Sk. Hasan Ali Vs. State of West Bengal - Court Judgment

Excerpt:
criminal - detention - section 3 of the maintenance of internal security act, 1971 - appellant was detained under section 3 with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community - appellant challenged detention order on ground that he was not produced before advisory board and thus was deprived of making oral submission - further contended that detention order was vague as it did not specify name of his associates - further contended that there was inordinate delay in consideration of his representation - facts revealed that appellant nowhere in his representation desired to be heard by advisory board and in absence of intimation of such desire no grievance can consequently can be made by appellant that he was not afforded a personal hearing by advisory board - the fact that the names of the associates of the appellant were not given in the ground of detention would not make the grounds to be vague as facts stated in the ground of detention were sufficient to apprise appellant the precise activity on account of which the order for his detention was made - delay in consideration of representation of appellant was due to constant demonstrations of state government employees and thus period of 16 days taken by the state government after the agitation of its employees came to an end was not so inordinately long to show laches on part of state government - held, no reason to interfere with detention order - appeal dismissed. - [a.k. sarkar,; m. hidayatullah,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the respondent had brought a suit in the court of the sub- ordinate judge, jalpaiguri for declaration of his title as the sole heir and successor to his father's impartible estate, which was taken possession of by his step-mother. that suit was on transfer pending in the high court. two other title suits were also pending in the high court in which certain agnates were claiming as successors. the respondent moved an application before the district judge, jalpaiguri for the taking of security from the appellant under s. iv of the bengal wills and intestacy regulation v of 1799. the district judge held that the application was barred under art. 181 of the indian limitation act and that s. iv of the regulation had no application since it applied only where the deceased had left several heirs and not one. the high court found in favour of the respondent on both the points and directed the district judge to take security under s. iv. section iv of the regulation is as follows, "if there be more heirs than one to the estate of a person dying intestate, and they can agree amongst themselves in the appointment of a common manager, they are at liberty to take possession, and the courts of justice are restricted from interference, without a regular complaint, as in the case of a single heir; but if the right of succession to the estate be disputed between several claimants, one or more of whom may have taken possession, the judge, on a regular suit being preferred by the party out of possession, shall take good and sufficient security from the party or parties in possession for his or their compliance with the judgment that may be passed in the suit; or, in default of such security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimants who may be able to give such security, declaring at the same time that such possession is not in any degree to affect the right of property at issue between the parties; but to be considered merely as an administration to the estate for the benefit of the heirs who may on investigation be found entitled to succeed thereto." held (per hidayatullah, dayal and ayyangar jj.) that the regulation was a piece of restrictive legislation and its provisions should be strictly construed. each of the ss. ii, iii and iv of the regulation, properly read and construed, was a complete code by itself and dealt with the different situations. section ii applied when the deceased died deb leaving a will and naming an executor to manage the property, s.111 applied when the deceased died intestate leaving a single heir and s. iv applied when the deceased died intestate leaving more than one heir. the provisions of ss. iii and iv were in no way inconsistent and it was not necessary to construe them together. cohen v. s. e. railway, (1877) 2 e. & d. 253, held inapplic- able. the second part of s. iv which provided for taking of security did not apply to a case such as the present where the deceased died intestate leaving only one heir entitled to the entire estate. it fell within the ambit of s. iii of the regulation. since the courts have now ample powers under the indian succession act, 1925, and the code of civil procedure, these provisions of the regulation are out of date and should be repealed. per s. k. das and sarkar jj -section iv of the regulation does not require an application for taking security and the court can act suo motu. art. 181 is confined to applications under the code of civil procedure and it can have no application to the present application as it is under s. iv of the regulation and not under the code. an application is not under the code because the procedure there laid down has to be followed. sha mulchand & co. ltd. v. jawahar mills, ltd. [1953] s.c.r. 351, applied. the court of the district judge is the proper forum where the application under s. iv can be made. in the absence of an order under s. 23 of the bengal, agra and assam civil courts act, 1887, the order contemplated by s. iv can be made only by a district judge and it is not necessary that the suit mentioned in the section must be pending before him. kumar punyendra dev v. kumar bhairabend -a deb. (1946) 50 c. w. n. 776, approved. there is no reason why the resolution should provide differ- ently for cases of a single heir and cases of more than one heir and it does not do so. the words "if the right of succession to the estate is disputed between several claimants" in s. iv includes a case where a person dies leaving a single heir and several persons dispute each claiming to be that heir. separated by a semi-colon they cannot deal with two different states of affairs and that the latter part' must be controlled by the former. neither does the word "but" between the two parts lead to that conclusion. the word 'heirs' in the second part of s. iv must include one heir. section iv of the regulation, therefore, applied to the case and the appellant could be called upon to furnish security. it was not correct to say that s. iv of the regulation was impliedly repealed by ss. 192 to 195 of the succession act, 1925. the high court had jurisdiction in revision to set aside the order of the district judge since he had failed to exercise his jurisdiction on a misinterpretation of the statute and erroneous view of limitation. joy chand lal babu v. kamalaksha choudhury. (1949) 76 i. a. 131, applied. but the power to take the security under s. iv of the regulation is a discretionary power vested in the district judge and the high court was in error in directing him to do so. - it would, thus, follow that in spite of being told that he could have a personal hearing before the advisory board, the petitioner failed to intimate that he desired such a hear ing.h.r. khanna, j.1. hasan ali petitioner was ordered by the