Vijay Kumar Vs. State of Jammu and Kashmir and ors. - Court Judgment

Excerpt:
- [m. hidayatullah, c.j.,; g.k. mitter,; k.s. hedge,; r.s. bachawat and; s.m. sik, jj.] the sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the state should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the bombay sales tax act, 1953, by order dated march 17, 1958. on march 28, the petitioners filed a writ petition in the high court and contended that s. 21(4) was ultra rites the powers of the state legislature and was violative of arts. 19(1)(f) and 265 of the constitution and hence, they were not liable to repay the amount. the single judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. the appellate bench of the high court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single judge. on december 24, 1958, the collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between august 1959 and august 1960. on september 29, 1967 this court in kantilal babual v. h.c. panel, 21 s.t.c. 174 (s.c.) struck down s. 12a(4) of bombay sales tax act, 1946, corresponding to s. 2'1(4) of the 1953- act, on the ground that it was violative of art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the article. on the assumption that s. 21(4) of the 1953-act is also liable to be struck down on the same ground, on february 9, 1968, the petitioners flied a writ petition under art. 32 claiming a refund of the amount. the petitioners contended that they did not know that the section was ultra vires on the particular ground on which this court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on september 29, 1967 (the date of the judgment of this court) and that they were entitled to the refund under s. 72 of the indian contract act, 1872. on the questions: (1) whether the petition is liable to be dismissed on the ground of inches; and (2) whether the petition is barred by res judicata in view of the decision of the high court. held: (per hidayatullah, c.j., bachawat and mitter, jj.): (1) the petition must be dismissed on the ground of inches. per hidayatullah c.j.: article 32 gives the right to move this court by appropriate proceedings for enforcement of fundamental rights and the state cannot place any hindrance in the way of an aggrieved person. but once the matter has reached this court, the extent or manner of interference is for this court to decide. this court has put itself in restraint in the matter of petitions under art. 32. for example, this court refrains from acting under the article if the party had already moved the high court under art. 226 and if the high court had exercised its parallel jurisdiction. in such a case, this court would not allow fresh proceedings to be started under art. 32 but would insist on the decision of the high court being brought before it on appeal. similarly, in inquiring into belated and stale claims, this court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. the party aggrieved must therefore move this court at the earliest possible time and explain satisfactorily all semblance of delay. it is not possible for this court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. a petition under art. 32 is neither a suit nor an application to which the limitation act applies. further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. therefore, this court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830c, de. g--h; 831 a--b. c--e; 832 a--e] in the present case, the petitioners moved unsuccessfully the high court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this court. there is thus no question of any mistake of law. having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. they should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this court. not having done so, and having abandoned his own litigation years ago. this court will not apply the analogy of the article in the limitation act in cases of mistake of law and give him relief. [832 f--h; 833 a--b, c--e] per bachawat, j.: the normal remedy for recovery of money paid to the state under coercion or mistake of law is by suit. the right to move this court for enforcement of fundamental rights is guaranteed by art. 32, and no period of limitation is prescribed for such a petition. the writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the article this court may ignore all laws of procedure. the extraordinary remedies under arts. 32 and 226 of the constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. in the absence any roles of procedure under art. 145(1)(c) this court may adopt any reasonable rule. for example. this court will not allow a petitioner to move this court under art. 32 on a petition containing misleading and inaccurate statements. similarly, the general principles of res judicata are applied where applicable on grounds of public policy. therefore, where the remedy in a writ application under art. 32 or art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 a--f; 843 a--f] in the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the high court, they contended that the order was invalid and that s. 21(4) of the bombay sales tax act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this court subsequently struck down s. 12a(4) of the 1946-act. therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. hence the petitioners could not claim any relief on the ground of mistake. they could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in february 1968, would have been barred by limitation. a suit for recovery of money on the ground of coercion instituted after january 1, 1964 would be governed by art. 24 of the limitation act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. the petitioners could not obtain an extension of the period under s. 30(a) of the limitation act, 1963, as art. 62 of the limitation act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 f--h; 841 a---c] shiva prasad singh v. srish chandra nandi, (1949) l.r. 76 i.a. 244, 254, sales tax officer v. mukundlal saraf [1959] s.c.r. 1350, 1361, 1362, a. venkata subba rao v. state of andhra pradesh[1965] 2 s.c.r. 577, 612--620, state of madhya pradesh v. bhailal bhai & ors. [1964] 6 s.c.r. 261 274, daryao v. state of u.p. [1962] 1 s.c.r. 574, sobhraj odharmal v. state of ralasthan, [1963] supp. 1 s.c.r. 99, 111 and her highness ruckmaboye v. lulloobhoy mottickchund, (185152) 5 m.i.a. 234, 251, referred to.