JUDGMENT <NAME>, Kt., C.J.

1. The plaintiffs sued for a declaration against the Secretary of <ORG> and one Sanava kom Shiddangowda, that they, and not Sanava, were the Watandars of Nagwand Patilki watan, and for a permanent injunction restraining defendants Nos. 1 and 2 from recovering from plaintiffs more than assessment or judi payable on watan lands and for costs of the suit.

2. It is stated in the plaint that prior to 1812 four persons of defendant No. 2's family had owned half the Patilki watan of the village of Nagwand. But they left Nagwand for good and began to live in Mysore territory. Their watan lands remained uncultivated and thus lay fallow. Judi to the then <ORG> remained unpaid by them. In these circumstances, the then <ORG>, with a view to realize the judi due to it upon those lands, granted the Patilki watan to one <NAME> the ancestor of the present plaintiffs, hereditarily at a reduced rate of judi for seven years. This <NAME> represented to the then <ORG> that the original house of the Patilki watan was situated near <NAME>' houses and lie being a Lingayat could not live in it. Upon this the <ORG> were pleased to grant, in lieu of the house, another house and open space to <NAME>, and also granted a <ORG> for lands, i.e., deed of grant in 1812, in favour of <NAME>. So, by the <ORG> of 1812, the family of the present plaintiffs acquired half the Gowdki watan of Nagwand village, and similarly the family of defendant No. 2 ceased to be Watandars of the same watan. Since then the plaintiffs' family as Watandars of the Nagwand Gowdki watan had been in possession and enjoyment of the Patilki watan house and Patilki watan lands R Survey Nos. 94 and 95 of Nagwand village uptil now. In 1907, the present defendant No. 2 moved the revenue authorities to restore these watan lands to her under the Watan Act, but ultimately the Prant Officer rejected her application by an order, dated September 19, 1907. In 1919, the present defendant No. 2 again moved the revenue authorities, and finally the Commissioner S. D. passed, on May 17, 1921, an order that he did not consider it, necessary to cancel the Prant Officer's order, dated September 19, 1907. But, again, on July 24,1921, defendant No. 2, by an application, moved the Commissioner S. D, to revise his own order dated May 17, 1921, and, on November 30, 1921, the Commissioner passed the order that, under Section 8(2) of the Watan Act, the Collector should pass such order as he thought fit regarding the rent to be paid on <ORG>. 94 and 95 of Nagwand village by plaintiffs to defendant No. 2.The Collector, accordingly, passed, on March 3, 1922, the order that the fair rent of Rs. 280 should be recovered from the plaintiffs and paid to defendant No. 2 so long as the plaintiffs continued to be in possession of these lands. Upon this the plaintiffs appealed to the Local <ORG>, but it refused to interfere. The plaintiffs prayed (a) that the <ORG> should declare that the plaintiffs are Watandars of the Nagwand Patilki watan, and that defendant No. 2 is not Watandar of the same watan; and (b) that the <ORG> should issue a permanent injunction to defendants Nos. 1 and 2 that they should not recover from the plaintiffs more than assessment or judi payable on watan lands <ORG>. 94 and 9a of Nagwand village.

3. Defendant No. 1 pleaded that the Court had no jurisdiction to take cognizance of the suit, under Section 4 (a) of the Bombay Revenue Jurisdiction Act, 1876; that the suit was barred by limitation under Article 120 of the Indian Limitation Act ; that the cause of action arose in 18S0 when the request of the plaintiffs' predecessor-in-title to be declared a Watandar was rejected; that it also arose in 1870 when, during an inquiry held for the determination of the custom of the watan as to service and the appointment of a representative Watandar, it was decided that the plaintiffs' predecessor-in-title was not a representative Watandar but held the watan land as tenant only; that the allegation in paragraph 7 of the plaint that the cause of action arose in 1921 was not true; that the allegations in paragraphs and 2 of the plaint that in 1812 the Patilki watan land in dispute was granted to the plaintiffs' ancestor was not true and was denied; that it was also denied that, in 1812 or at any time thereafter, the ancestor of defendant No. 2 ceased to be the Watandar or that the plaintiffs' ancestor was appointed and recognised as a Watandar of the Patilki watan in dispute.

4. It was also pleaded that the plaintiffs' ancestors were throughout in possession of the land as the tenants of defendant No. 2's ancestors to whom the land in dispute was assigned as remuneration for the Patilki office of Nagwand.

5. The District Judge held that the second relief claimed for an injunction clearly fell within the provisions of the Bombay Revenue Jurisdiction Act. It was a suit to set aside or avoid the order passed by the Collector, on March 3, 1922, in obedience to the Commissioner's request of November 30, 1921. That order was expressly made under Section 9 (2) of the Watan Act. It was made by an officer duly authorized in that behalf and such a suit was within the prohibition of Section 4(a)(3) of the Bombay Revenue Jurisdiction Act.

6. With regard to the first relief, the Judge thought that a more, difficult question was raised. He came to the conclusion that "when an order is made on a specific decision, such as ia contained in Exhibit 36, that a person is not a Watandar, a person seeking to obtain a declaration from a civil <ORG> that the decision is bad certainly seeks to avoid that order," and; accordingly the suit was dismissed with costs.

