JUDGMENT <NAME>, J.

1. The petitioner has assailed the notification dated 03.10.2005 (annexure-1 to the writ petition) issued under Section 4(1) read with Section 17(1) and Section 17(4) of the Land Acquisition Act (hereinafter referred to as an Act). Primarily, as it would appear from the facts and discussions herein under, the petitioner has only attacked the notification issued under Section 17(1) and 17(4) of the Act by which the provisions of Section 5A of the Act have been excluded and the petitioner's right to file objections against the proposed acquisition has been taken away.

2. The petitioner is a cooperative housing Society duly registered under the U.P. Cooperative Societies Act. The petitioner for the purposes of developing land and promoting residential colony had purchased the land in dispute in the city of Agra. The petitioner for developing the said land had submitted a lay out plan to <ORG> (hereinafter referred to as <ORG>) for approval and when the same was not approved, the petitioner approached <ORG> by filing a writ petition wherein vide order dated 06.10.2005 passed by this Court, directions were issued to the <ORG> to consider the lay out plan of the petitioner in accordance with law on merit provided the land is not under acquisition.

3. In the meantime, the State of U.P. on 03.10,2005 issued the impugned notification under Section 4 read with Section 17 of the Act proposing to acquire 395.5726 Hectare of land of the villages Barauli, Ahir, Bagda, Tora, Lakawali, Chamrauli, Mayapur and Kala! Kheria in Agra including the land in dispute. In the aforesaid notification, it has been clearly stated that the land is needed for the public purpose of plan development of a residential colony. The respondents further invoked the provisions of Section 17(4) of the Act and on account of urgency dispensed with the inquiry provided under Section 5A of the Act. The aforesaid acquisition in effect is for the purposes of developing a residential colony with the name of Taj Nagari phase-Ill. The petitioner further states that the development authority is already possessed of over 800 bighas of land, which was acquired by it for Taj Nagari phase-II and this acquired land has not been developed by it, therefore, there is no need for acquiring any further land. The acquisition of land belonging to <ORG> is in violation of Government Orders dated 27th October 1986, 2.6.1998 and 22.10.2002. The petitioner by filing supplementary affidavit dated 12.12.2005 (served upon A.D.A. on 1.3.2006) has further alleged that the acquisition is in effect for providing land to Private Colonizers, which is not a public purpose. It has also been stated in the petition that the respondents have left out or released some plots of land from the acquisition on account of political influence or pressure and as such the action of the respondents in acquiring the land of the petitioner is arbitrary and discriminatory in nature. <ORG> is not possessed with sufficient funds to meet out the expenses of the acquisition and the amount of Rs. 26,00,87,354.30 deposited by it is highly inadequate and insufficient.

4. The petitioner has mainly attacked the action of the respondents in invoking the provisions of Section 17(4) of the Act so as to dispense with the inquiry provided under Section 5A of the Act. The petitioner contends that the valuable right of the petitioner to file objections under Section 5A of the Act against the proposed acquisition cannot be taken away as the respondents have not applied mind as to whether there was any urgency of such a nature so as to exclude the petitioner's rights under Section 5A of the Act. The plea of urgency is belied from the fact that despite the impugned notification having been issued on 3.10.2005 even then the respondents have not cared to issue the final declaration under Section 6 of the Act till date.

5. At the time of filing of writ petition, a preliminary objection was raised on behalf of <ORG> that the petition is premature and is not maintainable. The petitioner has no cause of action to challenge the notification issued under Section 4 of the Act independently. However, despite the above preliminary objection, the writ petition was duly entertained and an interim order was passed on 23.11.2005 directing the parties to maintain status quo for a limited period which order is continuing. In the meantime, many other writ petitions challenging the impugned notification on the same footing were entertained and interim orders on the same lines were passed therein by <ORG>. Few of the other writ petitions of similar nature challenging the impugned notification came to be dismissed as premature and not maintainable. Against the ad interim orders passed in the writ petitions including the present writ petition, <ORG> went before Hon'ble <ORG> and filed Special Leave Petitions. However, <ORG> vide order dated 3,3.2006 dismissed all Special Leave Petitions on the ground that they arise from an interim order passed by <ORG> directing for maintaining status quo. <ORG> further while dismissing the Special Leave Petitions hoped that <ORG> shall dispose of the writ petitions pending before it within three months after notice to the respondents. The order of <ORG> dated 3.3.2006 passed in the bunch of <ORG> in which <ORG> No. 3667 of 2006 <ORG> v. <ORG> and <ORG>. was treated as the leading case is quoted below:

We do not wish to entertain these petitions. These petitions are filed against ad-interim order passed by <ORG>. However, since <ORG> has passed an order for maintenance of status quo, we expect <ORG> to dispose of these petitions when they come up after notice and, in any case, not later than three months from today. The Special Leave Petitions are dismissed.

Counsel for the respondents undertake before us that no adjournment shall be prayed for on any ground by them.

6. During the pendency of the present writ petition and other connected writ petitions, impugning the notification in dispute, the respondents refrained themselves from proceeding ahead with the acquisition and to declare the notification under Section 6(2) of the Act in respect of the land covered by pending writ petitions as the court was seized of the matter. However, in respect of the land, which was not involved in any of the writ petitions, the respondents proceeded further to issue a declaration under Section 6 of the Act which was issued on 23.05.06

7. Some petitions have now been filed challenging both the notifications issued under Section 4 and 6 of the Land Acquisition Act. These writ petitions shall be dealt with separately.

8. In the present writ petition, counter affidavits have been filed separately by the respondent No. 1-State of U.P., respondents No. 2 and 3 Collector and Land Acquisition Officer, <ORG> respectively and respondent No. 4-A.DA

9. We have heard <NAME>, Advocate for the petitioner alongwith <NAME>, advocate in some of the connected writ petitions and learned standing counsel-<NAME> and <NAME> on behalf of respondents No. 1, 2 and 3 and <NAME> assisted by Sri <NAME>, advocate for A.D.A. Since in the present writ petition, necessary counter and rejoinder affidavits have been exchanged and the counsels have agreed for the final disposal of all the writ petitions on the basis of the above pleadings, as such, the same are being disposed of finally with the consent of the parties. <NAME>, learned Counsel for the petitioner in some connected petitions also consented for the disposal of the petitions on the basis of counter and rejoinder affidavits filed in the present petition.

10. It may not be out of context to point out that this Court had ordered the respondents and have directed them to produce the original record. In pursuance of the said order, learned Standing Counsel has produced the record of <ORG> and Mr. <NAME> has produced the record of <ORG>

11. <NAME>, learned Counsel for <ORG> has reiterated the preliminary objection that the petitioner has no cause of action for filing the writ petition as in respect of the petitioner's land, only a notification under Section 4 of the Act has been issued and there is no final declaration under Section 6 of the Act. He has relied upon few orders passed by this <ORG> wherein the writ petitions challenging the notification under Section 4 of the Land Acquisition Act were, dismissed summarily as premature with liberty to the petitioners to approach the <ORG> as and when occasion arises i.e. after the issuance of declaration under Section 6 of the Act.

12. <NAME>, learned Counsel for the petitioner in reply to the above preliminary objection and the submissions of <NAME>, Advocate has emphasized that the notification issued under Section 4 of the Act can also be challenged independently if there are legal mala-fides in issuing the same i.e. it has been issued for non existing purposes or for any oblique motive. In support, he has relied upon the decisions of Hon'ble Supreme Court in <CITATION> and <CITATION> AIR 1982 P&H 519 (FB).

13. Now let us take up the preliminary objection of the A.D.A. that the petition challenging the notification issued under Section 4 of Act is 'premature and is not maintainable. In the case of <CITATION> ), the land purchased for establishing a Cinema Hall in front of <ORG> was notified to be acquired under Section 4 of the Act. The said notification alone was challenged directly in the <ORG> inter-alia on the grounds that the notification has not been validly published in all the three modes prescribed under the Act i.e. in the Official Gazette, <ORG> and in the locality. The other ground of the attack was that the acquisition was a colourable exercise of power based upon legal malafides. The acquisition was at the behest of <ORG>, which was against the opening of a Cinema Hall in front of its premises. The <ORG>, while entertaining the writ petition, had quashed the notification under Section 4 of the Act 'on the solitary ground that the mandatory requirement of publishing the notification in the locality was not resorted to. Against the judgment and order of the <ORG>, the Collector, Allahabad as well as the owner of the land <NAME> went before <ORG> by separate appeals. <ORG> overruled the preliminary objection that the writ petition is premature and held that where there is frontal attack upon the notification as the legal requirements have not been followed in issuing or publishing the same, such legal infirmities cannot be wholly overlooked merely on the ground that the <ORG> do not interdict at the stage of a mere proposal. The notification was also held to be bad as it was issued malafidely. In short, the plea that the writ petition challenging the notification under Section 4 of the Act as premature was not accepted and it was observed that though ordinarily the <ORG> do not interfere at the stage of proposal but where there is a frontal attack to the notification on account of legal infirmities and there are legal mala fides, the <ORG> is not powerless in issuing an appropriate writ even at the stage of proposal.

