judgement:
Criminal Appeal No. 480 of 1988.
From the Judgment and Order dated 23/24.7.1987 of the Bombay High Court in Crl.
W.P. No. 356/1987.
Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the Appellants.
U.R. Lalit, V.N. Ganpule and S.K. Angihotri for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
Leave granted.
Being more concerned with the law adumerated by the High Court of Bombay rather than with the quashing of the order of detention passed against a detenu by name Bhadresh Mafatlal Shah, son of respondent No. 1 herein, under Section 3(1) of the (hereinafter called the COFEPOSA Act) the State of Maharashtra has filed this appeal by special leave against the order of the High Court in Crl.
Writ Petition No. 356 of 1987.
The High Court has quashed the order of detention on the ground that Shri D.N. Capoor, Officer on Special Duty and Ex officio Secretary to the Government of Maharashtra, Home Department (hereinafter referred to as D .
N .Capoor only) who had passed the order of detention had only communicated to the detenu that "he had a right to make a representation to the State Government as also to the Government of India against the order of detention" and had failed to communicate that "he had also a right to make a representation to the Detaining Authority him self" the constitutional safeguards and imperatives under Article 22(5) had been violated in as much as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government.
The principal challenge in this appeal is to the proposition of law enunciated by the High Court.
We may now have a look at the facts.
On 21.8.86 the detenu was caught in the act of transporting ten gold biscuits of foreign origin.
On 23.10.86 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under PG NO 831 the COFEPOSA Act and on 17.11.86 he furnished, in response to Government 's query, some additional information about the detenu.
On 2.2.87 an order of detention under Section 3(1) of the COFEPOSA Act was passed by D.N. Capoor in exercise of the powers specially conferred upon him by the Government of Maharashtra for the purpose of Section 3 of the Act.
In the grounds of detention the detenu was informed that he had a right to make a representation to the State Government as also to the Government of India against the order of detention.
On 15.2.87 the order of detention as well as the grounds of detention were served on the detenu.
On 14.3.87 the detenu preferred a representation addressed to D.N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a covering letter dated 17.3.87 to the Government.
The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3.4.87 and the said order was communicated to the detenu on 4.4.87 through the Superintendent of the Central Prison, Nasik.
In the meanwhile on 12.3.87 the case of the detenu was referred to the Advisory Board.
On 8.5.87 the Advisory Board considered the detenu 's case and sent a report justifying the detention and thereafter the State Government confirmed the detenu 's detention.
In the month of March, 1987 the first respondent being the Detenu 's mother, filed a petition under Article 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed.
Though several grounds were set out in the writ petition, they were all given up and the counsel appearing on behalf of the detenu confined the challenge to the validity of the detention order on one ground alone.
The ground of attack was to the following effect: "as the order of detention had been passed by D.N.Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under Section 3(1) of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the State Government or to the Central Government if need be.
In the grounds of detention the detenu had only been informed that he had a right to make a representation to the State PG NO 832 Government as also to the Government of India against the order of detention, but he had not been communicated that he had also a right to make a representation to the Detaining Authority i.e. D.N. Capoor him self.
Failure to notify the detenu of his right to make a representation to the Detaining Authority violated the constitutional provisions of Article 22(5) inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D.N. Capoor rejecting his representation.
This contention found acceptance with the High Court and the High Court made the Rule absolute and quashed the order of detention.
The challenge in this appeal is not only to the release of the detenu but to the principle of law formulated by the High Court to set aside the order of detention.
Before proceeding further we may state for purposes of record, that an attempt was made by the State before the High Court that D.N. Capoor had not passed the order of detention solely in exercise of his powers as a specially empowered officer of the State to make an order under Section 3(1) but also as an officer authorised to act On behalf of the Government under the Standing Rules framed under the Rules of Business of the Government of Maharashtra.
The High Court declined to accept this contention as there was no proof that D.N. Capoor had been empowered under the Standing Rules to act on behalf of the Government and furthermore the Central Government counsel had also conceded that no such authorisation had been made in favour of D.N. Capoor under the Rules of Business.
No attempt was made before us to dispute this finding of the High Court and therefore the settled position is that the detention order had been passed by D.N. Capoor solely in his capacity as an officer specially empowered by the Government to exercise powers under Section 3(1) of the COFEPOSA Act and not as one empowered to act on behalf of the Government under the Rules of Business.