- per mitter, j.: the limitation act does not in terms apply to proceedings against the state under art. 32 in respect of violation of fundamental rights. a person complaining of such infraction has. one of three courses open to him. he can file a suit, invoke art. 226 or art. 32suits are governed by the limitation act. in the matter of the issue of a writ under art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the limitation act does not apply, and the maximum period fixed by the legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under art. 226 can be measured. there is no reason for applying a different test when a party comes to this court under art. 32. there is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the limitation act for the enforcement of the right by way of suit, that is, although the limitation act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under art. 32. [853 c--h; 854 a--b] the petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. they not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of art. 19(1)(f). they did not accept the decision of the single judge but filed an appeal raising the same contention. they complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under art. 19(1)(f). they protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. they were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. but the payments were made under coercion. the period of limitation for a suit against government to recover money paid under protest is governed either by art. 16 or art. 62 of the limitation act, 1908 that is one year or three years. but taking the most favourable view that the period of six years fixed by art. 120 of limitation act, 1908, would apply, that period would have expired in 1966. the position is not different even if the limitation act, 1963 is applied. a claim for money paid under coercion would be covered by art. 113 of the limitation act, 1963, giving a period of 3 years from january 1, 1964 the date of commencement of the 1963-act. under s. 30(a) of the limitation act, 1963, the period of limitation for a suit which was formerly covered by art. 120 of the act of 1908; would be covered by art. 113 of the 1963-act. therefore, the suit in the present case would have to be filed by january 1, 1967. as the petitioners came to this court in february 1968 long after the date when they could have properly filed a suit, the application under art. 32 must be rejected. [851 h; 852 a---d, g-h; 853 a--b; 854- b--h;, 855 a-b] kantilal babulal & bros. v.h.c. patel 2.1 s.t,c. 174, sri sri shiba prasad singh, deceased, now represented by kali prasad singha v. maharaja srish chandra nandi 76 i.a. 244, sales tax officer v. kanhaiya lal mukundlal saraf, [1959] s.c.r. 1350 at 1363, sales tax officer, pilibhit v. budh prakash jai prakash, [1955] 1 s.c.r. 243, state o/ madhya pradesh v. bhailal bhai [1964] 6 s.c.r. 261, state of kerala v. aluminum industries ltd. 16 s.t.c. 689, and a. v. subbarao v. the state of andhra pradesh [1965] 2 s.c.r. 577, referred to. per sikri and hegde, jj. (dissenting): the petition has to be allowed and the petitioners must be granted the relief prayed for. per sikri, j.: article 32(2) of the constitution confers a judicial power on this court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 f--g] the limitation act does not directly apply to a petition under art. 32 and to invoke the analogy of the limitation act is not appropriate when dealing with petitions under art. 32. if a claim is barred under the limitation act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this court if on the facts of the case there is unreasonable delay. to issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. it is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. the time spent in making representations to higher authorities may be taken as a good explanation for any delay. such a practice would not destroy the guarantee under art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 g; 835 c-h] in the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the contract act, the petitioners would be entitled to the relief claimed. the grounds urged before the high court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this court. if the petitioners had not moved the high court but had paid on demand they would have been entitled to maintain the petition in this court. the position could not be worse became they exercised their right under art. 226. when a petitioner approaches a high court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this court ultimately strikes down the provision under which the payments were made was never raised in the high court. the petitioners discovered, like all assessees their mistake when this court struck down s. 12a(4) of the 1946-act and