Patna High Court
Kanai Lal Paul And Ishwari Lal And Ors. vs The Province Of Bihar on 23 March, 1949
Equivalent citations: 1949CRILJ730, AIR 1949 PATNA 369(1)
ORDER Agarwala, C.J.
1. These are applications under Section 491, Criminal P. C,, by persons who are under detention in consequence of Orders made against them by the Provincial Government under Section 2 (l) (a), Bihar Maintenance of Public Order Act, 1947. In all these cases the detenus were arrested in the Chota Nagpur Division. A number of questions have been raised affecting the legality of their detention. The first arises by reason of the fact that Chota Nagpur is an area to which chap, v of part III, Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, applies.
2. By Section (2), the Bihar Maintenance of Public Order Act is declared to extend to the whole of the Province of Bihar, and Sub-section (3) declares that it shall remain in force for a period of one year from the date of its commencement. To this sub section, however, there is the following proviso:
Provided that the Provincial Government may, by Notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the Notification.
This Act received the assent of the Governor. General on 15th March 1947. The Governor-General's assent was published is the Bihar Gazette (Extra-Ordinary) of I6fch March 1947. Although sub.s. (2) declares that the Act extends to the whole of the Province of Bihar, its actual operation within the Province of Bihar is limited by Section 92(i), Government of India Act, which provides:
...Notwithstanding anything in this Act, no Act of the Dominion Legislature, Cr of the Provincial Legislature, shall apply to an excluded area or a partially excluded area unless the Governor, by Public Notification, so directs and the Governor, in giving such a direction with respect to any Act, may direct that the Act Shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.
By Notification No. 900 published in the Bihar Gazette (Extra Ordinary) dated 16th March 1947, the Bihar Maintenance of Public Order Act was extended to Chota Nagpur.
3. By Notification No. 8734, dated 11th March 19d8, and published in the Bihar Gazette (Extra Ordinary) of that date the Provincial Govern, ment, in exercise of the powers conferred by the proviso to B, 1 (3), Bihar Maintenance of Public Order Act, extended its operation for a further period of one year, that is to say, from 16th March 1948 to 15th March 1949. Up to 6th March. 1949, no notification had been issued by the Governor under 8. 92, Government of India Act, keeping the Act in force in Chota Nagpur after 15th March 1948. In all these cases the Order of the Provincial Government for the detention of the petitioners was made in February 1949. There being no notification by the Governor extending the life of the Act in Chota Nagpur beyond 15th March 1948, it was contended that the arrest and detention of the petitioners was illegal.
4. In Support of the legality of the Orders of detention the learned Advocate General contended that since the notification issued by the Governor under B. 92, extending the Act to Chota Nagpur, did so without modifying the Act in any way, it follows that the proviso to B. l (3) was also applied to Chota Nagpur. If that were so, the effect would be that the Provincial Government could, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that the Act should remain in force for a further period of one year even in the Chota Nagpur Division, Such a construction, however, appears to me to violate the language and spirit of Section 92, Government of India Act. By that section the operation of Acts of the Dominion and Provincial Legislatures are expressly excluded in excluded areas and partially excluded areas unless the Governor by a Public notification directs that they shall operate in those areas.. For reasons of State the Legislature has confirmed to the Governor the function of legislating for excluded and partially excluded areas. That being patently the intention of the Legislature, and no express power having been given to the Governor to delegate the right to legislate for excluded and partially excluded areas, it follows that he cannot confer on the Provincial Govern, ment the right to legislate for such areas. But if the contention of the Advocate-General be accepted that the proviso to Section 1 (3), Bihar Maintenance of Public Order Act also applies to Chota Nagpur, the result will be that the life of the Act will be extended in Chota Nagpur, not by the Governor but by the Provincial Government. Such a result would defeat the clearly expressed intention of Section 92, Government of India Act. It seems to me that in so far as the Governor Originally purported to extend the whole Act of Chota Nagpur on 16th March 1947, he acted beyond his powers so far as the first proviso to Section 1 (8) of the Act is concerned, and that the notification by which he purported to do so cannot be regarded as conferring upon the Provincial Government the power to extend the life 'of the Act in Chota Nagpur beyond 15th March 1948. On 7th March, however, the Governor issued the following notification:
No. 3430-C. Whereas doubts have arisen as to the applicability to the partially excluded areas in the Province of Bihar of Notification No. 8784-C, dated 11th March 1948, extending the life of the Bihar Maintenance of Public Order Act, 1947 (Bihar Act V [5] of 1947) for a farther period of one year from 16th March 1948:
Now, therefore, the Governor of Bihar, in exercise of the powers conferred by Sub-section (1) of Section 92, Government of India Act, 1935, is pleased to direct that the said Bihar Maintenance of Public Order Act shall apply and shall always be deemed to have applied to the Chota. Nagpur Division and to the Santal Parganas District with effect from 16th March 1948.
By Order of the Governor of Bihar, Sd. L. P. Singh, Chief Secretary to Government.
The validity of this notification and of No. 90O of 16th March 1947, is challenged on the ground that they were signed by the Chief Secretary and not by the Governor himself. It is not disputed that if the action of the Governor under Section 92 in directing an Act of the Provincial Legislature to apply to an excluded Cr partially excluded area, be an executive act, both the notifications have been properly authenticated in the manner required by Section 59 of the Constitution, but it is contended that the Governor's function in this respect is legislative and, therefore, Section 69 has no application. It was held in Chatturam v. Commissioner of Income tax 26 Pat. 442 at p. 447 : A. I. R. (84) 1947 F. C. 82 that the Governor's function under Section 92 is legislative. Section 59 appears in Part III, chap. II, Constitution Act, which is entitled "The Provincial Executive." Sub-section (l) directs that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. Sub-sections (a) and (8) are as follows:
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an Order or instrument which is so authenticated shall not be called in question on the ground that it is not an Order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Provincial' Government, and for the allocation among ministers of the said business.
If sub. S. (2) does not apply to a legislative act of the Governor, then there is no provision to the Constitution regulating the manner in which the Governor's legislative acts shall be authenticated. We then have to fall back on the presumption in Illus, (e) to B. 114, Evidence Act that "official acts have been regularly performed." Both the notifications in question purport to be signed by the Chief Secretary "By Order of the Governor of Bihar" and in the absence of evidence to the contrary it must be presumed that they were co signed and that this was done in consequence of the Governor having directed this Act to apply to the Chota Nagpur Division. [5] With respect to the notification of 7th March 1949, it was further contended that the Governor has no power under Section 92 to create a penal liability with retrospective effect. Apart from the question whether an Act authorising the detention of a person with a view to preventing him from acting in. any manner prejudicial to the Public safety and the maintenance of Public Order can be regarded as a penal Act, no authority was cited for the proposition contended for. The Constitution contains no limitation on the power of the Provincial Legislature to enact a penal Statute with retrospective effect ; see The United Provinces. Mt. AUqa Begum, 1940 P. C. B. 110 at p. 133 : A.I.R. (28) 1941 P. C. 16), where the learned Chief Justice observed:
The burden of proving that the Indian legislatures are subject to a strange and unusual prohibition against retrospective legislation must certainly be upon those who assert it.
(See also the observations of Varadachariar J. at pages 178, 179). For excluded and partially excluded areas the Governor is the legislative authority. Prima facie, he may legislate retrospectively for such areas, for he could extend to them Acts of the Dominion or Provincial Legislatures which have retrospective effect. Is there, however, anything in the language of Section 92, which limits this power ? That section declares that no Act of the Dominion or Provincial Legislature shall apply to an excluded or partially excluded area "unless the Governor, by Public notification, so directs." If the meaning of the Word "unless" in this context be "unless and until" an Act of the Dominion or Provincial Legislature might possibly be applicable to an excluded Cr partially excluded area only from the date on which the Governor so directs by Public notification. According to the dictionary, its primary meaning is "If it were not that; if it be not the case that; were it not for the fact that; except." In this sense it is a conjunction. In its secondary sense "unless" means "for fear that; in case ; lest." In a third sense, by omission of a verb, it has the force of a preposition and means "except; but for," e. g. "Here nothing breeds unless the mighty owl." (Shakespeare). Ab a preposition "except" and "unless" are often interchangeable There are many instances of this in the authorised version of the Bible, e. g. "Except thou make thyself a prince over us" (Numbers, XVI, 18). At no time does the Word appear to have had the connotation of "until." On the other hand it is used to create a condition precedent. In Order that an Act of the Dominion Cr Provincial Government shall apply to an excluded Cr partially excluded area the only condition that has to be fulfilled is the Publication of a notification by the Governor, He is the sole legislative authority in this regard, and I can find nothing in Sub-section (l), which limits his power to legislate only prospectively any more than there is anything in Sub-section (2), which limits his power in this regard when he legislates by regulation. It follows that in ray view the effect of the notification of 7th March 1949, is that the Bihar Maintenance of Public Order Act must be deemed to have continued in operation in Chota Nagpur after 16th March 1948, with the consequential result that the Orders for the detention of the petitioners made after that date are intra vires.
