Decided on September 11,1950

ISMAIL Appellant


Narasimham, J. - (1.) These four petitions have been filed under Article 226 of the Constitution against certain orders of the District Magistrate of Kalahandi directing the internment of the petitioners within the limits of Nawapara sub-division of that district in exercise of the powers conferred on him by Clause (c) of Sub-section (1) of Section 2, Orissa Maintenance of Public Order Act, 1948.
(2.) Petitioner Ismail is the son of the petitioner Khan Sahib Adam Hazi Saleh Mohammed and the family have extensive business with headquarters in Nawapara sub-division. They have also extensive agricultural lands in that subdivision. Affidavits were filed on their behalf to the effect that they were nationals of the Indian Union and in the counter affidavit filed by the Government this citizenship was not challenged and we would therefore take it as well, established that the two petitioners are citizens of the Indian Union. On 17-7-49 the then District Magistrate of Sambalpur, (within whose jurisdiction Nawapara subdivision was then included) issued two orders on the two petitioners under Section (l) (c) of the said Act directing that they should not move out of Nawapara sub-division for a period of six months from the dace of the orders. Against these orders the petitioners applied for a writ of habeas corpus under Section 91, Criminal P. C., to the High Court (Cr. misc. case Nos. 155 and 158 of 1949). The High Court rejected their petitions on 19-12-49 on the ground that the order of internment was not 'detention' as contemplated by Section 491, Criminal P. C. Then on 12-1-50 the District Magistrate of Kalahandi (within whose jurisdiction Nawapara subdivision was transferred meanwhile), issued two further orders extending the period of internment of the two petitioners for a further period of three months from the date of expiry of the previous orders. Against these extension orders Cri. Misc. cases Nos. 21 and 22 were filed. In the meantime however for some inexplicable reason the Disitrict Magistrate issued two fresh orders on 7-3-1950 canceling his previous orders dated 12-1-50 and directing the internment of the two petitioners within the limit of Nawapara sub-division for a period of six months from the date of his last orders. Criminal Misc Oases nos. 32 and 33 were filed against the last two orders and they alone are very material for the purpose of this judgment. On 31-3-1950, the Orissa Legislature passed a new Act known as the Orissa Maintenance of Public Order Act, 1950 (Act x [10] of 1950) omitting all provisions relating to preventive detention and in other respects re-enacting the provisions of the Orissa Maintenance of Public Order Act, 1948. Apparently this new Act was passed in view of the self-contained Preventive Detention Act, 1950, made by Parliament. Under the new Orissa Act, the power to intern any person was conferred by Section 2(l)(b) and that provision is identical with Section (1)(c) of the old Act. The old Act was repealed by Section 29 of the new Act. But Sub-section (2) of that section expressly saved all orders issued under the old Act by stating that those orders "shall continue in force and be deemed to be made or done under the corresponding provisions" of the new Act. Therefore though the two internment orders on the petitioners dated 7-3-1950 were actually passed in exercise of the powers conferred by Section (l) (c) of the old Act, they should now be deemed to be orders passed Under Section 2 (l) (b) of the new Act by virtue of the deeming provisions of Section 29 (2) of the new Act. The old Act and the new Act differ in one important particular, namely, in the old Act the duration of an order of internment was only six months in the first instance. If the Government wanted to extend the term they were required to consult an Advisory Council after giving the internee an opportunity of making his representation in writing. The learned Advocate- General has filed an affidavit to the effect that in the present two cases the Advisory Council was in fact consulted when the last orders dated 7-3-1950 were passed. But under the new Act an order of internment is to remain in force for a period of one year (see Section 3) and there is no provision either for consulting the Advisory Council or for even giving the petitioner an opportunity of making his representation. We are now concerned mainly with the provisions of the new Act under which the two petitioners are constructively deemed to have been interned.
(3.) The petitions were originally heard sometime in April 1950. But at the conclusion of the arguments our attention was invited to the petition of Dr. N. B. Khare which was then pending in the Supreme Court in which one of the main points in these petitions was also for consideration. We therefore thought it advisable to postpone the delivery of the judgment till the receipt of the decision of the Supreme Court on the petition of Dr. N. B. Khare. That judgment has since been received and the learned counsel for both sides were given further opportunities for argument in the light of that judgment. Many of the contentions advanced by Mr. Mohanty on behalf of the petitioners in his first argument need not therefore be considered now in view of the judgment of the Supreme Court (Original Jurisdiction Petn. No. 37 of 1950) dated the 26th May, Dr. N. B. Khare v. State of Delhi, (A. I. R. (37) 1950 S. C. 211.);

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