7. The plaintiffs have appealed. Pending the appeal <NAME> died and one <NAME> was placed on the record as her heir. But we are told now that <NAME> does not claim to be the heir of <NAME>, and, if it were necessary, the appeal would have to be adjourned for the purpose of amending the record, But if the District Judge was right in dismissing the suit for want of jurisdiction, then there would be no necessity for adjourning the appeal.

8. It has been argued that the order made by the Commissioner, on November 30, 1921, to the Collector was ultra vires, as he had no power to revise his own order of May 17, 1921. But it would appear from the record of the proceedings before the Commissioner on that date, that they were ex parte without hearing <NAME>, and the Commissioner admitted that as <NAME> had not been given full opportunity of representing her case, he reconsidered the matter on November 30, 1921, after hearing pleaders for <NAME> and for respondents, the present appellants.

9. We do not think that those proceedings were ultra vires. It is a general principle that a party against whom an order ex parte is made is entitled to have the matter decided after arguments on both sides have been heard, so that the order passed by the Commissioner on November 30, 1921, was not, properly speaking, an order passed in revision, but an order properly made after hearing both the parties, one of whom had not been heard on the previous occasion, The Commissioner has given his reasons for holding that the present appellants were not Watan-dars. He referred particularly to the Kararpatra of 1866 by which the respondents' predecessor agreed to restore the whole of the watan land to the Watandars excepting one field which he was to retain as tenant for five years, i. e,, till 1871. That field is identical with the two Survey Numbers now in suit.

10. It has, therefore, been held by the Commissioner that there had been an alienation which showed that the appellants were not Watandars, and had never attained to any higher title to the said land than that of tenants.

11. We agree with the District Judge that this Court has no jurisdiction to set aside orders made under Sections 11 and 11A and Section 9 (2) of the Watan Act.

12. But it is contended by the plaintiff's that they would be entitled to ask the <ORG> to grant them the declaration they asked for in the plaint, that they, and not defendant No. 2, are the Watandars of the watan in question, as against defendant No.2, leaving out of consideration defendant No. 1. In the first place, that would be striking out the main relief asked for in the plaint against both the defendants, and would also entirely change the character of the suit. Secondly, as the suit has been dismissed for want of jurisdiction, that does not bar the plaintiffs from bringing any other suit, which they may be advised, against the heirs of the original defandant No. 2. We say nothing with regard to the question whether such a suit would lie, But we think that, as long as the Secretary of <ORG> is a party to the suit, such a declaration could not be granted.

13. In Phadnis' Vatan Act (3rd Edn.) at p. 461, reference is made to an unreported decision in <NAME> v. <NAME> (1920) F.A. No. 269 of 1918 in which <NAME> said :-

In my opinion, when an order is baaed on a specific decision that a person is not a Watandar, a person seeking to obtain a declaration from <ORG> that that decision is bad. certainly seeks to avoid that order,...Accordingly, the case clearly falls within the 3rd paragraph of Clause (a) of Section 4 (of the Revenue Jurisdiction Act) Also so far as the suit seeks relief against Government relating to Watan land it falls within the that paragraph of that clause-We were referred...to the decision in <CITATION> (1896) P.J. 666....It was there argued that the Secretary of <ORG> was merely a formal party and that it was merely a contest between two private parties. No doubt, if that is the case in a auit, then the 3rd paragraph of Clause (a) of b. 4,.,does not come in the way of the plaintiff; and,... the decisions of this Court that <ORG> has jurisdiction to entertain a suit to be declared a Watandar are really confined to cases of that class. In the leading case of <NAME> v. <NAME> (1883) I.L.R. 8 Bom. 25, there had apparently been no order against the plaintiff passed fay the Collector and it was merely a private dispute between the plaintiff and certain persons who denied plaintiff's status as a Watandar.

14. We agree with the conclusions arrived at by the learned Judges in that case.

15. Here the Commissioner has come to the conclusion that the appellants are not Watandars, and if we were to deal with the case as if the Secretary of <ORG> were not a party, and there was merely a private dispute between the appellants and defendant No. 2 as to whether the plaintiffs were Watandars, we should be in effect passing judgment on the decision of the Commissioner, and oven if we were of opinion that the plaintiffs were Watandara, our decision would be of no value whatever to the plaintiffs as against <ORG>.

16. We see no reason, therefore, why we should alter the character of the suit which is, we think, beyond the jurisdiction of the <ORG>, in order to enable the plaintiffs to try and obtain what, as far as we can see, would be an entirely useless declaration. If, as a matter of fact, they are able to prove that the Kararpatra of 1866 was a forgery, then that might be of some assistance to them in prosecuting their claim for the declaration they ask for against defendant No. 2. That is a matter, however, with which we are not concerned in this suit. Therefore, we dismiss the appeal with costs. Two sets of costs.


