Rashid Sk. Vs. State of West Bengal - Court Judgment

Excerpt:
criminal - detention - section 3(1) and (2) of the maintenance of internal security act, 1971 - appellant was detained under section 3 (1) - there was delay of 27 days in considering representation of appellant by state government - delay was on account of spate of anti social activities within the state by naxalites and other political extremist due to which there was great work pressure of work - whether delay of 27 days in consideration of representation of appellant by state government vitiates detention order - article 22(5) states that state government to whom the representation is made should properly consider the representation as expeditiously as possible - the explanation merely states that delay was due to spate of antisocial activities in the state giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and thus delayed the movement of the files was too vague - no cogent and convincing material to satisfactorily explain the inability of the state government in considering the appellant's representation within reasonable time - held, detention order liable to be set aside in view of delay in consideration of representation of appellant by state government - appeal allowed. - [k. subba rao, c.j.,; j.m. shelat,; m. hidayatullah,; r.s. bachawat, jj.] between may 1961, and may 1962, consolidation proceedings were taken under the east punjab holdings (consolidation and prevention of fragmentation) act, 1948, in an estate in which the appellant was a small proprietor holding land within the ceiling limit. the scheme for consolidation provided for taking of a fraction of each proprietor's land and throwing into a common pool which was added to the land already in the possession of the gram panchayat. but no portion of the common pool apart from what was already owned by the panchayat, was reserved for providing income to the panchayat. the ownership of the common pool was to vest in the proprietary body consisting of the several proprietors, and the gram panchayat was to manage and use it for the common needs and benefits of the estate, under r. 16(ii) of the punjab holdings (consolidation and prevention of fragmentation) rules, 1949, so that, the proprietors and non-proprietors would share in the benefits. the appellant filed a writ petition in 1965, contending that : (1) the consolidation officer was not appointed till after the repartition was concluded, that he could not be appointed retrospectively, that he had no legal authority when he commenced the proceedings, and therefore, the scheme was invalid; and-(2) the scheme amounted to "acquisition by the state" within the meaning of the second proviso to art. 31a(1) of the constitution, with the result that compensation to the proprietor at the market rate was payable. the high court dismissed the petition. on appeal, held: (per subba rao, c. j., sikri and bachawat jj.) (1) the consolidation officer had no authority to act as such before he was appointed and what he did, purporting to act as such officer, had no binding effect on the owners. further, the state government could not appoint him and clothe him with authority retrospectively. but, as the appellant was guilty of laches and no manifest injustice was done to him, the high court was right in rejecting the contention. [147 b-d] (per hidayatullah and shelat, jj.) : as the petition was filed more than three years after the completion of the repartition of holdings. the contention should not be entertained in the face of the presumption under s. 114, indian evidence act, namely, that the officer must have been appointed to act is such, as without such appointment he would not have acted. [154 b] (2) (per subba rao, c. j. sikri and bachawat, jj.). the words acquisition by the state" in the second proviso to art. 31a(1) do not have any technical meaning. in the context of art. 31a the expression must have the same meaning as it has in art. 3 1a(1) (a). the essential difference between "acquisition by the state" on the one hand and "modification or extinguishment of rights" on the other, is that in the first case the beneficiary is the state while in the second the beneficiary is not the state. therefore, if the state has in substance acquired all the rights in the land for its own purposes, even if the title -remains with the owner, it cannot be said that it is not acquisition within the proviso. [149 b-d; 150 g] state of west bengal v. subodh gopal bose [1954] s.c.r. 587,dwarkadas shriniwas v. the sholapur spinning and weaving co. ltd., 11954] s.c.r. 674, saghir ahmad v. state of u.p. [1955] 1 s.c.r. 707 and bombay dyeing and mfg. co. ltd. v. state of bombay, [1958] s.c.r. 1122, followed. but on the facts of this case, the beneficiary of the modification of rights was neither the state nor the panchayat; and therefore, there was no acquisition by the state within the second proviso. as a result of the scheme the title to the small fraction of land which was taken away for forming the common pool remained in the proprietary body of the holders in the estate and in the revenue records, the land would be shown as belonging to all the owners in proportion to their areas. the gram panchayat would manage it on behalf of the proprietary body and use it for common purposes,and the proprietors would enjoy the benefits. even the satisfaction and advancement of the non-proprietors who derived benefits from the common pool would enure to the advantage of the proprieters who would from a more efficient agricultural community. [152 e-g] altar singh v. state of u.p. [1959] supp. 1 s.c.r. 928, followed. per hidayatullah and shelat, jj. (dissenting) : article 31a deals with the special subject of "estates" and its intention is to give protection to state action against arts. 14, 19 and 31 so long as the acquisition is by the state of any estate, or of any rights therein or the extinguishment or modification of any -such