6. The next contention was that the Bihar Maintenance of Public Order Act of 1947 being; an Act to which the assent of the Governor-General was required and obtained, an Order of the Governor extending it to an excluded area Cr partially excluded area also requires the assent of the Governor-General. It is sufficient to say that there is no such limitation indicated in Section 92, Constitution Act.
7. The competency of the Provincial Legislature to enact the Bihar Maintenance of Public Order Act, 1947, is also challenged on the ground that legislation to as3ure Public safety is not included in List II of the Constitution, and is, therefore, outside the ambit of the Provincial Legislature's powers. A similar argument was raised in Nek Mohammad v. The Province of Bihar A.I.R. (86) 1949 pat. l : 60 cr. L. J. 44 and was negatived by a Pull Bench of this-Court.
8. The next contention was based on the Language of Section 2 (l), Bihar Maintenance of Public Order Act, which provides:
The Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the Public safety and the maintenance of Public Order it is necessary so to do, may make an Order directing that he be detained.
It was contended that the term "Provincial Government" in this section means the Governor, and, therefore, that it is the Governor himself who must be satisfied before action can be taken under the section. Reference was made to the decision in Cri. Misc. No. 58.7 of 1948, decided on 6th January 1S49, where it was pointed out that the Provincial Government means "the Governor." In each of the cases before us the Order of detention states: "Whereas the Governor is satisfied," and is properly authenticated in the manner required by Section 59 of the Constitution. The onus, therefore, of proving that the Governor was not satisfied lies on the petitioners who assert the contrary. During the course of the hearing an application was made to call the Home Minister of the Provincial Government for the purposes of ascertaining from him whether the Governor was in fact satisfied Cr not. An affidavit was filed in support of this application, but the only ground stated for calling the Home Minister was that the petitioners believed that the Governor had not in fact been satisfied. The deponent did not state any facts on which he based his belief. The application was, therefore, not granted.
9. Section 4 of the Act requires that when an Order of detention baa been made under Section 2 (l) (a), the authority making the Order shall, as soon as may be after the Order is made, communicate to the person affected thereby the grounds on which the Order has been made against him and such other particulars as are, in the opinion of Such authority, sufficient to enable him to make, if he wishes, a .representation against the Older. The view consistently taken in this Court has been that failure on the part of the authority making the Order to furnish grounds of detention in Order to enable the detenu to make a representation under Section 4 renders the continued detention of the detenu un-lawful. The hearing of these rules began on 3rd March. In criminal Miscellaneous No. 120 of 1949 the grounds were not served until 4th March. In all the other cases grounds had been served before the rules were heard, although they were not served on the petitioners until rules had been issued to show cause why the petitioners should not be set at liberty. The section does not provide any fixed period within which the grounds of detention must be served on the detenu, but requires that they should be served as soon as may be after the Order of detention is made. The length of time which elapses between the Order of detention and service of the grounds of detention must necessarily vary according to the circumstances of each case, I am not satisfied with regard to any of the present cases that there was any undue delay in serving the grounds of detention. The reason why the grounds of detention were not served until after the rules had been issued by this Court appears to be that the present petitioners acted with unusual promtitude in applying for rules.
10. On the merits it has been contended that the grounds served on the petitioners are inadequate for the purpose of enabling them to make an effective representation under Section 4 of the Act. The view taken by this Court consistently has been that the particulars furnished to the detenu must be such as to enable him to make an effective representation against his detention and that vogue grounds of detention are insufficient compliance with the requirements of the section. Generally speaking, the grounds furnished to the various petitioners before us allege that they are active members of a group which has been Organized to assist the Communist Party to carry out a plan to spread disaffection and disorder among the labourers of the industrial area, that the Communist Party, in co. operation with this group, had decided to prepare the grounds for armed rebellion, and that the petitioners had either attended meetings at which it was resolved to work along these lines Cr were co-operating with people who had decided to do so. In some instances the specific dates on which these decisions were taken and the place where meetings were held has been mentioned. I have scrutinized the grounds is each case and am satisfied that, except in one case, furnish the petitioners with sufficient particulars to enable them to make effective representations against their detention should they desire to do so. The exception is provided by the case of Kanai Lai Paul (criminal Miscellaneous No. 103 of 1949). The ground 3 of detention served on him are as follows:
No. 932 C. I.: In pursuance of Section 4, Bihar Maintenance of Public Order Act, 1947, Shri Kanai Lal Pal son of Bamcharan (?) Pal of Dubda, P. S. Gatheta, Midnapur and Kirkent P. S. Kenduadib, Dhanbad is informed that be baa been Ordered to be detained on the following grounds;.
Certain representatives of the Communist Part; of India and of the 'Revolted Group' of the Revolutionary Communist Party of India decided in a meeting held at Mihijam in September 1948 to bring about an armed revolution in the country as quickly as possible and to mate preparations for sabotaging lines of communication and vital installations, to bring about disaffection among the industrial labourers to harass the police in every way possible and to murder a military and police officer, if necessary. These decisions were ratified in a meeting held at Lachipur (Burdwan) on 25th October 1948. In pursuance of. these decisions the members of the 'Revolted Group' of the Revolutionary Communist Party of India and the Communist Party of India have been active in the industrial area of Dhaabad and Jamahedpur, Skri Kanai Lal Pal who Is a practising lawyer of Dhanbad is closely associated with this group and baa been secretly assisting its subversive activities. Some of the underground workers of this group were found moving in Mihijam on the last January 1949 in a jeep bearing No. BRR 2436 of which Shri Kanai Lal Pal took delivery from the police in June 1948. Again on 21st January 1949 he personally attended one of their secret party meeting in a village in the district of Burdwan. His name transpired in some suspicious correspondence recovered by the police while searching the house of Bhola Mukherji, and Rameshwar Agarwal, both of whom are active members of the Communist Party of India and who have been detained.
In the circumstances the Provincial Government are satisfied that if he is allowed to remain at large he will indulge in his activities to the prejudice of Public safety and the maintenance of Public Order.
Shri Kanai Lal Pal is informed that he has a right to make a representation in writing against the Order under which ha is detained. His representation, if any, may be addressed to the Under Secretary to Government, Political Department, Special Section and forwarded through the Superintendent of the Jail.
By Order of the Governor of Bihar, Sd. Illegible Under Secretary to Government.
It will be observed that this petitioner is a practising lawyer and the first allegation against him is that he is closely associated with the "Revolted Group" of the Revolutionary Communist Party which is committed to the sabotaging of communications and vital installations and to spreading disaffection among industrial workers, harassing the police and murdering military and police officers. A party of branch of a party which has Such aims may nevertheless consult a lawyer, and the latter may be called upon to give legal advice when so consulted, even though he does not share the aims of his client. Merely alleging that the lawyer has been secretly assisting its subversive activities, without further particulars of what assistance was being rendered, does not carry the matter any further. A lawyer's advice to his clients is usually confidential. There is no indication of what kind of assistance other than legal advice was rendered by this petitioner.
11. It was then asserted that some of the underground workers of the Group in question were found in Mihijam in January, 1949, in a jeep bearing No. BRR 2436, of which the petitioner took delivery from the police in June 1948. On behalf of the petitioner a petition supported by an affidavit has' been filed stating that he acted as a pleader for one Sadhan Gupta, a labour leader, in a number of cases in one of which this jeep was attached, and that when the Court Ordered the release of the jeep, the petitioner took delivery of it on behalf of his client, and, under instructions from the latter, handed it over to a co-worker of Sadhan Gupta belonging to the Hindusthan Khan Mazdoor Sabha. These statements have not been controverted, and would indicate that in respect of the car the petitioner was not doing anything more than would be expected of any lawyer in the circumstances.
