MADAN TIWARI Vs. R K SHUKLA DY COLLECTOR

JUDGEMENT

(1.) THIS Order shall also govern the disposal of Miscellaneous Petition No. 728 of 1975 (Shivkumar Baipai v. The District Magistrate, Rajnandgaon and Miscellaneous Petition No. 729 of 1975 (Lai Shyam Shah v. The District Magistrate, Rajnandgaon ). These three petitions by the petitioners who have been detained by orders of the District Magistrate, Rajanandgaon, raise a common question and, therefore, they are disposed of by this common order.

(2.) THE short point raised by the petitioners is that after the promulgation of the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) by the President on 29th June, 1975, two courses were open to the detaining authority (i) to exercise the power of detention conferred by Sub-section (2) of Section 3 of the Act, or (ii) to make a declaration in terms of subsection (3) of the newly inserted Section 16a. They further contend that the declaration thereunder, has to be made at the time of the making of the order of detention. Upon that basis, it is said, that, if after the promulgation of the Ordinance on 29th June 1975, the detaining authority chooses to exercise the power of detention under Section 3 (1) (a) (ii) of the Act, and not that of making a declaration under Section 16a (3), the provisions of Sections 8 to 12 of the Act must apply in such case, and these provisions not having been followed in the case of the petitioners, their detention beyond a period o! twelve days from the order of detention by the State Government as envisaged by Subsection (3) of Section 3, was illegal,

(3.) IN our opinion, the petitioners are not right in saying that there are two courses open to the detaining authority after the promulgation of the Ordinance. The combined reading of the two Ordinances, namely, Ordinance Nos. 4 and 7 of 1975, is that the detaining authority must now comply with both the conditions (i) to make an order directing the detention of any person under Section 3 (1) (a) (ii) of the Act, if satisfied that the detention of such person is necessary, as here, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, and (ii) when making an order of detention under the Act i. e. , under Section 3 (1) (a) (ii), as in these cases, to consider whether the detention of such person under this Act is necessary for dealing effectively with the Emergency and if, on such consideration, so satisfied, to make a declaration to that effect as required under Sub-section (3) of Section 16a,