rights. to this protection there is an exception, namely, the second proviso, under which land under the personal cultivation of any estate-holder of any kind, which is within the ceiling limit applicable to him, shall not be acquired unless the market value of the land is given as compensation. the word "acquisition" used in the proviso must take its colour from the same word used earlier in the same article, and not from the word as used in an earlier article in juxtaposition with the word "requisition". it denotes not only the acquisition of ownership, that is, the entire bundle of rights, but also acquisition of some rights which leaves the owner, an owner in name only [162 e-163 a] in the present case the 'result of the scheme would be that (i) the proprietor was deprived of his property though only of a small portion; (ii) though the ownership was vested in the proprietary body ill rights with 'regard to the management and income therefrom were vested in the gram panchayat established under punjab gram panchayat act, 1953; (iii) the ownership was therefore transferred to another body, the gram panchayat, which is an entity different from the proprietor. it is a local authority included within the definition of "state" in art. 12, and (iv) the benefit of the income of such lands goes not to the proprietor only, but to all proprietors and non-proprietors in the panchayat area. therefore, although the property is not actually vested in the state government or the panchayat, the panchayat acquires almost the entire bundle of rights. hence, it is "acquisition" by the state within the meaning of the second proviso and compensation at market value must be given. [163 d-h; 164 a] moreover, the fact that what was acquired was a small bit has no significance. what is small is vague and uncertain, and the safer rule is, that, if the land of the tenant cultivating it is below the ceiling fixed by law, and if a portion of it is acquired, no matter for what purpose the acquisition takes place, compensation at -a 'rate not lower than the market value must be paid to him. when the constitution speaks of market value, it is not possible to find compensation in advantages which might accrue indirectly. [164 b-c] - the ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. we are not satisfied that anything of great magnitude had suddenly happened in that state which was so unexpected and extraordinary in its nature that the state government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the constitution for expeditiously considering the petitioner's representation. the state government, in our view, failed to realize the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial.i.d. dua, j.1. rashid sk,petitioner has approached this court through jail for a writ of habeas corpus under article 32 of the constitution.2. pursuant to the detention order dated january 3, 1972 made by the district magistrate, burdwan under section 3(1) and (2) of the maintenance of internal security act, 26 of (hereinafter called the act), the petitioner was arrested on january 5,1972 and detained with a view to 'preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community'. the grounds of detention were duly served on him at the time of his arrest. the report regarding the detention order had also been duly sent on january 3, 972 to the state government, which approved the order of detention on january 6,1972. the same day the state government reported that fact to the central government in compliance with section 3(4) of the act. the petitioner's case was placed before the advisory board on february 1,1972, and the board submitted its report on march 4, 1972. the representation made by the petitioner was received by the government on february 3,1972 but the same was considered by it on march 1, 1972. the state government confirmed the order of detention on march 15, 1972: this confirmation was communicated to the petitioner on march 16, 1972.3. according to the petitioner he had been arrested on december 11,1971 and kept in police station hirapur for 12 days where after he was transferred to koiunapur police station where he was kept for 13 days. on january 5, 1972 the detention order under the act was served on him and he was thereafter detained in burdwan district jail. we do not attach any importance to the petitioner's averment that he had been arrested in december, 1971 in connection with some other cases for the simple reason that he was admittedly detained under the impugned detention order with effect from january 5, 1972. his earlier arrest in connection with some other cases cannot render his detention under the order dated january 3, 1972 illegal, if otherwise it does not suffer from any infirmity.4. the first challenge to the petitioner's detention pressed by the learned counsel appearing as amicus curiae on his behalf relates to the delay on the part of the state government in considering the petitioner's representation. the explanation for the delay between february 3, 1972 and march 1, 1972 offered by the state of west bengal in its counter-affidavit reads:in this connection i further state that the said representation of the detenu-petitioner could not be considered by the state government earlier, due to sudden and abrupt increase in volume of detention cases under the maintenance of internal security act, as there was spate of anti-social activities during that time within the state by the naxalites and other political extremists. due to aforesaid reason there was great pressure of work and movement of the files were very much delayed and the records in the office were not regularly available, it appears that there was about 27 days delay in considering the said representation of the petitioner. i further state that delay was unintentional and for reasons stated above it was beyond control of the state government and i submit that the said delay may be condoned by this hon'ble