Tara Chand Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
;this delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with by the respondents or their agents. even after this huge delay the representation was sent to the collector for comments and no intimation has been sent to the detenu about the fate of his representation dated february 23, 1980, addressed to the detaining authority. in fact, as it appears from the counter the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to the advisory board, also. the mere fact that the meeting of the advisory board had been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenu at all.;in the instant case there has been a breach of these constitutional imperatives. - [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. - 10. it is well settled that in case of preventive detention of a citizen, article 22(5) of the constitution enjoins that the obligation of the appropriate government or of the detaining authority to alford the detenu the earliest opportunity to make a representation and to consider that representation speedily is distinct from the government's obligation to constitute a board and to communicate the representation, amongst other materials, to the board to enable it to form its opinion and to obtain such opinion.r.s. sarkaria, j.1. this is a petition for the issue of a writ of habeas corpus on behalf of shri shishupal (hereinafter called the detenu) who has been preventively detained in pursuance of an order passed under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter called the cofeposa). the detention order was passed by shri l. n. gupta, commissioner and administration secretary, home department, rajasthan, jaipur. the detenu was arrested in pursuance of that order on november 2, 1979. the grounds of detention were served on the detenu on november 3, 1979.2. on november 3, 1979 the detenu's brother tara chand addressed a letter to the detaining authority on behalf of the detenu praying for revocation of the order of detention. this letter was more in the nature of complaint against the customs officer, and less than a representation against the grounds of detention. the prayer made in this letter was rejected on november 19, 1979.3. a meeting of the advisory board was held on november 30, 1979. the detenu was heard by the board. the board made a report on december 3, 1979 justifying the detention. the detention was confirmed by the state government on december 15, 1979.4. on february 23, 1980, the detenu made a representation to the central government praying for revocation of his detention under section 11 of the cofeposa. another representation of the same date was sent by the detenu to the detaining authority.5. it is alleged in the petition that these representations have not been considered by the central government or the detaining authority up to the date of the writ petition. the representation dated february 23, 1980, of the detenu against the grounds of his detention reached the detaining authority on march 27, 1980, that is, after a delay of one month and five days.6. it was contended on behalf of the petitioner that there has been an infringement of the constitutional safeguards and imperatives embodied in article 22(5) of the constitution inasmuch as (i) the detenu was never told that he had a right to make a representation and to whom the representation was to be addressed.(ii) there was extreme callousness and delay on the part of the detaining authority in considering the detenu's representation, dated february 23, 1980, against the grounds of detention.(iii) the authority's refusal to send the representation of the detenu to the advisory board on the ground that he had been heard in person by the board.7. shri vishnu dutta sharma, additional director of prosecution, home department, government of rajasthan, has filed a counter-affidavit on behalf of respondents 1, 2 and 4. in para 21 of this counter, it is admitted that the petitioner had sent an application under section 11 of the cofeposa for revocation of the detention order to the central government and that application was received in the office of the home secretary on march 6, 1980 for parawise comments. it is further stated in that para; the home secretary on march ,7, 1980 forwarded the same to the collector of customs, jaipur for sending his comments. the comments of the collector of customs, jaipur were received on march 13, 1980 in the office of the home. secretary. the state government sent its comments to the secretary, ministry of finance, new delhi on march 14 1980. the answering respondents are not aware as to how the central government has dealt with the matter thereafter.8. in the counter, it is further denied that a representation dated february 23,1980 on the same' lines as the revocation, application to the central government, was sent to the detaining authority. it is added that the application dated february 23, 1980 of the detenu addressed to, the detaining, authority, was only for supply of copies of the relevant documents and for reconsideration by the advisory board.. it is significantly admitted that this application (representation) dated february 23, 1980 of the detenu was received by the home secretary to the government of rajasthan on march 27, 1980 through the inspector general of prisons. thereupon the copies were called for, from the collector, customs and supplied to the detenu on april 1, 1980.9. in spite of these evasive answers contained in para 21, it is clear that the representation dated february 23, 1980 of the detenu made by him through the jail authorities reached the detaining authority only on march 27, 1980. it was substantially in the same terms as the representation addressed to the central government for revocation of the detention under section 11. this delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. even after this huge delay, the representation was sent to the collector for comments, and no intimation has been sent to the detenu about the fate of his representation dated february 23, 1980, addressed to the detaining authority. in fact, as it appears from the counter, the detaining authority refused to consider the same merely because the detenu had requested that this representation be forwarded to' the advisory board, also. the mere fact that the meeting of the advisory board had been held earlier was hot a valid excuse for the detaining authority in not considering the representation of the detenu at all.10. it is well settled that in case of preventive detention of a citizen, article 22(5) of the constitution enjoins that the obligation of the appropriate government or of the detaining authority to alford the detenu the earliest opportunity to make a representation and to consider that representation speedily is distinct from the government's obligation to constitute a board and to communicate the representation, amongst other materials, to the board to enable it to form its opinion and to obtain such opinion. in the instant case, there has been a breach of these constitutional imperatives.11. it was on this short ground, we had by our order dated april 15 ,1980, allowed this writ petition and directed the release of the detenu forthwith.