TMI Blog1967 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissed on April 19, 1966. The petitioner was thereafter served with an order dated June 11, 1966 passed by the Central Government under Rule 30A(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 pre-judicial 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 30A(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 judgement 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 it 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, 1.966 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 Rule 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 thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 circumstances which make the continuation necessary in order to prevent the detenu 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 circumstances 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 con- siderations. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rice ([1911] A.C. 182.) stated, Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining the questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon a matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I do not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think that they are bound to treat such a question as though it were a trial .... They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view . Similar sentiments were also expressed by Lord Haldane in Local Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicate afforded by the statute . The Court there held that it was obvious that the Committee when it proceeded to decide matters covered by r. 1(1) will have to depend upon materials placed before it and before it decided to award any penalty it had to come to an objective determination on certain facts and this was the only manner in which it could carry out the duties imposed on it. Even though there was no lis in the present case in the sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the order of detention needs continuation or not. How can such an authority come to its decision honestly and properly unless it is certain that the materials before it are true and dependable. How is that certainty to be derived unless the person concerned is given an opportunity to correct or contradict such evidence either by explanation or through other materials which he can place before the authority. Keeping in mind the five factors laid down in the case of The Board of High School and Intermediate Education U.P. ([1962] Supp. 3 S.C.R. 36.), the conclusion that we must come to is that the function entrusted to the authority under Rule 30A(9) as distinguished from the power under Rule 30(1) (b) is quasi-judicial and the- -decision which it has to arrive at cannot be anything other than. a quasi-judicial decision. Mr. Dhebar, however, relied on the judgment of Shah, J. in Sadhu Singh v. Delhi Administration ([1966] 1 S.C.R. 243.) and especially the observations therein that if the order of detention is purely executive and not open to review by the court, a review of those very pircumstances on which the order was made in the light of circumstances since the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of six months. In our view, whereas the function under Rule 30(1) (b) is executive, the one under Rule 30A(9) is quasi-judicial and therefore in exercising it the rules of natural justice have to be complied with. It is admitted that the petitioner was not given any opportunity of representing his case or to correct or contradict the evidence on which the Government was going to rely on and which it admittedly relied on. But Mr. Dhebar's contention was that if the power of decision under Rule 30A(9) were held to be quasi judicial in character a person detained would be entitled to disclosure of the materials in possession of the Government and on the basis of which the order would be made, that such disclosure would not only be prejudicial to the very purposes of the Act and the Rules but also to national interest and, therefore, the legislature could not have intended such disclosure. The answer to 'his Contention is simple. In some cases, though such cases would be few, such disclosure would perhaps be embarrassing and, we will assume, detrimental to the larger interests of the country. But the proper remedy against such a consequence is not to deny the elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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