district magistrate midnapore as per order dated october 11, 1971 to be detained under section 3 of the maintenance of internal security act 'with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community'. in pursuance of that order, the petitioner was arrested on october 24, 1971 and was served with the order of detention along with the ground of detention together with vernacular translation thereof. the petitioner has approached this court through nail under article 32 of the constitution for issuing a writ of habeas corpus.2. the district magistrate sent report to the state government or october 13, 1971 about the making of the detention order together with necessary particulars. the said government approved the detention order on october 21, 1971. sometime after november 10, 1971 the state government received representation dated november 8, 1971 from the petitioner the said representation after being considered was rejected by the government on december 16, 1971. in the meanwhile, on november 11, 1971 the state government placed the case of the petitioner before the advisory board. the representation of the petitioner after being rejected too was sent to the advisory board. the advisory board, after considering the material placed before it, sent its report to the state government on december 20, 1971. opinion was expressed by the board that there was sufficient cause for the detention of the petitioner. the state government thereafter confirm ed the order for the detention of the petitioner on december 22, 1971.3. the petition has been resisted by the state government and the affidavit of shri sukumar sen, deputy secretary, home (special) department, government of west bengal has been filed in opposition to the petition.4. mr. prashar has argued the case amicus curiae on behalf of the petitioner, while the state has been represented by mr. mukhoti.5. the first contention which has been raised by mr. prashar is that the petitioner was not produced before the advisory board and, as such, was deprived of an opportunity of making oral submissions to the board. in this respect we find that in the ground of detention which was served upon the petitioner along with the order of detention, he was informed that he could make a representation to the state government against the detention order and that his case would be placed before the advisory board within 30 days from the date of detention. the petitioner was also told that in case he desired to be heard in person by the advisory board, he should intimate such desire in his representation to the state government. the petitioner in pursuance of that submitted a fairly long representation. it was, however, nowhere stated by the petitioner that he desired to be heard in person by the advisory board. it would, thus, follow that in spite of being told that he could have a personal hearing before the advisory board, the petitioner failed to intimate that he desired such a hear ing. no grievance can consequently be made by the petitioner on the score that he was not afforded a personal hearing by the advisory board.6. it has been next argued by mr. prashar that the ground of detention was vague as it did not specify the name of his associates. according to the ground of detention, the petitioner was ordered to be detained on the ground that he had been acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evidenced by the particulars given below:on 27-3-1971 at about 10.10 hrs, you along with your associates were found engaged in smuggling rice by train no. 110 dn at radhamohanpur rly. station under kharagpur c.rp.s. shri n. g. saha, inspector of police, cordoning midnapore was . there on duty to prevent smuggling of rice from the cordoned areas of midnapore district to the statutory rationing areas of howrah and calcutta. he secured arrest of some smugglers and seized huge quantity of rice there, when you along with your associates attacked the police party, assaulted some of them, snatched away a portion of the seized rice and rescued some of the arrested smugglers.thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community.perusal of the above goes to show that the date, time and place of the incident was specified. particulars were also given regarding the nature of the activity of the petitioner. the facts stated in the ground of detention were sufficient to apprise the petitioner of the precise activity on account of which the order for his detention had been made and, in our opinion, it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detention order. what has to be seen by the court is that the ground of detention supplied to the petitioner was not so vague as to prevent him from making an effective representation. in the present case, as mentioned earlier, the ground of detention does not suffer from any infirmity of vagueness. the fact that the names of the associates of the petitioner were not given in the ground of detention would not make the ground to be vague. a similar contention was advanced in the case of deb sadhan roy v. state of west bengal : 1973crilj446 and was repelled by this court in the following words:it was contended that the associates of the petitioner have not been specified and therefore it will be difficult for the petitioner to make effective representation in respect thereof. we think there is no validity in this submission. not only the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. in our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. the petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal.lastly, it has been argued that the representation made by the petitioner was received by the state government sometime after november 10, 1971. the said representation was disposed of by the state government on december 16, 1971. there was, according to mr. prashar, inordinate delay in disposing of the petitioner's representation and this circumstance was sufficient to invalidate the petitioner's detention. in this respect we find that no such ground was taken by the petitioner in the writ petition. on june 16, 1972 when the above ground was urged, the state government was given an opportunity to file an affidavit to explain the delay. shri sukumar sen thereafter filed a further affidavit. according to that affidavit, the representation of the petitioner could not be considered earlier than december 16, 1971 mainly because of the fact that there were constant demonstrations of the state government employees, including those of home (special) department. as a result of that, there was no regular work and movement of files. it is also stated that during the above period a large number of detention cases had to be dealt with by the government. the period of 16 days taken by the state government after the agitation of its employees had come to an end, in our opinion, was not so inordinately long as to show laches on the part of the state government. it is significant that during the above period indo-pak hostilities had broken out and we see no ground to question the averment in shri sen's affidavit that a very large number of detention cases had to be looked into and examined during those days by the state government, the delay in disposing of the petitioner's representation has, in our view, been satisfactorily explained. the petition consequently fails and is dismissed.