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2008 DIGILAW 790 (GAU)

Asem Rimola Devi v. State of Manipur

2008-11-12

ASHOK POTSANGBAM

body2008
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. Kh. Mani Singh, Learned Counsel appearing for the petitioners and Mr. N. Koteshwar Singh, learned Advocate General, Manipur assisted by Mr. Viscount, Learned Counsel appearing for the respondents. Brief facts which is necessary for disposal of this writ petition are sated as hereunder. 2. Kangla Fort, which is known as Kangla, is centrally located in the Capital (City of Imphal, State of Manipur. As this Fort, which has been associated with the History of Manipur, was under the occupation of British since 1891 and the occupation having been continued by the Government of India, even after the British left in 1947, through the Assam Rifles, there was a popular demand from the general public as well as from the Government of Manipur for handing over the Fort to the Government of Manipur for its preservation and protection. In the year 1996, under certain arrangement made between the Ministry of Home Affairs, Government of India and the Government of Manipur, the erstwhile 11th Reserve Battalion ('IRB'), which, later on, came to be known as 1st IRB, was allowed to occupy a portion of the Kangla Fort, perhaps, as a token of possession of the Fort by the Government of Manipur. 3. The Its IRB, in due course of time, became a full-fledged Battalion and the services of some of its personnel's were unutilized by the Government of Manipur in counter insurgency activities as Commandos under the Superintendent of Police, Imphal East and Imphal West. It is stated by the petitioners that the families of the IRB personnel, whose services were/are utilized in counter insurgency activates, were allowed to stay in the family quarters or in the family barrack inside the Kangla Fort as it was not considered safe to expose them in unprotected house places, and the children belonging to such families, have also been attending schools located nearby Kangla Fort. It is submitted by the Learned Counsel appearing on behalf of the petitioners that, normally, final examination for the lower level classes in the schools are held either at the end of the year, i.e., December, or in the beginning of he year, i.e., January. 4. It is submitted by the Learned Counsel appearing on behalf of the petitioners that, normally, final examination for the lower level classes in the schools are held either at the end of the year, i.e., December, or in the beginning of he year, i.e., January. 4. The petitioners, 126 in number, who are the wives of the personals of the Its IRB, filed this writ petition as they have been asked to vacate the family quarters occupied by them, in the midst of academic session of their children, within 10th of September, 2008 by an order dated 5th September, 2008, (Annexure-A/6 to the writ petition), issued by the respondent No. 4 i.e., the Commandant, 1st IRB. On enquiry, it is found by the petitioners that the order dated 5.9.2008 was issued by the 4th respondent by way of complying with the directions contained in the communication dated 4.9.2008 under No. Endst. No. C-4/8/94-1st IRB and the communication dated 4.9.2008, (Annexure-A/7 to the writ petition), and the order dated 5.9.2008, under No. 2/8/(33)/2003-II (Security) are impugned and challenged in this writ petition. The communication dated 4.9.2009 (Annexure-A/7) is reproduced herein below: CONFIDENTIAL M/URGENT GOVERNMENT OF MANIPUR HOME DEPARTMENT No. 2/8(33)/3003-II (Security) Imphal, the 4th September, 2008. To The Director General of Police, Manipur, PHQ, Imphal. Subject: Security arrangement for Chief minister's residence comprehensive review of security arrangements. Sir, I am directed to sate that Hon'ble Chief minister, Manipur has desired that a comprehensive review of the security arrangements for Chief Minister's Complex, the Raj Bhawan and the Babupara High Security zone be taken up on top most priority. Hon'ble Chief Minister has specifically directed the following action by the Police Department: (i) Removal of all families lines from the Kangla immediately. (ii) Sanitisation of Babupara Mahabali and Old Lambulane at regular intervals. (iii) Frequent conduct of search/combing operations in Greater Imphal area and in the two jails namely, Sajiwa and Central Jail. (iv) Maintenance of 100% full proof security in Imphal Municipal area. 2. The Police Department is advised to take immediate follow up action on the above directions and take such other action as may be considered necessary. 3. An action taken Report may kindly be submitted to the Home Department within 12.9.2008 positively. Yours faithfully, Sd/- Th. Amalkumar Singh Under Secretary (Home) Government of Manipur 5. 2. The Police Department is advised to take immediate follow up action on the above directions and take such other action as may be considered necessary. 