14. Similar view has been expressed by <ORG> of Punjab and Haryana High Court in the case of <NAME> v. <ORG> (Supra) wherein it has been held that:

where the very initiation of the proceedings are tainted with mala fides, the notification under Section 4 of the Act can be challenged on the basis of a colourable exercise of power forthwith.

15. The orders of <ORG> dismissing some of the writ petitions as premature and not maintainable are summary decisions which contains no discussion on law and as such cannot be treated as precedent and therefore are of no help to the respondents.

16. In view of the above discussions, we are of the view that even though the notification issued under Section 4 of the Act is merely a proposal and is not a conclusive proof of acquisition, the <ORG> may exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to quash the same if the notification is per se illegal and the mandatory procedure prescribed has not been followed in issuing and publishing the same and where the proposal is tainted by mala-fides. Therefore to conclude the writ petition challenging the notification under Section 4 of the Act is some times maintainable at least in the above two exceptional circumstances at the discretion of the <ORG>.

17. In the present case, it is admitted that there is no legal discrepancy in issuing and publishing the notification under Section 4 of the Act, The notification has duly been published in the Official Gazette dated 3.10.2005, <ORG> 'Amar Ujala' and 'Dainik Jagran' of Agra both dated 10.11.2005. The substance of the notification has also been published in the locality by beat and drums on 28.4,2005 as well as by pasting public notices at the convenient places in the locality, Thus admittedly there is no frontal attack on the validity of the notification issued under Section 4 of the Act.

18. So far as, the second aspect of the matter is concerned that the proposal for acquisition is based on the legal mala fides in as much as, there is no public purpose to acquire the land, we are of the opinion that the notification in unequivocal terms states that the land 'is' needed for the public purpose of plan development of a residential colony. However, merely because the development authority is possessed of sufficient other land and is unable to develop the land already in its possession it in no way suggest that the land in dispute is not needed for any further plan development. The submission that the land is actually being acquired for development by private builders and as such there is no public purpose, has no base to stand. The record of the <ORG> contains a letter of the Vice Chairman, <ORG> dated 2.8.2005 addressed to the Secretary, <NAME> stating clearly that the land under acquisition is not being allotted for the promotion of any high-tech city but is required for residential colony of the <ORG> Moreover, the manner of development and promotion of a residential colony on the acquired land is within the domain of the <ORG> Therefore, the <ORG> for whom the land is being acquired, is free to develop it according to the approved plan either itself or through Private builders/ Colonizers. It can partly be developed by the <ORG> and partly by other agencies may be private. Therefore, the argument that the proposal to acquire the land is tainted with legal mala-fides and is a colourable exercise of power is not acceptable to us. <ORG> in <NAME> and <NAME>. v. State of Maharashta and <NAME>. 1994-2004 S.C. Judgments on Land Acquisition has held as under:

When the State Govt. have exercised the power under Section 4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colour able exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this <ORG> or the High <ORG>s to evaluate the evidence and come to its own conclusion that it is a malaflde or colourable exercise of the power.

19. In view of the above discussions, we are of the view that the petitioner has failed to bring his case within the exceptional categories on which the notification under Section 4 of the Act can be challenged independently and therefore, we are not inclined to accept the challenge to the impugned notification issued under Section 4 of the Act.

20. Sri <NAME> has then asserted that even if the notification issued under Section 4 of the Act is held to be a valid notification, the other part of the impugned notification in so far as it invokes the provisions of Section 17(1) and 17(4) of the Act dispensing with enquiry under Section 5A of the Act is bad in law as the statutory right of the petitioner to file objection has been taken away without there being any urgency to acquire the land. The above power has been invoked without any application of mind.

21. To test the above argument, it is appropriate to examine the scheme of the Act. The scheme of the Act makes it abundantly clear that the notification under Section 17(4) of the Act is quite distinct, separate and independent from the notification issued under Section 4 of the Act. The notification under Section 17(4) of the Act follows the notification issued under Section 4 of the Act and precedes the declaration, which is issued under Section 6 of the Act. Some times, the notification under Section 17(4) of the Act is simultaneously issued and published with the notification under Section 4 of the Act and there is no illegality in doing so. This is what has been done in the present case. The impugned notification is in two parts. The first part of the notification contains the proposal of the respondents to acquire the land in dispute in public interest for the plan development and the second part of the notification relates to invoking the powers under Section 17(4) of Act excluding the inquiry contemplated by Section 5A of the Act. The notification under Section 17(4) of the Act is independent and conclusive and the Act does not provide for any remedy against the same, therefore, the same is open to judicial review in exercise of powers under Article 226 of the Constitution of India.

22. No doubt the correctness of such a notification can be examined while testing the validity of the declaration issued under Section 6 of the Act. But it is sometimes too late in the day to challenge the same as once a declaration under Section 6 of the Act is issued after invoking urgency provisions, the Collector is entitled and do takes over the possession of the acquired land on the expiry of fifteen days of the notice under Section 9 of the Act. (Thus, vesting the land in State free from all encumbrances as even taking of symbolic possession is sufficient to vest the land in the State. Once vesting gets completed, it becomes next to impossible to divest the land to the original owners/tenure holders. Moreover, <ORG> has repeatedly held that the delay in challenging the notification for acquisition is fatal and if the land acquisition proceedings stood finalized, interference by the <ORG> is not called far. Therefore, the notification issued under Section 17(4) of the Act is open to challenge independently even before the issuance of the declaration under Section 6 of the Act where prima facie, there is no material before the authorities to record subjective satisfaction about urgency. Thus, where the power is arbitrarily exercised without there being any material on record, the action can be subjected to the judicial review on the grounds permitted under Article 226 of the Constitution of India and where the notifications under Section 4 and 17(4) of the Act are simultaneously issued, the objectionable portion which suffers from the vice of arbitrariness alone can be quashed.

23. Now the next question is whether the respondents are justified in invoking the urgency provisions of Act dispensing with the enquiry contemplated by Section 5A of the Act. The scheme of Act contemplates the use of emergency powers only in exceptional circumstances provided there is real urgency where the <ORG> cannot even wait for holding enquiry under Section 5A of the Act though in forming such a opinion elaborate reasons are not required to be given but nevertheless there must be something on record to show that the opinion of the Collector or <ORG> has been formed on the basis of the material on record and is not arbitrary.

24. It is settled preposition of law by catena of the authorities that the decision of urgency is an administrative decision and is a matter of subjective satisfaction of the <ORG> on the basis of material available on the record. The language of notification that the land is urgently needed is not conclusive of the fact that there is real urgency, therefore, it has been held that the Court is required to consider the material on the basis of which the decision to dispense with enquiry under Section 5A of the Act is taken so as to ascertain whether there is any urgency to exercise the powers under Section 17(4) of the Act vide <CITATION> . wherein it has been held that:

It is now settled legal position that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate <ORG> on the basis of the material available on record.

The language of the notification is not conclusive but the Court is required to consider the material whether there is any urgency to exercise the power under Section 17(4) of the Act. The same view taken by this Court in <NAME> case 1995 AIR SCW 4717 referred to earlier

25. It may also be noted that the existence of the urgency alone is not enough to dispense with the enquiry under Section 5A of the Act, it requires consideration whether the urgency is of a type as to justify the dispensing of the enquiry. In other words, <ORG> has not only to apply its mind to the urgency of the matter but also that the urgency is of such a nature that even summary proceedings contemplated by Section 5A of the Act are required to be dispensed with. In <ORG> v. State of Maharashtra and Ors. 'wherein it has been held that:

The mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an enquiry under Section 5A which has to be considered.

26. Similar view has been expressed by <ORG> in <CITATION> . 1998 (6) SCC and the above proposition of law in Narayan Govind Gavate (Supra) has been quoted with affirmation.

27. The scheme of the Act makes it absolutely clear that the Act is a self contained code in itself. It provides for issuing the notification under Section 4 of the Act containing the proposal to acquire the land. Section 5A gives a statutory right to the person interested or to the person whose land is proposed to be acquired to file objection disputing the proposal to acquire the land. If objections are made, the Collector shall consider those objections and hear the objections before making his recommendations to the Government. It is only upon the aforesaid hearing of the objections and the decision of the Government that a declaration under Section 6(2) of the Act is required to be published acquiring the land finally. This is the usual procedure prescribed for acquiring the land. However, the Act further provides that in exceptional circumstances, where the State Government is satisfied that the land is urgently needed, it may invoke the provisions under Section 17(1) and 17(4) of the Act and exclude the provisions of Section 5A of the Act. In short, the dispensing of enquiry under Section 5A of the Act is not a normal procedure but is resorted to only in exceptional circumstances where strong reasons exist for the same.

28. <ORG> in a case of <CITATION> has observed that:

right of representation and hearing contemplated under Section 5A of the Act is a very valuable right of a person whose property is sought to be acquired and he should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5A .

29. <CITATION> 'ble Supreme Court has observed as under:

Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the <ORG> to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the enquiry under Section 5A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous, A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the <ORG> should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the <ORG> administration.

30. Hon'ble Supreme Court in <CITATION> as to the use of emergency powers under Section 17 of the Act has observed as under:

It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 and 19, burke an enquiry under Section 17 of the Act.

31. The above preposition of law has further been reiterated by Hon'ble Supreme Court in a case of <CITATION> wherein it has been observed that:

It is not in dispute that Section 5A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution of India, the State of exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid.