12. The next allegation against the petitioner is that on 3lst January 1949, he personally attended one of the secret party meetings in a village in the district of Burdwan. The affidavit in reply states that on 21st January 1949, the petitioner was engaged in Dhanbad with Mr. S. N. Mukharji, Barrister .at law of the Calcutta High Court, in consultation in a criminal case pending at Dhanbad, and that on the same day the petitioner telephoned to the Kenduadih police station in connection with a permit to celebrate Subhas Chandra Bose's birthday at Jharia on 23rd, and that the permit was received from the police on the 22nd. These statements, which have not been controverted, would appear to indicate that on 31st January 1949, the petitioner was not present at the meeting held in the Burdwan district. SO-Cr. L, J. 98 & 94
13. Lastly, it is alleged that the petitioner's name transpired in some suspicious correspondence recovered by the police while searching the house of Bhola Mukherji and Rameshwar Agarwala, both of whom are alleged to be active members of the Communist Party of India, and who are under detention. Here is an instance in which one would have expected some statement of the context in which the petitioner's name transpired in the correspondence referred to. If it was mentioned merely as that of a lawyer who was being consulted, the mention of the name in the correspondence would clearly be innocuous. Not only has this omission deprived the petitioner of his right to explain the mention of his name in the correspondence recovered by the police, but the incident of the jeep has clearly carried considerable weight in directing suspicion to the petitioner, although, in view of the statements in the petitioner's affidavit, it is clear that his conduct with regard to the jeep is susceptible of an innocent explanation. It is impossible to say how far the petitioner's connection with the jeep has influenced the decision to Order his detention. I am not satisfied in the case of this petitioner that he has been furnished with all the materials to which he was entitled for the purpose of enabling him to make an effective representation against the Order for his detention, and would, therefore, direct that he be released unless there is some valid Order for his detention in operation.
14. I would dismiss the remaining applications.
15. As there is a difference of opinion between my learned brother and myself in Cr. Misc. Cases 104, 105, 106, 120, 88, 87 and 131' these cases will be placed before Meredith J. to be heard under Section 429, Criminal P. C. As we are agreed in cr. M. C. 103 Kanai Lal Paul will be released.
Nageshwar Prasad, J.
16. These eight applications under Section 491, Criminal P. C. relate to detentions under Section 2 (1) (a), Bihar Maintenance of Public Order Act, 1947, of persons who are stated by the Government to be either members of the Communist Party, Cr as members of a group which has revolted from the Communist Party, Cr as sympathisers and workers on behalf: of this Party. All these detentions are of persons who are alleged to have been working in the districts of Chota Nagpur which are excluded Cr partially excluded areas under the Government of India Act. If these applications had to be decided on the merits of the charges laid by the Provincial Government against these detenus, I would, on a perusal of the reasons given by the Provincial Government, for detaining such persons, have dismissed these applications, except in the case of Kanai Lal Paul, a pleader (in Cr. Misc. case No. 103/49). In the case of this Kanai Lal Paul, I am not satisfied that the reasons given by the Government for detaining him, as provided by Section 4, Bihar Maintenance of Public Order Act, are so lucid and clear that they give sufficient notice to the detenu to make a representation to the Provincial Government, -which right is given to him by that section. Ambiguous language has been used in the grounds served on the petitioner in pursuance of Section 4, Bihar Maintenance of Public Order Act, 1947. After referring to the illegal and subversive activities of the Communist Party of India and to the Revolted Groups of the Revolutionary Communist Party of India, the grounds say that "Shri Kanai Lal Paul, who is a practising lawyer of Dhanbad, is closely associated with this Group and has been secretly assisting its subversive activities." This charge hardly conveys a definite accusation against the detenu that his association with this group is of anything but a professional type and the assistance secretly rendered by him may be nothing worse than pleader's work for his client. The grounds do not clearly say how be is secretly assisting its Subversive activities. It may well be that as a lawyer Cr as a legal advisery 'for his clients be is putting up defence for them, Cr showing them the legal way of defending themselves Cr of countering restrictive Orders passed Cr about to be passed against them. Such activities, though they may assist the Group, can hardly be said to be an illegal activity which could be con-template in law as being ground for detention of a pleader Cr an advocate. Legal advice has to be in its very nature secret. Then it is said in the grounds that on 21st January 1949 he personally attended one of their secret party meetings in a village in the district of Burdwan. Here again there is no allegation that in that secret party meeting anything else was discussed than the best method of defending themselves in a Court of law for which a pleader's advice and assistance may be necessary. It is noticeable that in the long grounds served on the petitioner, there is no allegation anywhere that he is a member of the Communist Party of India Cr that he is working as a Communist. Another allegation against him is that his name has transpired in some suspicious correspondence recovered by the Police while searching the house of Bhola Mukherjee and Rameshwar Agarwal, both of whom are active members of the Communist Party of India, and who have been detained. Again, it is not clear whether his name has transpired in that correspondence as a pleader who has given advice Cr whose advice is to be taken Cr in any lawless connection. As regards the allegation that he took delivery of a jeep which was used by Communist workers, it has to be remembered that it is a pleader's duty to take delivery of articles seized by the police and produced in Court after -termination of the trial and to band over such an article to his client. He cannot be held responsible if sub-sequent to the delivery that article is used for any illegal or nefarious purpose. There is no other allegation against this detenu and, to my mind, the grounds served on him are not definite1 and clear and can hardly enable the detenu to make a representation. In this light, I would Order his release.
17. In other cases allegations are clear and they are accused of being members of the Communist Party Cr of being its active sympathisers and workers and as_ working for armed revolt Cr sabotage of the productive and administrative machinery of the country. To my mind, when this sort of information is available to the Provincial Government and it is satisfied that their detention is necessary in the larger interests of society, I would refuse to Order their release under Section 491, Criminal P. C., if there were no other legal obstacles to their detention.
18. A long argument has been addressed to us by Mr. Ghosh, the learned advocate for the detenus, challenging the validity of the Order of detention on various grounds. The first ground is that a Governor, under the General Clauses Act, is the proper authority who has to consider the case of detenus when the law says that the Provincial Government can make the Order for detention, It is contended that the Governor, personally, should have applied his mind to their cases before making an Order of detention and that files are not sent to the Governor for such purposes and that he, therefore, aid not apply his mind to the case of each individual detenu before an Order for his detention was made. We have no materials to Judge here whether files are sent to the Governor for such purposes Cr not and whether the Governor has applied his mind to the case of each detenu before an Order for his detention was made in his name. The affidavit on behalf of the detenus on this point is not clear. They express their belief that the Governor did not apply his mind and they do not mention therein any basis for their belief. We cannot decide a thing on such beliefs, especially when the- law presumes that all official acts have been regularly done {vide Section 114, Evidence Act), We could not possibly accede to the petition of the detenus for examining the Home Minister when the affidavit is of such a vague and indefinite type. The presumption in the cage is that these acts of passing the Order for detention have been legally and regularly done, and it was for the detenus to have rebutted that presumption, which they have failed to do in their affidavits.
19. The next contention on behalf of the detenus is that the Order for their detention has been made by the Chief Secretary and purports to be by command of the Governor and has not been signed by the Governor himself. Here again it will be presumed that the Chief Secretary has passed this Order by command of the Governor and no provision in law was shown to us whereby the Governor has by himself in person to sign such an Order. To my mind, it is enough that such Orders are passed by his command and it may be the hand of the Chief Secretary which actually issues out such an Order. Under Section 69, Government of India Act, 1935, as adapted by the Provisional Constitution Order 1947, the Chief Secretary's signature to such an Order will be sufficient if the rules of business of the Provincial Government gave the powers to the Chief Secretary to sign such Orders in the name of the Governor. It has not been contended before us that the rules of business do not provide for the Chief Secretary's signing such Orders in the name of Governor, though the Order be expressed to be taken in the latter's name. Section B9, Government of India Act, 1985, provides that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor, and such Orders shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an Order or instrument which is so authenticated shall not be called in question on the ground that it is not an Order or instrument made or executed by the Governor. To my mind, the contention that the Order signed by the Chief Secretary in the name of the Governor is not the Governor's Order is a futile contention and it ought to fail.
