MAHESH MAGANLAL JANI v. UNION OF INDIA — 1988 DIGILAW 60 (GUJ)

J. P. DESAI, J. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) THE discussion made above will go to show that delay on the part of the Central Government in considering the representation is not satisfactorily explained. Even Mr. S. D. Shah who appeared for the respondents Nos. 1 and 2 was unable to satisfy us that the delay was satisfactorily explained. Mr. Shah however submitted that there was no obligation on the part of the Central Government to consider this representation expeditiously because the representation which was to the State Government was already disposed by the State Government at the earliest. He submitted that this was in fact a second representation and therefore it did not require urgent attention. He also in the alternative made a submission that this was in fact an application made to the Central Government under Section 11 of the COFEPOSA to revoke the Order of detention and therefore also it was not required to be dealt with expeditiously. ( 5 ) IN support of his submission Mr. Shah vehemently relied upon a recent decision of the Supreme Court reported in K. Aruna Kumari v. Government of Andhra Pradesh A. I. R. 1988 S. C. 227. He submitted that the facts of the case before the Supreme Court in that case were on all fours with the facts of the present case and there fore the ratio of the decision of the Supreme Court will apply to the present case also and the order of detention is not required to be interfered with on the ground of delay on the part of the Central Government in dealing with the representation. He drew our attention to Paras 4 and 5 of the judgment of the Supreme Court. We would like to reproduce the aforesaid two paragraphs of the judgment of the Supreme Court because Mr. Shah very much relied upon the same. Mr. Shah also relied upon para. 9 of the aforesaid judgment of the Supreme Court and therefore we would like to reproduce the said paragraph also from the said judgment paragraphs 4 5 and 9 of the judgment of the Supreme Court are as follows :"4 The detenu filed his first respresentation on the 20th May 1987 which was rejected by the State Government as also the Advisory Board later. In the meantime a writ application being W. P. No. 663 of 1937 was filed before the High Court on 1-6-1987 challenging the detention order. The Writ Petition in this Court was filed on 13-7-1987. 6 A second representation on behalf of the detenu was filed by his cousin P. Lakshmana Rao on 5-6-1987 in which a prayer was made for revocation of the detention order. It has been contended on behalf of the petitioner that it was the duty of the Central Government to consider and dispose of this representation promptly which was not done. It is said that the representation remained unattended until the State Government reminded the Central Government in this regard after filing of the present writ petition and it was only then that the Central Government rejected the same on 2-9-1987. The reply is that by this representation the detenus cousin merely reiterated the points already taken in the first representation of the detenu which had been after consideration dismissed and it was therefore not necessary to deal with the same points over and over again. Besides the representation also was considered and rejected by the Central Government later. 7 So far as the second representation filed by Madhava Raos cousin Lakshmana Rao is concerned it has in fact been disposed of by the Central Government but about 3 months later after its filing. It was argued that S. 14 of the Act clothes the authority with the power of revoking the detention order and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Hardhan Saha v. State of West Bengal (1975) 1 SCR 778 (= AIR 1974 S. C. 2154 at p. 2159) and those in para 9 of the judgment in Sat Pal v. State of Punjab (1982) 1 SCC 12 : (= AIR 1981 S. C. 2230 ). It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here and as observed in para 13 of the judgment in State of U. P. v. Zavad Zama Khan (1984)3 SCC 505 : ( AIR 1984 SC 1095 ) there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under S. 