The <ORG> in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5A of the Act confers a valuable important right and having regard to the provisions contained in Articles 300A of the Constitution of India has been held to be akin to a fundamental right.

32. <CITATION> 'ble Supreme Court has further observed as under:

According to the aforesaid decision of this Court, inquiry under Section 5A is not merely statutory but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has now no longer remained a fundamental right, at least observation regarding Article 14 , visa-vis, Section 5A of the Land Acquisition Act would remain apposite.

33. Therefore, where the decision making process itself in a question, the powers of judicial review can be exercised by the <ORG> and where the <ORG> is of the opinion that there has been total non-compliance or substantial non-compliance of the provisions of the Act, cannot refuse to grant necessary relief to the petitioner. It has also been laid down that in order to satisfy itself as to whether one or more grounds for judicial review exist, the <ORG> may call for record and must satisfy about the existence of the I urgency or there being application of mind by <ORG> on the basis of the material on record.

34. We have perused the record of the <ORG> and <ORG>. The <ORG> vide letter No. 715 (i) (ii)/D/L.A.C./04 dated 4.11.2004 under the signatures of the Vice Chairman has submitted the proposal to acquire the land in dispute to the Collector, Agra for being forwarded to <ORG>. The said proposal states that the proposal to acquire the land in dispute has been passed by the Board of <ORG> vide resolution No. 10 in its 96th Meeting held on 29.1.2004. The said proposal further states that Agra is an important tourist place, therefore, the development of residential colony and commercial complex are necessary. There is requirement to have a solid "land bank" for future development. The proposal in the end states that in view of the circumstances stated above in the proposal, it is necessary to acquire the land by resorting to the provision of Section 4 and 6 of the Act. There is no whisper about the urgency to acquire the same. However, in the application form for acquisition of land which forms the part of the above proposal, it has only been stated that the possession of the land is immediately required because unauthorized developments are taking place in urgent need of residential and commercial activities. The certificate of the Secretary of <ORG> dated 9.2.2004 which is also the part of the proposal states that the land is needed for promoting the residential colony for which purpose solid land bank is required, therefore, the land is urgently needed and the provision of Section 17 of the Act should be invoked so as to avoid the delay in holding the inquiry under Section 5A of the Act. The proposal submitted by the <ORG> places no material on record to establish any urgency to acquire the land except stating that the land is urgently needed for consolidating the "land bank" for future development.

35. There is absolutely no material on record to justify that the land is so urgently needed that the Collector/State Government cannot even wait for completing the summary enquiry contemplated by Section 5A of the Act. The mere reiteration that the land is urgently needed without there being any material in support is not sufficient for taking away the valuable statutory rights under Section 5A of the Act.

36. <NAME> has submitted that there as real urgency and therefore, the enquiry under Section 5A has rightly been dispensed with. He has placed reliance upon paragraph-15 of the counter affidavit of the <ORG> which states that International Olympic size stadium is to be constructed over 125 acares of proposed acquired land for holding International level sports events in Agra and for this a joint survey report was submitted by the officer on the basis of which the decision to invoke the provisions of Section 17(1) and (4) of the Act was taken. The relevant portion of the paragraph No. 15 of the counter affidavit is quoted below:

It is pertinent to state here that under the said scheme apart from other development an international size stadium is also proposed to be constructed over 125 acares of land as the State Government is interested to construct the Olympic size stadium and for providing complete infrastructure to arrange and to purpose international level sports events in Agra heritage city and this development is urgently needed also with other Urban Development of city Agra. For the said purpose a joint survey report was submitted by the officers of acquisition department and after subjective satisfaction of the appropriate government notification under Section 4(1) read with Section 17(1) of the Act has been issued strictly in accordance with law.

37. We have considered the above submission of Sri <NAME> but we fail to agree with the same. First, the land is sought to be acquired for the plan development of residential colony and there is no recital that it is needed for the purpose of providing infra structure to the International level sports activities much less for the construction of stadium. Secondly, there is no joint survey report on the record as alleged in which any urgency had been shown for acquiring the land at the time of issuing the impugned notification dated 3.10.2005. Any subsequently material, if any, though not on record is not material as the decision about urgency as required to be taken only on the basis of the material on record at the relevant time. Lastly, the <ORG> cannot supplement reasons for urgency through counter affidavit when documents showing such urgency as described in paragraph No. 15 of the counter affidavit are not part of the record. The statutory functionaries i.e. <ORG>, <ORG> or <ORG> cannot be permitted to supplement fresh reasons by means of counter affidavit. <CITATION> . , <ORG> has observed that when statutory functionaries makes an order based on certain grounds, its validity has to be judged on the basis of the material and the reasons on the record and they cannot be permitted to supplement fresh reasons in the shape of affidavit or otherwise. Therefore, the plea of the <ORG> that there as real urgency for the reasons that an Olympic size Stadium is to be constructed is not tenable and is not acceptable.

38. In view of the above discussions, it leaves no scope for us but to hold that there was no material before <ORG> at the relevant time so as to invoke the provisions of Section 17(1) and (4) of the Act and to dispense with the summary enquiry under Section 5A of the Act which has the effect of taking away the minimal right of filing statutory objections against the proposed acquisition. The exception cannot be made a rule. There is no justification to deviate from the normal procedure and to resort to exceptional mode under the facts and circumstances of the present case.

39. Thus, the impugned notification issued under Section 17(1) & (4) of the Act is liable to be quashed and is hereby quashed.

40. However, the respondents are at liberty to proceed with the acquisition in accordance with law from after the stage of issuing and publishing the notification under Section 4 of the Act by affording opportunity to the petitioner or to the tenure holders to file objections under Section 5A of the Act and to proceed further only after affording them opportunity of hearing as contemplated under the Act and, if necessary, issue the declaration under Section 6 of the Act thereafter.

41. In view of <NAME> v. Special Deputy Commissioner (Revenue) , the time during which the writ petitions had remained pending in <ORG> shall stand excluded.

42. With the above observations, writ petition is party allowed and the notification dated 03.10.2005 under Section 17(1) & (4) of the Act is quashed with no order as to costs.