20. A more serious objection to the validity of the Order of detention of these detenus has been taken on the ground that on the date of such Orders of detention there was no valid law in operation in Chota Nagpur, which is an excluded Cr partially excluded area, by which these detenus could be arrested and put in detention, and that on the date of the hearing of these applications also there was no valid law in operation making the continuance of their detention legal. Thi3 contention is based on the provisions of chap, v, Government of India Act, 1985, as adapted by the India (Provisional Constitution) Order, 1947, in s 92 of this Act. This chapter v deals with excluded areas and partially excluded areas, and Section 91 in this Chapter defines what are excluded areas Cr partially excluded areas. It is not contended by the Crown that Chota Nagpur is not an excluded area Cr a partially excluded area, and as such it is not contended that chap. V will have no application to the cases in question Section 92 of this Government of India Act, 1936, says that:
the executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Dominion Legislature or of the Provincial Legislature, shall apply to an excluded area Cr a partially excluded area, unless the Governor by Public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, Cr to any specified part thereof, have effects subject to such exceptions Cr modifications as he thinks fit.
To my mind, this section makes the Governor; of a Province a legislative body for that pro. vines so far as its excluded areas Cr partially excluded areas are concerned; but that his legislative powers under this Sub-clause (l) of Section 92 are but limited powers, limited in the sense that under this Sub. clause he can adopt a law of the Provincial Legislature Cr of the Dominion Legislature for application to such an excluded Cr partially excluded area. It does not refer to his independent plenary powers of legislation which he can resort to under Clause (2) of Section 92 of this Act for the peace and good government of any area in a province, which is for the time being an excluded area Cr a partially excluded area, Under the latter provisions, the Governor "may make regulations for the peace and good government of such areas" and the only restrictions made to his powers to do so are that they shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect. That is to say, under Section 92 (2), the Governor of a Province can make independent laws operative in excluded Cr partially excluded areas and any regulation so made by him may repeal Cr amend any Act of the Dominion Legislature or of the Provincial Legislature Cr any existing law which is for the time being applicable to the area in question. This gives wide powers to the Governor to make laws of any kind which will be operative in excluded or partially excluded areas if the Governor-General has given his assent thereto. Such laws may be arbitrary; such laws may appear to have been oppressive; such laws may amount to a repeal of any existing law operative in that area ; such law may be a modification of any law operative in that area ; it may be retrospective or retro active; it may come into force for a period defined by the Governor, In other words, the Governor is a sovereign legislative body for such an area and can make any laws good or bad for such an area according as he thinks it necessary so to do. He has got all the rights under this Section 92 (2), to make laws even retrospective in their effects as all sovereign legislative bodies can. A Court has got nothing to do with the soundness or reasonableness of the law so made and it has to administer and interpret the law as it is and not as it ought to be. Therefore, if the Governor had passed a regulation under this Section 92 (2), making the Bihar Maintenance of Public Order Act, 1947 (which was Originally operative in Bihar only till 15th March 1948, and which under Sub-section (3), proviso- was extended for one year more by a Resolution passed by the Bihar Legislative Assembly and the Bihar Legislative Council) applicable to Chota Nagpur also as an independent piece of legislation of his own, making its operation retrospective from a defined period, I think, it would have been quite a valid piece of legislation for the excluded areas, provided the Governor General had given his assent thereto, as provided by the last clause of this section. But in this case the Governor has not made any such regulation under Section 92 (2) and neither have any such regulations made under this sub-section been submitted forthwith to the Governor-General, and consequently no assent has been taken, and, therefore, in the case of these detenus no claim can be advanced on behalf of the Governor that he could apply the Bihar Maintenance of Public Order Act to Chota Nagpur. As a matter of fact, it is not argued by the Grown that the Governor has passed any regulation under Section 92 (2), to which the assent of the Governor .General has been taken and as such the Governor has not acted as a plenary and sovereign legislative body for this area under the provisions of this Section 92 (2). A Notification has been shown to us - dated 7th March 1949, No. 3430-C, published in a special section of the Bihar Gazette, that the Governor is pleased to direct that the said Bihar Maintenance of Public Order Act shall apply and shall always be deemed to have applied to the Chotanagpur Division and to the Santal Parganas District with effect from the 16th March, 1948.
It is conceded that at the time when these detenus were arrested and when the grounds for their detention were served on them, there was no such notification in existence whereby the Bihar Maintenance of Public Order Act, as extended by Resolution of the Bihar Legislative Assembly and the Bihar Legislative Council under S. l, Sub-section (s) was in existence. It was after the hearing of the petitions of these detenus in this-Court and when judgment was reserved that this notification in the Bihar Gazette, referred to above was made by Order of the Governor of Bihar ; and when our attention was drawn to it, we heard both the parties again. On the one hand it is contended by the Advocate. General that is the first place this fresh notification and extension of the Bihar Maintenance of Public Order Act to Chota Nagpur by virtue of this notification was not necessary inasmuch as the Governor bad Originally accepted for Chota Nagpur the operation of the Bihar Maintenance of Public Order Act, with the implication that if the two legislative bodies of the Bihar Legislature extended it for one year more as provided by S. l, Sub-section (3) the Governor would be deemed to have accepted that extension also for Chota Nagpur and excluded Cr partially excluded areas of this Province of Bihar. I am of opinion that Such an advance delegation of authority to the Provincial Legislatures for extending this enactment to Chota Nagpur would amount to a delegation of legislative authority by the Governor to the Provincial Legislature for Chota Nagpur and the Santal Parganas also, and this delegation of authority was never contemplated by Section 93, Government of India Act, 1935. These excluded Cr partially excluded areas under the scheme of that Act are the sole responsibility of the Governor so far as legislation is concerned, and there cannot beany valid delegation Cr entrustment of such a responsibility in favour of & Provincial Legislature. Therefore the contention of the Advocate. General, that when the Legislature of Bihar extended the operation of the Bihar Maintenance of Public Order Act for one year, it should be deemed to have been extended by the Governor in the case of excluded and partially excluded areas also, is not sound. When the Governor notified the Original Bihar Maintenance of Public Order Act for Chota Nagpur under Section 92 (1), he could do it only for one year, because at that time the extension of that Act for more than one year bad not been decided upon by the Provincial Legislature. The Provincial Legislature may Cr may not have extended the Act under the circumstances prevailing in this Province at the time when the period of the Original legislation expired, and it cannot be supposed that the Governor gave a blank cheque to the Provincial Government to apply it to Chota Nagpur also in case they found it necessary for the main un excluded areas of Bihar. The conditions in the two parts of the Province, the excluded and the unexcluded, may be different. It may be necessary to apply the law in one portion and in the other portion it may be quite unnecessary and uncalled for. Therefore, it cannot be said that when the Bihar Legislature deemed extension necessary for that area over which they were competent to extend the law, the Governor should also be deemed to have thought it necessary to extend it to Chota Nagpur, though not by any fresh notification but by his past assent and past notification which was operative under the law then existing for one year only. If it was, therefore, imperative for the Governor to notify afresh the extension of the Bihar Maintenance of Public Order Act to areas of Chota Nagpur and Santal Parganas, and when he did not do so either because he did not consider it necessary to extend it by notification to an area for which he had exclusive and sole responsibility in the field of legislation Cr he slipped Cr he was not advised on the point, the net result will be that the Bihar Maintenance of Public Order Act shall not be deemed to be in operation in that area. It is conceded that the Governor had made no such notification for that area extending the Bihar Maintenance of Public Order Act after March 1948, when it became operative in Bihar by virtue of extension. There being no law in existence in Chota Nagpur and Santal Parganas, whereby a person could be detained, it is contended that the detention of these detenus is illegal and that their continued detention is invalid. To my mind, such a contention has a great force, To counter the consequence of such illegal arrest and detention, the Governor by his notification dated the 7th March, 1919 (No. 3430-c) has been pleased to direct that the said Bihar Maintenance of Public Order Act "shall apply and shall always be deemed to have applied to the Chota Nagpur Division and to the Santal Parganaa district with effect from the 16th March 1948, under Sub-section (l) of Section 92, Government of India Act." If the Governor had plenary and full powers under this Sub-section (l) of Section 9a, Government of India Act, he could no doubt frame a law Cr regulation having retrospective effect, and in such a case this notification would make the detention of the detenus legal and valid. But the question is, whether the Governor, acting under Sub-section (l) of 8. 