Input:
ivil Appeal Nos.
387390 of 1977.
From the Judgment and Order dated 30.7.1976 of the Madras High Court in C.R.P. Nos. 1288 to 1291 of 1975.
T.S. Krishnamurthy lyer, A.T.M. Sampath and Thirumaran for the Appellants.
G.L. Sanghi, P.S. Poti, A.V. Rangam, M.G. Natarajan and T.V. Ratnam for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
These four appeals are directed against the common judgment of the High Court of Madras dismissing four Civil Revision Petitions filed by the appellants against the order of the appeal court upholding the order of the Trial Court dismissing their applications made under Section 9 of the Tamil Nadu City Tenants Protection Act 1921.
Briefly the facts giving rise to these appeals are: N.V. Abdullah Sahib predecessor in interest of the appellants obtained a lease of about 10 grounds of vacant land situate in the city of Madras from the ancestors of Respondent landlords in 1924, for carrying on business, he constructed super structures on the vacant land and carried on business in timber under a partnership firm along with his brother N.V. Ummer Kutty and two minors.
The super structures which were constructed prior to 1954 on the demised land were treated partner 737 ship assets along with other properties.
After the death of N.V. Abdullah Sahib and N.V. Ummer Kutty the partnership business could not be carried on, as dispute arose between the partners.
A suit being Civil Suit No. 152 of 1960 was filed for partition and in that suit defendant Nos. 2 and 4 were appointed joint receivers, subsequently on 7.9.1966 Sri Ananthakrishnan Nair, Appellant No. 1 was appointed Receiver who was authorised to take custody of the account books and to realise rent from the sub tenants occupying the property which was the subject matter of dispute in the partition suit.
The High Court passed a preliminary decree in the partition suit but before final decree could be prepared or finalised, the Respondent landlords served notices on the heirs of N.V. Abdullah Sahib terminating the lease and demanding surrender of the land.
Since the land was not restored to the landlords inspite of termination of the lease, the landlords, in 1972 instituted four suits being Suit Numbers 33 to 36 in the Court of Small Causes at Madras for ejectment against the heirs of N.V. Abdullah Sahib, which included defendant Nos.
1 to 10 and Sri P. Ananthakr ishnan Nair, Advocate receiver as defendant No. 11.
In the ejectment suits defendant Nos. 1 to 3 and 5 to 10 did not appear or contest the suit, and ex parte proceedings were taken against them but K.K. Kunhammoo, defendant No. 4 (second appellant) and Sri P. Ananthakrishnan Nair, Advo cate receiver defendant No. 11 contested the ejectment suits.
Defendant No. 4, namely, appellant No. 2, filed an application in each of the ejectment suits claiming benefit of Section 9 of the Tamil Nadu City Tenants Protection Act III of 1922 (hereinafter referred to as the Act) with a prayer to the Court for issuing orders directing the land lords to sell the land, to the defendants and to appoint a Commissioner to ascertain the price which the defendants would pay.
The Respondent landlords contested the applica tions.
The Trial Court rejected the application on the findings that the defendants were not in occupation of the property except a small portion where the account books were kept and the defendants did not require any portion of the land for running their business or for the convenient enjoy ment of the super structures.
On appeal by the defendant Nos. 4 and 11 under section 9 A of the Act, the appellate authority held that proceedings for ejectment had been taken ex parte against most of the defendants and persons entitled to the statutory privilege did not exercise their right and further they have not been in possession and occupation of the premises therefore, defendants were not entitled to the benefit of Section 9 of the Act.
The appellate court further held that defendant No. 4 (the receiver) was not entitled to maintain an application under Section 9 of the Act on behalf of other defendants.
Thereafter both the receivers, defend ant Nos. 4 and 11 preferred four 738 petitions in revision before the High Court.
A learned single Judge by his order dated 30.7.1976 affirmed the orders of the Courts below and dismissed the revision peti tions.
Aggrieved defendant No. 4 and P. Ananthakfishnan Nair, Advocate receiver have preferred these appeals against the order of the High Court after obtaining Special Leave.