43. In view of the above, the connected writ petition Nos. 73290 of 2005 <CITATION> . 76436 of 2005 <ORG> v. State of U.P. and <NAME>. 133 of 2006 Ram Vatika Colony and <NAME>. v. State of U.P. and <NAME>. 1542 of 2006 <CITATION> . 1544 of 2006 <CITATION> . 1545 of 2006 <CITATION> . and <NAME>. 1549 of 2006 <CITATION> . 1567 of 2006 <CITATION> . 1573 of 2006 <CITATION> . 5672 of 2006 <CITATION> . 5673 of 2006 <CITATION> . and <NAME>. 5703 of 2006 <CITATION> . 5893 of 2006 <CITATION> . 5900 of 2006 <CITATION> . 5973 of 2006 <CITATION> . and <NAME>. 7400 of 2006 <NAME> v. State of U.P. and <NAME>. 7541 of 2006 <CITATION> . and <NAME>. 7543 of 2006 <CITATION> . 7544 of 2006 <CITATION> . 7546 of 2006 <CITATION> . 7556 of 2006 <CITATION> . 7557 of 2006 <CITATION> . and <NAME>. 7559 of 2006 <NAME> v. State of U.P. and <NAME>. 7562 of 2006 <CITATION> . 7563 of 2006 <CITATION> . 7564 of 2006 <CITATION> . 7565 of 2006 <NAME> and Anr. v. State of U.P. and <NAME>. 8169 of 2006 <CITATION> . and <NAME>. 8172 of 2006 <CITATION> . 8174 of 2006 <CITATION> . and <NAME>. 8176 of 2006 <CITATION> . and <NAME>. 8183 of 2006 <CITATION> . 8185 of 2006 <NAME> and Anr. v. State of U.P. and <NAME>. 8189 of 2006 <CITATION> . 72064 of 2005 <NAME> v. State of U.P. and <NAME>. 72066 of 2005 <CITATION> . 72067 of 2005 <CITATION> . and <NAME>. 72069 of 2005 Goyal Investment v. State of U.P. and <NAME>. 72070 of 2005 <CITATION> . and <NAME>. 72074 of 2005 <CITATION> . and <NAME>. 74836 of 2005 <NAME> v. State of U.P. and <NAME>. 75708 of 2005 <CITATION> . 76469 of 2005 <CITATION> . and <NAME>. 78288 of 2005 <CITATION> . 78307 of 2005 Maa Gange Sahakari Avas Samiti Ltd. and Anr. v. State of U.P. and <NAME>. 78346 of 2005 <CITATION> . 78041 of 2005 <CITATION> . 78042 of 2005 <CITATION> . and <NAME>. 78043 of 2005 <NAME> v. State of U.P. and <NAME>. 78044 of 2005 <CITATION> . 78045 of 2005 <CITATION> . 78046 of 2005 <CITATION> . and <NAME>. 28253 of 2005 <CITATION> . 78770 of 2005 <ORG> and <NAME>. v. State of U.P. and <NAME>. 78254 of 2005 <CITATION> . and <NAME>. 138 of 2006 <CITATION> . and <NAME>. 399 of 2006 <CITATION> . 238 of 2006 <CITATION> . 1674 of 2006 <CITATION> . and <NAME>. 2190 of 2006 <CITATION> . and <NAME>. 2192 of 2006 <CITATION> . 2194 of 2006 <CITATION> . 2195 of 2006 <CITATION> . and <NAME>. 2197 of 2006 <CITATION> . and <NAME>. 2199 of 2006 <CITATION> . 2200 of 2006 <CITATION> . and <NAME>. 2201 of 2006 <CITATION> . and <NAME>. 2449 of 2006 <CITATION> . and <NAME>. 2452 of 2006 <CITATION> . and <NAME>. 2455 of 2006 <CITATION> . 2686 of 2006 <CITATION> . 6354 of 2006 <CITATION> . and <NAME>. 11541 of 2006 <CITATION> . 11710 of 2006 <CITATION> . 10280 of 2006 <NAME> and <NAME>. v. State of U.P. and <NAME>. 74968 of 2006 <CITATION> . and <NAME>. 10902 of 2006 <CITATION> . 77060 of 2005 <CITATION> . 77194 of 2005 <CITATION> . 2271 of 2006 <NAME> and Anr. v. State of U.P. and <NAME>. 2320 of 2006 <NAME> and <NAME>. v. State of U.P. and Anr. 2321 of 2006 <NAME> and <NAME>. v. State of U.P. and Anr. 2323 of 2006 <CITATION> . 2847 of 2006 <CITATION> . and <NAME>. 4249 of 2006 <NAME> v. State of U.P. and <NAME>. 4254 of 2006 <CITATION> . 4255 of 2006 <CITATION> . and <NAME>. 4257 of 2006 <CITATION> . and <NAME>. 4260 of 2006 <CITATION> . and <NAME>. 4261 of 2006 <CITATION> . and <NAME>. 4262 of 2006 <NAME> v. State of U.P. and <NAME>. 4263 of 2006 <CITATION> . 4363 of 2006 <CITATION> . and <NAME>. 5362 of 2006 <CITATION> . and <NAME>. 5363 of 2006 <CITATION> . 6134 of 2006 <CITATION> . 6137 of 2006 <CITATION> . 6579 of 2006 <CITATION> . 6705 of 2006 <CITATION> . and <NAME>. 6837 of 2006, <CITATION> . and <NAME>. 8545 of 2006 <CITATION> . 8548 of 2006 <CITATION> . and <NAME>. 8908 of 2006 <CITATION> . 8964 of 2006 Smt. Ramkatori and <NAME>. v. State of U.P. and <NAME>. 9006 of 2006 <CITATION> . and <NAME>. 9043 of 2006 <CITATION> . and <NAME>. 9217 of 2006 <CITATION> . 9309 of 2006 <CITATION> . and <NAME>. 9469 of 2006 <NAME> v. State of U.P. and <NAME>. 9470 of 2006 <CITATION> . and <NAME>. 9471 of 2006 <CITATION> . and <NAME>. 9472 of 2006 Sukhoo v. State of U.P. and <NAME>. 9473 of 2006 <CITATION> . and <NAME>. 9833 of 2006 <CITATION> . and <NAME>. 9834 of 2006 <CITATION> . and <NAME>. 79424 of 2005 <CITATION> . and <NAME>. 10903 of 2006 <CITATION> . and <NAME>. 10905 of 2006 <CITATION> . 11322 of 2006 <CITATION> . 2968 of 2006 <CITATION> . 2979 of 2006 <CITATION> . 2980 of 2006 <CITATION> . 3367 of 2006 <CITATION> . 3373 of 2006 <CITATION> . 3375 of 2006 <CITATION> . and <NAME>. 3377 of 2006 <CITATION> . and <NAME>. 3378 of 2006 <NAME> v. State of U.P. and <NAME>. 3694 of 2006 <CITATION> . 4024 of 2006 <CITATION> . 75305 of 2005 <CITATION> . 77816 of 2005 <CITATION> . and <NAME>. 2189 of 2006 <CITATION> . 12253 of 2006 <CITATION> . 12257 of 2006 <CITATION> . 12261 of 2006 <CITATION> . 12263 of 2006 <CITATION> . 12823 of 2006 <CITATION> . 13286 of 2006 Smt. Pushpa Jain and <NAME>. v. State of U.P. and <NAME>. 13805 of 2006 <CITATION> . and <NAME>. 14857 of 2006 <CITATION> . and <NAME>. 14859 of 2006 <CITATION> . 14861 of 2006 <CITATION> . 14862 of 2006 <CITATION> . and <NAME>. 14865 of 2006 <CITATION> . and <NAME>. 15545 of 2006 <CITATION> . and <NAME>. 16421 of 2006 <NAME> v. State of U.P. and <NAME>. 24157 of 2006 <CITATION> . and <NAME>. 26570 of 2006 <CITATION> . also stand partly allowed on the same terms and conditions.

44. Sri <NAME> and Smt. <NAME> have been heard in five other connected writ petitions wherein the aforesaid notification issued under Section 4 read with Section 17 of the Act dated 3,10.2005 has been challenged alongwith final declaration made under Section 6 of the Act dated 23,05.2006. Sri <NAME> has adopted the arguments of Sri <NAME> and has submitted that the entire acquisition stands vitiated under the Law as there was no urgency to dispense with the enquiry under Section 5A of the Act and the powers of Section 17(1) & (4) of the Act have been invoked casually in a routine manner without application of mind in as much as there was no material on record to justify the urgency.

45. Since we have already quashed the notification under Section 17(1) & (4) of the Act, the declaration issued under Section 6 of the Act dated 23.05.2006 being consequential in nature automatically falls to the ground and is also quashed,

46. Accordingly the writ petition Nos. 37767 of 2006 <CITATION> . 37770 of 2006 <CITATION> . and Ors. 37852 of 2006 <CITATION> . and Ors. 37853 of 2006 <CITATION> . 37854 of 2006 <CITATION> . also stand partly allowed on the same terms and conditions as above.

47. Copy of this judgment and order be kept on all connected writ petitions mentioned above.


JUDGMENT <NAME>, C.J.

1. This is a reference to <ORG> made in certain appeals against orders which arose under the circumstances mentioned in the order of reference. Briefly speaking, the claims of the decree-holder-purchaser of the disputed property in execution of a money decree and of his vendee having been disallowed as against the purchasers under a mortgage decree, one of them being the decree-holder himself with respect to a part of the property, the purchaser of the other part being a stranger, the question arose whether the order of the lower Court comes within the purview of Section 47 of the Code of Civil Procedure and is therefore appealable. The suit on the mortgage was instituted after the attachment in execution of the money decree and the sale under the money decree which was subject to the mortgage was made between the dates of the preliminary mortgage decree and the final decree. I shall proceed on the basis assumed in the order of reference that the question that has arisen relates to execution, discharge, or satisfaction of the decree within the meaning of Section 47, and that all that we are asked is whether such a question arose between the parties to the suit in which the decree was passed or their representatives.

2. As I understand the facts, the question in the appeal arose in execution of the mortgage decree; and, so far as the decree holder-purchaser is concerned, there can be no question of his position as he is a party to the suit.

3. But the decisions of this Court as to who are to be deemed, within the meaning of Section 47 of the Code of Civil Procedure, to be the representatives of the parties to the suit in which the decree which is being executed was passed are in a state of considerable conflict. On the question whether the purchaser can be regarded as the representative of the decree-holder in cases arising between him and the judgment-debtor or his representative, <NAME> had no hesitation in <CITATION> (1902) I.L.R. 25 M. 529, in holding that the auction-purchaser, even if he was not the decree-holder, was the representative of the judgment-creditor, basing his opinion on the <ORG> ruling in <NAME> v. <NAME> (1892) I.L.R. 19 C. 683, and on the full Bench ruling of <ORG> in <NAME> v. Beni Madhub Sirkar (1896) I.L.R. 24 C. 62, and on that of a Divisional Bench of the same Court in <CITATION> (1898) I.L.R. 26 C. 250. <NAME>, the other learned Judge, did not express any dissent from that view, but pointed out that the order was none the less an order under Section 244(now Section 47) because it was also passed under Sections 318 and 334 of the Code of Civil Procedure (corresponding to Rules 95, 97 and 98 of Order 21 of the Code of Civil Procedure). The ruling was followed by <NAME> and <NAME> in <NAME> v. Hussain Sahib (1904) I.L.B. 28 M. 87, by <NAME> and <NAME> in <CITATION> (1912) M.W.N. 510, and by <NAME> und <NAME> JJ.in <NAME> v. <NAME> (1907) I.L.R. 30 M. 507. But the opposite view is expressed by <NAME> sitting with Miller J. in <NAME> v. <NAME> (1908) I.L.R. 31 M. 177, and by <NAME> and <NAME> in <NAME>. <NAME> (1910) I.L.R. 34 M. 417, and has been accepted by <NAME> and <NAME> in <CITATION> (1917) I.L.R. 41 M. 467. In this Court, therefore, the conflict of opinion on the point is such that one could not say that there is a clear preponderance of authority in support of one view rather than the other.

