Shaik Hasmath Beebi Vs. Dist. Collector and Dist. Magistrate and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....orderd.s.r. varma, j.1. this writ petition is filed by one smt. shaik hasmath beebi, wife of shaik khajavalli, the alleged detenu, seeking a writ of habeas corpus declaring that the detention of the alleged detenu as illegal and void.2. the brief facts which are not in dispute are that by an order, dated 3-2-2000, the first respondent/district collector, east godavari district, ordered detention of the alleged detenu by exercising jurisdiction under section 3(2) read with section 3(1) of the andhra pradesh prevention of dangerous activities of boot-leggers, dacoits, drug offenders, goondas, immoral traffic offenders and land grabbers act, 1986 (for brevity hereinafter referred to as 'the act') and consequential arrest of the detenu was effected on 5-2-2000. a representation was made to.....

Judgment:
ORDER

D.S.R. Varma, J.

1. This writ petition is filed by one Smt. Shaik Hasmath Beebi, wife of Shaik Khajavalli, the alleged detenu, seeking a Writ of Habeas Corpus declaring that the detention of the alleged detenu as illegal and void.

2. The brief facts which are not in dispute are that by an order, dated 3-2-2000, the first respondent/District Collector, East Godavari District, ordered detention of the alleged detenu by exercising jurisdiction under Section 3(2) read with Section 3(1) of the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for brevity hereinafter referred to as 'the Act') and consequential arrest of the detenu was effected on 5-2-2000. A representation was made to the second respondent/Government and on such representation, the second respondent/Government confirmed the order of the first respondent /District Collector, East Godavari District, on 18-3-2000, on receipt of the report of the Advisory Board. The period of detention was for one year with effect from 5-2-2000. Questioning the same, Writ Petition No. 2691 of 2000 was filed and the same was dismissed by this Court.

3. Another representstion was made by the detenu to the Government on 27-4-2000. The same was received by the second respondent Government on 2-5-2000. On 5-5-2000, the first respondent/District Collector, East Godavari District, was called for remarks. The first respohdent/District Collector received the said letter on 8-5-2000, but no remarks were offered by the District Collector. On 7-6-2000 a letter was addressed by the second respondent/ Government to the District Forest Officer calling for parawise remarks. The District Forest Officer submitted his remarks on 15-6-2000. The same was received by the first respondent/District Collector on 15-6-2000 itself and the same was forwarded by him to the second respondent Government on 16-6-2000. After processing the same, the second respondent/ Government rejected the said representation on 19-6-2000.

4. A counter-affidavit has been filed by the first respondent/District Collector, East Godavari District, on behalf of the respondents. It is stated therein that issue of detention has been decided against the detenu in the earlier Writ Petition No. 2691 of 2000 by a Division Bench of this Court on 28-3-2000 and, hence, the present writ petition is not maintainable inasmuch as the same grounds are raised in both the writ petitions. Further it is stated that the representation of the detenu, dated 27-4-2000 was made under Section 15 of the Act. It is further stated that the scope of consideration of a representation under Section 15 of the Act is limited inasmuch as Section 15 deals with only temporary release of a detenu and any delay in disposing of the representation does not vitiate the order of detention and such delay does not amount to violation of rights guaranteed under Article 22(5) of the Constitution.

5. In the light of the above facts, the following points would fall for consideration by this Court:-

(i) Whether the second writ petition would operate as constructive res judicata in the light of the disposal of the earlier Writ Petition No,2691 of 2000, dated 28-3-2000?

(ii) Whether there is any delay in considering the representation of/or on behalf of the detenu and if so amounts to violation of the rights guaranteed under Article 22(5) of the Constitution?