they came to this court within 6 months of that date and hence there was no delay. [837 g--h; 839 b---e] daryao v. state of u.p. [1962] 1 s.c.r. 574, amalgamated coalfields ltd. v. janapada sabha, chindwara, a.i.r. 1964 s.c. 1013, 1018, sales tax officer v. kanhaiyalal, [1959] s.c.r. 1350 andkantilal babulal v. h.c. patel, sales tax officer, 21 s.t.c. 174, referred to. per hegde, j.: in view of the decision of this court in kantilal babulal v.h.c. patel, 21 s.t.c. 174 which struck down s. 12a(4) or the 1946-act, the impugned collection under s. 21(4) of the 1953-act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under art. 19(1)(f). hence the petitioners have a fundamental right to approach this' court under art. 32 for relief and this court has a duty to afford them the appropriate relief. since the right given to the petitioners under art. 32 is itself a fundamental right and does not depend on the discretionary powers of this court, as in 1be case of art. 226, it is inappropriate to equate the duty imposed on this court to the powers of chancery court in england or the equitable jurisdiction of courts in the united states. the fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under art. 32. this court is charged by the constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under art. 32. in fact, law reports do not show a single instance of this court refusing to grant relief on the ground of delay. if this court could refuse relief on the ground of delay, the power of the court under art. 32 would be a discretionary power and the right would cease to be a fundamental right. the provisions contained in the limitation act do not apply to proceedings under arts. 226 and 32 and if these provisions of the limitation act are brought in indirectly to control the remedies conferred by the constitution, it would be a case of parliament indirectly abridging the fundamental rights which this court, in golaknath's case, [1967] 2 s.c.r. 762, held that parliament cannot do. the 'fear. that forgotten claims and discarded rights against government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 d. f--h; 857 a, b, d, g-h; 858 a, d--e, f--h; 859 h] in this case the petitioners have an existing right even if their remedy under the ordinary law is barred. this court struck down s. 12a(4) of the 1946-act on a ground not put forward by the petitioners in the high court but on a wholly different ground. a mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. there is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this court in kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 c--g] state of m.p.v. bhailal bhai, [1964] 6 s.c.r. 261, referred to. (2) (by full court): the petition is not barred by res judicata. per hidayatullah, c.j. where the order of the high court under art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this courtmay entertain the application under art. 32. [831 b] daryao v. state of u.p. [1962] 1 s.c.r. 574, explained. per sikri, bachawat and mitter, jj.: when a petition under art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under art. 32, except in cases when the facts found by the high court might them selves be relevant under art. 32. [833 e--f; 839 f--g; 855 c--d,f-g] daryao's case, [1962] 1 s.c.r. 574 and joseph v. state of kerala, a.i.r. 1965 s.c. 1514, referred to. per hegde. j.: it is only when the right claimed by the petitioner in his petition under art. 32 had been claimed in the high court under art. 226 and negatived by the high court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this court under art. 32. [856 b--c] daryao's case, [1962] 1 s.c.r. 574, explained. - counter intelligence, jammu and thereafter the case was processed on august 24, 1981 in the office of the home department at srinagar and the file was placed before the home secretary on august 25, 1981, who recommended the same for approval on august 28,1981 to the chief minister (home) from the same affidavit, it further transpires that the chief minister rejected the representation on august 31, 1981 and the same was communicated to the detenu on september 1, 1981. in the meantime, the case of the detenu was referred to the advisory board on august 3, 1981. the advisory board submitted its report to the government on september 4, 1981. 6. one rattanlal, the brother of the detenu moved petition no. the district magistrate passed the impugned order of detention on being satisfied that with a view to preventing the detenu from acting in a manner prejudicial to the security of the state it was necessary to detain him. the detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made. this, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. if the government enacts a law like the present act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the government and not the detaining authority, of necessity the state government must gear up its own machinery to see that in these cases the representation reaches the government as quickly as possible and it is considered by the authorities with equal promptitude. , counter intelligence were called for on august 14, 1981. he does not state the date on which they were received but he says that the case was examined and processed on august 24, 1981 in the office and the file was placed before the home secretary on august 25, 1981, who recommended the same for approval on august 28, 1981, and the chief minister (home) rejected the representation on august 31, 1981, and the fact of rejection of the representation was communicated to the detenu on september 1, 1981. there