3. An action taken Report may kindly be submitted to the Home Department within 12.9.2008 positively. Yours faithfully, Sd/- Th. Amalkumar Singh Under Secretary (Home) Government of Manipur 5. When this matter was taken up on 19.9.2008, considering the peculiar nature of the directions contained in the impugned communication dated 4.9.2008, as quoted above, the learned Advocate General of the State was requested by this Court vide order dated 19.9.2008 to take necessary instructions and assist the court in deciding the legal status and effect of the impugned communication dated 4.9.2008, and the direction given therein. The relevant portion of the order dated 19.9.2008 is quoted below: Interesting question of law is involved in this case relating to legal status of the communication dated 4.9.2008 under No. 2/8(33)/2003-H (Security) issued by the under Secretary (Home), Government of Manipur. Learned A.G. is requested to take appropriate instruction so that this Court will decide the legal status and effect of the communication referred to above. This matter shall come up on Monday for further order. Till Monday, communication dated 4.9.2008 and the notice dated 5.9.2008 under No. 2/8(33)/2003-H (Security) shall remain stayed. 6. By way of defence to the writ petition and in response to the order of this Court, as extracted above, the State respondents filed an exhaustive affidavit. This matter shall come up on Monday for further order. Till Monday, communication dated 4.9.2008 and the notice dated 5.9.2008 under No. 2/8(33)/2003-H (Security) shall remain stayed. 6. By way of defence to the writ petition and in response to the order of this Court, as extracted above, the State respondents filed an exhaustive affidavit. From the submissions of the learned Advocate General and upon perusal of the affidavit, referred to above, it appears that 3(three) grounds/issues have been raised by the respondents and they are summarized as follows: (i) The administration, control and the management of the affairs of the Kangla Fort are vested to the Kangla Fort are vested to the Kangla Fort Board, an authority constituted under the Kangla Fort Act, 2004 and as such it is the Board, a statutory body, which is the competent authority to take all kind of decisions with regards to Kangla Fort; (ii) The communication dated 4.9.2008 issued by the under secretary (Home) is an intra - departmental communication, which was issued after the concerned Minister took decision on the matters mentioned therein; (iii) Even if the communication dated 4.9.2008, as referred to above, is taken to be an order under Article 166 of the Constitution of India, the requirements of Article 166 have been substantially complied with and therefore, the impugned communication does not suffer from any legal infirmity. 7. Right from Dattatraya's case, decided by a Constitution Bench of the Apex Court AIR 1952 SC 181 , it has been consistently held that as long as there is substantial compliance of the requirements of Article 166(1) and (2), an immunity is provided to an order and such order cannot be challenged on the ground that the same has not been issued by the Governor. But once the order is not expressed in the name of the Governor and not executed as required by Article 166(2), the immunity provided is removed and order is subject to challenge. But once the order is not expressed in the name of the Governor and not executed as required by Article 166(2), the immunity provided is removed and order is subject to challenge. In view of the nature of the order/communication wherein it was specifically directed By the Chief Minister to do certain things relating to security measures and which are set out in the order itself, there may not be any meaningful purpose to consider whether the communication is an order winder Article 166 or not and more so in view of the law laid down by the Constitution Bench of the Apex Court in Bachhittar's case, AIR 1963 SC 395 . The principles laid down in Bachhittar's case is followed in State of Kerala v. Smt. A. Lakshmikutty and Ors. (1986) 4 SCC 632 . The Apex Court, in the aforesaid cases, held that certain conditions have to be fulfilled before something can be called an order of the State Government or the action taken is a State action and the Apex Court expressed its finding in the following words as quoted below: Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as requited by Clause (1) of Article 166 of the Constitution and then it has to be communicated. The Constitution inquired that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the minister is no more than an adviser and that the head of the State, the Governor is to act with the aid and advice of his council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister of the council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the council of Ministers is accepted or deemed to be accepted by the head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister of the council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister of the council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Therefore to make an opinion amount to a decision of the Government it must be communicated to the person concerned. It is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the council of Ministers to consider the matter over and over again, therefore till its communication the order cannot be regarded as any thing more than provisional in character, AIR 1961 SC 493 (512). 