ORDER

1. Defendants in O.S.No.293 of 2001 on the file of the Subordinate Judge, Cuddalore, aggrieved by the order dated 29.11.2001 in I.A.No. 777 of 2001 in the said suit, has filed the above revision under Article 227 of the Constitution of India. Plaintiffs/respondents herein filed the said suit (O.S.No.293 of 2001) before <ORG>, Cuddalore against the defendants/petitioners herein for declaration declaring that <ORG>, Cuddalore is an independent entity outside the control of <ORG> and that the suit property belongs absolutely to <ORG>, and restraining the defendants, their men, agents or any person claiming under them by a decree of permanent injunction from in any manner interfering with the plaintiffs' possession and enjoyment of the suit property and their right to administer the affairs of <ORG>. Pending suit, the plaintiffs filed I.A.No.777 of 2001 under Order 39, Rules 1 and 2 and Section 151 of the Code of Civil Procedure, praying for an order of interim injunction restraining the second respondent therein from acting as Pastor (Presbyter) of <ORG> and the first respondent from appointing any other person as Pastor (Presbyter) of <ORG>. The learned Subordinate Judge, by an order dated 29.11.2001, after hearing the arguments of the petitioners' side and perusing the records and after holding that they made out a prima facie case, granted ad interim injunction against the second respondent therein till 20.12.2001 and ordered Notice to the respondents. Against the said order, the respondents in that application preferred the present revision under Article 227 of the Constitution of India.

2. Heard the learned counsel for the petitioners as well as respondents.

3. Mr. <NAME>, learned counsel appearing for the petitioners, after drawing my attention to the relevant provisions, namely, Order 39, Rules 1, 2 and 3 of the Code of Civil Procedure and by pointing out that inasmuch as the learned Subordinate Judge has not recorded any reason for the grant of interim order, the same is violative of the provisions of Order 39, Rule 3, C.P.C. and not sustainable. He also points out that in such a circumstance, the petitioners herein are entitled to seek constitutional remedy under Article 227 of the Constitution of India by way of revision before this Court. On the other hand, Mr. <NAME>, learned counsel appearing for the respondents, vehemently contended that the present revision under Article 227 of the Constitution of India is not maintainable since the petitioners herein have effective remedy either by filing a petition for vacation of the injunction or filing an appeal before the appellate court accordingly prayed for dismissal of the revision petition.

I have carefully considered the rival submissions.

4. Since the issue arose in this Revision relates to interpretation of Order 39, Rules 1 and 3 C.P.C., it is useful to refer the same:-

"Order 39, Rule I. Cases in which temporary injunction may be granted.-Where in any suit it is proved by affidavit or otherwise-

a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiffs or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until disposal of the suit or until further orders.

2. xx xx 2A. xx xx

3.Before granting injunction. <ORG> to direct notice to opposite party.- The <ORG> shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party.

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object or granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."

5. Before considering the fact whether the learned Subordinate Judge, Cuddalore has complied with the conditions stipulated in the above Rules, it is but proper to refer the factual aspects. According to the petitioners, <ORG> was formed by <ORG> in the year 1947. <ORG> is an unregistered body with a written constitution which governs the administration in the <ORG>. It is divided into 21 Dioceses each administered by a body called <ORG> which meets once in two/three years.

Each <ORG>s is headed by a Bishop who presides over an elected Executive Committee which acts for <ORG> in between the biennial meetings of <ORG>. Each <ORG> consists of several units called <ORG>s. A pastorate consists of one or more congregations. Each <ORG> has its own constitution which is in conformity with the constitution of <ORG> and the <ORG>. The properties of <ORG> are held by <ORG> (<ORG>) which is registered under the Companies Act , 1956. Though several civil and revenue proceedings had taken place, it is suffice to refer the filing of the suit, namely, O.S.No.293 of 2001 by the respondents herein before <ORG>, Cuddalore. In that suit, they prayed for a declaration declaring that <ORG>, Cuddalore is an independent entity outside the control of <ORG>, declaring that the suit property belongs absolutely to <ORG> and restraining the defendants, their men, agents or any person claiming under them by a decree of permanent injunction from in any manner interfering with the plaintiffs' possession and enjoyment of the suit property and their right to administer the affairs of <ORG>. The plaintiffs also filed I.A.No. 777 of 2001 under Order 39, Rules 1 and 2 and Section 151 of the Code of Civil Procedure praying for an order of injunction against the 2nd respondent therein from acting as Pastor (Presbyter) of <ORG> and from appointing any other person as Pastor (Presbyter) of <ORG> pending suit. The Principal Subordinate Judge, Cuddalore took up the injunction application and passed the following orders on 29.11.2001:-

29.11.2001 Petitioner's side arguments Heard. Perused the records. Prima facie case made out. Hence, ad-interim injunction granted against 2nd respondent till 20/12. Notice to respondents by then. Prl. Subordinate Judge.

Petition Under Order 39, Rules 1 and 2 Section 151 . C.P.C.