92, Government of India Act, 1935, can pass such a regulation Cr legislation without obtaining the consent of the Governor-General, and whether he can make it effective and operative in the excluded Cr partially excluded areas. To my mind, he could do such a thing under Section 92 (2), but not under Section 92 (l), If the Governor. General's assent had been obtained to this regulation as notified on 7th March 1919, probably the extension of the Bihar Maintenance of Public Order Act could have been valid and all past arrests and detentions and their continuance could have been made legal. But the Governor does not claim to act under Section 92 (2) and neither has the absent of the Governor-General been obtained so as to make it effective from that date, and, therefore, to my mind, if the Governor could act at all, he could act within the powers conferred on him only under Section 92(1). But this Section 93 (1) does not contemplate an inde. pendent legislation by the Governor. It speaks' of an Act of the Dominion Legislature Cr of the Provincial Legislature being made operative in the excluded Cr partially excluded areas only under certain specified circumstances and not otherwise. In other words, the emphasis in this sub-cl. (l) of Section 92 is on the prohibition of an Act of the Dominion Legislature Cr of the Provincial Legislature being applicable to an excluded Cr partially excluded area and such an Act of the Dominion Legislature Cr of the Provincial Legislature shall apply to such areas only if the Governor by Public notification so directs. That is to say, the passing of a law by the Provincial Cr the Dominion Legislature shall not ipso facto make it applicable to the excluded Cr partially excluded areas, and that it shall be made applicable only by the direction of the Governor and that also by Public notification, and the Governor has been given the right of accepting Cr modifying the clauses of such an enactment as he thinks fit, which by special notification would be applicable to such areas. To my mind, the emphasis that an Act shall become applicable only if notified, lays a limit on the powers of the Governor to validate past Acts or to make laws retrospectively active in excluded or partially excluded areas. The section does not specifically say that the Governor shall apply such an Act to a period even before such a notification was made by him. The mere fact that an Act of the Provincial or the Dominion Legislature shall be applicable to such areas only after notification excluded the powers of the Governor to make it retrospectively operative Cr Active when there was no notification of the Governor in existence. To my mind, notification is an integral part of the Governor's legislative act as contemplated by Section 92 (l), Government of India Act. It is not a mere executive act publishing a legally enacted law. A notification contemplated by this subs, (l) of Section 92, Government of India Act, is a part of the legislative act which would go to make the law operative in such areas. So long as such a notification is not forthcoming, no law of any Dominion Cr Provincial Legislature is in operation in such excluded Cr partially excluded areas. And the Governor by not notifying it for a pretty long time cannot make it operative in the past so as to bring about consequences adverse to anybody's freedom or liberty. The matter would have been different if he had purported to act under Section 92 (2). Bat even the notification of 7th March 1949, says clearly that the Governor is purporting to Act under Section 92 (1) which does not give him the powers to malia law active at a period when there was no notification by him in existence or operation, I, therefore, consider that the notification of 7th March 1949, did not make the Governor competent to pass a retrospectively active legislation for the excluded Cr partially excluded areas under Section 92 (l), Government of India Act, and this belated notification will not make the Orders passed under the Bihar Maintenance of Public Order Act against these detenus legal. To my mind, they have been detained under Orders at a time when such a law was not .operative in the areas where they were arrested and served with Orders under Sections 3 and 4, Bihar Maintenance of Public Order Act, and their continued detention under the notification of 7th March 1919, which did not vest the Governor with legal powers to make such notification under Section 92 (i) retrospectively active is illegal. I have no option, therefore, but to Order the release of these detenus under 8. 491. Criminal P. C., though on merits (except in the case of Kanai Lal Paul) I would have dismissed their petitions.
JUDGMENT OF FULL BENCH (13th April 1949.)
21. Meredith J. Of these eight applications under Section 491, Criminal P. C., the first seven come to us under Clause 23, Letters Patent of this Court on a difference of opinion between his Lordship the Chief Justice and Nageshwer Prasad J. The last (Criminal Miscellaneous No. 149 of 1949) comes to us independently.
22. The difference between the two learned Judges is on the question "whether, assuming that the provisions of Section 4 (l), Bihar Maintenance of Public Order Act, 1947, have been complied with in these cases, the detention of the petitioners is illegal in view of the notification dated 7th March 1949, issued by his Excellency the Governor under 3, 92 (1) of the Act (Government of India Act, 1986) ?"
23. This question arises in the following circumstances. The Bihar Maintenance of Public Order Act, 1947, (Act V [6] of 1947) came into force on 16th March 1947, on Publication in the Official Gazette under Section 6 (l), General Clauses Act. Section l (3) of the Act says:
It shall remain in force for a period of one year from the date of its commencement ;
Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification ;
Provided further that the expiration of this Act shall not affect anything done or omitted to be done before such expiration, and Section 8, Bihar and Orissa General Clauses Act, 1917, shall apply upon the expiry of this Act as if it had been repealed by a Bihar Act.
23a. On 11th March 1948, after the necessary resolution by both Houses, the Provincial Government issued a notification extending the life of the Act for one year from 16th March 1943 to 16th March 1949.
24. Section 92, Government of India Act, 1935, is as follows:
(1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature Cr of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by Public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions Cr modifications as he thinks fit.
(2) The Governor may make Regulations for the peace and good government of any area in a province which is for the time being an excluded area, Cr a partially excluded area, and any Regulations so made may repeal Cr amend any Act of the Federal Legislature Cr of the Provincial Legislature, Cr any existing India law, which is for the time being applicable to the area in question.
Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have effect, and the provisions of this part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such Regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.
(3) The Governor shall, as- respects any area in a Province which is for the time being an excluded area exercise his functions in his discretion.
25. Chota Nagpur, within which the petitioners were arrested, is a partially excluded area. Accordingly on 16th March 1947, by notification the Governor brought the Act into operation in this area (Notification No. 900 published in the Bihar Gazette (Extra Ordinary) dated 16th March 1947).
26. With the exception of one, who was arrested, in December 1948, the petitioners" were all arrested in January 1949, and the detention Orders under the Maintenance of Public Order Act, 1947, were made on 8th February 1919, When the cases came up for hearing before the Chief Justice and Nageshwar Prasad, J. the point was taken that the extension of the Act by the Provincial Government had never been extended to Chota Nagpur by the notification of the Governor under Section 92 (l), Government of India Act. On 7th March judgment was reserved. On the same day the Governor issued the following notification:
No. 3430-C. - Whereas doubts have arisen as to the applicability to the partially excluded areas in the Province of Bihar of notification No. 8734-C, dated llth March 1948, extending the life of the Bihar Maintenance of Public Order Act, 1947, (Bihar Act V of 1947) for a further period of one year from 16th March 1948:
Now, therefore, the Governor of Bihar, in exercise of the powers conferred by Sub-section (1) of Section 92, Government of India Act, 1935, is pleased to direct that the said Bihar Maintenance of Public Order Act shall apply and shall always be deemed to have applied to the Chota Nagpur Division and to the Santal Parganaa District with effect from 16th March 1918.
By Order of the Governor of Bihar, Sd. L. P. Singh, Chief Secretary to Government;
Further argument was heard with reference to this and it was then contended that the Governor had no power under Section 92 (1) to apply the extended Act retrospectively from 16th March 1948, Both the learned Judges accepted the contention that the extended Act bad not been legally applied prospectively by the Governor's notification of 16th March 1947, and the detention Orders which were made subsequently to the expiry of the Act in Chota Nagpur on 15th March 1948, were not, therefore, legal. On the question whether the Governor's notification of 7th March 1949, legalised the detention, the learned Judges differed. Both held that it was a legislative act of the Governor, but, whereas the Chief Justice was of opinion that the Governor could legislate retrospectively in this regard under s. 92 (l), Nageshwar Prasad J., held that he could have done so only under 8. 92 (2), but not under Section 92 (l) under which he purported to act. The detention of the petitioners was, therefore, illegal.
27. Before considering the points which arise, it is perhaps relevant to observe that all the contentions for the petitioners are unreal in view of the fact that the Government of India Act, 1935, remained in force under the India (Provisional Constitution) Order, 1947, after 15th August 1947, only with certain modifications and one of these modifications made by Section 3 (2) of that Order took away with effect from 15th August 1917, the Governor's power to act in his discretion Cr individual judgment from that date, so that at the relevant period the Governor was a purely constitutional Governor Acting only on the advice of his Ministers, and in fact the Order of the Governor is in practice the same thing as an Order of the Provincial Government.