In the instant case the appellants ' application was rejected firstly on the ground that the application made under Section 9 of the Act had not been signed by all the tenants against whom suit for ejectment had been filed by the respondent landlords.
Secondly all the three courts ejected the appellants ' application on the findings that the defendants have not been in possession or occupation of the superstructure and they have let out the entire building to sub tenants, thereby they are not entitled to claim benefit of Section 9 of the Act.
As regards the first question the learned counsel for the appellants urged that the applica tion made under Section 9 of the Act was signed by the second Appellant who was defendant No. 4 in the suit.
The suit for partition of the property had not been finally decreed and as no final decree had been passed the shares of the defendants had not been partitioned by metes and bounds the property continued to retain its joint status and de fendant No. 4 being a co owner could legally make applica tion on behalf of other co owners claiming the benefit of Section 9 of the Act.
Since there was no conflict of inter est among the co owners, defendant No. 4 being a co owner could maintain the application not only on his own benefit but also on behalf of all other co owners as the fight of each co owner extends to every inch of the whole property alongwith the other co owners.
It is always open to a co owner to conserve the property for the benefit of all other co owners.
The preliminary decree passed in the partition suit did not affect the joint interest:st of the co owners as no final decree had been passed in the suit and the property under tenancy continued to be joint.
Learned coun sel further urged that defendant No. 4 being a party receiver in the partition suit was entitled to do everything for the conservation and protection of the property for the benefit of the parties to the suit.
The court below commit ted error in rejecting the application on the plea that the same had been signed only by defendant No. 4.
On the other hand, learned counsel for the respondent landlords urged that the application made by only one of the co heirs of the deceased N.V. Addullah Sahib, the original tenant, could not be conscrued as one made on behalf of other co heirs, as they did not contest 739 the ejectment suit and ex parte decree for their eviction had been passed by the trial court which clearly indicate that they were not interested in retaining the property or in continuing possession of the same.
Since all the other heirs of N.V. Abdulla Sahib were not interested to contest the suit, defendant No. 4 (Appellant No. 2) could not main tain application under Section 9 of the Act on behalf of other co heirs and the application made by him did not and could not reflect the desire of other co heirs who had settled outside the State of Tamil Nadu.
The learned counsel further urged that defendant No. 4 though functioning as party receiver was not authorised to take legal proceedings by filing suit or application on behalf of parties to the partition suit.
In the absence of authorisation by the court the defendant.
No. 4 had no authority in law to act as agent of other co heirs.
It was further urged that the receiver is an officer of the Court and he is not agent of any party to the suit notwithstanding the fact that in law his position is ultimately treated as an agent of the successful party on the termination of the suit.
We do not consider it necessary to express our opinion on these rival submissions made before us as in our opinion the appeals must fail on the second question which relates to the findings recorded by all the three courts that since the tenants have not been in occupation of the property in dispute, they are not entitled to the benefit of Section 9 which is equitable in nature.
The Tamil Nadu City Tenants Protection Act, 192 1 was enacted, as its preamble shows, to give protection to cer tain classes of tenants in municipal towns and adjoining areas in the State of Madras, who may have constructed buildings on others ' lands in the hope that they would not be evicted so long as they paid a fair rent for the land.
The object of the Act as contained in the objects and rea sons of the bill state: "In many parts of the City of Madras dwelling houses and other buildings have from time to time been erected by tenants on lands belong ing to others, in the full expectation that subject to payment of a fair ground rent, they would be left in undisturbed possession, notwithstanding the absence of any specific contract as to the duration of the lease or the terms on which the buildings were to be leased.
Recently attempts made or steps taken to evict a large number of such tenants have shown that such expectations are likely to be defeated.
The tenants, if they are evicted, can at the 740 best remove the super structure which can only be done by pulling down the buildings.
As a result of such wholesale destruction, congest ed parts of the city will become more congest ed to the serious deteriment of public health.
In these circumstances it is just and reasona ble that the landlords when they evict the tenants should pay for and take the buildings.