4. As regards the other <ORG> it was held by Jenkins <NAME> v. <NAME> (1901) I.L.R. 25 B. 631 that an auction purchaser could not be regarded as the representative of the decree-holder for the purposes of an application under Section 310(A) of the Old Code but Order 21, Rule 89 of the New Code now expressly provides that person owning property which has been sold or holding an interest therein by virtue of a title acquire 1 before such sale may also apply to have the sale set aside on depositing the purchase-money. As regards Calcutta and Allahabad no express ruling on the question has been cited before us and I have not found any.

5. On the question whether an auction-purchaser can be treated as the representative of the judgment-debtor, we find a similar conflict in <NAME> v, <NAME> (1896) I.L.R. 20 M. 378 <NAME> and <NAME>. and in <NAME> v. <NAME> (1904) I.L.R. 28 M. 117 <NAME> and <NAME>, answered the question in the affirmative. But in <NAME>, <NAME> v. <NAME> (1910) I.L.R. 34 M. 417 already mentioned to which <NAME> was a party, <NAME> held that he was not such a representative and this view has been followed by <NAME> and <NAME>. in <CITATION> (1916) 3 L.W. 377 and in <CITATION> (1916) 1 M.W.N. 287 at least in cases where the decree does not mention or affect the property purchased. In another case reported in <NAME> v. <NAME> (1909) I.L.R. 34 M. 450 both <NAME> and <NAME> held that the auction-purchaser would be the representative of the judgment-debtor and in an unreported judgment in <NAME> v. Ramachandra Tevar A.S. No. 249 of 1916 <NAME> sitting with <NAME> expressly disapproved of the dictum of <NAME> in <CITATION> (1910) I.L.R. 34 M. 417 and of the rulings in <CITATION> (1916) 3 L.W. 377 and <CITATION> (1916) 1 M.W.N. 287 and following <NAME> v. Somasundara Mudali (1904) I.L.R. 28 M. 117 <NAME> v. <NAME> (1907) 17 M.L.J. 321 and <NAME> v. <NAME> (1909) I.L.R. 34 M. 450. Though on this aspect of the question also it cannot be said that the law is settled by a long current of decisions in this Court as the learned Chief Justice suggests in the unreported judgment, I agree with him so far that the view that an auction-purchaser of the judgment-debtor's interests in the property in dispute is his representative for the purposes of Section 47 of the Code of Civil Procedure has a preponderance of authority in its favour. As regards the other <ORG>, both Calcutta and Allahabad See <NAME> v. <NAME> (1896) I.L.R. 24 Gal. 62 and <NAME> v. <NAME> (1901) I.L.R. 26 All. 447 have finally decided in favour of the view that the word ' representative' when taken with reference to the judgment-debtor does not mean only his legal representative that is, his heir, executor or administrator, but it means his representative in interest and includes a purchaser of his interest whether by a private sale or at court auction, who, so far as such interest is concerned, is bound by the decree. In Allahabad, <NAME> v. <NAME> (1884) I.L.R. 6 All. 286 and probably also in Calcutta, the purchaser would not be regarded as the representative of the judgment-debtor except in cases where the property purchased by him is involved in the decree in the course of execution of which the question has arisen. But except in <CITATION> (1916) 1 M.W.N. 289 this distinction does not appear to have been drawn in the rulings of our Court. A recent <ORG> of <ORG> in <NAME> v. <NAME> (1918) I.L.R. 42 Bom. 411 has ruled contrary to the view of the law as laid down by the Calcutta and Allahabad <ORG>es.

6. Now, the Code has not defined the word ' representative ' though it has defined the phrase ' legal representative'. But that the two terms are not used in a synonymous sense is obvious, for while in Section 47 the legislature uses the word ' representative ' it uses the phrase ' legal representative ', as it were by contrast, in Sections 50 and 52 and so on. Nor can there be any doubt that the word ' representative ' was intended to have a wider meaning than 'legal representative'.

7. I think some light can be obtained on this question if we find out in what matters the purchaser of the interest of the judgment-debtor in property sold in execution can apply to the executing <ORG> for redress or can be proceeded against in that <ORG>. Under Section 64 an alienation after attachment is void as against all claims enforceable under the attachment. Under Section 74 where the purchaser has been obstructed in obtaining possession by the judgment-debtor or by any one on his behalf, the latter can be dealt with by the <ORG> at the instance of the decree-holder or, purchaser. Then we find under Order XXI, Rule 35 that under a decree for delivery of immoveable property possession may be given by the <ORG> executing the decree by removing any person bound by the decree which would apparently include a purchaser pendente lite. This seems to be made clear by the fact that under Rule 54 which provides for attachment of immoveable property persons are prohibited from taking any benefit under any transfer made after attachment. In the case of a person who claims a title to the property either independently of the defendant in the suit or if from the defendant, he asserts a title anterior to the institution of the suit in which the decree under execution was passed, his claim is placed on a different basis by the legislature. If such a person is in possession of the property the <ORG> executing the decree cannot dispossess him and his right to establish his title by a separate suit is expressly recognised. See Order 21 Rules 58, 63, 99,100 and 101. By Rule 89 an application to set aside a sale by depositing the purchase money may be made by any person owning the property or holding an interest in the property under a title acquired before sale, and such an application would clearly be one between the judgment-debtor or a person who has acquired his interest on the one hand and the decree-holder and the purchaser under the decree on the other. It further says that the judgment-debtor's liability for costs will not be affected by such application. By Rule 90 an application to set aside the sale on the ground of irregularity may be made by the decree-holder or any person entitled to rateable distribution or a person whose interests are affected by the sale and to such an application the purchaser would clearly be a necessary party and questions arising under the application may have to be determined between him and the decree-holder or the judgment debtor as the case may be. The purchaser may himself apply to have the sale set aside on the ground that the judgment-debtor had no saleable interest and only on questions raised under Rules 89,90 or 91 being decided in favour of the purchaser that the sale will be confirmed. The purchaser can apply for the delivery of the property purchased by him as against the judgment debtor or against any person claiming under a title created by the judgment-debtor subsequently to the attachment. If the holder of a decree for possession of immoveable property or the purchaser of any such property sold in execution of a decree is obstructed in obtaining possession that is a matter to be investigated by the executing <ORG>. If the resistance or obstruction is by the judgment-debtor or by a transferee from him after the institution of the suit in which the decree was passed, in that case the question is to be decided finally in execution. On the other hand if the obstructor is a bonafide claimant claiming under a title independent of the judgment-debtor then, as already mentioned, he would have a right to sue in spite of the decision in execution.

8. I think these provisions of the Code show that the legislature intended that all questions affecting a purchaser of the interest of the judgment-debtor in property which is either affected by the decree or is sold under a decree, are to be decided in execution between parties interested if the purchase was after the institution of the suit, whether at a private sale or at a sale in execution of a money decree against the defendant. I may here also refer to Section 146 which says that "Save as otherwise provided by this code, or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." Under this section the claim is not confined to an interest in property. It seems to me that the purchaser of property in execution of a decree may well be said to claim under the decree-holder for the purposes of proceedings under Section 47 in which his rights are affected. It may also here be pointed out that the law, so far as the rulings of this Court and also of <ORG> go is settled that not only the assignee of a decree-holder comes within the scope of Section 47 but a person attaching the decree is the representative of the decree-holder within the meaning of this section- <CITATION> (1892) I.L.R. 16 Mad. 20,Krishnan v. <NAME> (1905) I.L.R.29 Mad. 318 <CITATION> (1888) I.L.R. 15 Cal 371. I do not see how the case of a purchaser in execution of a decree can well be distinguished on principle On the other hand where the interest of the purchaser of property either in execution of the same decree or of another decree is affected by any question raised in execution by the holder of the decree under execution the purchaser is entitled to defend his interest as a person claiming under the judgment-debtor. As has been pointed out time after time by <ORG> as well as by <ORG>, Section 47, corresponding to the old Section 244, should be interpreted in as liberal a spirit as the language would reasonably admit of. I would therefore have little hesitation in holding that the word ' representative is not intended to be confined to legal representative but is used in the wider sense indicated in <CITATION> (1894) I.L.R.

18 Mad. 13 at 18. "It is a well-known principle that a purchaser in a <ORG>-sale represents the judgment-debtor to the extent of the right, title and interest as he had in the property purchased at the date of sale and represents the execution creditor, in so far as he had a right to bring such right, title and interest to sale in satisfaction of the decree." This principle was laid down by <NAME> and <NAME> in holding that the purchaser was a party claiming under the execution creditor within the meaning of Section 13 of the old Civil Procedure Code; and there was thus privity of law between the two. No doubt the learned judges with reference to some cases cited against that proposition dismissed them with the remark that they were cases under Section 244 and not under Section 13 but they were not considering any question under the former section. I do not see why the principle should not be applied to Section 47 of the Code of Civil Procedure as well.

