Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 257 (GAU)

Yangpi Imlong Chang v. State of Nagaland

2014-03-03

PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. Heard Mr. K. Renpemo, learned counsel for the petitioner. Also heard Mr. K. Wotsa, learned RP for the State of Nagaland. This proceeding has been initiated for quashing of the detention order dated 08.07.2013, passed, by the learned District Magistrate, Tuensang, the approval order dated 15.07.2013, passed by the Additional Chief Secretary, Government of Nagaland as well as the confirmation order dated 02.09.2013, passed by the Chief Secretary, Government of Nagaland, whereby and where under, the petitioner was detained for a period of one year with effect from 08.07.2013. 2. The brief facts necessary for disposal of the present proceeding are that the petitioner Shri. Yangpi Imlong Chang was arrested 26.06.2013 by the 23rd Assam Rifles Personnel at St. John 'A' Sector, Tuensang along with others and was handed over to the Tuensang Police Station alleging that the petitioner was an active member of NSCN (K) and had violated the cease fire ground rules by keeping arms and ammunitions and war like materials in civilian area. 3. It has also been stated that the petitioner was involved in a series of extortion activities having serious implications on the security of the State of Nagaland and maintenance of public order. Accordingly, a case was registered against the petitioner/detenue vide Tuensang Police Station Case No. 12/13 under Section 7/8 of the Nagaland Security Regulation 1962 read with Section 25(1A) of the Arms Act and in due course, he was sent to judicial custody. 4. While the petitioner/detenue was in judicial custody, on 08.07.2013, the learned District Magistrate, Tuensang passed the impugned detention order under Section 3(3) of the National Security Act, 1980, for short, the Act of 1980 and same was reported to the higher authority as required. On the same day, the grounds of detention were also communicated to the detenue. Meanwhile, the Additional Chief Secretary, Government of Nagaland had approved the detention order vide approval order dated 08.07.2013. 5. Thereafter, on 02.09.2013, the Chief Secretary, Government of Nagaland passed the order confirming detention order thereby authorizing the detention of the petitioner/detenue for a period of one year from the date on which his detention order was passed. In the meantime, the petitioner has preferred a representation seeking revocation of the detention Order which was however rejected by authority concerned. 6. In the meantime, the petitioner has preferred a representation seeking revocation of the detention Order which was however rejected by authority concerned. 6. The petitioner has, now, approached this Court challenging the detention order, approval order and the confirmation order on grounds more than one. One of the grounds seeking quashing of detention order and all other subsequent order was that the Additional Chief Secretary, Government of Nagaland who approved the detention order was not the competent authority to approve the detention order since, under the Rules of Executive Business, such power is vested only on the Chief Secretary, Government of Nagaland. 7. In that connection, it has been pointed out that under Section 3(4) of the Act of 1980, the detention order passed by an officer, mentioned in Section 3(3) of the Act of 1980, needs to be approved by the State Government within a period of 12 days from the date of making such order. Under the Rules of Executive Business, the State Government, as contemplated in the Act of 1980 means Minister-in-charge or the officer authorized to act on behalf of such Minister under the arrangement, so made by the Rules aforesaid. 8. It has been contended that under the Rules, mentioned above, on the strength of an standing order, only the Chief Secretary, Government of Nagaland, and none else is authorized to act on behalf of Minister in the term of Section 3(4) of the Act of 1980. Therefore, any officer, who chose to act in violation of requirement of Section 3(4) of the Act, 1980, makes his action unsustainable in law. 9. Since the Additional Chief Secretary, Government of Nagaland has no authority to approve the detention order under the aforesaid Rules, the detention order and all other subsequent order(s) are liable to be quashed on this count alone. In support of such a contention, the learned counsel for the petitioner/detenue has place reliance on the decision of this Court rendered in W.P. (Crl) No. 20 (K) of 2013, on 13.02.2013. 10. The State respondents has filed counter-affidavit and contested the proceeding stating that the allegations made in the present proceeding under Article 226 of the Constitution of India are not sustainable in law and as such, the proceeding initiated by the petitioner is liable to be dismissed. 10. The State respondents has filed counter-affidavit and contested the proceeding stating that the allegations made in the present proceeding under Article 226 of the Constitution of India are not sustainable in law and as such, the proceeding initiated by the petitioner is liable to be dismissed. It has been stated that it is true that the order of approval was passed by Additional Chief Secretary, Government of Nagaland but he had to do so since he was acting as Chief Secretary, Government of Nagaland on 15.07.2013 as regular Chief Secretary was out of State. 