are two time lags which may be noticed. thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of section 13 of the act which would result in the invalidation of the order.1. on february 9, 1982 we made an order quashing the detention order dated july 11, 1981 made by the district magistrate, jammu in exercise of the power conferred by section 8 of the jammu and kashmir public safety act, 1978 ('act' for short) and we announced that the reasons would follow. here are the reasons.2. the detenu vijay kumar was arrested on june 26, 1981. a petition was moved on his behalf before the chief judicial magistrate jammu praying for releasing the. detenu, on bail. this petition for bail appears to have come up before the learned magistrate on july 4, 1981 when the following order was made :i have heard the advocate for the applicant and perused the cd. file. put up for orders on 6.7.81.3. when the matter again came up on july 6, 1981, the learned magistrate made the following order :although there was nothing in the cd. file about his (petitioner) involvement in e.a.o. (enemy agents ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is under section 3, e.a.o. which this court is not competent to try. hence this application is returned to the applicant for presentation to the proper court alongwith report.4. the detenu thereupon moved an application for releasing him on bail before the learned additional sessions judge, jammu, who, we are informed, was competent to try the accused charged with an offence under enemy agents ordinance. his petition for bail came up before the learned additional sessions judge on july 11, 1981 when the following order was made :this application pertains to vijay kumar accused who is involved for an offence under the enemy agents ordinance which is being investigated by the counter intelligence police, jammu. the learned chief prosecuting officer and the learned counsel for the accused have been heard.during the course of arguments an order has been shown to me by the police that said vijay kumar accused has now been ordered to be detained under the public safety act.in view of this order, this bail application has become infructuous which is disposed of accordingly.5. the detenu was served with the detention order dated july 11, 1981 on the same day in jail because he was already in jail from june 25, 1981. the grounds for detention were served on him on july 15, 1981. the detenu submitted his representation dated july 29, 1981 addressed to the secretary the government home department to the superintendent, central jail, jammu where the detenu was detained. one shri k.d. sharma, incharge superintendent, central jail jammu has stated in his affidavit dated february 6, 1982 that the representation of the detenu dated july 29, 1981 was forwarded to the government at srinagar vide office letter no. 2595 dated july 29, 1981 and simultaneously a wireless message no. 2596 on the same day was also sent to the government intimating that the representation of the detenu had been forwarded to the government for appropriate action. mr. k.s. salathia, deputy secretary to the government of jammu and kashmir, home department, jammu, in his affidavit dated february 9, 1982 has stated that the representation of the detenu was received from the superintendent, central jail, jammu in the office of the home department at srinagar on august 12,1981, the department also received the comments of s.p., c.i.d. counter intelligence, jammu and thereafter the case was processed on august 24, 1981 in the office of the home department at srinagar and the file was placed before the home secretary on august 25, 1981, who recommended the same for approval on august 28,1981 to the chief minister (home) from the same affidavit, it further transpires that the chief minister rejected the representation on august 31, 1981 and the same was communicated to the detenu on september 1, 1981. in the meantime, the case of the detenu was referred to the advisory board on august 3, 1981. the advisory board submitted its report to the government on september 4, 1981.6. one rattanlal, the brother of the detenu moved petition no. 31 of 1981 for writ of habeas corpus in the high court of jammu and kashmir at jammu. the petition came up for hearing before the learned single judge, who by his judgment dated december 7, 1981 rejected the same. thereafter the detenu by the present writ petition, moved this court under article 32 of the constitution for a writ of habeas corpus.7. section 8 of the act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the state. the impugned order of detention recites that the detenu is detained with a view to preventing him from 'acting in any manner prejudicial to the security of the state.' the expression 'acting in any manner prejudicial to the security of the state' has been defined in section 8(3) of the act to mean making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force, to overthrew or overawe the government established by the law in the state. the detenu contended before the high court that accepting all the activities attributed to the detenu in the grounds of detention at their face value, the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the state.' the definition of the expression as hereinbefore extracted indicates that the person accused of 'acting in any manner prejudicial to the security of the state' must be shown to be making preparations for using, or attempting to use, or using or instigating, inciting or provoking or otherwise abetting the use of force, and the intention or motive for the