28. Apart from this, I am of opinion that no question at all arises of extension of the extension and the notification of 7th March 1949 was entirely unnecessary. When the Governor by his notification of 16th March 1947 applied the Act to the area, he applied it for whatever its duration might eventually be There was no question of any fresh legislation extending the Act, the operation of which would be barred under Section 92 (l), Government of India Act, and which needed fresh application by the Governor. The whole legislation was in fact contained in the Original Act (v of 1947), though in regard to the first proviso to s. l, it was conditional legislation. It is not quite accurate to speak of extension of the Act to Chota Nagpur. It was Originally an Act for the whole province including Chota Nagpur. Section l (2) of the Act said "it extends to the whole of the Province of Bihar". The effect of a. 92 (l) was merely to impose a bar to its operation in Chota Nagpur, and the Governor's notification did not extend the Act to that area, but merely removed the bar to its operation. Once the bar was removed, it would operate for its entire duration
29. It is necessary to emphasise that the extension of the Act by the Provincial Government was not legislation at all. It was merely the fulfilment of a condition by executive Order which had been prescribed in the Original Act. The whole legislation was in the Act. The extension derived its legality and force not from the Order of Government extending the Act on the resolution of the Houses, but under the Act itself. The extension was not ma3e by the Legislature but by notification of the Provincial Government. I can find no ground for not applying the principles laid down by the Privy Council in Empress v. Buraha 5 I. A. 178 : 4 cal. 172 P. C, Russel v. The Queen (1882) 7 A. C. 829 : 51L.J.P.C. 77 and Emperor v. Banoari Lal Surma 1948 P. C, Rule 161 : 26 P. L. T. 137 : A.I.R. (32) 1945 P. C. 48 : 46 Cr.L.J. 589. In Burah's case 6 I, A. 178 : i cal. 172 P. C their Lordships had to deal with Act XXII of 1869. This was an Act of the Governor-General in Council described as "an Act to remove the Garo Hills from the jurisdiction of the Tribunals established under the General Regulations and Acts and for other purposes", but 8. 9 of the Act said the said Government may from time to time by notification in the Calcutta Gazette extend mutatis mutandis all Cr any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills and to such portion of the Khaai Hills as for the time being forms part of British India. Every such notification shall specify the boundaries of the territories to which it applies. The Lieutenant. Governor having applied the Act by notification to the Khasi and Jaintia Hills, it was contended that this was delegated legislation by the Lieutenant Governor, and as such it was invalid as the Governor-General in Council being himself a delegated Legislature could not make a further delegation of legislative power.
30. Their Lordships pointed out in the first place that the Governor-General in Council though in some respects a subordinate Legislature, was in no sense a delegate Cr agent of Parliament, but within his own sphere was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself. Secondly, they said that there was no delegation of legislative power at all. The Act of the Lieutenant-Governor was not legislation by him. It was a fallacy to speak of the powers conferred upon the Lieutenant-Governor, large as they were, as if, when they were exercised) the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor. General in Council, Their whole operation was, directly and immediately, under and by virtue of the Act (XXII [22] of 1869) itself, The Act was an' example of conditional legislation which was not uncommon and was convenient. Their Lordships cited a number of existing examples of the same process, and I desire to notice that amongst the examples cited by them as not being a delegation of legislative power was 8, 39 of Act XXIII [23] of 1861. The section is as follows:
When, under the provisions of 8. 385 of the said Act, the Act ii extended to any part of the territories not subject to the General Regulations of Bengal, Madras and Bombay, it shall be lawful for the Government to which the territory is subordinate to declare that the Act shall take effect therein subject to an; restriction, limitation, or proviso which it may think proper. In such case the restriction, limitation or proviso shall be inserted in the declaration Cr notification of such extension. When the Act is extended by the Local Government to any Territory subordinate to such Government, and such extension Is made subject to any restriction, limitation, Cr proviso the previous sanction of the Governor General of India in Council shall be requisite.
I desire to draw attention to the fact that in the opinion of their Lordships of the Privy Council even the provision that the Act could be brought into effect "subject to any restriction, limitation Cr proviso" thought proper by the Government was not a delegation to the executive Govern, ment of legislative power.
31. What the Privy Council laid down in Burah's case, (5 I. A. 178: 4 cal, 172 P. C.), is well summarised in the placitcum: y Where plenary powers of legislation exist as to particular 6ubjeots, whether in an imperial Cr in a provincial Legislature, they may be well exercised, either absolutely Cr conditionally; in the latter case leaving to the discretion of some external authority the time and manner of carrying its legislation into effect, as also the area over which it is to extend.
32. In my view that is exactly what was done by the Legislature in proviso l to Section 1 of Act V [5] of 1947. The argument that the Governor in his notification of 16th March 1947, in applying the whole Act including the proviso to Chota Nagpur, delegated his own legislative power to the Provincial Government, which he could not do, is, in my view, doubly incorrect. In that notification he was not exercising any legislative power, nor did he delegate anything.
33. The decision of the Federal Court in Chatturamx. Commissioner of Income-tax, 26 pat 442 : A.I.R, (34) 1947 F. C. 32) that the Governor has been given legislative power by Parliament under Section 92 (l), Government of India Act has been strongly relied on by Mr.. Ghosh for the petitioners. Their Lordships were refer-ring to the use of the words "subject to such exceptions Cr modifications as he thinks fit," Here, however, it is no question of any modifications. Moreover, the observations were made with regard to Section 92 (l), Government of India Act and are not binding authority as regards proviso l to s. l of the Act v [5] of 1947.
34. I cannot resist citing my own personal view with regard to Section 92, for what it is worth, right Cr wrong. In doing so I mean no disrespect to the Federal Court. My view is that Section 92 (2) was a delegation by Parliament of legislative power to the Governor, but B, 92 (l) was merely legislation by parliament making Acts for these areas conditional legislation, and it is for this reason that when the Governor acts under Section 92 (2) he has to submit his Regulations forthwith to the Governor-General for assent, whereas he has not got to do so when he acts under Section 92 (l). It is in this connection that I drew attention to the view expressed in Burha's case (5 I. A. 178: 4 cal. 172?. C.) with regard to Section 99 of Act XXII of 1869.
35. If the notification of 7th March 1949, was unnecessary, then, whatever view may be taken of it, it could not render the detention of the petitioners illegal. This is the answer I would give to the question referred to us.
36. Upon the narrow point as to whether that notification could operate retrospectively, I agree with Nageshwar Prasad J. for the very simple reason that, if it was not legislation, no question could arise of its being made retrospective. Even if, in view of the Federal Court decision just referred to, it has to be considered a legislative Act, I still think it could not operate retrospectively. Under Section 92 (2) the Governor is given plenary powers of legislation for certain areas subject to certain conditions. Under Section 92 (2) he could undoubtedly, in my opinion, make a Regulation with retrospective effect. But under Section 92 (l) he has a very limited power of legislation, if he has any at all. He is certainly not empowered under Section 92 (1) to enact any positive legislation himself. The Word '"modifications" must be read in its con. text (subject to such exceptions Cr modifications). It is, in my opinion, a negative provision. Ha can subtract Cr modify negatively, but he can-not add anything. To add a retrospective clause would certainly, in my judgment, be outside any power conferred under Section 92 (l). The power of retrospective legislation is one of the extreme-powers of a plenary Legislature specially is criminal matters, and certainly, I am sure, it; was never contemplated by the Legislature that Such powers would be conferred under Section 92 (1).
37. There remains the case of Jatindra Nath Gupta (criminal Miscellaneous 149 of 1949). The detention Order in the ease of this man was made on 12th February 1949 and on 23rd February he was arrested under that Order. It was alleged in the petition filed on his behalf that no grounds of detention had been served upon him up to the date of the application. But this is not the case. The grounds were served upon him on 6fch March 1948.
38. It was then urged that the grounds were not sufficiently definite and specific to enable him to make a representation. A perusal of the grounds, however indicates that they are just as specific as grounds could well be, and grounds strictly comparable with the Be have been he sufficient in many cases before this Court.