Mr. <NAME>, learned counsel for the petitioners herein by drawing my attention to Order 39, Rules 1 and 3, vehemently contended that in the absence of recording the reasons for granting ad-interim injunction before hearing the other side, the interim order passed by the learned Subordinate Judge cannot be sustained. He also contended that the plaintiffs have not enclosed any document either along with the plaint or with the injunction application; hence there is no question of "perusing the records" as stated by the learned Subordinate Judge. Any party who files a suit for necessary relief is also entitled for a temporary injunction under Order 39, Rule 1. The said application must be supported by affidavit stating that the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or that the other party threatens, or intends, to remove or dispose of his property with a view to defraud. In other words, if there is sufficient materials and apprehension to show that the defendant is likely to waste, damage, alienate, sell or dispossess the property in dispute or otherwise cause injury to the plaintiff in relation to the property in dispute in the suit, he can ask for a temporary injunction either until the disposal of the suit or until further orders. Like wise, in a suit for restraining the defendant from committing a breach of contract or other injury, the plaintiff may at any time during the pendency of the suit apply to the <ORG>, for temporary injunction to restrain the defendant from committing the breach of contract or injury complained of. In all these cases, the <ORG> may by order grant injunction, on such terms as to the duration of the injunction. The power granted under Rules 1 and 2 of Order 39 is subject to the conditions prescribed in Rule 3. As per Rule 3, in all the injunction applications the normal rule is to issue notice of the application to the opposite party. However, if it appears to the <ORG> that the object of granting injunction would be defeated by delay, the <ORG> shall, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The <ORG> can grant injunction without giving notice of the application to the opposite party by recording the reasons for its opinion and also require the applicant to fulfill the conditions stipulated in Clauses (a) (i) (ii) and (iii) and (b) of Rule 3. In the order under challenge, the learned Subordinate Judge has no doubt stated that he heard the "petitioners' side arguments" and "perused the records.". He also stated that there is a "prima facie case". Before going further, as rightly contended by Mr. <NAME>, the plaintiffs have not produced a single document in support of their allegations along with the plaint. A perusal of the copy of the plaint filed in the typed-set of papers as well as the certified copy of the plaint produced at the time of hearing shows that the plaintiffs have not produced documents along with the plaint. Order 7, Rule 9 insists that plaintiff shall endorse on the plaint, or annex thereto, a list of the documents, if any, which he has produced along with it and if the plaint is admitted, he has to present within such time as may be fixed by the <ORG> or extended by it from time to time as many copies for the service of the defendants. If documents are enclosed along with the plaint, Sub-rule (4) of Rule 9 enables the Chief Ministerial Officer of the <ORG> to sign such list and copies of such statements regarding the correctness of the same. Mr. <NAME>, learned counsel appearing for the respondents, fairly admitted that the plaint did not contain documents. However, it is stated that at the time of hearing of the injunction application I.A.No.777 of 2001, necessary documents have been placed before the <ORG> and after perusing those documents, the learned Subordinate Judge has granted ad-interim injunction. He also points out that the copies of those documents have been served on the respondents therein along with the copy of the injunction petition, affidavit, plaint etc. According to Mr. <NAME>, this shows that the plaintiffs have produced those documents at the time of hearing of the injunction application. I am unable to accept the said contention, since the injunction application I.A.No.777 of 2001 did not contain any such enclosures as claimed by Mr. <NAME>. The petition and order finds a place at pages 30 and 31 of the typed book. Absolutely there is no reference regarding details of those documents whether they were filed along with the petition or placed at the time of hearing of the injunction application. In other words, except the oral statement of Mr. <NAME>, absolutely there is no iota of evidence to show that the documents have been filed either along with the plaint or in the injunction application. In such a circumstance, as rightly contended by Mr. <NAME>, except the averments in the affidavit and plaint, no documents have been placed before the <ORG>; accordingly the statement of the learned Subordinate Judge that he "perused the records" cannot be sustained.

6. The scope of Order 39, Rule 3, particularly giving reason/reasons for granting injunction without giving notice of the application to the opposite party and the effect of the same has been considered in various decisions. In <ORG> v. <NAME>, , three Judge Bench of <ORG> has held that reasons to be recorded before grant of ex parte injunction under Order 39 Rule 3. This question was elaborately considered in para 38 of their judgment:-

"38. This Court had occasion to emphasise the need to give reasons before passing ex parte orders of injunction. <CITATION> , "...the court shall record the reasons' why an ex pane order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restrain against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The <ORG> has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the <ORG> shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. This principle was approved and accepted in well-known cases of <NAME> v. <NAME>, 1875 (1) Ch D 426: 45 LJ Ch 373), and <CITATION> AIR 1936 PC 253(2) :63 IA 372: 37 Crl LJ 897. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of <CITATION> , 1975(1) SCC 915.

As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed."

After saying so and after considering the merits of the case before them, Their Lordships have concluded that, (para 39) "39...As to why the respondent chose to come at the eleventh hour and where was the need to pass an urgent order of injunction, are mailers which are not discernible. Besides tested in the light of the case law set out above, the impugned order which is bereft of reason and laconic cannot stand a moment's scrutiny."

7. <CITATION> , , which is also another three Judge Bench of <ORG>, it has been held that, (para 30) "30....It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him."