8. On perusal of the communication dated 4.9.2008, as extracted above, and also in view of the stand taken by the Government that the impugned communication can be treated as an intra-departmental communication, I do not propose to discus the case laws on Article 166(1) and (2), as the aforesaid communication cannot be considered, under any circumstances, as an order of the Government or an order of the Governor of the State so as to attract Article 166 of the Constitution of India. Further, there is no serious attempt by the respondents in their affidavit to prove that the impugned communication dated 4.9.2008 is an order issued by the Governor in terms of Article 166 of the Constitution of India. 9. Under Article 166(3) rules of business is made by the Governor of the State for convenient transaction of government business and for allocation of the same among the Ministers in so far as it does not relate to matters in regard to which the Governor is required to act in his discretion. It is in accordance with these rules that the businesses are to be transacted and the business so transacted can be called as State action, if it satisfies the test laid down in Bachhittra's case (supra), otherwise, any action would be nothing more than a departmental communication, which may or may not have the binding effect. Rule 26 of the Rules of Business provides as to how cases are to be disposed of by or under the authority of Minister in-charge. Rule 26 of the Rules of Business provides as to how cases are to be disposed of by or under the authority of Minister in-charge. It is, further, provided in the Rules of Business that some matters are required to be placed before the council of Ministers/Cabinet and some matters can be disposed of under the authority of the Minister concerned. Further, there are matters, which are to be sent to the Governor for acceptance and approval and there are also matters, which can be deemed to have been approved by the governor when the same is authenticated in the manner provided in the Rules. 10. We will now examine the first and second grounds together as they are related to each oilier. Admittedly, the administration, control and the management of the affairs of the Kangla Fort are vested to the Kangla Fort Board, a statutory body, constituted under the Kangla Fort Act, 2004. To substantiate this contention the respondents have stated in para-4(v), (vi) and (vii) of the counter affidavit, winch read as follows: (v) That after the handing over of the entire Kangla Fort by the Government of India to the Government of Manipur and the vacation of the same by the Assam Rifles, the Kangla Fort was placed under the Administrative control of the Kangla Fort Board which was constituted by the Government of Manipur under the provisions of the Kangla Fort Ordinance, 2004 (later enacted as Kangla Fort Act, 2004), vide Notification No. 2/44/2004-Leg/L, dated 20.11.2004. (vi) That accordingly Kangla is now under the administrative control of the Kangla Fort Board and the administration and control of the Kangla Kurt is governed by the provisions of the Kangla Fort Act, 2004 (hereinafter referred to as the "Act"). Section 3 of the aforesaid Act clearly provides for prohibitions of alienation or transfer or lease or allotment in any form to any person or organization. Further, it has been also provided under Section 12 of the Act that the Kangla Fort Board shall make necessary arrangement for preservation and protection of the Kangla Fort in recognition of the sanctity of the historical monument etc. within the Kangla Fort. The Arts and Culture Department, Government of Manipur has been made the nodal departmental under the Act. Further, it has been also provided under Section 12 of the Act that the Kangla Fort Board shall make necessary arrangement for preservation and protection of the Kangla Fort in recognition of the sanctity of the historical monument etc. within the Kangla Fort. The Arts and Culture Department, Government of Manipur has been made the nodal departmental under the Act. (vii) That after the constitution of the Kangla Fort Board, the Board in its meeting held on 27.11.2004 had decided to relocate the 1st IRB earlier posted in the easter side of the "Kangla" to the Southern part of the Western side of "Kangla" in an area bounded by NH-39 and the 1st inner parallel road to the NH-39 on the east. It was further decided that the number of the security personnel (IRB/MR) may be kept within 200 in "Kangla". 11. Perusal of the statements given in the affidavit along with the provisions of the Kangla Fort Act, would leave no doubt for this Court to conclude that it is the Kangla Fort Board alone, which is competent to take all kind of decisions relating to the affairs of the Kangla Fort, including occupation and vacation of the family quarters by the petitioners in the barracks lying within Kangla Fort, and this contention stands fortified by the statement made in para-4(viii) of the affidavit of the respondents, as extracted above. Therefore, the matter relating to occupation of the family quarters or vacation thereof ought to have been initiated by in appropriate decision of the Kangla Fort Board and in the absence of doing so, none of the officers of the State Government leave alone the Ministers or the Chief Minister of the State, have jurisdiction and competency to take a decision effecting the administration, control and affairs of the Kangla Fort. Even the State, which is empowered under Section 23 of the Kangla Fort Act to provide general superintendence and direction, is to act statutorily in terms of the provisions of the Kangla Fort Act. The Act has been enacted by the State Government and as such the State Government and its functionaries are bound by the provisions of the Kangla Fort Act, 2004 and consequently, no authority of the State Government nor any individual officer/Minister can be allowed to usurp the jurisdiction of the Kangla Fort Board constituted under the Kangla Fort Act, as discussed above. This proposition finds support from the judgment of the Apex Court, K.K. Bhatta v. State of M.P. (2006) 3 SCC 581 . The matter in this case relates to allotment of land which is vested in Jabalpur Development Authority (JDA), an authority constituted under the M.P. Town and Country Planning Act, 1973. In this case, the allotment of land to a local newspaper and the YMCA, was questioned on the ground, amongst other, that the allotment was given at the instance and on the direction of the Chief Minister without any initiative having come from JDA and as such the allotment was found dehors the provisions of the Act and the same was declared void. In paras-37 and 38 of the judgment, it was held that the JDA alone has the requisite authority to initiate necessary proceedings as the disposal of the land is within the domain of the JDA subject to the approval of the State Government/The State and the JDA being the creatures of Statute, were bound to act within the four corners thereof and in para-51, the Apex Court held that the State cannot do what is within the domain of JDA and the direction of the Chief Minister being dehors of the provisions of the Act is void and of no effect. The Apex Court also held in para-63 as follows: 63. The State has no power to issue any general direction. The State has furthermore no power to interfere with the day-to-day functioning of the JDA. Any such direction by the State to the officers must be in discharge of their duties in terms of the provisions of the Act and not otherwise. The direction of the Chief Minister being dehors the provisions of the Act is void and of no effect. 12. Reverting back to the facts of the instant case, the admitted position is that the administration, control and the management of the affairs of the Kangla Fort is under the Kangla Fort Board, which consists of several elected and non-elected members and constituted statutorily under the Kangla Fort Board Act, 2004. 12. Reverting back to the facts of the instant case, the admitted position is that the administration, control and the management of the affairs of the Kangla Fort is under the Kangla Fort Board, which consists of several elected and non-elected members and constituted statutorily under the Kangla Fort Board Act, 2004. Decisions to discontinue or vacate the occupation of any quarters/building situated within the Kangla Fort, which are under the control and administration of the Kangla Fort Board, will have to be taken only by the Kangla Fort Board, in terms of the provisions contained in the Kangla Fort Act, 2004 and in the absence of any such decision having taken by the Kangla Fort Board, the direction set out and contained in the impugned order/communication dated 4.9.2008 is without Jurisdiction and contrary to law in so far as it relates to direction set out in sub-para (i) of the impugned order, i.e., removal of all families lines from the Kangla immediately. The impugned older dated 4.9.2008, which is sought to be treated as intra-departmental communication by the respondents is bad in law in so far as it relates to the direction of the Chief Minister for removal of all families from Kangla. Though the aforesaid issues have been discussed and decided with the active assistance of the Government respondents, it may be worthwhile to reiterate the settled position of law that when an illegality is brought to the notice of the court, court can in certain situations, exercise its power of judicial review, even sue motu, and this proposition finds support from the following cases: Sham Lal v. Atme Nand Jain Sabha (1987) 1 SCC 222 and Chairman and MD, BPL Ltd. v. S.P. Gururaja (2003) 8 SCC 567 and Guruvayoor Devaswom Managing Committee v. C.K. Rajan (2003) 7 SCC 546 . 13. Haying considered the submissions made by the Learned Counsel appearing for the parties and also in view of the findings of the court herein-above, this Court is of the opinion that impugned communication dated 4.9.2008, as discussed above, and subsequent order dated 5.9.2008 are not sustainable in the eye of law. Accordingly, the impugned communication dated 4.9.2008 under No. 2/8(33)/2003-H(Security) is quashed insofar as it relates to the first direction contained therein, i.e., removal of all families lines from the Kangla immediately, and consequently, the subsequent order 5.9.2008 under No. Endst. Accordingly, the impugned communication dated 4.9.2008 under No. 2/8(33)/2003-H(Security) is quashed insofar as it relates to the first direction contained therein, i.e., removal of all families lines from the Kangla immediately, and consequently, the subsequent order 5.9.2008 under No. Endst. No. C-4/8/94-1st IRB is also quashed and the writ petition is allowed to the extent indicated above. 14. Interim order, if any, stands merged with this judgment and order. No order as to costs. Petition allowed.