39. The same points have been urged as were taken in the other applications. They have been already dealt with. Lastly, however, it is argued that the detention is not valid since 16th March 1949, the reason being that the proviso to S. l, Maintenance of Public Order Act, 1947, only pro-vided for extension for one year, that is, up to 15tb March 1949. It appears, that by Bihar Act (V [5] of 1949), which came into forces by publication in the official Gazette on 15th March 1949, in Sub-section (8) of Section 1 of 1947 Act for the words "for a period of one year from the date of its commencement" the words and figures "till 31st March 1950" have been substituted, and this was extended to Chota Nagpur by notification published the same day.
40. It is urged that a fresh detention Order under the amended Act would be necessary. Section 27, Bihar and Orissa General Clauses Act (Act 1 of 1917) provides that:
Where any enactment is repealed and re Acted by a Bihar and Orissa Act with or without modification, then unless it is otherwise expressly provided, any appointment notification, Order, scheme, rule, bye-law Cr form, made Cr issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and to deemed to have been made Cr issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, Order, scheme, rule, bye-law or form, made or issued under the provisions so re-enacted.
Bihar Act V [a] of 1949 repealed the words "for a period of one year from the date of its commencement" and re-enacted a modified provision. Therefore, the Order made under the unamended Act shall continue in force and be deemed to have been made under the re-enacted provisions. There is no question of any Order being necessary under Bihar Act V [6] of 1949. The detention is still under Act v [s] of 1947, By virtue of the amendment it is the Original Act that is to be still in force, not any new Act. There is, therefore, nothing in this point.
41. Next it is pointed out that the' Original Act. received the assent of the Governor. General, but the assent of the Governor-General has not been taken with regard' to the amendment. In my opinion no such consent was necessary even in the ease of the Original Act. The Act is sub-stantially concerned with "preventive detention for reasons connected with the maintenance of Public Order," which falls directly within item 1 of List 2 of Schedule 7, Government of India Act, 1935. It falls within the Provincial Legislative List, and is, therefore, purely a matter for the Provincial Government, Nor, in my opinion does any question of repugnancy arise. Jnan Prosimna Das Gupta v. Province of West Bengal ALB, (86) 1949 Cal. l : 50 (Cr. L. J.I F.B. is a direct authority on this point, On the contention that in the case of a similar Ordinance there was conflict with certain provisions of the Code of Criminal Procedure, the learned Judges of the Full Bench said:
There can be no doubt that the provisions of this Ordinance are in conflict with certain provisions of the Code of Criminal Procedure ; but it would be practically impossible to legislate on preventive detention and with regard to persona subjected to such detention without affecting the provisions of the Code of Criminal Procedure falling within items 1 and 2 of List 3. It must have been clear to the framers of the Government of India Act that legislation with regard to the matters in item 1 of the Provincial List might well be repugnant to Legislation on items 1 and 2 in the Concurrent Legislative List. Nevertheless, a Provincial Legislature is entitled to legislate on these matters. If the whole of a piece of legislation is confined to matters within the Provincial Legislative List that legislation Cr any part of it cannot be void for repugnancy because it may come in conflict with Dominion laws Cr existing laws applicable to the Dominion of India; nor does a Provincial Act relating to such matters require the assent of the Governor-General under proviso to Section 88 (1) to prevent the whole of it Cr certain provisions in it being void for repugnancy. Legislation by a Provincial Legislature on matters falling within the Provincial Legislative List is valid though such legislation may also incidentally to some extent be regarded as legislation touching matters in the Concurrent Legislative List. No question of repugnancy can arise under Section 107 (1), Government of India Act.
42. They said further:
It cannot also be argued that as the West Bengal Security Act had received the assent of the Governor-General, no Ordinance Cr legislation amending such Act could be valid without previous instructions of the Governor-General as required by Section 88 (1), Government of India Act.
43. In my opinion it has not been established that the detention of any of the petitioners before us is illegal, I would, therefore, dismiss all these applications and discharge the relevant rules.
Shearer, J.
44. I agree that the answer which should be given to the question referred to us is that the issue of the notification in question was unnecessary and that, in consequence, nothing contained in it can render the detention of the petitioners, which was otherwise legal, illegal.
45. The British Parliament, in enacting Section 92 (1), Government of India Act, would seem to have had in mind 3. 5A, Scheduled Districts Act, which empowered the local Government, in ex. tending an enactment to these districts, to declare the operation of the enactment to be subject to such restrictions and modifications as it saw fit. The power conferred on the Governor by Section 92 (l) may, as Kania C. J. said in Chatturam v, Commissioner of Income-tax, 26 Pat. 442 : A.I.R (34) 1947 F. C. 82), be a legislative and not an administrative power. But it is important to notice that it is not conferred on the Governor personally but on the executive of the day of which the Governor is the head. The omission to notice this, in my opinion, largely vitiates the argument which has been addressed to us by Mr. B. C. Ghosh, and which apparently was also the argument addressed to my Lord the Chief Justice and my brother Nageshwar Prasad, Under the Government of India Act, as it stood prior to 15th August 1947, "the securing of the peace and good government of areas ... declared to be partially excluded areas" was, it is true, declared to be one of the special responsibilities of the Governor. But, in discharging that responsibility, the Governor was to act in exercise of his individual judgment. The Instrument of Instructions which was issued to the Governor shows that in matters in which he was required to act in exercise of his individual judgment he was Ordinarily to act on the advice of his Ministers who were entitled as of right to tender advice to him. Under the present constitution the Governor has no special responsibilities and is no longer required to act in certain matters in his discretion and in others in exercise of his individual judgment. He is now the titular head of a parliamentary executive and must defer to and be guided solely by the advice of his Ministers. The power to continue the Bihar Maintenance of Public Order Act in operation for another year and the power to apply that Act to Chota Nagpur were thus conferred on one and the same authority, namely, the Provincial Government. It is perfectly clear that the Provincial Govern, ment both intended to continue the Act in operation for another year and to apply the Act during that period to Chota Nagpur. The question at issue is, thus, merely whether the Provincial Government omitted to comply with some formality and whether the omission to do so was sufficient to frustrate its manifest intention.
46. The first proviso to Section 1 (3), Bihar Main. tenance of Public Order Act, is a very remarkable piece of legislation and there are, I think, two possible ways of looking at it. On one view it may be said to make this Act an Act which is to remain in operation for one year and then, on the happening of certain contingencies, for an. other year. The Act having been applied to Chota Nagpur, the validity of anything done under it after 15th March 1948, whether in Chota Nagpur or elsewhere, must, in that view of the matter, depend solely on whether the contingencies in que3tion have occurred. Now, it is admitted that a resolution was passed by the Legislative Assembly and agreed to by the Legislative Council and that, subsequently, a notification purporting to continue the Act in operation for a second year was issued by the Provincial Government, The other and, I think myself, the more correct view, as a matter of constitutional law, is that in enacting the proviso the legislature dele, gated to the executive a power to amend the Act. It certainly purported to do this in language which leaves no room for ambiguity, the only restriction on the exercise of the power being that the Provincial Government was not to continue the Act in operation for more than a specified period. It is immaterial that the Provincial Government made no other modifications in the Act. When it continued the Act in operation for another year it amended the Act. I agree with my Lord the Chief Justice and Nageshwar Prasad J., that this was an exercise of delegated legislative power. With the greatest respect, however, I think that the power so exercised was not, as they assumed, a power conferred by the Constitution Act but a power conferred by the Bihar Legislature itself. Can it then be argued that while the notification of 11th March 1918, amended the Act, nevertheless, in Order to apply the Act as amended to Chota Nagpur, a further notification was necessary ? It is true that when an Act which has been applied to Chota Nagpur is amended by a subsequent Act, that subsequent Act must also be applied to Chota Nagpur, other, wise the unamended Act continues in operation there. The argument from analogy is, however, always dangerous and there is nothing in the language used in Section 92 (l), Government of India Act, to suggest that, when an Act which has already been applied to Chota Nagpur is amended otherwise than by an amending Act, the Act bb amended will not apply to Chota Nagpur forthwith and that the issue of a notification, expressly declaring that it shall, is necessary. When a power to make statutory rules Cr to make modifications and adaptations in Acts Cr to amend an Act in certain particulars is conferred by the legislature on the executive of the day Cr on some other outside authority, the matters to be so dealt with are usually and certainly ought to be matters of detail, the principles being already laid down clearly in the Act. It is obvious that, in its passage through the legislature, even a bill which has been introduced by the Government may undergo radical alterations in principle and it may be undesirable to apply certain of its provisions to an excluded or partially excluded area. It was, I imagine, for that reason that the British Parliament embodied in the Constitution a device which, it hoped, would ensure that every Act would be scrutinized before it was applied to an excluded Cr partially excluded area. Clearly, however, there is no need to scrutinize delegated legislation in the same way. It deals, or ought only to be allowed to deal, with points of detail and not of principle and, of course, when the author of it is the Provincial Government itself, it must be assumed that the Provincial Government will already have kept in mind the special circumstances of excluded and partially excluded areas, The issues of a notification applying a statutory rule or an amendment or modification or adaptation made in an Act by the Provincial Government should be entirely superfluous. In Be joy Kumar Mitra v. The Province of Bihar cri. Misc. No. 665 of 1948, decided toy Reuben, J. and myself on 16th December 1948, Mr. B. C, Ghosh contended that the Bihar Legislature had no jurisdiction to delegate to the executive a power to amend an Act. I there pointed out that, within the ambit of the powers conferred on it under the Constitution Act, the Bihar Legislature was as much a sovereign body as is the British Parliament and can do anything which the British Parliament can do, and the British Parliament has on occasions, as, for instance, in enacting a. 308, Government of India Act, delegated to an outside authority a power to amend an Act, although, in doing so, it has invariably taken care, as the Bihar Legislature in the present case did not, that any amendment which was proposed to be made was to be laid before it and to be subject to its scrutiny before it took effect. It is unnecessary for me to go in-to this point again here, as. Mr. B. C, Ghosh accepted as correct the observations I made in that case and, indeed, relied strongly on them at one stage of his argument.