There may however be cases where the landlord is unwilling to eject a tenant, if he can get a fair rent for the land.
The Act provides for the payment of compensation to the tenant in case of ejectment for the value of any build ings which may have been erected by him or his predecessors in interest.
It also provides for the settlement of fair rent at the instance of the landlord or tenant provision is also made to enable the tenant to purchase the land in his occupation subject to certain conditions.
" The Act has been subject to several amendments seeking to protect the tenants ' interest and also safe guarding landlords ' rights in the property.
It would be profitable to refer to the provisions of the Act highlighting broad as pects of the benefits to a tenant and the rights of the landlords which have been safe guarded.
The Principal Act was amended by the Act XIX of 1955 and XIII of 1960 which made comprehensive amendments in the Principal Act of 1921 (Act III of 1922).
The Principal Act was further amended by Act IV of 1972 and XXIV of 1973.
"Landlord" as defined by Section 2(3) means any person owing any land including every person entitled to collect the rent of the whole or any portion of the land whether on his own account or on behalf of or for the benefit of any other person, or by virtue of any transfer from the owner or his predecessor in title or of any order of a competent court or of any provision of law.
"Tenant" as defined by Section 2(4) means a person liable to pay rent in respect of such land under a tenancy agreement express or implied and it also includes any person who continues in possession of the land after determination of the tenancy agreement.
Section 3 provides that every tenant shall on ejectment be entitled to be paid as compen sation the value of any building, which may have been erect ed by him and also the value of trees which may have been planted by him in a suit for ejectment.
If the landlord 's suit for ejectment is decreed the court is required to ascertain the amount of compensation payable under Section 3 and it shall thereupon pass a decree for the amount so found due and direct that on payment of the amount by the landlord within three months from the date of decree the tenant shall put the landlord into possession of the land along with the building and trees thereon, as 741 provided by Section 4 of the Act.
Section 5 provides for determination of compensation to the tenant.
If the landlord is unable or unwilling to pay compensation as directed by the Court he may apply to the Court for fixation of reasona ble rent for the occupation of the land by a tenant in accordance with Section 6 of the Act.
Section 9 provides that a tenant who is entitled to compensation under Section 3 and against whom a suit for ejectment is instituted may apply for an order that the landlord may be directed to sell the land to him for the price to be fixed by the Court, and thereupon the Court shall fix the price in the manner pre scribed therein and direct the said amount to be paid to the landlord by the tenant within a particular time and in default, his application shall stand dismissed.
Section 11 provides that no suit for ejectment shall be instituted against the tenant except after giving three months notice requiring him to surrender possession of the land, building and trees to the landlord.
These provisions broadly seek to recapitulate the objects and reasons as quoted earlier by protecting the tenant from eviction who may have constructed super structure on the land demised to him and it further safeguards the landlord 's interest by making provision for payment of the price of the land to him by the tenant.
In the instant case since the tenant 's right to purchase the land is involved we would refer to the provisions of Section 9 of the Act in detail, which reads as under: "9.
Application to Court for Directing the Landlord to Sell Land: (1) (a) (i) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Causes Courts Act 1882, taken by the landlord may, within one month of the date of the publication of the Madras City Tenant 's Protection (Amend ment) Act 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or Village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of extent of land specified in the application.
(ii) Notwithstanding anything con tained in clause (a) (i) of this sub section, any such tenant as is referred to in 742 sub clause (ii) (b) of clause (4) of Section 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenants ' Protection (Amendment) Act 1973 apply to the Court (whether or not a suit for ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act 1882 (Central Act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending having jurisdiction to entertain a suit for ejectment or in the City of Madras either to such court or to the Presidency Small Causes Court for an order that the landlord under the tenancy agreement shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application.
(b) On such application the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
The Court shall, then fix the price on the minimum extent of the land decid ed as aforesaid or of the extent of the land specified in the application under clause (a) whichever is less.
The price aforesaid shall be the average market value of the three years immediately preceding the date of the order.
The Court shall order that within a period to be determined by the Court not being less than three months and not more than three years from the date of the order of the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.
(2) In default of payment by the tenant of any one instalment, the application under clause (a) of sub section (1) shall stand dismissed, provided that on sufficient cause being shown, the Court may excuse the delay and pass such orders as it may think fit, but not so as to extend the time for payment beyond the three years above mentioned.
On the application being dismissed, the Court shall order the amount of the instalment or instalments if any, paid by the tenant to be repaid to him without any interest.
(3) (a) On payment of the price fixed under clause (b) of sub section (1), the Court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed.
The Court shall by 743 the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any.
The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made the suit or proceeding shall stand dismissed, and any decree or order in eject ment that may have been passed therein but which has not been executed shall be vacated.
Once a suit is filed by the landlord for the eviction of a tenant from land the tenant has right to apply to the Court within one month from the date of the service of summons for the issuance of order directing the landlord to sell the whole or part of the extent of land as specified in the application to him for a price to be fixed by the Court.
On making of such an application the Court is under a manda tory duty to first decide the minimum extent of the land "which may be necessary for the convenient enjoyment by the tenant." (emphasised).
The court must hold enquiry to deter mine whether the tenant requires the land for his convenient enjoyment, and if so, what area or portion of the land would be necessary for his convenient enjoyment.
The court may on the facts of a particular case come to the conclusion that the tenant does not require any portion of the land and in that event it may reject the application and decree the suit for ejectment and direct the landlord to pay compensation to the tenant.
But if the court finds that the tenant needs the whole or any portion of the demised land for "convenient enjoyment", the Court has to fix the price of the land on the basis of market value of three years immediately preced ing the date of the order.
The Court may thereupon direct the tenant to deposit the amount so determined within a specific period not being less than three months and not more than three years.
If the tenant fails to pay the amount so determined, the tenant 's application shall stand dis missed.
Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute.
Section 9 itself imposes restric tion on the tenant 's right to secure conveyance of only such portion of the holding as would be necessary for his conven ient enjoyment.
It creates a statutory right to purchase land through the medium of court on the fulfilment of condi tions specified in Section 9 of the Act.
It is not an abso lute right, as the court has discretion to grant or refuse the relief for the purchase of the land.
In S.M. Transport (P) Ltd. vs Sankaraswamingal Mutt, [1963] Suppl 1 744 SCR 282 this Court considered the question whether the right of a tenant to apply to a court for an order directing the landlord to sell the land to him for a price to be fixed by it under Section 9 of the Act is a property right.
The Court held, that the law of India does not recognise equitable estates, a statutory right to purchase land does not confer any right or interest in the property.
The right conferred by Section 9 is a statutory right to purchase land and it does not create any interest or right to the property.
The tenant 's right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature.
Under the common law a tenant is liable to evic tion and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act.
The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease.
Section 9 confers an additional statutory right on a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the proper ty.
The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature.
Whenever an application is made by a tenant before the Court for issuance of direction to the landlord for the sale of the whole or part of the land to him, the Court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
This determination can obviously be made only after an enquiry is held by the Court having regard to the area of the demised land and the extent of super structure standing thereon, and the tenant 's need for the land for the benefi cial enjoyment of the super structure which he may have constructed thereon.
The enquiry pre supposes that the tenant making the application has been in the occupation of the land and the super structure wherein he may be either, residing or carrying on business, and on his eviction he would be adversely affected.
The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed super structure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business.
Section 9 (1) (b) ordains the court to first decide the minimum extent of the land which may be necessary for the convenient enjoy ment by the tenant, it therefore contemplates that the tenant requires the land for the convenient enjoyment of the property.
If the tenant does not occupy the land or the super structure or if he is not residing therein or carrying on any business, the question of convenient enjoy 745 ment of the land by him could not arise.
The Court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant, in that event the landlord has to pay compensation to the tenant for the superstructure.
