Smt. Sabira Shaikh Raees Vs. R.H. Mendonca and ors. - Court Judgment

Excerpt:
maharashtra prevention of dangerous activities of slumlords, bootleggers, drug-offenders and dangerous persons act, 1981 - section 3(1) - detention order - inaccurate version of the order in hindi supplied to the detenu - detenu knowing english is not relevant - public order and law and order are different terms - right to make effective representation impaired - hit by article 22(5) of the constitution of india - detention order illegal.;once the detaining and sponsoring authority decided to furnish a hindi translation to the detenu, it hardly lay in their mouth to suggest that they had a licence to give the incorrect translation because, the detenu knew english and no prejudice would be caused to him on account of some incorrectness in the hindi translation. it could have been appreciated had the detaining authority taken the stand that since the detenu knew english, it was under no obligation to supply him the hindi translation but, no judicial protection can be given to the mistake in the hindi translation on account of this fact. ;the contention that the inaccuracies in the translation were of a minor nature and did not affect the detenu's right to make a proper and effective representation under article 22(5) of the constitution of india cannot therefore be accepted. ;in paras 5 and 6 of the grounds of detention, the word public order was used but, in the hindi translation of the said paras, public order was translated as law and order. ;public order and law and order are not synonymous. the two terms are distinct in the eyes of law, and so distinct that the breach of law and order would not invite the issuance of a preventive detention order under the m.p.d.a. act but. a breach of public order would. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 9 (d) in short in that the detenu is well-conversant in hindi language and the hindi transaction of documents furnished to him suffers from some basic infirmities which have impaired his right to make an effective representation under article 22(5) of the constitution of india. tripathi also urged that whereas in para 6 of the grounds of detention, which as said earlier are in english, it has been mentioned that the detaining authority was subjectively satisfied that in case the detenu was not preventively detained under the mpda act, he would revert to similar activities prejudicial to the maintenance of public order in future, in the hindi translation of the said portion of para 6 it has been mentioned that he would revert to similar activities prejudicial to the maintenance of law and order in future.vishnu sahai, j.1. through this writ petition preferred under article 226 of the constitution of india, the petitioner who styles herself as the wife of the detenu raees bashir shaikh, has impugned the detention order dated 21st july, 1999 passed by the first respondent mr. r.h. mendonca, commissioner of police, brihan mumbai, detaining the detenu under sub-section (1) of section 3 of the maharashtra prevention of dangerous activities of slumlords, bootleggers, drug offenders and dangerous persons act, 1981 (no. lv of 1981) (amendment - 1996) (hereinafter referred to as the mpda act).the detention order along with the grounds of detention, also dated 21st july, 1999, was served on the detenu on 13th august, 1999. true copies of the detention order and the grounds of detention are annexed an annexures a and b respectively to this writ petition.2. a perusal of the grounds of detention would show that the impunged detention order is founded on one c.r., namely c.r. no. 265 of 1998 of sir j.j. marg police station, mumbai, under section 224, 225, 143, 147, 148, 332 and 452, ipc registered on a complaint lodged by police constable pravin kadam and two in - camera statements of witnesses a and b respectively.3. we have heard learned counsel for the parties. since in our view, this petition deserves to succeed on the ground pleaded as ground no. 9 (d) in the petition, we are neither adverting to the other grounds of challenge raised in the writ petition nor to the details of the prejudicial activities of the detenu contained in the grounds of detention, giving rise to the impugned detention order.4. ground no. 9 (d) in short in that the detenu is well-conversant in hindi language and the hindi transaction of documents furnished to him suffers from some basic infirmities which have impaired his right to make an effective representation under article 22(5) of the constitution of india. mr. tripathi learned counsel for the petitioner, amongst others, invited our attention to two infirmities. he urged that in para 5 of the grounds of detention, which are in english, it has been averred that the detenu was a habitual criminal and action taken against him under the normal law of land was found to be in adequate and effective to deter him from indulging in criminal activities prejudicial to the maintenance of public order in the limits and areas in brihan mumbai. mr. tripathi urged that in the hindi translation of the said portion of para 5 of the grounds of detention, it has been mentioned in the place of 'public order' law and order.mr. tripathi also urged that whereas in para 6 of the grounds of detention, which as said earlier are in english, it has been mentioned that the detaining authority was subjectively satisfied that in case the detenu was