KANAI LAL PAUL Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) THESE are applications under Section 491, Criminal P. C,, by persons who are under detention in consequence of Orders made against them by the Provincial Government under Section 2 (l) (a), Bihar Maintenance of Public Order Act, 1947. In all these cases the detenus were arrested in the Chota Nagpur Division. A number of questions have been raised affecting the legality of their detention. The first arises by reason of the fact that Chota Nagpur is an area to which chap, v of part III, Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, applies.

(2.) BY Section (2), the Bihar Maintenance of Public Order Act is declared to extend to the whole of the Province of Bihar, and Sub -section (3) declares that it shall remain in force for a period of one year from the date of its commencement. To this sub section, however, there is the following proviso:

(3.) IN Support of the legality of the Orders of detention the learned Advocate General contended that since the notification issued by the Governor under B. 92, extending the Act to Chota Nagpur, did so without modifying the Act in any way, it follows that the proviso to B. l (3) was also applied to Chota Nagpur. If that were so, the effect would be that the Provincial Government could, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that the Act should remain in force for a further period of one year even in the Chota Nagpur Division, Such a construction, however, appears to me to violate the language and spirit of Section 92, Government of India Act. By that section the operation of Acts of the Dominion and Provincial Legislatures are expressly excluded in excluded areas and partially excluded areas unless the Governor by a Public notification directs that they shall operate in those areas. For reasons of State the Legislature has confirmed to the Governor the function of legislating for excluded and partially excluded areas. That being patently the intention of the Legislature, and no express power having been given to the Governor to delegate the right to legislate for excluded and partially excluded areas, it follows that he cannot confer on the Provincial Govern, ment the right to legislate for such areas. But if the contention of the Advocate -General be accepted that the proviso to Section 1 (3), Bihar Maintenance of Public Order Act also applies to Chota Nagpur, the result will be that the life of the Act will be extended in Chota Nagpur, not by the Governor but by the Provincial Government. Such a result would defeat the clearly expressed intention of Section 92, Government of India Act. It seems to me that in so far as the Governor Originally purported to extend the whole Act of Chota Nagpur on 16th March 1947, he acted beyond his powers so far as the first proviso to Section 1 (8) of the Act is concerned, and that the notification by which he purported to do so cannot be regarded as conferring upon the Provincial Government the power to extend the life 'of the Act in Chota Nagpur beyond 15th March 1948. On 7th March, however, the Governor issued the following notification: