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2012 DIGILAW 339 (GAU)

Abdul Hasim v. Union of India & Ors.

2012-03-13

A.C.UPADHYAY, A.K.GOEL

body2012
A. K. Goel, CJ.:- 1. This petition seeks quashing of order of detention dated 03.12.2011 passed by the District Magistrate. Dimapur, under Sec­tion 3 of the National Security Act, 1980 and approval granted to the detention by the Government of Nagaland vide order dated 13.12.2011 under Section 3(4) of the Act. 2. Case of the petitioner is that he was in judicial custody since 24.11.2011 in connec­tion with DPR Police Station Case No. 01277 2011 registered under Section 334/506/384/121 IPC read with Section 7/8 of the NSR, 1962. The District Magistrate, acting as a detaining authority, purporting to be being satisfied that with a view to prevent the petitioner from acting in a manner prejudical to the defence of India, security of State of Nagaland and maintenance of public order, directed that he be detained. Under Section 3(4) of the Act, detention beyond 12 days could be continued only if the same was approved by the State Government. While or­der dated 13.12.2011 granting such approval was passed but the same having not been passed in accordance with law, continued detention of the petitioner was not valid. Rep­resentation of the petitioner against the order of detention was rejected as per letter dated 19.12.2011. 3. Though detention has been challenged in the writ petition on several grounds, main ground put forward at the time of hearing is that under the Rules of Executive Business of the State of Nagaland, the Secretary to the Government of Nagaland was not the competent authority and only the Minister or any person authorized by him was such an au­thority. The Secretary could merely authenti­cate or convey such order. 4. In reply filed on behalf of the State, the writ petition has been opposed by sub­mitting that under Rule 12 of the Rules of Executive Business, order in the name of Governor can be signed by authorities speci­fied therein including the Additional Chief Secretary to the Government, who in the present case had signed the order of ap­proval. 5. The record has been produced by the State, as per order dated 23.02.2012. It is not disputed that the Minister has not signed the order of approval of detention nor authorized making of such order to any other officer. 6. 5. The record has been produced by the State, as per order dated 23.02.2012. It is not disputed that the Minister has not signed the order of approval of detention nor authorized making of such order to any other officer. 6. Learned counsel for the petitioner sub­mits that there being difference in the exer­cise of power on behalf of the State and au­thentication of orders so passed, mere proper authentication did not foreclose enquiry into the question of approval having been given by the competent authority. To substantiate his submission he has referred to a copy of Notification dated 03.11.1958 issued by the Ministry of Home Affairs, Government of India, containing authentication (Orders and Other Instruments) Rules, 1958 and Government of India (Transaction of Business) Rules, 1961 and a Standing Order dated 5.10.2007 issued by the Home Minister, Government of India to the effect that power vested in the Central Government could be exercised by the officers of the Government of India speci­fied therein. 7. Learned Advocate General for the State of Nagaland submitted that once the order was signed by competent officer specified in Rule 12 of the Rules of Executive Business, signature of such officer will be deemed to be proper authorization of such order. 8. We have considered the rival submis­sions. 9. The Rules of Executive Business of the Government of Nagaland notified on 28th July. 1980 are the relevant rules. Part-III deals with departmental disposal of business. Rule 22 is as under: "22. Except as otherwise provided by any other Rules, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may by means of standing orders give such directions as he thinks fit for the dis­posal of case in the Department. Copies of such standing orders shall be sent to the Governor and the Chief Minister." 10. A perusal of the above Rule shows that ordinarily cases have to be disposed of by or under the authority of the Minister-in-charge but he may by standing orders give such direction for disposal of cases as he thinks fit. In Part-I Rule 12 deals with au­thentication of orders or instruments of the Government and specifies the authorities who could sign such orders. 11. In Part-I Rule 12 deals with au­thentication of orders or instruments of the Government and specifies the authorities who could sign such orders. 11. It is thus clear that officer authorized to sign an order and authority to take decision as State Government would be differ­ent, unless otherwise provided by an appropriate standing order of the Ministry. 