Therefore what falls for consideration in the appeal is whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government, he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government PG NO 833 and the Central Government.
It was urged by Dr. Chitale on behalf of the State, that neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afford scope for any differentiation being made between an order of detention passed by a specially empowered officer of the State Government or the Central Government as the case may be, and an order of detention passed by the State Government or the Central Government itself, as the case may be, and for holding that if an order of detention falls under the former category, the Constitution obligates a different kind of procedure to be followed in the matter of affording opportunity to the detenu to make his representations against the order of detention.
He also stated that the theory that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention has been exploded in Kavita vs Maharashtra, ; Smt.
Masuma vs State of Maharashtra & Anr., and therefore the High Court was not right in holding that the detenu had such a right.
He also urged that if the view taken by the High Court was not corrected it would lend to several anomalies and even to the defeasance of the COFEPOSA Act itself in certain situations.
Refuting Dr. Chitale 's contentions, Mr. U.R. Lalit, learned counsel appearing for the detenu stated that unlike in other Preventive Detention Acts such as the National Security Act.
, there is no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by an officer specially empowered under Section 3(1) of the COFEPOSA Act and as such the officer issuing an order of detention under the Act constitutes the Detaining Authority of the detenu and hence the Detaining Authority is under an obligation to afford opportunity to the detenu to make a representation to himself in the first instance before the detenu avails of his right to make representation to the State Government and then to the Central Government.
Mr. Lalit relied upon the decisions of this Court in Santosh Anand vs Union of India, and Pushpa vs Union of India, [1980] suppl.
scc 391 for sustaining the judgment of the High Court.
Yet another argument of Mr. Lalit was that since Article 22(5) mandates the affording of opportunity at the earliest point of time to the detenu to make his representation, it must be interpretatively construed that the Detaining Authority is under an obligation to inform the detenu and afford him opportunity to make a representation to the very Authority concerned and failure to give such an opportunity would PG NO 834 amount to a denial to the detenu of his constitutional rights.
We shall now examine the divergent contentions advanced before us in greater detail.
The questions that fall for consideration may broadly be enunciated as under.
(1) Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of Section 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government.
(2) Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers conferred on him under Section 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government: (3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government.
The Constitution, while recognising the necessity of laws to provide for preventive detention, has also prescribed the safeguards which should be observed for detaining persons without trial under laws enacted for placing persons under preventive detention.
Article 22 sets out the imperatives that should be observed, but for our purpose, it is enough if Clause (S) of the Article is alone extracted.
It is in the following terms. "22(5).
When any person is detained in pursuance of an order made under any law providing for preventive detention PG NO 835 the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Article 22(5) has been construed as under in Abdul Karim vs W. Bengal; , at page 486. "A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention.
Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation.
But it is necessarily implicit in the language of article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible.
The Constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it.
On behalf of the respondent it was said that there was no express language in article 22(5) requiring the State Government to consider the representation of the detenu.
But it is a necessary implication of the language of article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action.
In our opinion, the constitutional right to make a representation guaranteed by article '2(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made.
" Vide also John Martin vs State of West Bengal, ; at 839; Jayanarayan Sukul vs State of W.B., ; and Haradhan Saha vs State of W. B., [ ; We can, therefore, conclude without further discussion that on the plain language of Article 22(5) that Article 22(5) does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make a representation PG NO 836 to D.N. Capoor himself as he had made the order of detention.
Turning now to the COFEPOSA Act, the relevant provisions to be noticed are Sections 2, 3, 8 and 11.
In Section 2 which is the definition section, the words "appropriate government" and "detention order" have been defined as under: "Section 2.
(a) "appropriate Government" means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or a person detained under such order, the State Government: (b) "detention order" means an order made under section 3".
Section 3 is the Section which confers powers on the Central Government and the State Government to make an order, either by itself or through one of its officers having the prescribed rank and specially empowered for the purpose of the section by the Government to which he belongs for detaining a person under preventive custody without trial.
The section reads as follows: "Section 3 .
( 1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from (i) smuggling goods.
or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or PG NO 837 (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowerd by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
" Section 8, which has been enacted to comply with the constitutional imperative in Article 22(4) enjoins the Central Government and the State Government to constitute one or more Advisory Boards and obligates the concerned government to refer to the Advisory Board the case of every detenu ordered to be detained by the said government within a period of five weeks from the date of detention.