8. It is clear from Rule 3 that whenever the <ORG> intends to grant ex parte injunction without notice to the opposite part, the <ORG> shall record its reason/reasons for its opinion that the object of granting the injunction would be defeated by the delay and also require the applicant to fulfil the conditions stipulated in Clause (a) and (b) therein. Though the learned Subordinate Judge has stated that he heard the arguments of the petitioners' side, perused the records and found that a prima facie case is made out in favour of the petitioners, first of all there is no question of perusing the records in the absence of any documents filed either along with the plaint or with the injunction application. The mere statement that 'there is a prima facie made out' would not be sufficient for strict compliance of Rule 3. As a matter of fact, the courts have taken a view that apart from arriving at a conclusion that a prima facie case is made out, in certain matters, the court has to satisfy the maintainability of the suit etc. It is to be noted that grant of injunction is an extraordinary power vested in the <ORG> to be exercised taking into consideration the facts and circumstances of a particular case. The <ORG>s have to be more cautious that when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that, the object of granting the injunction would be defeated by delay. In view of the Proviso to Rule 3 aforesaid, 1 hold that without recording the reasons, the grant of ad-interim injunction cannot be sustained. When the statute itself requires reasons to be recorded, the <ORG> cannot ignore the requirements. Further, the condition so introduced .is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. This principle was approved and accepted in well-known cases of <NAME> v. <NAME>, 1875 (1) Ch D 426: 45 LJ Ch 373 and <CITATION> , AIR 1936 PC 253 (2). To make it clear that whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. It is also relevant to note the <ORG> decision of the Apex <ORG> in <CITATION> , , wherein Their Lordships have held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the light of the specific provision, namely, Proviso to Rule 3, in the absence of recording reasons for granting ad-interim injunction even before notice to the opposite party, I hold that the impugned order of the learned Subordinate Judge dated 29.11.2001 is liable to be interfered.

9. Now I shall consider whether the impugned order can be interfered by exercising the constitutional remedy under Article 227 of the Constitution of India or the aggrieved party has to go before the same court for vacation of the injunction order or file an appeal before the appellate court to vindicate their grievance. Mr. <NAME>, learned counsel for the respondents by relying on a latest decision of <ORG> in <CITATION> ., , contended that the remedy under Article 227 of the Constitution of India is not appropriate and the proper course for the petitioner herein is to go before the same court or file an appeal before the appellate court. In the said decision, the power of the court to pass ex pane order of injunction with or without notice, interim or temporary or till further orders or till the disposal of the suit, and the non-compliance of Rule 3 (a) or (b) as well as interference by this <ORG> exercising Article 227 of the Constitution of India have been considered. The facts in that case are the plaintiff claims to be a lessee under one <NAME>, 6th defendant in the suit in respect of the property and on that strength he claimed to be in possession of the property. He alleged that the defendants 1 to 5 have been threatening to dispossess him. The appellant/plaintiff filed the suit on 25.6.99 for a decree of permanent injunction restraining defendant Nos. 1 to 5 from dispossessing him. Along with the institution of the suit he moved an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure to pass an ad-interim injunction restraining the respondents 1 to 5 or their men or agents, or their representatives or any person claiming through them or under them from evicting the petitioner from the suit property other than by due process of law. On 29.6.99 the Assistant Judge of the City Civil <ORG>, Chennai passed an ex pane order of injunction. In the order, the learned Judge has stated that he perused the documents. Rental receipt document 11 to document 47 proves that the petitioner is the statutory tenant and in prima facie possession of the suit property. The balance of convenience is in favour of the petitioner. In the interest of justice, it appears that R-1 to R-5 are restrained from evicting the petitioner from the suit property; accordingly granted interim injunction till 25.8.99. The first respondent on behalf of himself and respondents 2 to 5, filed a revision petition invoking Article 227 of the Constitution before this court alleging that they purchased the property from the owners thereof its per different sale documents executed on 15.3.96, and they were in possession and enjoyment of the property. The learned Single Judge of this <ORG>, who disposed of the revision, made the observation that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond thirty days as the court had then no occasion to know of what the affected party has to say about it. Such a course is impermissible under Order 39, Rule 3-A of the Code, according to the learned Single Judge and, therefore, he set aside the injunction order. After holding that there is no documents to show that the first respondent is actually in possession and running such a business except the lease deed, he came to the conclusion that the ex parte order is unsustainable and accordingly set aside the order of the trial Judge. After holding so, the learned Single Judge directed the trial court to lake up the interlocutory application for injunction and pass orders on merits and in accordance with law. It was contended before the Supreme court that the High <ORG> should not have entertained a petition under Article 227 of the Constitution when the respondent had two remedies statutorily available to him first is that the respondent could have approached the trial court for vacating, if not for any modification, of the interim ex parte order passed. Second is that an appeal could have been preferred by him against the said order. It was also stated that it is open to the respondent to opt either of the two remedies. After referring to Rule 3 of Order 39, the Supreme <ORG> has arrived at the following conclusion:- (para 12 of L.W) " 12. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in Clauses (a) and (b) of Rule 3 of Order 39. In our view, such an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex pane, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party. "

It is also relevant to note the further conclusion of Their Lordships in para 18, "18. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances, the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances, the party who does not get justice due to the inaction of the court in following the mandate of <ORG> must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases, the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."