In the instant case, admittedly the land in dispute was leased out to N.V. Abdullah Sahib for carrying on business, the Trial Court as well as the First Appellate Court both have recorded concurrent findings of fact that the business which was being carried on by N.V. Abdullah Sahib and his heirs was discontinued in 1964, and except for defendant Nos. 4 and 7, all other defendants have settled down outside Madras and they were not occupying the land or the building thereon nor they were carrying on any business in any por tion of the building on the date of filing of the ejectment suit.
Only in a small portion of the entire land account books of the business was kept and the rest of the land and the super structure standing thereon has been in the occupa tion of sub tenants since 1964.
The Courts have lurther recorded findings that except defendant No. 4 (Appellant No. 1) other defendants are not interested as they did not contest the landlords ' suit for eviction.
These findings clearly show that the none of the defendants have been in occupation of the land of the super structure standing thereon and they have not been carrying on any business therein.
Even in the ejectment suits, barring defendant No. 4 none appeared to contest the suit and ex parte proceedings were taken against them.
The Trial Court as well as the appeal court both have recorded findings that the land in dispute and the super structure has been in occupation of sub tenants since 1964.
In view of these findings the High Court refused to interfere with the orders of the Trial Court as confirmed by the appeal court.
Having regard to these findings and the nature of the tenants ' fight to purchase land under Section 9 being equitable in nature, it would be unreasonable to direct the landlord to sell the land to the tenants.
The facts and circumstances available on record show that the tenants do not require the land for their convenient enjoyment, therefore, it would be inequita ble to direct the landlords to sell the property to the tenants.
It is a matter of common knowledge that price of land, specially in the urban areas has escalated to a great extent and it would not be fair to deprive the landlords of their property and to allow the tenants to enrich at the landlords ' expense.
The law does not intend that the tenant should enrich at the instance of the landlord even though the tenants do not require the land for their convenient enjoyment.
746 We do not therefore find any good reason to interfere with the High Court 's order dismissing the appellants revi sion application.
We accordingly dismiss these appeals but make no order as to costs.
P.S.S. Appeals dismissed.

Output:
Section 3 of the Tamil Nadu City Tenants ' Protection Act, 1921 provides that every tenant shall on ejectment be entitled to be paid compensation for the value of building which may have been erected by him.
Section 9 of the Act, provides that a tenant who is entitled to compensation under section 3 and against whom a suit for ejectment is instituted may apply for an order that the landlord may be directed to sell the land to him for the price to be fixed by the court.
The predecessor in interest of the appellants had ob tained a lease of vacant land in the city of Madras from the ancestors of the respondent landlords in 1924 and construct ed superstructures thereon for carrying on business.
The business was, however, discontinued in 1964.
A partition suit was filed and the first appellant was appointed receiv er.
Before a final decree could be passed in that suit, the respondent landlords served notices on the heirs of the original tenant terminating the lease and later filed eject ment suits against them.
Only defendant No. 4 (2nd appel lant) and defendant No. 11, advocate receiver (1st appel lant) contested the ejectment suits.
Ex parte proceedings were taken against the other defendants.
Defendant No. 4 filed an application in each of the ejectment suits claiming the benefit of section 9 of the Act, with a prayer to the court for directing the landlords to sell the land to the defend ants and to appoint a commissioner to ascertain the price.
The Trial Court rejected the application on the findings that the defendants were not in occupation of the property, for they had let out the entire building to sub tenants except a small portion thereof where the account books were kept, and that the defendants did not require any portion of the land for running their business or for the convenient enjoyment of the superstructures.
735 On appeal by defendants 4 and 11 under section 9A of the Act, the appellate authority held that as the defendants had not been in possession and occupation of the premises, they were not entitled to the benefit of section 9.
The High Court affirmed the findings of the courts below and dismissed the revision petitions preferred by the appel lants.
Dismissing the appeals, this Court, HELD: Section 9 of the Tamil Nadu City Tenants Protec tion Act, 1921 confers a privilege on a tenant, against whom a suit for ejectment has been filed by the landlord to exercise an option to secure conveyance of only such portion of the demised land as would be necessary for his convenient enjoyment.
