concerning detention of the appellant in order to determine for itself whether the Chief Minister had sufficient material before him for satisfying himself as to the necessity for the detention of the appellant. We are unable to accept this argument as correct. The satisfaction of the Government which justifies the order of detention under r. 30 is a subjective satisfaction. A court cannot normally enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If therefore an authenticated order of detention is on its face regular and in conformity with the language of r. 30 it is not ordinarily open to a court to enter into an investigation about the sufficiency of the material on which the order of detention is based. The legal position has been explained by <ORG> in King Emperor v. <NAME>) as follows:-

"It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly w here the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such oh recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima faciea case that the recital is not accurate".

Reference may be made, in this connection, to <NAME> V. Sir John Anderson(2) and <NAME> v. Secretary of <ORG> for Home Affairs (3). The question in those cases was whether the Home Secretary had reasonable cause to believe that certain persons were of hostile associations and that by reason thereof it was necessary to exercise control over them. It was held that the matter was one for the executive discretion of the Secretary of <ORG>, and that the <ORG> was not entitled to investigate the grounds on which the Secretary of <ORG> came to believe the persons concerned to be of (1)72 I.A. 241 at p. 261.

(3) [1942] A.C. 284.

(2) (1942) A.0. 206.

hostile associations, or to believe that by reason of such associations it was necessary to exercise control over them. In Liversidge's(4) case Viscount <NAME> observed as follows:-

"In my opinion, the well-known presumption omnia esse rite acta applies to this order, and, accordingly, assuming the order to be proved or admitted, it must be taken prtma facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of <ORG> was complied with."

In Greene's(2) case Viscount <NAME> again quoted with ap- proval the following passage from the judgment of <NAME> in <ORG>

"I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. I do not say that in no case is it necessary for the Secretary of <ORG> to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is 'I do not know why I am interned. I deny that I have done anything wrong', that does not require an answer because it in no way shows that the Secretary of <ORG> had not reasonable cause to believe, or did not believe, otherwise."

It is manifest that an order of detention under r. 30 of the Defence of India Rules can only be passed if <ORG> is satisfied that the detention of a particular person is necessary on any ground referred to in that Rule. Even though the order as drawn up recites that <ORG> was satisfied, the accuracy of that recital can be challenged in court to a limited extent. The accuracy can be challenged in two ways either by proving that <ORG> never applied its mind to the matter or that the authorities of <ORG> acted mala fide. In a normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by the court as establishing that the necessary condition was fulfilled. In other words, in a normal case the existence of such a, recital in a duly authenticated order that <ORG> was satisfied will, in the absence of any evidence to the contrary, be accepted by the court as establishing that <ORG> was so satisfied. If the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister concerned or to call for the relevant file from <ORG> in order to (1)[1942] A.C. 286.

(2) [1942] A.C.284.

For instance, in <NAME> etc. v. Chief Commissioner of Tripura this Court made an order directing the Chief Secretary to <ORG> to transmit to this Court the original files in respect of the detenus and also directed the Minister concerned or the Secretary or the Administrator to file an affidavit in this Court stating all the material facts indicating whether the decision arrived at was duly communicated to the detenus concerned. But the order for production of the file and for affidavit from the Minister or the Secretary concerned was made in that case because the appellant alleged that the order of review had not been reduced to writing under r. 30A(8) and the relevant conditions prescribed by the rule had not been complied with and that it had not been communicated to him. Reference was made by Mr. <NAME> to another case- <CITATION> (1)-in which this Court ordered the Home Minister to file an affidavit. In that case the order of detention was defective because the authenticated copy of the order mentioned six grounds with the disjunctive "or" mentioned in the affidavit of the Chief Secretary. Some of these grounds were followed by "etc.". In view of the ambiguity of the order this Court made a direction asking <ORG> to produce the original order which was in the form of a document and also called for an affidavit from the Home Minister who was in-charge of matters of detention. In the present case, the material facts are different from those in the <NAME>) case, in the <NAME>(1) case. It follows therefore that <ORG> was justified in not making an order for discovery or production of the original departmental file containing the activities of the appellant by <ORG>.

Lastly it was contended for the appellant that <ORG> should have asked the Chief Minister to file an affidavit and rejected the affidavit filed by the Deputy Secretary Mr. <NAME> as insufficient to controvert the allegations of the appellant. We do not think there is any substance in this point. There is no allegation made by the appellant that the Chief Minister himselfwas acting mala fide. The allegation of the appellant was thatMr.<NAME> and the <ORG> Officers had acted malafide against the appellant. The allegation of the appellant onthis point has been denied by Mr. <NAME> in his affidavit.As there is no allegation of mala fides or lack of bona fideswith regard to the Chief Minister of West Bengal who is the authority for deciding as to the necessity for detention of the appellant it (1) [1964] 8 S.C.R. 295.

(2) [1966] 3 S.C.R. 134.

<NAME>

was not necessary for <ORG> to call for an affidavit from the Chief Minister and the affidavit filed by Mr. <NAME> on behalf of <ORG> was rightly considered by <ORG> as sufficient in the circumstances of the case.

For these reasons we hold that there is no merit in this appeal and that it should be dismissed.

Appeal dismissed.