9. The question however seems to be concluded by the ruling of <ORG> in <NAME> v. <NAME> (1892) I.L.R. 19 Cal. 683 where their Lordships say "It is of the utmost importance that all objections to the execution sale should be disposed of as cheaply and as speedily as possible and their Lordships are glad to find that the <ORG>s in India have not placed any narrow construction on the language of Section 244, and that when a question has arisen as to execution, discharge, or satisfaction, of the decree between the parties to the suit in which the decree was passed, the fact that the purchaser who is not a party to the suit, is interested in the result has never been held a bar to the application of the section ". Their Lordships in laying down the law in these terms observed that as the respondent was not represented before them they had examined the rulings of <ORG> for themselves; and they also mention that Mr. <NAME> who appeared for the appellant admitted before them that it was the common practice to make the auction-purchaser a party to an application for setting aside an execution-sale: in that case the appellant wanted by a suit to have the judicial sale of the Zamindari set aside on the ground of fraud on the part of the decree-holder and it was held that the question was determinable by virtue of Section 244 only by an order of the <ORG> executing the decree and not by a separate suit No doubt their Lordships do not say that the auction-purchaser would be a representative of either the judgment-debtor or the decree-holder within the meaning of Section 244 but they clearly intended to lay down that as a party most interested in the result he would be entitled to be heard in any application under Section 244 and that if the question was one of the character described therein, i.e., relating to the execution, discharge or satisfaction of the decree, then it must be determined by a proceeding under that section in which the auction-purchaser must be joined. In <NAME> and <NAME> (1901) I.L.R. 25 B. 631 abovementioned it is observed that <ORG> could not have intended to delete the words " arising between the parties to the suit in which the decree was passed or their representatives " from Section 244. But there seems to be no inconsistency if I may respectfully say so, in holding that that the question was one arising between the parties although an auction-purchaser who was most interested in the dispute was entitled and bound to ask for a decision by the court executing" the decree. Otherwise the result would be that the judgment-debtor and the decree-holder would be bound to have the question settled by the executing court and so far as the purchaser was concerned a fresh decision would have to be obtained by a separate suit.

10. The law, therefore, in my opinion, is that a person who has bought the property of the defendant in a suit since the institution of that suit, whether at a court auction held in execution of a money-decree passed in another suit or by private purchase, is entitled and bound to have any question relating to the execution, discharge or satisfaction of the decree decided under Section 47 by the court executing the decree when his interest is affected either by the decree itself or by the sale held in execution of that decree, and the same rule applies to a purchaser of the property under such sale whether he is the decree-holder himself or a stranger Whether the purchaser in the one case or the auction-purchaser in the other is to be regarded as the representative of the judgment-debtor or the decree-holder depends upon the nature of the question raised and who the contesting party is. This is in accordance with the view of the law adopted in <CITATION> (1912) I.L.R. 25 Mad 529 Sandhu Taraganar v. Hussain Sahib (1907) I.L.R. 28 Mad. 87 <CITATION> (1912) M.W.N. 513 Manicka Odayar v. Rajagopala Pillai (1907) I.L.R. 30 Mad. 507 <CITATION> (1897) I.L.R. 20 Mad. 378 <CITATION> (1904) I.L.R. 28 Mad. 117, <CITATION> (1910) I.L.R. 34. Mad. 450, Krishna Satapasti v. Sarasavattula Sambasiva Rao (1908) I.L.R. 31 Mad. 177 uppanna <CITATION> (1910) I.L.R. 34. Mad. 417 and the un-reported judgment in appeal No. 249 ot 1916 and is opposed to <CITATION> (1917) I.L.R. 4l Mad. 467, <CITATION> (1916) 3 L.W. 377 Arasayee Ammall v. <NAME> (1916) I.M.W.N. 287 and the latter rulings to that extent must be considered to be overruled.

Oldfield, J.

11. It is clear that the questions before us were framed on the assumption that the applicability of Section 47 of the Code of Civil Procedure to the cases before the Subordinate Judge can be disputed only on the ground that some of those who contested them were neither parties (that is not alleged) nor their representatives; and in particular that the stranger purchaser referred to in the third question at the Court-sale in connection with which these proceedings have arisen must be regarded as the representative of one party or other to the decree under execution, if Section 47 is to be applied. That assumption, I agree with the learned Chief Justice, must be rejected, because, as <ORG> held in <NAME> v. <NAME> (1892) I.L.R. 19 C. 683 the auction-purchaser's inclusion in the proceedings is justifiable on the ground of his interest in their result and without reference to his possession of a representative character. In fact there was in that case, as I understand it, no attempt to decide whether he had one; and, if the judgment in <NAME> v, <NAME> (1901) I.L.R. 25 Bom. 631 assumes such a decision, 1 would respectfully dissent from it. The Committee regarded it as sufficient to attract the application of Section 47 that a question relating to execution had arisen between the parties to the decree, without reference to the purchaser's inclusion in the proceedings. It need only be added that in order to the arising of such question, it is not essential that all the parties to the decree should actually be "impleaded in the proceedings, in which it is raised. For, although I deprecate the common practice, which is exemplified by the cases before us, of failing to implead in such proceedings either the decree-holder or the judgment-debtor, the nature of the question to be dealt with cannot be affected by their absence. In the cases before us the terms of the reference assume and it is evident that a question relating to the execution of the decree has arisen. It is therefore unnecessary to answer the third question referred directly or otherwise than by saying that the inclusion of the auction-purchaser as a party to proceedings relating to an auction-sale does not make Section 47, inapplicable to them.

12. The foregoing, of course, supplies no answer to the other questions referred, in which the representative character of the other contesting party in the cases before us, the purchaser in execution of a previous money-decree or his transferee, is in issue. For the connection of either with the proceedings in execution of the mortgage-decree, in which the dispute to be adjudicated on has arisen, is indirect and their interest in the result of these proceedings accrued to them independently of the sale, which they impugn. And accordingly, so far as they are concerned, their possession of a representative character must be established, if Section 47 is to be applied. It is not suggested that they can be regarded as the representatives of the holder of the decree under execution in the present proceedings since he had no connection with the <ORG>-sale and private sale under which they claim. The conclusion will therefore depend on whether they represent the judgment-debtor in these proceedings, who is also the judgment-debtor under the money-decree in execution of which that sale was held. It appeared, it may be observed, in the course of argument that the statement of the parties' characters in my order of reference was inaccurate, in as much as in all these appeals and not only in Appeal Against Order No. 260, the contesting party was the vendee of the decree-holder purchaser under the money-decree. This however authorizes hardly any restriction of the discussion of the general principle involved. For the three alternatives have still to be considered, that the purchaser represents (1) no one or (2) the judgment-debtor or (3) the money decree-holder, either because he in fact derived title from him or on other grounds.

13. It does not seem to me that any detailed discussion of the numerous decisions enumerated in the judgment just delivered is called for, since the conflict between them is for the most part beyond reconciliation. On two points however there is a distinct preponderance of authority in this <ORG>; and I therefore take it as settled law that the representative mentioned in Section 47 is not to be identified with a legal representative as defined in Section 2(11) and that a purchaser at <ORG>-auction represents some one, i. e., either the judgment-debtor or the decree-holder. For although the latter conclusion is contrary to the dictum of <NAME>,, in <NAME> v. <NAME> (1910) I.L.R. 34 M. 417 and the cases from unauthorized reports, in which it is followed, to which my order of reference refers, it is as I have pointed out there, unsupported by reference to principle and irreconcilable with another portion of the learned Judge's judgment and other earlier and later decisions.

14. The question is then whether the purchaser is the representative of the judgment-debtor or decree-holder; and it is sufficient for the present reference to deal with it as regards money-decrees only and without regard to the special and more difficult considerations arising in connection with sale under mortgage-decrees, by which the interest of the mortgagee-decree-holder as well as the equity of redemption is ordinarily transferred. As regards money-decrees it seems to me very difficult, if not impossible, to imagine a case, in which the purchaser can become the representative of the decree-holder. The dictum of <NAME>, J., in <CITATION> (1901) I.L.R. Mad. 529 was obiter, the fact that the auction-purchaser was the decree-holder affording, as he points out, an alternative ground for his decision; and the sale was in execution of a mortgage-decree and was therefore subject to the considerations above referred to. In <NAME> v. <NAME> (1904) I.L.R. 28 Mad. 87 the question arose regarding a purchaser from the decree-holder purchaser at the <ORG> sale; and in that case and <NAME> v. <NAME> the <ORG> sale was held under the decree, in the execution of which the application of Section 47 was proposed. Of the decisions relied on by <NAME>, J., in <NAME> v. <NAME> (1907) I.L.R. 30 Mad. 507 , <NAME> v. <NAME> (1892) I.L.R. 19 Cal. 683 has already been referred to, whilst <NAME> v. <NAME> (1896) I.L.R. 24 Cal. 62 does not, with all due deference, support him and <NAME> v. <NAME> (1898) I.L.R. 26 Cal. 250 deals with the transferee from a decree-holder of his decree, not of what he had purchased in execution of it. On the other hand, as the learned Chief Justice has shown' the purchaser at a <ORG> sale has been regarded,so far as appears, on general grounds,as the representative of the judgment-debtor in <NAME> v. <NAME> (1907) I.L.R 31 Mad. 177 and Subbamma v. <NAME> (1917) I.L.R. 41 Mad. 467. Apart from authority the fact recognized by <NAME>, in <CITATION> (1910) I.L.R. 34 M. 417 that the purchaser succeeds to the judgment-debtor's rights in the property sold, would ordinarily be sufficient to constitute him his representative in interest, at least in proceedings regarding that property; and the only argument suggested to the contrary, that the purchaser and decree-holder are both interested to support the sale, at which the purchase was made, appears to assume, what is not the case, that they both have or have had in succession an identical interest in the property sold.