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed was considered and rejected. "now if we have a close look at Paragraphs 4 and 5 of the judgment it appears that the representation made to the State Government as also the Advisory Board was rejected and a second representation was made on behalf of the detenu by his cousin in which a prayer for revocation of the detention order was made. Para 5 does not show that the said representation was made to the Central Government. Further on Para 5 shows that the Central Government did not dispose of the representation till the State Government had to remind the Central Government in that regard. The opening words of Para 5 clearly show that it was a second representation to the same authority. The word second itself suggests that the representation is made to the same authority and not to a different authority. If there are two different authorities to whom representations could be made then the representations made to the two different authorities cannot be said to be successive representations but they are different representations to the different authorities. It is quite probable that the second representation which was made by the cousin of the detenu was also made to the State Government but the State Government might have forwarded to the Central Government because the State Government had already rejected the representation of the detenu. Para. 9 of the judgment also shows that the Supreme Court was dealing with successive representations made on the same grounds. The Supreme Court has referred to its earlier decisions. Para. 9 of the judgment also shows that the Supreme Court was dealing with successive representations made on the same grounds. The Supreme Court has referred to its earlier decisions. The decision of the Supreme Court in State of U. P. v. Zavad Zama than A. I. R. 1984 S. C. 1025 has been specifically referred to at Para 9 of the judgment. We will later on show that in the case of State of U. P. v. Zavad Zama Khan (supra) it was a case of a second representation to the same authority and therefore it was held therein that there was no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. At Para 9 the Supreme Court has reiterated the observations made by it earlier in the case of Zavad Zama Khan (supra ). The Supreme Court has also referred to its earlier judgment in the case of Sat Pal v. State of Punjab A. I. R. 1981 S. C. 2230. We will discuss that judgment of the Supreme Court a little later and show that the submission of Mr. Shah based on the above decision of he Supreme Court cannot be accepted because the Supreme Court has not taken any view countrary to the view expressed in its earlier decisions referred to at Para. 9 of the judgment. If the view which is sought to be canvassed by Mr. Shah is to be accepted then there was no need for the Supreme Court to refer to the aforesaid judgments at para 9 of the judgment. ( 6 ) BEFORE going to the discussion of the two judgments referred to at Para 9 of the above judgment of the Supreme Court we would like to refer to another judgment of Supreme Court delivered by the same Bench (A. P. Sen and L. M. Sharma JJ.) in Writ Petition (Crl.) No. 598 of 1987 in the case of Haji Mohd. Akhlaq v. The District Magistrate and Others JT. Akhlaq v. The District Magistrate and Others JT. 1987 (4) S. C. 641 decided about six days after the decision rendered in K. Aruna K8man (supra) which makes it clear that even though the representation to the Central Government may be taken to be an application that representation/application is required to be dealt with by the Central Government as expeditiously as possible on the same footing as a representation made to the detaining authority as required by Article 22 (5) of the Constitution of India. It appears from the facts of the case of Haji Mohd. Akhlaq (Supra) that a representation on behalf of the detenu addressed to the State Government was handed over to the Jailor with an endorsement forwarding a copy thereof to the Secretary to the Government of India Ministry of Home Affairs New Delhi. It appears that a copy of the representation was sent by the State Government to the Central Government also but there was delay on the part of the State Government in forwarding the said representation to the Central Government as a result of which the representation could not be considered by the Central Government expeditiously and hence the detention was quashed. The Supreme Court observed at Para 3 of the judgment that there was no delay on the part of the Central Government in considering the representation made by the petitioner but the representation which was to be sent to the Central Government remained unattended till October 19 1987 with the State Government. The Supreme Court observed at Para 3 that there was unexplained delay on the part of the State Government in forwarding the representation to the Central Government with the result that the said representation was not considered by the Central Government for a period of more than two months. The Supreme Court then observed that Section 14 (1) of the Act confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government for its officer and that power in order to be real and effective must imply a right in a detenu to make representation to the Central Government against the order of detention. On this ground the detention was quashed. In that case the Supreme Court was dealing with detention under the National Security Act. 