6. Point No. 1 : With regard to point No. 1 , in Writ Petition No. 5277 of 2000 and 5415 of 2000, dated 13-7-2000, this Bench relying on the decisions rendered in Lallubhai Jogibhat Patel v. Union of India, : 1981CriLJ288 . Kirit Kumar Chaman Lal Kundaliya v. Union of India, : [1981]2SCR718 , Azam Ali v. Govt. of A.P., : 1992(1)ALT141 . held that the filing of the second writ petition is not hit by principles of constructive res judicata and is perfectly maintainable. The same relief is sought for in the second writ petition but on a different ground,

7. A perusal of the contentions in the earlier writ petition reveals that the petitioner herein filed the said writ petition questioning the merits of the orders of detention passed by the Government and a Division Bench of this Court went into such merits of the case and found that only three grounds were mentioned as the basis for detention which are different crime numbers in which the alleged detenu was said to have been involved and eventually the same was dismissed since specific grounds have been mentioned in the grounds of detention and as the said grounds were based upon sufficient material. But, in the present case, the specific plea is that the second representation made by the detenu, dated 27-4-2000, was not considered without any delay and such delay in considering the representation and passing a final order is fatal and violation of the rights guaranteed under Article 22(5) of the Constitution. In our view, this ground is totally a new ground which was not taken in the earlier writ petition. In other words, this ground could not be taken in the earlier writ petition for the simple reason that the second representation was made subsequent to the dismissal of the earlier writ petition. Therefore, the question of delay on the part of the respondents in considering the second representation, dated 27-4-2000, could not be the subject matter in the earlier writ petition. Therefore, in view of the decisions referred to supra, we hold that the present writ petition is maintainable inasmuch as the principles of constructive res judicata shall not be made applicable in cases of writ of habeas corpus. Point No. 1 is answered accordingly.

8. Point, No. 2: In this regard Sri C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the petitioner, places reliance on a decision of the Supreme Court in S.M. Jahubar Sathik v. State of T.N., 1999 SCC (Crl.) 511, It was a case where the representation was taken up, dealt with and ultimately disposed of after seeking clarifications thrice. In those circumstances having taken into account the facts on record and the counter affidavit, their Lordships held that:

'The respondents before disposing of the representation had sought clarifications thrice, A perusal of the original file reveals that the clarifications were sought in the usual bureaucratic style only for the sake of clarification without there being any need for it. In these circumstances, it cannot be said that the representation was disposed of with promptitude. On the contrary, even the explanation offered by the respondents in their counter-affidavit filed before the High Court indicates the lethargic attitude with which the representation was taken up, dealt with and ultimately disposed of after seeking clarifications thrice on issues which really did not arise nor was there any necessity for seeking clarifications. The representation could have been disposed of without seeking clarification which obviously was sought to cover up the delay in prompt disposal of the representation.'

9. Further, in Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, 1996 SCC (Crl.) 470. it was held that:

'Representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation, in the disposal of the representation would fatally affect the order of detention, and in that situation, continued detention would become bad.'

10. Coming to the facts of the present case, as stated already the second representation was made by the detenu to the Government on 27-4-2000 and the same was received by the second respondent/ Government on 2-5-2000. On 5-5-2000 the first respondent/District Collector, East Godavari District, was called for para wise remarks. The first respondent/District Collector received the said letter on 8-5-2000, but no remarks were offered by him. On 7-6-2000 a letter was addressed by the Government to the District Forest Officer calling for his remarks. The first respondent/District Collector received the remarks of the District Forest Officer on 15-6-2000 and forwarded the same to the second respondent Government on 16-6-2000 and after processing the same, the second respondent/Government rejected the said representation on 19-6-2000.

11. A perusal of the counter-affidavit only shows that since the said representation was filed, seeking only temporary release of the detenu under Section 15 of the Act.

12. From the counter-affidavit, the contention of the first respondent/District Collector on behalf of the other respondents appears that the detenu made a representation only for temporary release under Section 15 of the Act and if any delay in disposing of the representation does not vitiate the order of detention. It is his further contention that as per Section 15 of the Act the Government may at any time direct any person detained in pursuance of the detention order to be released for any specific period with or without imposing any condition and as the representation ultimately reveals that it was made under Section 15 of the Act only for the purpose of temporary release, the delay in disposing of the representation cannot be treated as fatal and does not amount to violation of the rights guaranteed under Article 22(5) of the Constitution

13. The above contention of the respondents gives a clear impression that in the event of a representation being made under Section 15 of the Act, delay, if any, cannot be treated as fatal and is not violative of the rights guaranteed under Article 22(5) of the Constitution.