Mr. <NAME> very much relied on the conclusion of Their Lordships in para 12 and 18 extracted above. Though the said decision supports the contention of the learned counsel for the respondents, the facts in that case clearly show that the learned Single Judge of <ORG> interfered in the revision filed under Article 227 of the Constitution mainly on the ground that the trial court ought not have granted an order of injunction at the first stage itself which could operate beyond 30 days and according to the learned single Judge, such a course is impermissible under Order 39, Rule 3-A of the Code. He, therefore, set aside the injunction order "for the clear transgression of the provisions of law" and noted that this is the third suit filed in reference to the suit property and hence deprecated the grant of ex parte injunction without notice. Order 39, Rule 3-A of the Code emphasises that <ORG> should dispose of the applications for injunction within 30 days. It is clear that where an injunction has been granted without giving notice to the opposite party, the <ORG> shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted; and where it is unable so to do, it shall-record its reasons for such inability. That is not the position in the case on hand. In the present case, the learned Subordinate Judge, Cuddalore, by Order dated 29.11.2001, case has granted ad-interim injunction till 20.12.2001. The Hon'ble Supreme <ORG> after holding that the said Rule does riot say that the period of injunction should be restricted by the <ORG> to 30 days at the first instance, but the court should pass final order on it within 30 days from the day on which the injunction was granted, came to the conclusion that the order does not ipso facto become illegal merely because it was not restricted to a period of 30 days or less. It is also clear that the <ORG> (Supreme <ORG>) was to consider the consequence, if any, on account of the court failing to pass the final orders within 30 days as enjoined by Rule 3-A. Only in this context, the Supreme <ORG> has held that the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. This is clear from para 18 of Their Judgment. The reading of paragraph 18 of their Judgment, it is clear that the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. The Hon'ble Supreme <ORG> has also expressed that in a case where the mandate of order 39 Rule 3 A of the Code is floated, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. They also observed that in such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate <ORG> in complying with the provisions of Rule 3A. In the present case, inasmuch as the learned Subordinate Judge has not recorded the reason for its opinion for granting ad-interim injunction without giving notice of application to the opposite party, I am of the view that the said decision is not helpful to the respondents' case as claimed by Mr. <NAME>. I am also satisfied that Their Lordships have very much considered the consequence of failure of non-compliance of Sub-rule (a) or (b) of Rule 3 and Rule 3A. Further, the earlier judgments of the Supreme <ORG>, particularly regarding Proviso to Rule 3 have not been cited or referred to in <CITATION> ., 2001 (1) L.W. 429. I have already referred to the decisions reported in <CITATION> , and <CITATION> , , wherein the three Judge Bench of the Hon'ble Supreme <ORG> after considering the Proviso to Rule 3, have held in categorical terms that ex parte injunction without recording reasons for its opinion cannot be sustained and this <ORG> can interfere by exercising the constitutional power under Article 227. For these reasons, I am of the view that the two Judge Bench decision reported in <CITATION> ., 2001 (1) L.W. 429 relied on by Mr. <NAME> is not helpful and applicable to the case on hand.

10. Learned counsel appearing for the respondents has also very much relied on a Judgment of <NAME>, J., the then Hon'ble Chief Justice of this <ORG> in <CITATION> ., 1996 (2) L.W. 834. No doubt, in similar circumstance, the Hon'ble Judge in para 4 of the Judgment has held that, "4. Even assuming for a moment that what is passed is only an ad-interim injunction, ignoring the provisions contained in Rule 3 of Order 39 of Civil Procedure Code, the only appropriate course for the party against whom an order of injunction is issued, is to file objections immediately without waiting for service of notice, and seek vacation of the same. Rule 3-A of Order 39, C.P.C. specifically provides that where an injunction has been granted without giving a notice to the opposite party the <ORG> shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability. Therefore, it becomes incumbent on the part of the <ORG> granting an injunction without giving a notice to the opposite party to decide the application within four weeks. That being the position, the practice of filing a Civil Revision Petition against the ad-interim injunction and entertaining of the same by this <ORG> cannot be encouraged, rather it should be deprecated, and discontinued...."

Though Mr. <NAME> heavily relied on the above passage of the conclusion of the Hon'ble Judge, it is to be noted that the said conclusion had been arrived at in a revision filed under Section 115 , C.P.C. against the ex parte order of injunction passed under Order 39, Rules t and 3. Admittedly, it seems that the decisions of <ORG> reported in <CITATION> , and <CITATION> , were not brought to the notice of the Hon'ble Judge. Apart from this, the learned Judge had no occasion to consider the power of interference under Article 227 of the Constitution of India. I have already stated that the case before the learned Judge relates to revision filed under Section 115 , C.P.C. In such a circumstance, I am of the view that the conclusion arrived at by the learned Judge is to be confined to the revision petitions filed under Section 115 , C.P.C., accordingly the same is also not helpful to the present case.

11. It is relevant to refer a decision of <ORG> in <CITATION> , , wherein their lordships have held that rigid and inflexible view of jurisdiction under Article 227 should not be taken. Their Lordships have also held that " Article 227 or Article 226 was devised to advance justice and not to thwart it. Even as early as in 1954 <ORG> of <ORG> in <CITATION> , had held that the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep subordinate <ORG> within the bounds of their authority apart from and independently of the provisions of other laws conferring revisional jurisdiction on <ORG>. It is also relevant to note the latest decision of <ORG> in <CITATION> , regarding the revisional jurisdiction of this <ORG> under Article 227 of the Constitution. In the said decision, Their Lordships have held in para 26 that "when there is error of jurisdiction or flagrant violation of the law laid down by this <ORG>, by exercising the revisional powers, the court can set aside the order passed by the <ORG> to do justice between the parties." It is clear that error of jurisdiction or flagrant violation of the law laid down by <ORG> can be set aside by this <ORG> under Article 227 of the Constitution. As already referred to by me, in the case of granting injunction without hearing the opposite party, it is mandatory on the part of the trial court to record the reasons for its opinion for granting such injunction. When the said condition is violated, I am of the view that in order to do justice between the parties, this <ORG> can interfere by exercising the revisional powers under Article 227 of the Constitution. The impugned order which is bereft of reason and laconic cannot stand a moment's scrutiny as ruled in <CITATION> , . If it is held that the compliance with the proviso in Rule 3 is optional and not obligatory, then the introduction of the proviso by the <ORG> shall be a futile exercise. As observed by the Hon'ble Supreme <ORG>, Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. Inasmuch as this condition has been violated by the learned Subordinate Judge, the impugned order is liable to be set aside.