1980. On this ground the detention was quashed. In that case the Supreme Court was dealing with detention under the National Security Act. 1980. It appears that the provisions of Section 14 of the said Act are pari materia with Section 11 (1) of the COFEPOSA. This decision of the Supreme Court rendered by the same Bench six days after the decision in the case of K. Aruna Kumari (Supra) upon which reliance is placed by Mr. Shah shows that the contention advanced by Mr. Shah cannot be accepted. ( 7 ) IN the case of Sat Pal v. State of Punjab A. I. R. 1981 S. C. 2230 which is referred to at Para 9 by the Supreme Court in the case of K. Aruna Kumari (Supra) the Supreme Court has observed at Para 11 as follows :"11 The making of all application for revocation to the Central Government under Section 11 of the Act is therefore part of the constitutional right a citizen has against his detention under a law relating to preventive detention. While Art. 22 (5) contemplates the making of a representation against the order of detention to the detaining authority which has to be referred by the appropriate Government to the Advisory Board constituted under Section 8 (a) of the Act Parliament has in its wisdom enacted Section 11 and conferred an additional safeguard against arbitrary executive action. It is therefore idle to contend that the State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under Section 11 of the Act. The State Government had therefore no business in withholding the representation endorsed to the Central Government for revocation of the order of detention under Section 11 of the Act for a period of 2 months and 15 days. In Rattan Singh v. State of Punjab Writ Petition No. 3614 of 1981 decided on 22 there was in that case as here a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11. In Rattan Singh v. State of Punjab Writ Petition No. 3614 of 1981 decided on 22 there was in that case as here a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11. The Court struck down the order of detention on the ground that there was a denial of the constitutional safeguard of the right of being afforded the earliest opportunity of making a representation against the order as contemplated by Art. 22 (5 ). The above observations made by the Supreme Court in the case of Sat Pal (Supra) which is again referred to with approval by the Supreme Court in the case of Mr. Aruna Kumari clearly go to show that the contention put forward by Mr. Shah cannot be accepted. ( 8 ) IN the case of State of U. P. v. Zavad Zama Khan A. I. R 1984 S. C. 1095 which has been referred to by the Supreme Court at Para 9 in K. Aruna Kumaris case it appears that a representation which was sent to the State Government was forwarded by the State Government to the Central Government and it was considered by the Central Government and rejected. Thereafter another representation was made to the Central Government and that was taken as a second representation to the same authority and therefore the Supreme Court observed that it was not obligatory on the part of the Central Government to consider that second representation for revocation under Section 14 of the National Security Act. There is nothing in the judgment of the Supreme Court in the case of State of U. P. v. Zavad Zama Khan (supra) which would lend support to the submission made by Mr. Shah. On the contrary the Supreme Court in the case of State of U. P. v. Zavad Zama Khan (Supra) has referred to with approval the decision of Supreme Court in the case of Sat Pal v. State of Punjab (supra ). ( 9 ) THERE is a direct decision of the Supreme Court reported in Raghavendra Singh v. Superintendent District Kanpur A. I. R 1986 S. C. 356 which shows that the submission made by Mr. Shah cannot be accepted. ( 9 ) THERE is a direct decision of the Supreme Court reported in Raghavendra Singh v. Superintendent District Kanpur A. I. R 1986 S. C. 356 which shows that the submission made by Mr. Shah cannot be accepted. In that case the Supreme Court has referred to its earlier decisions in the case of Sat Pal v. State of Punjab (supra) and State of U. P. v. Zavad Zama Khan (Supra) and shown how the decision of the Supreme Court in the case of Zavad Zama Khan will not be applicable when one representation is made to the State Government and another to the Central Government. The above decision of the Supreme Court is a clear answer to the submission made by Mr. Shah and therefore we are inclined to reject the submission of Mr. Shah. ( 10 ) THE discussion made above will go to show that the continued detention of the detenu Ashok Maganlal Jani @ Ashok Maharaj is required to he quashed on the above ground viz. delay on the part of the Central Government in considering the representation made on behalf of the detenu. ( 11 ) XXX xxx xxx ( 12 ) XXX xxx xxx ( 13 ) XXX xxx xxx .