15. Holding that the purchaser in execution of a money-decree is ordinarily the representative of the judgment-debtor, I consider next whether he is so, when as in the cases before us, he is also the decree-holder and when his position comes in question in a distinct proceedings. It may be pointed out that, where his position does not so come in question, the fact that he is the purchaser does not, consistently with the reference already made to <NAME> v. <NAME> (1892) I.L.R. 19 C. 683 require consideration. When it does, it seems to me that his character as decree-holder in one execution can have no effect on his position in another and that there is nothing in authority or on principle to debar us from treating him like any other stranger to the latter, no reason appearing for according him any other rights than a stranger purchaser from the judgment-debtor, whether by execution or private sale, would acquire.

16. The foregoing entails that the purchaser from a decree-holder purchaser under a money-decree is the representative of the judgment-debtor for the purpose of enquiry into a question relating to the execution of a distinct decree affecting the same property. I would answer the second question referred accordingly. An answer to the first question is not necessary.

<NAME>, J.

17. Before dealing with the questions referred a short statement of facts may not be out of place. The property in suit belongs to one <NAME>. One <NAME> sued him in O.S. No. 733 of 1915 and obtained a money-decree on the 6th of January 1916. In pursuance of that decree the properties were attached on the 21st of June 1916. They were sold on the 24th of October of the same year, purchased by the decree-holder, and the sale was confirmed on the 27th of November 1916. The property was delivered on the 12th of February 1917. The decree-holder purchaser sold the property privately on the 28th of March 1917 to the present appellant. That is the history of one stage of the proceedings. After the attachment under the money-decree one M.V. Nadan brought a suit on a mortgage executed by <NAME> on the 14th of July 1916. He obtained a preliminary decree on the 25th of September 1916. The final decree was on the 11th of July 1917. The property was sold on the 17th of December 1917; three items out of four were purchased by the decree-holder himself, and the 4th item by one <NAME> a stranger. The sale was confirmed on the 21st of January 1918. The purchasers under the mortgage-decree in endeavouring to take possession were obstructed by the purchaser under the money-decree. Thereupon they applied for the removal of the obstruction. The lower Court held that the purchase under the money-decree was affected by the doctrine of lis pendens as the sale was subsequent to the institution of the mortgage suit. The present appeals are by the representatives of the purchaser under the money-decree against the order of <ORG> directing possession to be given to the purchasers under the mortgage-decree.

18. A preliminary objection was taken that no appeal lies because the purchaser under the money-decree cannot be regarded as a representative of any of the parties to the decree. It was under these circumstances the three questions have been referred for the opinion of <ORG>.

19. Upon one question there was no contest. It was conceded by the counsel for the respondent that where the equity of redemption is purchased under a money decree, in matters relating to execution of a mortgage-decree, the auction-purchaser-under the money-decree will be the representative of the judgment-debtor in the mortgage-decree. This matter apart from concession has been definitely decided by the <ORG> of the Calcutta High <ORG> in <CITATION> (1896) I.L.R. 24 C. 62 and by the <ORG> of <ORG> in <NAME> v. Madho Lal (1904) I.L.R. 26 All. 447 . In the first of these decisions it was held that the decision of <ORG> in <NAME> v. <NAME> (1888) 15 Cal. 756 is only consistent with the view that the auction-purchaser is the representative of the judgment-debtor. Although the point was not expressly decided by the Board, I respectfully concur with the view taken in Calcutta that that decision is authority for the proposition enunciated. It is true in Bombay they have held that the auction-purchaser is the representative of neither the decree-holder nor of the judgment-debtor; and in the latest decision of that <ORG> in <NAME> v. <NAME> (1918) I.L.R. 42 B. 411 it was held that he is not a representative of the judgment-debtor. But having regard to the decisions of <ORG> and of the two <ORG> cases referred to by me, I am of opinion that the auction-purchaser represents the judgment-debtor in questions relating to the execution of decree in the second suit on the mortgage. But the question whether in the same suit he would be the representative of the judgment-debtor is not quite settled. I shall not discuss the authorities bearing thereon as in the view I am taking the discussion would be unnecessary. Before proceeding further I might state that the view that the auction-purchaser is the representative of the decree-holder has not been accepted in Calcutta or in Allahabad, It is certainly not the law in Bombay. In this Presidency the weight of authority is against making him representative of the decree-holder. <NAME> v. <NAME> (1908) I.L.R. 31 Mad. 177 <CITATION> (1910) I.L.R. 34 Mad. 417 <NAME> v. <NAME> (1917) I.L.R. 41 Mad. 467 take that view. On the other hand, we have <NAME> v. <NAME> (1907) I.L.R. 30 Mad. 507 and <CITATION> (1912) M.W.N. 513 in favour of regarding the auction-purchaser as the representative of the decree-holder. On principle it seems to me that this latter view is wrong. He is certainly not a representative-in-interest. Because beyond being the instrument for bringing the property of the judgment-debtor to sale, ordinarily speaking, a decree-holder does not transmit any of his rights to the auction-purchaser. I can understand his legal representative standing in his shoes. I can understand his assignee or other heir prosecuting his right. But I am unable to hold that an auction-purchaser represents the decree-holder. On the motion of the decree-holder the <ORG> proceeds to sell the property of the judgment-debtor and the principle of Caveat Emptor has been applied to purchases so made. The only provision in the Code of Civil Procedure which affects the decree-holder is that which provides for an application by the auction-purchaser for a refund of the money from the decree-holder in case the sale is set aside. I am therefore unable to accept those decisions which hold that he is a representative of the decree-holder, as correct.

20. But I think all these difficulties may be overcome by a legitimate application of the principle enunciated in <NAME> v. <NAME> (1892) I.L.R. 19 Cal. 683 . In that case a suit was brought by a judgment-debtor for setting aside the sale of his property on the ground that the decree-holder acted fraudulently. The auction-purchaser at the execution sale was made a defendant. When the matter finally went before <ORG> their Lordships said: "Mr. <NAME>, who appeared for the appellants, admitted that the question at issue was one relating to ' execution discharge, or satisfaction of the decree.' But he argued with much ingenuity that the suit, was not barred by the provisions of Section 244, because the question concerned the auction-purchasers as much as anybody (the italics are mine) and therefore, as he contended, it could not properly be described as a question " arising between the parties to the suit in which the decree was passed." Their Lordships say further on. " It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships are glad to find that the <ORG> in India have not placed any narrow construction on the language of Section 244, and that, when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit (the italics are mine) in which a decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the section." This statement shows that what the courts have to see is whether the issues arising for decision relate (a) to execution; (b) to deciding rival rights of the decree-holder and of the judgment-debtor, in the subject-matter. If those conditions are satisfied, the fact that others are interested in the result of the decision should not affect the jurisdiction and competency of the executing court to deal with the matter. Their Lordships lay special emphasis on the cheapness and speediness of remedies expected of an application in execution. If we turn to the language of Section 47 which corresponds to Section 244 of the Code of 1882 the same result would appear to follow. The section lays down only two conditions which have been insisted on by <ORG>. It does not describe who the parties to the execution application should be. The obvious object of the legislature was that once a matter has been adjudicated upon by a regular trial, question affecting the same matter should as far as possible be dealt with in the execution department. In very many cases the same Judicial Officer may have to deal with the matters in execution: that would be a distinct advantage. Further the parties will be saved considerable expense if the question is dealt with in execution. I am therefore of opinion that as extended an application should be given to the rule enunciated by <ORG> as is consistent with the language of Section 47. <CITATION> (1918) I.L.R. 41 Mad. 403 another decision of <ORG> they reiterated the principle enunciated in <NAME> v. <NAME> (1892) I.L.R. 19 Cal. 683 . <CITATION> (1982) I.L.R. 18 Mad 13 this view seems to have found favour with the learned Judges. In <NAME> v. Doshi Mulji (1901) I.L.R. 25 Bom. 631 there are observations of Sir <NAME> which may be regarded as enunciating the same principle. The rule itself is so eminently a workable one and steers clear of many difficulties which have sprung round the application of Section 47 that in my opinion, both the letter of the law and the reason of it demand that this principle should be given wide effect by <ORG> in this country. I would therefore answer all the questions referred to us by saying that if the points for decision in an application before the executing <ORG> relate to the rival rights of the decree-holder and of the judgment-debtor and also relate to execution, discharge, or satisfaction of the decree it should be dealt with in execution and not by separate suit. The right of appeal and second appeal will be governed by the same rules as affect application under Section 47.