12. Net result, the order dated 29.11.2001 of the Subordinate Judge, Cuddalore in I.A.No. 777 of 2001 in O.S.No.293 of 2001 is set aside. Civil Revision Petition is allowed. No costs.


PETITIONER: <NAME> Vs. RESPONDENT: THE ADMINISTRATOR, UNION TERRITORY OF DELHI & ORS. DATE OF JUDGMENT13/01/1981 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. FAZALALI, SYED MURTAZA CITATION: 1981 AIR 746 1981 SCR (2) 516 1981 SCC (1) 608 1981 SCALE (1)79 CITATOR INFO : RF 1981 SC2041 (9) D 1982 SC 710 (92,93) D 1982 SC1029 (14) MV 1982 SC1325 (16,36,75) R 1982 SC1473 (11) E&D 1985 SC1618 (9) R 1986 SC 180 (39,42) RF 1986 SC 847 (12) RF 1987 SC 990 (16) R 1991 SC 101 (239) RF 1991 SC1902 (24) RF 1992 SC1858 (10) ACT: Right of the detenu under Conservation of Foreign Exchange & Prevention of Smuggling Activities Act , to have interview with a lawyer and the members of his family- Section 3(b)(i) & (ii) read with rule 559A and 550 of the Punjab Manual of the Superintendence and Management of Jails-Whether violates Articles 14 and 21 of the Constitution and hence invalid-Distinction between preventive detention with punitive detention-Constitution of India 1950 Article 21 , scope of. HEADNOTE: Allowing the writ petition, the <ORG> ^ HELD : (1) While considering the question of validity of conditions of detention courts must necessarily bear in mind the vital distinction between preventive detention and punitive detention. Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while preventive detention is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. [523 A-B] (2) The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and in many countries it is not allowed to be exercised except in times of war or aggression. The Indian Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Article 22 in clauses (4) to (7) deals specifically with safeguards against preventive detention and enjoins that any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation, Article 21 also lays down restrictions on the power of preventive detention. [523 B-D] Article 21 as interpreted in <NAME> case requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the <ORG> to decide in the exercise of its constitutional power or judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention must, therefore, pass the test not only of Article 22 but also of Article 21. But, despite these safeguards laid down by the Constitution and creatively evolved by the <ORG>s. the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished 517 and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused, inasmuch as the preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited. Therefore, the "restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal". [524A- <CITATION> ,  1 SCC 248; M.O. Hoscot v. State of Maharashtra,  1 SCR 192; <CITATION> ,  1 SCC 81; <CITATION> ,  1 SCR 392; <CITATION> ,  2 SCR 557, referred to. <CITATION> ,  3 SCR 574, followed. 3. The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. A prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the <ORG> will immediately spring into action and run to his rescue. [525 B-C, 526 G-H, 527 <CITATION> ,  1 SCR 392; <CITATION> ,  2 SCR 557, <CITATION>  1 SCR 702; <CITATION> ,  2 SCR 24, followed. <NAME> Case, 417 US 817: 41 Lawyers Edition 2nd 495; <NAME>, 41 Lawyers Edition 2nd 935, quoted with approval. (4) While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges. This principle applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. [527 C-D, 528 <CITATION> . 54 Lawyers Edition 801, quoted with approval. (5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. 518 Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article may be total or partially neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21 , whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. Therefore any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21. [528 D, G-H, 529 A] <NAME> v. State of Uttar Pradesh,  1 SCR 232, followed. <NAME> v. Illinois  94 US 133, referred to. <CITATION> ,  2 SCR 557, applied. (6) The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Therefore, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruelty, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Article 14 and 21. [529 B-F] (7) There is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore, when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can be socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore, as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and 519 friends can be upheld as constitutionally valid under Article 14 and 21 , unless it is reasonable, fair and just. Considered from the point of view also of the right to personal liberty enshrined in Article 21 , the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression "personal liberty" occurring in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". Therefore, personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21. [530 <CITATION> ,  1 SCC 248, applied. (8) Sub-clause (ii) of clause 3(b) of the Conditions of Detention Order is violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. When an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends, once in a week under Rule 550, sub-clause (ii) of clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, is unreasonable and arbitrary, particularly when a detenu stands on a highest pedestal than an under-trial prisoner or a convict. A detenu must be permitted to have at least two interviews in a week with relatives and friends and it should be possible for relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. Even independently of Rules 550 and 559A, of the Punjab Manual for the Superintendence and Management of Jails, the present norm of two interviews in a week for prisoners furnishes a reasonable and non-arbitrary criterion. [530 F-H, 531 <CITATION> ,  3 SCR 574, applied. (9) Sub-clause (i) of clause 3(b) of the Conditions of Detention Order regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Article 14 and 21 and therefore unconstitutional and void, It would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. The interview need not necessarily take place in the presence of a nominated officer of Customs/ Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, than such officer and if his presence cannot be so secured, 520 then any other Jail official may, if thought necessary, watch the interview but in a month to a detenu. When an under-trial prisoner is granted the facility [532C-F] (10) The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filling a writ petition or prosecuting any claim or proceeding, civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. [531C-E] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3042 of 1980. (Under Article 32 of the Constitution.) <NAME> (Dr.) and <NAME> for the Petitioner.