47. I agree that criminal Miscellaneous No. 149 of 1949 should be dismissed and have nothing to add to what has been said by Meredith J.
Imam, J.
48. This is a reference under Clause 28, Letters Patent, and the point referred is:
Whether, assuming that the provisions of Section 4 (1), Maintenance o Public Order Act, have been complied with in these cases, the detention of the petitioners is illegal in view of the Notification dated 7th March 1919, issued by His Excellency the Governor under B. 92 (1) of the Act.
In Order to answer the point referred to us, it is necessary to refer to certain provisions of the Government of India Act, 1935 [as adapted by the India (Provisional Constitution) Order 1947], hereinafter referred to as the Constitution Act. Section 60 makes provision for a Provincial Legislature for every Province. Section 99 deals with the distribution of legislative powers, and it authorises the Dominion Legislature to make laws for the whole Cr any part of the Dominion, and a Provincial Legislature to make laws, for the Province Cr for any part thereof. Section 100, sub e. (1) states that the Dominion Legislature ha?, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I. Sub-section (2) permits the Dominion Legislature as well as the Provincial Legislature to make laws with respect to any of the matters enumerated in List II (the Concur, rent Legislative List). Sub-section (3) states:
Subject to the two preceding Sub-sections the Provincial Legislature has, and the Dominion Legislature has not, power to make laws or a Province of any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the "Provincial Legislative List).
It will be seen, therefore, that the Provincial Legislature is authorised to make laws for the whole of the Province Cr any part thereof with respect to any1 of the matters enumerated in List II (the Provincial Legislative List). Item 1 of the Provincial Legislative List includes as one of the subject matters, with respect to which the Provincial Legislature may make laws. preventive detention for reasons connected with the maintenance of Public Order, and persons subjected to such detention. There can be no doubt that the Santal Parganas and Chotanagpur are parts of the Province of Bihar, although they may be partially excluded areas. The Bihar Maintenance of Public Order Act, 1947 (Bihar Act V [5] of 1947), hereinafter referred to as the Act, was enacted by the Bihar Provincial Legislature for the whole of the Province. Under Section 92, Constitution Act, however, the Act could not apply to an excluded Cr a partially excluded area, unless the Governor . by Public notification so directed. The Governor of Bihar did, by Notification No. 900 dated 16th March 1947, apply the whole of the Act to Chotanagpur and the Santal Parganas. From that date, the Act was good law in the Santal Parganas and Chota Nagpur, and the bar to the applicability of the Act to these areas under Section 92, Constitution Act, was completely removed. It follows from this that every provision of the Act applied to the whole of the Province including the partially excluded areas of the Santal Parganas and Chota Nagpur. Section l (8) of the Act states that the Act shall remain in force for one year provided that it shall remain in force for a further period of one year if the condition of proviso l of the sub. section were com. plied with. It will thus be seen that the Act could remain for a period of two years if the terms of proviso 1 had been fulfilled. It is not disputed that in issuing Notification NO. 8734 dated 11th March 1948, directing the Act shall remain in force for a further period of one year, the Provincial Government had complied with the conditions of proviso l under S. l (S) of the Act. This notification was issued under the authority of the ct itself and in be issuing it, neither the Provincial Government nor the Provincial Legislature was enacting a new Act, The notification merely gave effect to a provision of the Act and met a contingency contemplated and provided for by the Act. It seems to me that there is nothing in the terms of Section 92 (l), Constitution Act, which required the Governor of the Province to issue a fresh notification thereunder directing that the Act shall remain in force for a further period of one year in the Santal Parganas and Chota Nagpur. There was no new Act of the Provincial Legislature which required the Governor to proceed under Section 92 (l), Constitution Act. , The Act had never ceased to be an Act of the Provincial Legislature. At no time was there a period in which its continuity had been broken. It had already been applied to the Santal Parganas and Chota Nagpur under Section 92 (l), Constitution Act. While the Act remained in force it was the law of the Province of Bihar-including the Santal Parganas and Chota Nagpur. Accordingly the detention of the petitioners by virtue of its provisions was not illegal. The notification dated 7th March 1949, issued by His Excellency the Governor under Section 92 (l), Constitution Act, certainly did not make the detentions illegal. If anything, the intention of the Governor in issuing the said notification was to declare that such detentions were legal. In the circumstances, the point referred must be answered in the negative.
49. It was argued on the authority of the decision of the Federal Court in the case of Ghatturam v. Commissioner of Income-tax 26 pat. 442 : A.I.R. (84) 1947 F. C. 82 that when the Governor was acting under Section 92 (l), Constitution Act, he was exercising legislative ' power. It is, however, to be noticed that Kania J. (as he then was), in delivering the judgment on behalf of their Lordships of the Federal Court, has clearly stated that "it does not give him power to make independent legislation". Assuming that the power exercised by the Governor under Section 92 (l), Constitution Act, is legislative power, a dear distinction must be made between such legislative power and the power to enact laws in a positive form. Their Lordships of the Federal Court in the case cited above have clear- ly pointed out the contrast between the powers' which the Governor may exercise under Section 92 (l) and those which be may exercise under Section 92 (a)., Constitution Act. If the Act of the Governor under Section 92 (1) is the exercise of executive potter, then, obviously, he could not by notification dated 7th March 1949 Act retrospectively. On the other hand, if the act of the Governor under 'S. 92 (l) is the exercise of legislative power, it is undoubtedly a limited power, and I am unable to persuade myself that he could exercise such power retrospectively. It seems to me, however, unnecessary to deal with this question elaborately, as, in my opinion, there was no occasion, in law for the Governor to have issued the noti-fication dated 7th March 1949. The Act, since its application to the partially excluded areas of the Santal Parganas and Chota Nagpur had never ceased to be an Act.
50. Mr. Ghosh had urged that both their Lordships, the Chief Justice and Nageshwar Prasad J., were agreed that a fresh notification under Section 92 (1), Constitution Act, was necessary and, consequently, in the reference before us it was not open to us to take a different view. In my opinion, under Clause 28, Letters Patent, the point referred to us to be decided was whether the detention of the petitioners was illegal in view of the notification dated 7th March 1949, issued by His Excellency the Governor under Section 92 (l), Constitution Act, It was on this point that the two learned Judges were divided, and in answering that point, it seems to me that I am not bound by the reasonings given by my learned brethren.
51. Criminal Miscellaneous Case No, 149 of 1949. I agree that the detention of the detenu is legal and that the application must be dismissed. I have nothing further to add to what has already been stated by my learned brother, Meredith, J.