PETITIONER: SAMPAT PRAKASH Vs. RESPONDENT: STATE OF JAMMU & KASHMIR DATE OF JUDGMENT: 06/02/1969 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. RAMASWAMI, V. GROVER, A.N. CITATION: 1969 AIR 1153 1969 SCR (3) 574 1969 SCC (1) 562 CITATOR INFO : R 1971 SC1217 (2) RF 1973 SC 897 (7) RF 1981 SC 746 (3,9) F 1981 SC 814 (7) R 1982 SC 710 (109) RF 1982 SC1029 (14) ACT: Jammu and Kashmir Preventive Detention Act (J & K 13 of 1964) as amended by Amending Act 8 of 1967, ss. 8(2) & 10- Order of detention without reference to <ORG>-Order revoked at the end of 6 months and fresh order passed with new grounds-If mala fide-Indefiniteness due to withholding of facts under s. 8(2) -If order vague. HEADNOTE: On March 16, 1968 the petitioner was arrested and ordered to be detained under s. 3(1) (a) (1) of the Jammu and Kashmir Preventive Detention Act, 1964. On September 16, 1968, the order was revoked and another order was served on him. on September 24, 1968 the petitioner was served, with the grounds for the fresh order of detention His case was referred to the <ORG> on October 26, 1968 and the <ORG> recommended his detention. Under s. 10 of the Act, as amended by s. 13A , of the Amending Act 8 of 1967, the Government is required to refer a case to the <ORG> within 60 days from the date of detention: In a petition for the issue of a writ of habeas corpus it was contended that : (1) Since the case of,, the petitioner was not referred to the <ORG> within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted mala fide in making the detention order; (3) The grounds in support of the order were vague and indefinite; and (4) 'Mat his being subjected to solitary confinement while in detention was illegal. HELD : (1) There was no reason for not accepting the statement of the <ORG> that it was not intended, when the detention order of March 16, 1968 was passed that the petitioner was to be kept in detention for a period longer than 6 months. Therefore, his case fell within the terms of s.13A(1)which provides that 'notwithstanding anything, contained in this Act a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisioiry <ORG>. In the present case the petitioner was detained under the first order only for a period of 6 months when that order was revoked by the second order of detention. [579 C] (2)The grounds for the two-orders are not identical; When the first Order was passed the petitioner was not intended to be detained for a period exceeding 6 months. Thereafter, in consequence of further information that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order, the Government had to issue a fresh order. Therefore. it could not be said that the Government acted mala fide inmaking either the original or the fresh order. [579 G-H; 580 A-B] (3) The order clearly stated facts relevant to the grounds of detention, except those which Government considered to be against public interest to disclose. Under s. 8 (2) it is open to the Government to withhold such facts. Because of the withholding of such facts the grounds in the order of detention could not be said to. be vague or indefinite. [580 C-E] 575 (4) Notwithstanding the broad principles of the rule of law, equality and liberty of, the individual enshrined in the Constitution, it tolerates on account 1 the peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the Power to detain is not a power to publish, and the restrictions placed must, consistently with the effectiveness of detention, be minimal. Since a detenu is not a convict he cannot be subjected to solitary confinement.  JUDGMENT:

ORIGINAL JURISDICTION:, Writ Petition No. 3 61 of 1968. Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpus.

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

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J. On March 16, 1968 the petitioner was arrested and ordered to be detained under S. 3(1) (,a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964. On March 26, 1968, he was served- with the grounds of detention. On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court. The petition was rejected by this Court on October 10, 1968. In the meanwhile the order dated March 16 1968, was revoked on September 16, 1968, and another order was served upon the petitioner on the same day. On September 24, 1.968, he was served with the grounds of detention for the fresh order, and his case was referred to <ORG> on October 26, 1968. On October 30, 1968, <ORG> recommended that the petitioner. be detained. The petitioner then- moved this petition on November 11, 1968 a writ of habeas corpus.

Two contentions in the nature of preliminary objections were raised in support of the petition. It was urged that (1) the petitioner was, in spite of a specific request, denied a personal hearing before <ORG>, and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention. An affidavit is filed by the Secretary to <ORG> affirming that the petitioner made no request for production before the <ORG> for a personal hearing. He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act. In view of this affidavit, counsel for the petitioner did not press he two preliminary contentions.

Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory board till September 24, 1968 and on that account his detention was invalid, and he could not be continued in detention thereafter;(2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By Art. 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention But Art. 35 (c) in its application to the State of Jammu & Kashmir provides "no law with respect to preventive detention made by the <ORG> of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part, but any such law shall, to the extent of such in-consistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof."

The protection of cls. (5), (7) of Art. 22 insofar the, provision are inconsistent therewith does not avail the petitioner. By s.3 <ORG> is entitled, if satisfied with respect to any person that with a view to Preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct that such person be detained. By s. 8 it is provided :

"(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

Section 9 provides for the constitution of <ORG> and S. 10 deals with references to the <ORG>.that section the <ORG> is required within thirty days from the date of detention under the order to place before the <ORG> the grounds on which the order has been made and the representation, it any, made by the person affected by the order. By s. 12 it is provided:

"(1) In any case where <ORG> has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

(2) In any case where <ORG> has rePorted that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.,, Section 13 prescribes the maximum, period of detention for which any person may be detained in pursuance of any detention order. Section 13A which was added by Act 8 of 1967 enables the <ORG> to detain a person for a period of two years. Section 13A provides:

"(1) Notwithstanding anything contained in this Act, any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances may be detained for a period longer than three months, but not longer than six months, from the date of detention, without obtaining the opinion of <ORG>, namely, when such person has been detained with a view to preventing him from acting in any manner prejudicial to (i) the 'security of the State; (ii) the maintenance of public order;

Provided that where any such person has been detained with a view to Preventing him from acting in any manner prejudicial to the security of the State grounds on which the detention order has been made are not communicated to him under the proviso to section 8 (1), such person may be detained for a period of two years from the date of detention without obtaining the opinion of <ORG>.

(2) In the case of every person detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, the provisions of this Act shall have effect subject to the following modifications, namely:-

(a) in sub-section (3) of section 3 , for the words 'twelve days', the words 'twenty-four days' shall be substituted.

(b) in sub-section (1) of section 8 ,-

(i) for the words 'five days' the words 'ten day's shall be substituted;

(ii) the following proviso shall be inserted at the end, namely Provided that nothing in this sub-section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the <ORG>, if the authority making the order, by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him. the grounds on which the detention order has been made.'

(c) in section 10 ,-

(i) after the words, 'In every case where a detention order has been made under this Act' occurring in the beginning, the brackets and words '[other than a case to which the proviso to section 8(1) applies]' shall be inserted; and

(ii) for the words 'thirty days' the words 'sixty days' shall be substituted,

(b) in section 1  1 , for the words 'ten weeks' the words five months shall be substituted."

The effect of s. 13A insofar as it is relevant to this case is to authorise the <ORG> in the cases specified to detain a person without obtaining the opinion of <ORG>, if he is to be detained for a period longer than three months but not longer than six months from the date of detention. By sub-s. (2) the periods prescribed for the various steps under the Act are doubled; for making report to the District Magistrate when he exercises the power of detention the period is extended to twenty-four days : for the Government to serve the grounds of the order under s. 8(1) the period is extended to ten days; and for <ORG> to make its report in cases covered by s. 13A the period is extended to sixty days. Again by the proviso to s. 8(1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has been made, Relying upon the terms of s. 10(1) as amended by s. 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and' since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised. This argu-

<NAME>

ment is plainly unsustainable. Section 13A opens with words "Notwithstanding anything contained in this Act", and provides that a person may be detained for a period not longer than six months without obtaining the opinion of <ORG>. It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to <ORG>, because the period for which he is to. be detained is not to exceed six months. Section 13A is an exception to S. 10 as well as to all other relevant provisions of the Act, and in case of conflicts. 13A prevails. The, petitioner was detained for six months from March 16,.1968 to September 16, 1968 without obtaining the opinion of <ORG>. We will be justified in accepting the contention of the <ORG> that it was intended, when the order was pass detaining the petitioner that he was not to be kept in detention for a period longer than six months and his case fell within the terms of s. 13A (1) and on that account it was not necessary to obtain the opinion of <ORG>.

It was said by counsel for the petitioner that the plea of the <ORG> was inconsistent with the course of events, and the <ORG> Government had taken shelter under the provisions of S. 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or 'within six months. The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order. The only plea raised by the petitioner in support of that plea is in paragraph- 1 5 of the p etition, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the <ORG> to suppress the peaceful trade union movement, and that the fresh order of detention was passed mala fide. No particulars are furnished which justify an inference that in resorting to the provisions of the Act the Government's action was actuated by ill-will or taken for some collateral purpose.

Reliance was also placed upon the recitals 'in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed. On comparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the, Government unless they resort to violence that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the 'Petitioner was intended to be detained for a period of six months and thereafter In consequence of further information the Government was required to issue a fresh order, the original order ,or the fresh order was illegal.

The plea that the grounds were vague and indefinite cannot also be accepted. It is recited in the order that the Petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the <ORG> considered to be against public interest to disclose. By virtue of sub-s. (2) of s. 8 , it is open to the <ORG> not to disclose,, facts which it considers to be ag ainst the public interest to disclose. In the present case the order clearly states that' the <ORG> were of the view that facts relevant to the grounds except those which the <ORG> considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But, that is obviously because facts which in the view of the <ORG>, were against public interest to disclose, were withheld from the petitioner. The <ORG> have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be said to be vague and indefinite.

One more question needs to be dealt with. The petitioner who was present in the <ORG> at the time 'of hearing of this petition complained that he is subjected to solitary confinement while in detention. It must be emphasized that a, detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the <ORG> demand that restrictions shall be placed upon 'the liberty of a citizen curbing his future activities The restrictions so placed must, consistently with the effectiveness of detention, be minimal.

The petition fails and is dismissed.

V.P.S. Petition dismissed.