14. A reading of the counter-affidavit reveals that no attempt has been made to justify the time taken from 27-4-2000 till 19-6-2000. On the contrary, the emphasis appears to be that since the representation is made under Section 15 of the Act, the question of delay docs not arise and the second respondent/Government is at liberty to pass orders on such representations at any time with or without imposing any conditions.

15. In the light of the above contentions of the respondents, yet another question would arise for consideration by this Court:

Whether the representation, dated 27-4-2000, has to be treated as representation made under Section 15 of the Act for temporary release of the alleged detenu since the relief sought for was under Section 15 of the Act?

16. Now, it is necessary to look into the representation, dated 27-4-2000, made by the detenu. A perusal of the said representation reveals that the petitioner/ detenu had made an attempt to reagitate the original order of detention on merits. It further shows that he was agitating with regard to the order of detention, the report of the Advisory Board and was in fact questioning the very order of the first respondent/District Collector who passed the order of detention. Ultimately, he states in paragraph 5 of his representation that 'in the absence of any such averment, the allegation that I am responsible for the death of these tribals cannot be sustained, and it only clearly shows that there is lack of application of mind by the detaining authority. The Forest Officials colluded with the Police Officials and they falsely implicated me in the Crime Nos.101 of 1998 and 118 of 1999 of Addateegala Police Station and these crimes are different nature'. It is further stated in paragraph 6. of his representation that 'whenever they require a person for statistical purpose, they used to take me to Police Station and thereby using third degree methods and obtain my signatures on empty papers. Thus, I became scape-goat to both Police and Forest Officials. The very same fact was mentioned by me before the Advisory Board to the Government of A.P., but the Hon'ble Advisory Board did not pay any heed to am prayer and submission made futile'.

17. In the prayer portion, it is stated that 'I once again making this appeal to your Honours chamber praying your Honour to show sympathy towards me taking into consideration of my minor children, wife and old parents. I am ready to abide by the conditions to be imposed by the Hon'ble Government and I am ready to produce the sureties.....'

18. The words ' Under Section .15 of the above said Act' were hand written and at a bear look and comparison of those words with the signature of the detenu would only disclose that those words were added certainly by somebody but not by the detenu. The real intention of the detenu shall be gathered from the overall reading of the pleadings of the representation and the above extracts of the representation would only reveal that the intention of the detenu was certainly not to make an application under Section 15 of the Act but only amounts to reagitation of the original issue of his detention without agreeing with the original order of detention and, therefore, it cannot be said that he was only seeking the orders that are permissible under Section 15 of the Act. The respondents have to see the real intention of the representation. As already pointed out, there is no explanation forthcoming for adding the words by a different hand.

19. Further, Sub-section (1) of Section 15 of the Act reads as follows:

'The Government may at anytime direct that any person detained in pursuance of a detention order may be released for any specified period, either without conditions or upon such conditions specified in the direction as that person accepts, and may, at anytime cancel his release'.

20. The other sub-sections of Section 15 of the Act deal with the procedure to be adopted and the conditions that can be imposed before passing an order.

21. In our opinion, Sub-section (1) of Section 15 of the Act is an enabling provision by which the Government can at any time direct the detenu to be released temporarily, subject to the conditions specified therein. It need not necessarily be at the instance of the detenu. The mere satisfaction of the Government is sufficient to order release of the detenu on certain conditions. Obviously, this Section deals with temporary release of the detenu only, but whereas Section 14 of the Act deals with revocation of the order of detention. Section 14 enables the Government to revoke or modify the order of detention. Therefore, the powers vested with the Government under Sections 14 and 15 of the Act are distinct with each other. However, as regards the rights of a person, Section 15 of the Act cannot be treated as inferior to Section 14 of the Act and, hence, we are of the view that the representation either under Section 14 or under Section 15 of the Act shall be considered with equal promptitude.