It creates a statutory right to purchase land through the medium of the court on fulfilment of the condi tions specified therein.
It is not an absolute right, as the court has discretion to grant or refuse the relief for purchase of the land on the facts of a particular case.
[743G H] S.M.
Transport (P) Ltd. vs Sankaraswamingal Mutt, [1963] Suppl.
1 SCR 282, referred to.
The policy underlying section 9 is directed to safeguard the eviction of those tenants who may have constructed super structures on the demised land so that they may continue to occupy the same for the purpose of their residence or busi ness.
The section contemplates that the tenant requires the land for the convenient enjoyment of the property.
Whenever an application is made by tenant before the Court for issu ance of direction to the landlord for the sale of the whole or part of the land to him the Court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
For this determination the Court must hold an enquiry having regard to the area of the demised land and the extent of superstructure standing thereon and the tenant 's need for the said land.
That inquiry pre supposes that the tenant making the application has been in occupation of the land and the super structure wherein he may be either residing or carrying on business and on his eviction he would be ad versely affected.
The court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land it may reject the application and direct eviction of the tenant.
In that event, the landlord has to pay compensation to the tenant for the superstructure.
[744G H; 745A B] 736 In the instant case, the findings recorded by the courts below clearly show that none of the defendants have been in occupation of the land or the superstructures standing thereon and they have not been carrying on any business therein.
The land in dispute and the superstructure have been in occupation of the sub tenants since 1964.
Thus, the tenants could not be said to require the land for their convenient enjoyment.
Having regard to these findings and the nature of the tenants ' right to purchase land under section 9 it would be inequitable to direct the landlords to sell the land to the tenants.
[745E G] The price of land, specifically in the urban areas, has escalated to a great extent and it would not be fair to deprive the landlords of their property and to allow the tenants to enrich at the landlord 's expense.
[745G H]


Input:
30 of 1950.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated 24th October, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) in Criminal Application No. 1003 of 1950.
M.C. Setalvad (Attorney General for India) and C.K. Daphtary (Solicitor General for India), with G.N. Joshi for the appellant.
Respondent ex parte.
676 1952.
May 26.
This is an appeal from an order of the Bombay High Court directing the release of the respondent who had been detained under section 3 of the Preventive Detention Act of 1950. 'The learned Attorney General states at the outset that Government does not want to re arrest the respondent but merely desires to test the High Court 's decision on certain points which will have far reaching effects on preventive detentions in the State of Bombay.
Following the precedent of their Lordships of the Privy Council in King Emperor vs Vimlabai Deshpande(1) we proceed to decide the appeal but direct that the respondent shall not in any event be re arrested in respect of the matters to which the appeal relates.
The respondent was originally arrested under an order of the District Magistrate, Belgaum, dated the 26th February, 1950, though he was then beyond the jurisdiction of that authority.
On the 11th of .July, 1950, the Bombay High Court held that a detention of that kind was invalid.
The decision was given in the case of In re GhateC (2).
This necessitated a review of 57 cases, among them the respond ent 'section Orders were passed in all those cases on the 17th of July, 1950.
About 52 of the detenus were released and in the remaining cases fresh orders of detention were passed by the Government of Bombay.
In the respondent 's case the order was in these terms: "Whereas the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga Village, Taluka Karwar, District Kanara, that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by sub section (1.) of section 3 of the Preventive (1) I.L.R. at 655.
(2) 677 Detention Act, 1950 (No. IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained.
By order of the Governor of Bombay, Sd/ V. T. Dehejia, Secretary to the Government of Bombay, Home Department.
Dated at Bombay Castle, this 17th day of July, 1950.
" He was served with the grounds of detention on the 26th of July, 1950, and with a fuller set on the 9th of August.
The original grounds were as follows: "In furtherance of your campaign for non payment of rent, you were instigating the people in the Belgaum Dis trict to commit acts of violence against landlords.
``In all probability, you will continue to do so.