activity must be to overthrow or overawe the government established by law in the state. the learned judge of the high court following an earlier division bench judgment of the same high court in rharatilal v. state, 1981 k.l.h. 71 negatived this contention observing that where the government accusation against the detenu is that he had been indulging in supplying information for pakistan army intelligence and was passing on vital information pertaining to the army department etc. to that agency, such activities were likely to assist pakistan in any armed aggression against the state and were a threat to the security of the state. this view needs examination but as the argument was not pressed before us, we refrain from examining the same.8. number of contentions were advanced at the hearing of this petition but we propose to deal with only two of them which in our opinion go to the root of the matter and which, when accepted, in our opinion, would result in invalidation of the order.9. the first contention is that the order of the district magistrate suffers from non-application of mind inasmuch as the date on which he passed the impugned order of detention dated july 11, 1981, the detenu was long before arrested and locked up in jail on the allegation that he was suspected to have committed some offence under the enemy agents ordinance 8 of samvat year 2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the state. the district magistrate passed the impugned order of detention on being satisfied that with a view to preventing the detenu from acting in a manner prejudicial to the security of the state it was necessary to detain him. the order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail. if the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail, the order ex facie would have shown that even though the detenu was in jail, with a view to preventing him from acting in a manner prejudicial to the security of the state it was necessary to detain him. there is a foot note in the order that the w order was forwarded to the s.p., c.i.d. counter intelligence, jammu for execution of the order under section 3 of the act. the further direction was that notice of the order shall be given to vijay kumar s/o anant ram, r/o h. no. 609, peer mitha, jammu, by reading over and explaining the same to him in language he understands. the detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made. there is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than 16 days before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the state, and therefore power under section 8 of the act is required to be exercised.10. the detenu in para 3 of his petition before this court has specifically averred that he was arrested on june 26 1981, the correct date being june 25, 1981, under a false and fabricated charge. shri k.s. salathia, deputy secretary to government of jammu & kashmir, home department, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very ambiguous statement that for the purpose of j and k public safety act the petitioner was arrested on july 11, 1981, pursuant to the detention order. it is no where suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the state to pass the detention order. it may further be pointed out that shri a. sahasranaman, the district magistrate of jammu who has made the impugned detention order, filed an affidavit on february 7, 1982. of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of hans raj, another detenu whose detention was quashed by this court subsequent to the order of this court. it may be noticed in passing that hans raj and the detenu were involved jointly in the activity, which led to the detention of the detenu. even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a period of more than a fortnight before the date of the impugned detention order. preventive detention is resorted to, to thwart future action. if the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the state. may be, in a given case there yet may be the need to order preventive detention of a person already in jail. but in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. there is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. this, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. we, however, do not base our order on this ground.11. the second contention which in our opinion goes to the root of the matter is that there has been a violation of section 13 of the act. section 13 provides as under :13. grounds of order of detention to be disclosed to persons affected by the order :(1) when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the government. x x x 12. the provision contained in section 13(1) is on par with the constitutional protection conferred by article 22(5) of the constitution of india. the contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of detention, in order not to render it illusory simultaneously obliges the authority to whom the representation is made to consider the same expeditiously. submission is that a statutory right conferred on the detenu enabling him to make a representation which of necessity must be giving an opportunity to point out to the government as to why the detention order was not justified and that it must be revoked and the personal liberty deprived under the detention order must be restored, is to convince the government to take into consideration the facts and contentions set out in the representation, which must imply that the government must consider the same. the earliest opportunity to be afforded for making representation inheres the