not preventively detained under the mpda act, he would revert to similar activities prejudicial to the maintenance of public order in future, in the hindi translation of the said portion of para 6 it has been mentioned that he would revert to similar activities prejudicial to the maintenance of law and order in future.mr. tripathi vehemently contended that the aforesaid inaccuracies in the hindi translation impaired the detenu's right to make an effective representation under article 22(5) of the constitution of india. in fact, mr. tripathi went to the extent of urging that in case of breach of law and order. mpda act would not be attracted.5. ground no. 9(d) has been replied to in para 18 of the return of the detaining authority. mr. rajiv patil, learned counsel for the respondents strenuously urged that the said grounds is devoid of substance for two reasons namely :-(a) the detenu knew english and therefore no prejudice was caused to him if there were some minor inaccuracies in the hindi translation of the grounds of detention; and(b) there was no mistake of a glaring nature in the hindi translation which would affect the detenu's right to make an effective representation under article 22(5) of the constitution of india.it is pertinent to mention that the said stand has also been taken in para 18 if his return by the detaining authority where ground no. 9(d) has been replied to.6. we have reflected over the rival submissions and we are constrained to observe that we do not find any merit in mr. patil's submission. we make no bones in observing that once the detaining and sponsoring authority decided to furnish a hindi translation to the detenu, it hardly lay in their mouth to suggest that they had a licence to give the incorrect translation because, the detenu know english and no prejudice would be caused to him on account of some incorrectness in the hindi translation. we could have appreciated had the detaining authority taken the stand that since the detenu knew english, it was under no obligation to supply him the hindi transaction but, we cannot give judicial protection to the mistake in the hindi translation on account of this fact.in this connection, it would be pertinent to refer to para 17 of the decision of a division bench of this court, reported in 1987 cri lj 1787 (smt. shashikala krishnarao rane v. union of india). a perusal of the said para would show that the marathi translation of the grounds of detention, as also the declaration under section 9(1) of the cofeposa act supplied to the detenu, contained some mistakes and inspite of the fact that the detenu knew english the division bench accepted the contention of the petitioner's counsel (mr. m.g. karmali) that they could not be put in the cold storage. we are extracting the relevant portion of the observations contained in the said para which read thus :-we are inclined to accept this submission made by mr. karmali. if the detaining authority thought it expedient to furnish the translations even though the detenu knew english, then the detenu was entitled to take advantage of the translations and to point out that the translations which he relied upon did not convey a faithful meaning of the original grounds or the declaration under section 9(1) of the act and were such as to make it impossible for the detenu to communicate and on that ground also the order ought to be struck down.7. we are also not inclined to accept mr. patil's contention that the inaccuracies in the translation were of a minor nature and did not affect the detenu's right to make a proper and effective representation under article 22(5) of the constitution of india.as we have seen earlier in paras 5 and 6 of the grounds of detention, the word public order was used but, in the hindi translation of the said paras, public order was translated as law and order.7a. we regret that public order and law and order are not synonymous. the two terms are distinct in the eyes of law, and so distinct that the breach of law and order would not invite the issuance of a preventive detention order under the mpda act but, a breach of public order would.8. it should be borne in mind that preventive detention is draconian piece of legislation. the law may permit it on the principle of doctrine of necessity; it being imperative where the prejudicial activities of a person sought to be detained cannot be contained or curbed by the ordinary law of land but, as the supreme court observed way back in the year 1981, in the decision reported in : 1980crilj1487 (smt. shalini soni v. union of india) at p. 1490, para 4 of cri lj :-since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by article 22(5) read with article 19, the courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. a breach of the procedural imperative must lead to the release of the detenu.(emphasis supplied)9. if the said ratio of the apex court is to be borne in mind then, there is no getting away from the fact that the translation of the documents supplied to the detenu must be accurate, and where the same is not, as is the case here, the logical imperative, howsoever regrettable from the stand point of law and order, would be that the detenu would have to be released.10. in the circumstances, we allow this writ petition; quash the impugned detention order; direct that the detenu raees bashir shaikh be released forthwith unless wanted in some other case; and make the rule absolute.