" The second set gave the following additional particulars: "The people in Belgaum District, whom you were instigat ing to commit acts of violence against landlords in further ance of your campaign for non payment of rent, were the tenants in Hadalge and round about villages in the Khanapur Taluka of Belgaum District, and the said instigation was carried on by you for some months till your arrest in April, 1949.
" On the 24th of August, 1950, the respondent applied to the Bombay High Court under section 491 of the Criminal Proce dure Code for an order of release.
He succeeded, and the appeal is against that order.
The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed inproper legal form.
The basis of their reasoning is this.
Article 166(1) of the Constitution requires that " All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
" It will be seen that the order of detention states in the preamble 678 `` Whereas the Government of Bombay is satisfied. " and the operative part of the order runs " Now, therefore . the Government of Bombay is pleased to direct etc.
" It does not say that the Governor of Bombay is pleased to direct.
The learned Judges held that this is not an order expressed to be made in the name of the Governor and accord ingly is not protected by clause (2) of article 166.
They conceded that the State could prove by other means that a valid order had been passed by the proper authority, but they held that the writing, (Record No. 3), which purports to embody the order, cannot be used to prove that a valid order was made because the formula set out in article 166(1) was not employed.
We are unable to agree.
Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regard ing the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile, but when all is said and done we must look to the substance of article 166 and of the Order.
The short answer in this case is that the order under consideration is "expressed" to be made in the name of the Governor because it says "By order of the Governor.
" One of the meanings of "expressed" is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor.
In our opinion, the Constitution does not require a magic incanta tion which can only be expressed in a set formula of words.
What we have to see is whether the substance of the require ments is there.
It has to be remembered that this order was made under the , and therefore had to conform to its terms.
Section 3 of the Act provides that the State Government may, if satisfied, 679 "make an order directing that such person be detained.
" It is true that under section 3 [(43 a) (a)] of the General Clauses Act the words "the State Government" mean the Governor, but if that be so, then the expression must be given the same meaning in the order which merely reproduces the language of section 3, not indeed because the General Clauses Act applies to the order (it does not) but because the order is reproducing the language of the Act and must therefore be taken to have the same meaning as in the Act itself, particularly as the order concludes with the words, " By order of the Governor of Bombay.
" It will be noticed that section 3 of the enables certain authorities specified by it to make orders of detention.
These include, not only State Governments but also the Central Government, any District Magistrate or Sub Divisional Magistrate and certain Commis sioners of Police.
The list does not include the Governor of a State.
Now, though the term "State Government" appearing in an enactment means the Governor of the State, there is no provision of law which equates the term Governor with the State Government of which he happens to be the head.
On the contrary, the Constitution invests him with certain func tions and powers which are separate from those of his Gov ernment.
It was therefore appropriate that the order in this case should have set out that the Government of Bombay was satisfied and not some other authority not contemplated by the Act and that that Government directed the detention.
It was also proper that the order should have been executed under the orders of the Governor authenticated, under the rules, by the signature of the Secretary.
It is true that addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have placed the matter beyond controversy but we are unable to see how an order which purports to be an order 680 of the Governor of 'BombaY can fail to be otherwise than in his name.
If A signs his name to a communication that commu nication goes out in his name.
Equally, if he employs an agent to sign on his behalf and the agent states that he is signing under the orders of A, the document still goes forth in the name of A.
In our opinion, the High Court was wrong on this Point The next step in the High Court 's reasoning was this.
The learned Judges held that the writing produced as the order did not prove itself because of the defect we have just considered but that nevertheless it was open to the State Government to prove by other means that such an order had been validly made.
The learned Judges therefore called upon Government to make an affidavit setting out the facts.
An affidavit was made by the Home Secretary but the learned Judges were not satisfied and asked for a further affidavit.
The Home Secretary thereupon made a second one but the learned Judges were i still not satisfied and considered that the Minister in charge should have made an affidavit himself.
We do not intend to discuss this matter because once an order of this kind is unable to prove itself and has to be proved by other means it becomes impossible to lay down any rule regarding either the quantum of evidence necessary to satisfy the Court which is called upon to decide the question or the nature of the evidence required.