corresponding duty of the government to consider the representation so received expeditiously. the reason behind enacting this provision is manifest. when power to detain without trial is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the government detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power. in a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before he is deprived of the liberty and; therefore, so soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same. the word 'earliest' which qualifies the opportunity must equally qualify the corresponding obligation of the state to deal with the representation if and when made, as expeditiously as possible. the opportunity contemplated by the section is the opportunity to make a representation against the detention order to the government and therefore ex hypothese soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation. the representation is to be made to the government. therefore the detenu who has already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities. the jail authority is merely a communicating channel because the representation has to reach the government which enjoys the power of revoking the detention order. the intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the government is translated into action. the corresponding obligation of the state to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. if the government enacts a law like the present act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the government and not the detaining authority, of necessity the state government must gear up its own machinery to see that in these cases the representation reaches the government as quickly as possible and it is considered by the authorities with equal promptitude. any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.13. reverting to the facts of this case, the detenu who in jail from june 25, 1981, was served with a detention order on july 11, 1981, the very day on which the detention order was made. the grounds of detention were served upon him on july 15, 1981. admittedly the detenu submitted his representation to the superintendent of jail on july 29, 1981. one k.d. sharma, medical officer, central jail, jammu, incharge central jail, jammu who has filed his affidavit dated february 6, 1982, has admitted that the detenu submitted his representation addressed to the secretary to the government, home department, on july 29, 1981. he proceeds to assert that the said representation in original was forwarded by post to the government in srinagar vide his office no. 2595 dated july 29, 1981. he further adds that a wireless message no. 2596 dated july 29, 1981, was also sent to the government to intimate that the representation of the detenu had been forwarded to the government for appropriate action. postal communication from jammu to srinagar hardly takes two days unless it is pointed out that there was some break down of communication. nothing to that effect was brought to our notice. now, shri salathia has stated in his counter affidavit that as no representation was received a wireless message was sent on august 6, 1981, making reference to the wireless communication from the superintendent of jail that the representation referred to in the wireless message of the jail superintendent has still not been received at srinagar. he requested the superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment. be that as it may, he says that the representation was received in the office on august 12, 1981. the comments from s.p., c.i.d., counter intelligence were called for on august 14, 1981. he does not state the date on which they were received but he says that the case was examined and processed on august 24, 1981 in the office and the file was placed before the home secretary on august 25, 1981, who recommended the same for approval on august 28, 1981, and the chief minister (home) rejected the representation on august 31, 1981, and the fact of rejection of the representation was communicated to the detenu on september 1, 1981. there are two time lags which may be noticed. representation admittedly handed in the superintendent of jail on july 29, 1981 to at jammu reached srinagar, the summer capital of the state on august 12, 1981, which shows a time lag of 14 days. the second time lag is, from our point of view, more glaring. even though the concerned office was made aware of the fact by the wireless message of the superintendent of jail, jammu, dated july 29, 1981, that a representation of the detenu has been sent by post, the first query about its non-receipt came as per the wireless message dated august 6, 1981. that can be overlooked, but it has one important message. the concerned office was aware of the fact that a representation has already been made and a duplicate was sent for. with the background of this knowledge trace the movement of the representation from the date of its admitted receipt being august 12, 1981. if the representation was received on august 12, 1981, and the same office disposed it of on august 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of shri salathia is far from convincing. in our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds.14. in khudi ram das v. state of west bengal, : [1975]2scr832 this court held that one of the basic requirements of clause (5) of article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of section 13 of the act which would result in the invalidation of the order.15. these are the reasons which had prompted us to quash and set aside the detention order.