court.the question requiring consideration by this court is the effect of this explanation for the delay on the part of the state government in considering the petitioner's representation, on the validity of his detention. it is undoubted undoubtedly true that neither the constitution! nor the act expressly provides for consideration of a detenu's representation by the state government within any specified period of time. the constitutional requirement of expeditious consideration of the petitioner's representation by the state government has, however, been spelt out by this court from clause (5) of article 22 of the constitution. this clause reads:22(5) when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.' the use of the words 'as soon as may be' is important. it reflects the anxiety on the part of the framers of the constitution to enable the detenu to know the grounds on which the order of ms detention has been made so that he (ran make an effective representation against it at the earliest. the ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. this right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our republic and its protection against arbitrary and unlawful invasion.in abdul karim v. state of west bengal : 1969crilj1446 this court, while considering the permissible limits of legislation empowering preventive detention as laid down in article 22 observed after referring to other clauses of article 22:apart from these enabling and. disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22. a person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. but it is necessarily implicit in the language of article 22(5) that the state government to whom the representation is made should properly consider the representation as expeditiously as possible. the constitution of an advisory board-under section 8 of the act does not relieve the state government from the legal obligation to consider the representation of the detenu as soon as it is received by it. on behalf of the respondent it was said' that there was no express language in article 22(5) requiring the state government to consider the representation of the detenu. but. it is a necessary implication of the language of article 22(5) that the state government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. in our opinion, the constitutional right to make a representation guaranteed by article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. the right of representation under article 22(5) is a valuable constitutional right and is not a mere formality. it is, therefore, not possible to accept the argument of the respondent that the state government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the secretariat till the time or occasion for sending it to the advisory board is reached. if the viewpoint contended for by the respondent is correct, the constitutional right under article 22(5) would be rendered illusory.' this view was approved in pankaj kumar chakrabarty v. state of west bengal : [1970]1scr543 in these words:for the reasons aforesaid we are in agreement with the decision in sk. abdul karim's case. consequently the petitioners had a constitutional right and there was on the state government a corresponding constitutional obligation to consider their representation irrespective of whether they were made before or after their cases were referred to the advisory board and that not having been done the order of detention against them cannot be sustained.now, whether or not the state government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither [possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. the court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the state government is so unreasonably long and the explanation for the delay offered by the state government so unsatisfactory as to render the detention order thereafter illegal,5. in the present case the gap between february 3, 1972 and march 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioner's right to personal liberty as guaranteed by the constitution. this court is expected to fully protect that right subject to the restrictions placed thereon by the constitution and the law in the larger interests of the security of the state :and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the state and the people. the explanation merely states in a general way that during that time there was a spate of antisocial activities in the state of west bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. the records in the office were accordingly not regularly available. this explanation is much too vague and does not require any serious notice. no precise details are given and no figures about the abrupt increase of detention cases have been supplied. the state government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the constitution. no cogent and convincing material has been placed before us to satisfactorily explain the inability of the state government in considering the petitioner's representation within reasonable time. we are not satisfied that anything of great magnitude had suddenly happened in that state which was so unexpected and extraordinary in its nature that the state government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the constitution for expeditiously considering the petitioner's representation. the state government, in our view, failed to realize the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. this check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. we are not unmindful of the interest of the society but those interests have been harmonized by the constitution with the interest of the individual.6. in the view that we have taken on this challenge it is unnecessary to consider any other point in this case. the petition is accordingly allowed and making the rule absolute we set aside the order of detention and direct that the petitioner be set at liberty forthwith.