This is a question of fact which must be different in each case.
Of course, sitting as a court of appeal, it would have been necessary for us to decide this had we reached a different conclusion on the first point and had the State Government desired the re.arrest of the respondent.
But as we are only asked to deal with general principles, all we need say as regards this is that it is not necessary in every case to call the Minister in charge.
if the Secre tary.
or any other person, has the requisite means of knowledge and his affidavit is believed, that will be enough.
681 We wish, however, to observe that the verification of the affidavits produced here is defective. 'The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally.
The verifica tion however states that everything was true to the best of his information and belief.
We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit.
Verifications should invar iably be modelled on the lines of Order XIX, rule 3, of the Civil Procedure Code, whether the Code applies in terms or not.
And when the matter deposed to is not based on person al knowledge the sources of information should be clearly disclosed.
We draw attention to the remarks of Jenkins C.J. and Woodroffe J. in Padmabati Dasi vs Rasik Lal Dhar(1) and endorse the learned Judges ' observations.
In fairness to the Home Secretary we deem it right to say that his veracity was neither doubted nor impugned by the High Court, but only his means of knowledge.
He was speaking of the "satisfaction" of the Minister and the High Court was not satisfied regarding his knowledge of the state of the Minister 's mind.
The learned Judges considered that the Minister himself would have been a more satisfactory source of information, but as we say, this is not a question of law.
As a matter of abstract law, of course, the state of man 's mind can be proved by evidence other than that of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof.
But whether that would be enough in any given case.
or whether the ' 'best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days (1) Cal.
682 and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affidavit from the Minister in charge of the department is indispensable in all such cases, then they went too far.
The learned Attorney General contended that the Minis ter in charge could not be asked to divulge these matters because of article 163 (3) of the Constitution.
We donor decide this question and leave it open.
Another point which was argued related to the privilege which the Home Secretary claimed on behalf of the State Government under article 22 (6) of the Constitution.
Govern ment disclosed certain facts in the grounds furnished to the detenu and claimed privilege regarding the rest of the facts in its possession.
In our opinion, the grounds supplied were sufficiently specific and they could form a proper basis for the "satisfaction" of the Government.
As regards the rest, Government has claimed privilege in the affidavit of the Home Secretary on the ground of public interest.
This raises further questions which we do not intend to examine as the respondent is not to be re arrested.
The order of release was, in our opinion, wrong, but in view of Government 's undertaking not to re arrest the re spondent, we direct that he be not re arrested in respect of the matters to which this appeal relates.
Order of High Court set aside.

Output:
The material portion of an order of detention made under 3 of the preventive Detention Act 1950, ran as fol lows: 675 "Whereas the Government of Bombay is satisfied with respect to the person known as J. N . . that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it is necessary to make the following order: Now, therefore, . . the Gov ernment of Bombay is pleased to direct that the said J.N. be detained.
By order of the Governor of Bombay (Sd.) V.T.D. Secretary to the Government of Bombay, Home Department".
The High Court of Bombay held that the order was defec tive as it was not "expressed to be in the name of the Governor" within the meaning of article 166 (1) and was not accordingly protected by article 166 (2): Held, that the order was not defective merely because it stated that the Government of Bombay was satisfied and that the Government of Bombay was pleased to direct that J.N. be detained, and, though the addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have placed the matter beyond controversy, the order was really one expressed to be taken in the name of the Governor of Bombay within article 166.
Held further, that, assuming that the order was defec tive it was open to the State Government to prove by other means that such an order has been validly made.
It is not absolutely necessary in every case to call the Minister in charge; if the Secretary or any other person has the requi site means of knowledge and his affidavit is believed, that will be enough.
Verification should invariably be modelled on the lines of O. XIX, r. 3, of the Civil Procedure Code, whether the Code applied in terms or not, and when the matter deposed to is not based on personal knowledge the sources of informa tion must be clearly disclosed.