For our purposes it would suffice if clause (b) of section 8 alone is quoted.
The clause reads as follows: "Section 8(b) Save as otherwise provided in Section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub clause (a) of clause (4) of Article 22 of the Constitution.
" section 11 which is the last of the section requiring PG NO 838 notice per tains to the powers of revocation of the State Government or the Central Government as the case may be.
The relevant is in the following terms: Section 11(1) Without prejudice to the provisions of Section 21 of the , a detention order may, at any time, be revoked or modified (a) Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) Notwithstanding that the order has been made by an officer of the Central Government or by a State Government.
by the Central Government.
(2 omitted) ' ' On a reading of the abovesaid provisions, it may be seen that the power to detain a person under the Act has no; only been conferred on the Central Government and the State Government but provision had also been made for the Central Government and the State Government to specially empower any of its officers holding the minimum prescribed rank to pass an order of detention under Section 3(1).
We may now examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being made between detention orders made by the Government and those made by specially empowered officers so as to confer an additional right of representation to detenus subjected to detention under detention orders falling in the latter category.
At the outset, it needs no saying, that in Government be it Central or State, has to function only through human agencies, viz. its officers and functionaries and that it cannot function by itself as ar.
abstract body.
Such being the case, even though Section 3(1) provides for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the concerned Government.
It is in acceptance of this position we have to see whether an order of detention, if passed by an officer of the Government specially empowered under Section 3(1) but not further empowered under the Rules of of the Government to act would PG NO 839 have the effect of making the concerned officer the Detaining Authority and not the concerned Government itself.
The answer to the question has to be necessarily in the negative for the following reasons.
It has been specifically provided in Section 2(a) that irrespective of whether an order of detention is made by the Central Government or one of its duly authorised officers, the "apropriate Government" as regard the detention order and the detenu will be the Central Government only and likewise whether an order of detention is made by a State Government or one of its duly authorised officers the "appropriate Government" would be the State Government only as regards the detention order and the detenu concerned.
Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days a report to the Central Government in respect of the order is cast only upon the State Government.
Thirdly, in the matter of making a reference of the case of a detenu to the Advisory Board under Section 8(b), the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and not on the officer of the Central Government or the State Government if he makes the order of detention in exercise of the powers conferred on him under Section 3(1).
Lastly, Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding that on order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention.
Similarly, as per Clause (b) notwithstanding that an order of detention has been made by an officer of the Clentral Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention.
The Section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers.
We may further add that even though Section 11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of Section 11 of the , this reservation will not entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires deemed approval ' of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of Section 21 of the will fall only within the domain of the State Government and/or Central Government.
In satpal v.state of Punjab, at page 17 the nature of the power of revocation PG NO 840 conferred on the State and the Central Government came to be construed and the Court held that the power of revocation conferred on the appropriate Government under Section 11 of the Act is independent of the power of cofirming or setting aside an order of detention under Section 8(f).
" It was further adumbrated as follows.
"The power under Section 11(l)(b) may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(2), or, from the detenu in the form of a petition or representation.
It is for the Central Government to decide whether or not, it should revoke the order of detention in a particular case.
The use or the words 'at any time ' under Section 11, gives the power of revocation an over riding effect on the power of detention under Section 3.
" These observations were made by the Court when considering the question whether a detenu was entitled to concurrently make representations to the State Government and the Central Government against an order of detention passed by the State Government and whether in such circumstances the State Government could contend that the question of the Central Government considering the representation would arise only after the State Government had considered the representation and rejected it.
Consequently, the resultant position emerging from the Act is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Govenment itself.
If that be so, then it is the concerned Government that woud constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so.
Though an order of detention.
his constitutional obligation is only to communicate expeditiously to the deter;u the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention.
The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of PG NO 841 Business of the Government to deal with such representation if the detenu addresses his representation to the officer himself.
We may point out that unlike in other Preventive Detention Acts such as the National Security Act, Maintenance of Internal Security Act, Preventive Detention Act etc.
the COFEPOSA Act does not provide for any approval by the Government of an order of detention passed by an officer specially empowered to make a detention order.
In all the above said Acts, an order of detention passed by an officer specially empowered under the Act will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order is approved by the Government within that period.
On the contrary, the COFEPOSA Act does not provide for the State Government or Central Government passing an order of approving of a detention order made by one of its officers and therefore the detention order will continue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any reason.
