Shelat, J. - (1.) The petitioner was arrested by an order, dated December 10, 1965 under R. 30 (1) (b) of the Defence India Rules, 1962 and was detained in Central Jail, Tehar. New Delhi. On the 24th December 1965, he filed writ petition No. 47 of 1966 in this Court challenging his detention, inter alia, on the grounds that (1) Rule 30 (1) (b) was ultra vires S. 3 (2) (15) (i) of the Defence of India Act, (2) that R. 23 of the defence of India (Delhi Detenues) Rules, 1964 gave him a right to make a representation by providing review of the said detention order and that his said right was disregarded by his having been prevented from making such representation (3) that the said order was in breach of S. 44 of the Act, and (4) that it was made in mala fide exercise of power. That petition was dismissed on April, 19, 1966. The petitioner was thereafter served with an order, dated June 11, 1966 passed by the Central Government under R. 30-A (9) of the said Rules. The said order, inter alia, stated that " the said detention order has been reviewed by the Central Government and upon such review the Central Government hereby decides that Shri P. L. Lakhanpal should continue to be detained with a view to preventing him from acting in any manner prejudicial to the Defence of India and Civil Defence." The petitioner filed Writ Petition No.137 of 1966 challenging the validity of the said original order of detention and the order, dated June 11, 1966. Rule 30-A (9) provides as follows:_"Every detention order made by the Central Government or the State Government shall be reviewed at intervals of not more than six months by the Government who made the order and upon such review that Government shall decide whether the order should be continued or cancelled." That petition also was dismissed by judgment, dated September 21, 1966. It appears that the petitioner thereafter addressed certain letters and sent representations to the Home Ministry stating therein that he was now clearly of the opinion that the demand for plebiscite in Kashmir by Pakistan had become untenable as a result of certain events having taken place, that the Tashkent declaration had altered relations between Pakistan and India, that the said declaration and other events which had since taken place had completely changed the complexion of Pakistan's stand on Kashmir and that he was also now of the opinion that the application of some of the provisions of the Indian Constitution to Kashmir was correct. He also represented that there were more pressing problems in the country requiring · his attention than the question of Kashmir and the relations between the two countries on that question. By an order, dated the. 2nd December 1966, the Government of India directed the further detention of the petitioner stating therein that "the said detention order has been further reviewed by the Central Government and upon such review the Central Government hereby decides that the order for the detention of the said Shri P. L. Lakhanpal should be continued. The present petition challenges the validity of this order.
(2.) The petitioner contended:- (i) That the said order is a mechanical and casual order passed without taking into consideration all the facts and circumstances. Relevant under R. 30 (1) (b) and R. .30-A (9). (ii) That it is passed in utter disregard of the duty of the Government to act judicially implicit in the power conferred on it under R. 30-A (9) to continue detention both the function to review and the decision thereon being judicial or quasi judicial. (iii) That the said order is ultra vires' S. 44 of the Act whereunder the Government is required to decide whether detention is the minimum action necessary on the facts and circumstances of the case. (iv) That the said order is mala fide and illegal being contrary to the policy statements made on behalf of the Government in Parliament from time to time to restrict the operation of the Act and the Rules. (a) for purposes of defence only, and (b) in border States:and (v) That the said order is mala fide as it is motivated by punitive rather than preventive considerations. In reply to these contentions the counter-affidavit filed by the Deputy Secretary in the Ministry of Home Affairs states that between the 10th of December 1965 and the 2nd of December 1966, the petitioner had made representations either directly or through certain persons and had addressed letters explaining his position that on the basis of those representations and letters and the report about his past activities called for from the police and after considering those materials the Central Government felt satisfied that if the petitioner were to be released, he was likely to resume his prejudicial activities and, therefore, his detention should be continued. The affidavit further alleged that at the time of the review of his case on December 2, 1966 "the said letters, papers, representations and the report from the police were placed before the Minister who had considered the same and he was satisfied that it was necessary to continue the detention of the petitioner . It also stated that it was not possible to disclose to the detenu the material on the basis of which, the Central Government came to the said conclusion, that the order of detention was to prevent the petitioner from indulging in prejudicial activities mentioned in R. 30 (1) (b) and that the apprehension of his indulging in such activities would have to be judged and was judged from representations made by him, it is thus clear from the counter-affidavit that the detaining authority considered (1) the representations and letters made and written by the petitioner, (2) the report of the police authorities in regard to the past activities of the petitioner (there being no question of any present activities as he was in jail since the 2nd of December 1965), and (3) the events which had since his detention taken place. According to the Central Government it came to the decision that continuation of his detention was necessary as it was satisfied that if he were to be released he would continue the same anti-national activities for which he was detained and that his profession that there was a change in his view was only a ruse to get himself released from detention.
(3.) Now, there is no doubt that under the Act as also under the said Rules the Government is the special forum on whose subjective satisfaction an order of detention for the considerations set out in R. 30 (1)(b) can be made and on whose decision arrived at on the considerations and in the manner prescribed by R. 30-A (9) such detention can be continued. However, as held in P.L. Lakhanpal vs. Union of India, Writ Petn. No. 137 of 1966, D/- 21-9-1966 (reported in AIR 1967 SC 908), there is a difference in the power to detain and the power to continue such detention beyond a period of' six months in that whereas the former depends upon the subjective satisfaction of the detaining authority, the latter has in express terms been made dependent on the existence of facts and circumstances necessitating such continuance. This Court held in that petition: "It follows that where the exercise of power is not conditioned on a mere opinion or satisfaction but on the existence of a set of facts or circumstances that power can be exercised where they exist. The authority in such a case is required to exercise the power in the manner and within the limits authorised by the Legislature. The existence of such facts which is the determinant for the exercise of the power is demonstrable." The Court further observed: "Unlike R. 30 (1) the power to continue the detention after review is not dependent on the satisfaction of the Government. Rule 30-A postulates that ordinarily detention should not be for more than six months unless found necessary. It is for that reason that under the Rules when the period of six months expires the Government is enjoined upon to decide whether it should be continued or cancelled. Though the legislature has made the Government the exclusive forum for such a decision, its decision has to be founded on facts and circumstance which make the continuation necessary in order to prevent the detenue acting in a manner prejudicial to the matters set out therein. The substitution of decision instead of satisfaction is a clear indication that the criterion for continuing the detention is the existence of those facts and circumstance which necessitate it. It is not unreasonable to think that the legislature decided to confer power the exercise of which was made dependent upon the subjective satisfaction at the initial stage but where continuation of detention was concerned, it thought that there should be different considerations. At that stage there would be ample time and opportunity for the Government to scrutinise the case fully and ascertain whether facts and circumstances exist demanding continuation and, therefore, deliberately used the word 'decide' instead of the words 'is satisfied'. Therefore, where such circumstances do not exist there would be no necessity for continuation and yet if the Government decides to continue the detention, such a decision would be beyond the scope of R. 30-A and would not be a decision within the meaning of or under that Rule. Cases may arise where circumstance exist leading to the authority's satisfaction that a particular person should be detained but those circumstances may not exist at the time when the review is made. In the latter case it is impossible to say that the Government can still decide to continue the detention nor it is possible to say that it is the Government's opinion or satisfaction that such facts and circumstances exist which is the criterion. The decision on a review has to be arrived at from the facts and circumstances which actually subsisted at the time when the original order was made in the light of subsequent developments and not merely those existing at the time when the order was made. In such a case the decision can be challenged as one not within the scope of or under the Rule and, therefore, unauthorised or as one based on considerations irrelevant to the power." ;