11. I have considered the rival submissions having regard to the pleaded case of the parties and the documents attached therewith as well as the decision relied on by the petitioner. It is found that though the petitioner has assailed the order(s) aforementioned on counts more than one, during hearing, he confines his argument only to the allegation that the order of the approval of the detention order dated 15.07.2013 is liable to be quashed since the officer who approved the same did not have the requisite competency to do the same. I have considered such allegation in the light of the materials on record. For ready reference the relevant part of the order dated 13.02.2013 passed in W.P (Crl) No. 20 (K) of 2013 is reproduced below. 16. Though the petitioner had attacked the order (s) aforesaid on various grounds, during their argument, the petitioner had confined his contentions only to the allegation that order dated 08.07.2013 is non-est in law since it was passed--- not by the Chief Secretary-- but -- -by Additional Chief Secretary who under Rule 22 of the Rules of Executive Business of the Government of Nagaland did not have the requisite competence to approve the order of detention. In order to buttress such a claim, the learned counsel for the petitioner/detenue had referred me to the decision in the case of Abdul Hussian v. Union of India & Ors., reported in 2012 (2) GLT 358. The relevant part is reproduced herein below:-- 9. The Rules of Executive Business of the Government of Nagaland notified on 28th July, 1980 are relevant rules. Part-III deals with departmental disposal of business. The relevant part is reproduced herein below:-- 9. The Rules of Executive Business of the Government of Nagaland notified on 28th July, 1980 are 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 be 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. 17. 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-1 Rule 12 deals with authentication of orders or instruments of the Government and specify the authorities who could sign such orders. 18. 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. 19. Coming back to our case, I have found that there is no dispute over the fact under the order dated 28.05.2012, the Chief Secretary has been authorized to approve the detention order under the Act of 1980. There is no dispute over the fact that the detention order was not approved by the Chief Secretary. Rather, it was approved by the Additional Chief Secretary who happens to be acting Chief Secretary on the day when the detention order was approved. 20. On reading Rule 22 of the Rules of Executive Business of the Government of Nagaland in the light of decisions rendered in Abdul Hussian (supra), one would find that only a regular Chief Secretary is authorized to approve the detention order. Had the author of the order dated 28.05.2012, any intention of authorizing officer other than Chief Secretary to approve the detention order, he could have done it by specifically naming such officer in the order aforementioned. 21. Since it was not done, it cannot be construed that in absence of Chief Secretary, the Additional Chief Secretary acting as Chief Secretary can approve the detention order on the strength of order dated 28.05.2012. 21. Since it was not done, it cannot be construed that in absence of Chief Secretary, the Additional Chief Secretary acting as Chief Secretary can approve the detention order on the strength of order dated 28.05.2012. In my considered opinion, when the Chief Secretary remains out of station, for any reason whatsoever, the Minister-in-Charge, and none others, needs to approve the detention order. Any other interpretation would perhaps defeat the purpose of Rule 22 of Rules of Executive Business of the Government of Nagaland. 12. Coming back to our case, we have found that there is no dispute over the fact that under the Rules of Executive Business, only the Chief Secretary, Government of Nagaland was authorized to approve/confirm the detention order in the name of the State Government in accordance with the requirement of the Act of 1980. But he exercises such powers, under a standing order, as a delegate of the concerned Minister which he cannot delegate to anyone since under the law, the delegation of delegated authority is not permissible. 13. There is no quarrel over the fact that the Additional Chief Secretary, and not the Chief Secretary, Government of Nagaland had issued the order of approval dated 15.07.2013. Since under the aforesaid Rules, the Additional Chief Secretary was not authorized to approve/confirm the detention order and since delegation of delegated authority is not permissible under the law, in my opinion, in absence of the Chief Secretary, the Minister concerned should have approved the order of detention. 14. Since the Additional Chief Secretary, Government of Nagaland had issued the approval order dated 15.07.2013, without having the requisite qualification, such an order becomes unsustainable in law in view of the decisions rendered in W.P (Crl) No. 20 (K) of 2013. 15. Consequently, I am of the opinion that detention order dated 08.07.2013 and all subsequent orders) including the approval orders dated 15.07.2013 which are impugned in this proceeding are to be quashed. Accordingly, the detention order dated 08.07.2013, the approval order dated 15.07.2013 and confirmation order dated 02.09.2013 are hereby quashed and set aside. The petitioner/detenue, namely, Shri. Yangpi Imlong Chang is directed to set at liberty forthwith, if he is not required in any other case.