JAMNA MAHADEO PATIL Vs. DEVARAT MEHTA

JUDGEMENT

(1.) This is a petition where the petitioner has been detained under the Maintenance of Internal Security Act, 1971, subject to the conditions of the Maintenance of Internal Security (Maharashtra Conditions of Detention) Order, 1971. These Rules were amended later by the addition of Rule 38, which vests in the State Government power to withdraw any concessions or facilities laid down by the order. Some of the facilities like supplementing diet with the help of food from outside have been withdrawn by the State Government in view of certain orders passed under the added Rule 38. Most of the petitioners filed applications where detention order itself is not being challenged nor the validity or legality of the conditions incorporated in the said order of 1971 are concerned. The only complaint that is being made is that the conditions of detention, which were available under the said Order of 1971 are also not permitted to be availed of by the petitioner, and as such he merely wants a writ of mandamus to be issued directing the State Government or the Authorities detaining the petitioner to follow the provisions of the Maintenance of Internal Security (Maha-rashtra Conditions of Detention) Order, 1971 (hereinafter referred to as 'the Order of 1971'),

(2.) Several such applications, including the present petition, have been presented in this Court as Special Civil Applications. A question arose whether these petitions should be filed under Chapter XXVIII of the Bombav High Court Appellate Side Rules, 1960, before a Division Bench doing criminal business on the Appellate Side or they should be Special Civil Applications under Article 226 before a Division Bench doing constitutional work. Since such a question arose, the learned Chief Justice by his order dated 4th October, 1975, as amended later, referred this matter to the present Bench for hearing the advocates concerned on this subject and give a decision whether such applications should be directed to be registered as Criminal Applications under Chapter XXVIII or Special Civil Applications under Chapter XVII of the Bombay High Court Appellate Side Rules, 1860.

(3.) There was an earlier reference when Special Civil Applications Nos, 2212 and 2213 of 1975 were referred for the specific decision as to whether applications challenging the detention and in the nature of habeas corpus would lie under Chapter XXVIII or under Chapter XVII of the Bombav High Court Appellate Side Rules, 1960. The question raised was that after the repeal of Section 491 of the Criminal Procedure Code, 1898, the provisions of Chapter XXVIII have become ineffective and do not apply to writ petitions challenging the detention and claiming a writ of habeas corpus. That reference was decided on 1st and 2nd October, 1975, and on the construction of the Rules it has been held that all such applications, where the subject-matter is the writ of habeas corpus, would appropriately lie under Chapter XXVIII of the Bombay High Court Appellate Side Rules, 1960.