<NAME> and <NAME> for the Respondents Nos. 1-2.

The Judgment of the Court was delivered by <NAME>, J. This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act ) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act. She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a <ORG> Officer nominated by the Collector of <ORG>. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no <ORG> Officer nominated by the Collector of <ORG> remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of clause 3(b) sub-clauses (i) and

(ii) of the Conditions of Detention laid down by <ORG> under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA Act. These two sub-clauses of clause 3(b) provided inter alia as under:

"3. The conditions of detention in respect of classification and interviews shall be as under:-

(a) ..........

(b) Interviews: Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under:-

(i) Interview with legal adviser:

Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who sponsors the case for detention.

(ii) Interview with family members:

A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu .........."

The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order and praying that the Administrator of the Union Territory of Delhi and the Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub-clauses.

The principal ground on which the constitutional validity of sub-clauses (i) and (ii) of clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when under-trial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that sub- clauses (i) and (ii) of clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of under- trial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub-clause (i) and (ii) of cl. 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.

Now it is necessary to bear in mind the distinction between 'preventive detention' and punitive detention', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the <ORG> and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Art. 22 , there is also Art. 21 which lays down restrictions on the power of preventive detention. Until the decision of this <ORG> in <NAME> v. <ORG>, a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Art. 21. But in <NAME> case (supra), this <ORG> for the first time opened-up a new dimension of Art. 21 and laid down that Art. 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This <ORG> expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in <NAME> case became the starting point-the-spring-board-for a most spectacular evolution the law culminating in the decisions in <NAME> v.

State of Maharashtra,, <NAME> case, the first <NAME> case and the second <NAME> case. The position now is that Art. 21 as interpreted in <NAME> case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the <ORG> to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22 , but also of Art. 21 and if the constitutional validity of any such law is challenged, the <ORG> would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the <ORG>s, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this <ORG> in <CITATION> "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."

The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in <ORG>. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate ? The answer to this question is no longer res integra. It has been held by this Court in the two <NAME> cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration." The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two <NAME> cases, this position was impliedly accepted in <CITATION> and it was spelt-out clearly and in no uncertain terms by <NAME>, J. as he then was, in <CITATION> :

"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."

This statement of the law was affirmed by a Bench of five Judges of this <ORG> in the first <NAME> case (supra) and by <NAME>, J. speaking on behalf of the <ORG> in the second <NAME> case (supra). <NAME>, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this <ORG>'s writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the <ORG> armed with the Constitution."

<NAME>

It is interesting to note that <ORG> of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice <NAME> struck a humanistic note when he said in <NAME> case :

"Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process."

So also in <NAME> case, Mr. Justice <NAME> made the same point in emphatic terms.

"But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country."

Mr. Justice <NAME> reiterated his thesis when he asserted:

"Every prisoner's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards."

Mr. Justice <NAME> also expressed himself clearly and explicitly in the same terms:

"I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection."

What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the <ORG> which is to use the words of <NAME>, J., "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.

We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub- clauses (i) and (ii) of clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in <NAME> case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just. Now what is the true scope and ambit of the right to life guaranteed under this Article ? While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the Fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by <ORG> in <NAME> v. <ORG>.

"Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but- its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice <NAME>, "designed to approach immorality as nearly as human institutions can approach it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."

This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In <NAME> v. State of Uttar Pradesh <NAME> quoted with approval the following passage from the judgment of <NAME> in <NAME> v. Illinois to emphasize the quality of life covered by Article 21:

"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first <NAME> case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21 , whether such deprivation be permanent or temporary and, furthermore, depriva-

tion is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.

The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21 , for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty' occurring in Article 21 has been given a broad and liberal interpretation in <NAME> case (supra) and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.

Now obviously when an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non-arbitrary, particularly when a detenu stands on a higher pedestal than an under-trial prisoner or a convict and, as held by this <ORG> in <NAME> case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold sub-clause

(ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non-arbitrary.

The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of <ORG> to be nominated by the local Collector of <ORG> or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of <ORG> or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.

We are therefore of view that sub-clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Arts. 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the <ORG>, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of <ORG> but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other <ORG> official may, if thought necessary, watch the interview but not as to be within hearing distance of the detenu and the legal adviser.

We accordingly allow the writ petition and grant relief to the extent indicated above.

V.D.K. Petition allowed.