22. Therefore, for the above reasons, we hold that the representation made by the detenu, dated 27-4-2000, shall be treated as a representation for revocation of the order of detention only. The same can be treated for relief of modification which also is permissible under Section 14 of the Act, particularly in the light of the language expressing the grievance in the said representation and we further hold that the words ' Under Section .15 of the above said Act' shall not be used against the detenu with regard to his real intention. In our view, such representation should be understood and construed in its true sense but not in such a way to take away or narrow down the scope of the relief that can be sought for by the detenu. We are also of the view that this is a deliberate attempt on the part of the respondents to stiffe the scope of the relief that the detenu had really intended.

23. Now, admittedly the second representation was made by the detenu on 27-4-2000. The second respondent/ Government having received the same on 2-5-2000 addressed a letter on 5-5-2000 to the first respondent/District Collector calling for his parawise remarks and obviously the first respondent/District Collector did not respond in any manner, which resulted in issuance of another letter to the District Forest Officer for his remarks. It is incomprehensible as to why the first respondent/District Collector who passed the order of detention initially, did not respond to the letter of the second respondent/Government. The first respondent/District Collector kept quiet from 5-5-2000 till 15-6-2000, the date on which the District Forest Officer sent parawise remarks. It is significant to note that the first respondent/District Collector is the authority who passed the order of detention on 3-2-2000 and referred the matter to the second respondent/ Government. In other words, he was the initial authority or instrumental for the detention of the detenu. He has all relevant material before him for the purpose of passing the order of detention. That being the case, the first respondent/District Collector cannot keep himself silent when he was called upon to send his remarks. It looks as though the first respondent/ District Collector that his job was over by passing the order of detention and the rest would be taken care of by the authorities i.e., the second respondent/Government. The attitude of the first respondent/District Collector in not sending his remarks to the second respondent/Government from 5-5-2000 till the date of passing of final order can be formed as supine indifference or lethargic attitude as commented by the Apex Court in a case referred to supra. In fact as pointed out already, it is this indifferent attitude forced the second respondent/Government to address another letter to the District Forest Officer calling for his remarks. Of course, some promptitude appears to have been shown by the District Forest Officer. No proper explanation is forthcoming with regard to the necessity for the Government to call for parawise remarks from the first respondent/District Collector when the detaining authority itself was the first respondent/District Collector. In our view, it is absolutely unnecessary for the second respondent/Government to refer the matter again to the District Forest Officer when there was no response from the first respondent/District Collector, the detaining authority. In fact when there is no response from the first respondent/ District Collector, within reasonable time, it is obligatory on the part of the second respondent/ Government to pass appropriate order on the representations made by the petitioner. Normally, in all cases the time taken by the authorities in disposing of any case may not amount to serious lapse, but in cases of personal liberty of an individual the time taken by the second respondent/ Government for considering the representation by way of calling for the remarks from the first respondent/District Collector and the District Forest Officer is wholly unwarranted. Even assuming that such remarks are necessary by the first respondent/District Collector and other authorities, such authorities ought to have acted with utmost diligence and expedition. Therefore, the reasons offered by the first respondent/Government on behalf of the second respondent/Government also, are wholly untenable and not convincing. Further, in our view, such unsatisfactory explanation in delaying the disposal of the representation particularly in the light of the total silence observed by the first respondent/District Collector is fatal to the very order of detention and violative of the rights guaranteed under Article 22(5) of the Constitution. Hence, the continued detention of the detenu is liable to be held as illegal. Accordingly, Point No. 2 is answered.

24. In the result, the Writ Petition is allowed and the order of detention, dated 3-2-2000, is quashed and the alleged detenu by name Shaik Khajavalli shall be set at liberty forthwith unless his detention is required in connection with some other case.