12. In the present case it is not the case of the State that any standing order under Rule 22 has been issued by the Minister. The approval on behalf of the State Government has not been given by the Minister or under the authority of the Minister. However, authentication is as per Rule 12. Mere authen­tication in absence of approval of competent authority cannot be treated to be approval. Reference may be made to law laid down in E.P. Royappa Vs. State of Tamil Nadu, AIR 1974 SC 555 : (1974)4 SCC 3 as follows: "78. The authenticated order provided in terms clear and explicit that the petitioner was promoted and posted to act as Chief Secretary. The words "to act", according to plain grammar and language, governed not only "posted" but also "promoted". The petitioner was both 'pro­moted and posted" as one single composite event, "to act" as Chief Secretary and that clearly meant that the promotion was in an acting ca­pacity. But the argument of the petitioner was that the words "to act" were not to be found in the draft order which recorded the original de­cision of the State Government and they were introduced in the authenticated order by mis­take and should therefore be ignored, or in other words, the authenticated order should be read without the words "to act" so as to be in con­formity with the draft order. The respondents resisted this attempt to go behind the authenti­cated order and contended that the authenti­cated order was the final order and it was not open to the petitioner to say that it did not cor­rectly reflect the order as made by the State Government. We do not think this contention of the respondents is sound. It is not well-set­tled law that when an order is authenticated, the only challenge that is excluded by the au­thentication is that it is not an order made by the Governor. The validity of such an order can be questioned on other grounds. (Vide King-Emperor Vs. We do not think this contention of the respondents is sound. It is not well-set­tled law that when an order is authenticated, the only challenge that is excluded by the au­thentication is that it is not an order made by the Governor. The validity of such an order can be questioned on other grounds. (Vide King-Emperor Vs. Shivnath Banerjee [AIR 1945 PC 156] and State of Bihar Vs. Sonabati [ AIR 1961 SC 221 ].) The authentication does not, there­fore, preclude the contention that the order though made by the Governor suffers from some other infirmity. The authenticated order is merely an expression of the actual order which precedes it and which is made by the appropri­ate authority entitled to act on behalf of the State Government. As pointed out by this Court in State of Bihar Vs. Sonabati "the process of making an order precedes and is different from the expression of it". It should therefore, be axi­omatic that if the authenticated order does not correctly reflect the actual order made, or to put the same thing differently; the actual decision taken by the State Government, it must be open to correction. The formal expression of the or­der cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made and override it. That would not be consonant with reason of principle. It would be an artificial rule calculated to obstruct the cause of truth and justice. Here in the present case it is the citizen who contends that the authenticated order does not correctly re­produce the actual order made by the State Government. But there may conceivably be cases where the Government may also find that there is a mistake in the authenticated order and it requires to be rectified. Take for example a case where the actual decision taken by the State Government is that a person should be appointed to a post in an officiating capacity but by mistake the appointment is described as substantive appointment in the authenti­cated order. Can it be suggested in such a case that the Government cannot rectify the mis­take by amending the authenticated order so as to bring it in accord with the real decision? Can it be suggested in such a case that the Government cannot rectify the mis­take by amending the authenticated order so as to bring it in accord with the real decision? We have, therefore, no doubt that it was com­petent to the petitioner to contend, by refer­ence to the draft order which contained the original decision of the State Government, that the authenticated order did not correctly re­flect such decision and suffered from an error. But the question is whether such contention can succeed." 13. Accordingly, we are of the view that there is no approval as required under Sec­tion 3(4) of the Act to the order of detention. In absence thereof, the order of detention cannot continue beyond 12 days. Continued detention of the petitioner cannot be, thus, held to be in accordance with law. 14. In view of above, this petition is al­lowed. Detention of the petitioner, Sri Abdul Hasim, is quashed and he may be sent at lib­erty unless required in any other case.