This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer empowered under Section 3.
It is also relevant to clarify at this juncture the position as regards an order of detention passed by an officer specially empowered under Section 3(1) vis a vis an order of detention passed t y another officer who besides being empowered to act under Section 3(1) i also conferred authority under the Rules of Busines of the Government to act on behalf of the Government this difference in the conferment of powers upon the officers falling under the two categories can not have any impact on the nature of the detention orders respectively passed by them because the common factor entitling the officers falling in the two classes is their empowerment under Section 3(1) of the Act.
Without such empowerment an officer, even if he be empowered to act on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone.
If this position is realised.
then it follows that there is no scope for contending that the deiention order made by an officer empowered to act under the Act but not having additional empowerment under the Rules of Business of the Government will not have the effect of making the Government the detaining authority and instead would make the officer PG NO 842 alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a representation to himself before making his representation to the State Government and the Central Government.
It is also relevant to note that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation.
When such is the case, any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise.
It will therefore, not be to the advantage of the detenu if it were to be held that in all cases where an order of detenution is passed by an officer, the very officer should consider the representation in the first instance and only thereafter the detenu can approach the State Government and the Central Government.
Moreover, if for argument 's sake it is to be assumed that an officer passing an order of detention is uder a duty to afford the detenu an opportunity to make a representation to himself in order to give relief to him, it may lead to the abuse of powers vested in the officer.
The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however remote it may be, cannot be ruled out.
This aspect of the matter has been touched upon in Raj Kishore Prasad, and the Court which was dealing with the case of a detenu detained under the Natioal Security Act has set out the need as to why a representation made by a detenu against an order of detention made by an officer of the Government should be considered by the Government itself and not by the officer concerned.
The relevant passage reads as follows: "The contention is that constitutionally speaking a duty is cast on the detaining authority to consider the representation.
That is of course true.
But in view of the scheme of the Act, Parliament has now made it obligatory on the appropriate Government to consider the representation.
This is done presumably to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District Magistrate or the Commissioner of Police.
Therefore, if the appropriate Government has considered the representation of the detenu it cannot be said that there is contravention of Article 22(5) or there is failure to consider the representation by the detaining authority.
" PG NO 843 We have already pointed out that unlike in other preventive detention acts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently, an order of detention passed by an officer acquiries 'deemed appvoal ' by the Government from the time of its issue and by reason of it, the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition.
We shall now see whether there is any logic or rational behind the contention that since D.N. Capoor had made the order of detention, the detenu was entitled, as of right to make a representation to the very same officer and have the same considered by him, in the first instance before the detenu availed of his right to make a representation to the State Government and then if need be to the Central Government also.
The fallacy and misconception underlying such a contention has been lucidly brought out in Kavita vs Maharashtra, at 146 and again in Masuma vs Maharashtra, at 293.
The relevant passage in Kavita 's case reads as under: "It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant.
There is no substance in this suggestion.
The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government auhorised to so act for the Government under the Rules of Business.
Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so.
Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages.
It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages.
In Masuma 's case the same view has been expressed: "It was the State Government which made the order of PG NO 844 detention and not P.V. Nayak in his individual capacity.
The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P.V. Nayak acting for the State Government under the earlier Standing Order dated 18th July, 1980 or the Minister of State for Home could dispose it of under the later Standing Order dated 18th July.
Whether P.V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P.V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation.
The only requirement of Article 22(5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government.
There is no requirement express or implied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu: In fact, as pointed by Chinnappa Reddy, J. in Smt.
Kavita vs state of Maharashtra, [1982] l SCR 138 a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction.
however, advantageous it may be to do so.
if Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it.
We do not therefore, see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home. ' Mr. Lalit sought to distinguish these decisions by saying that in both the cases the Secretary to Government issuing the order of detention had the authority to act on behalf of the Government under the Rules of Business but D.N. Capoor had no such authority.
Since we have pointed out that a detention order passed by an officer having PG NO 845 empowerment under the COFEPOSA Act to make an order of detention would also constitute an order of the Government by reason of deemed approval, we find no merit in the contention of Mr. Lalit.
The ratio in these cases would have equal application to cases of the nature we have on hand.
Leaving aside for a moment the absence of any basis in law or rationale for the contention that if an order of detention is made by a specially empowered officer of the Government, the detenu acquires a right to have his representation considered in the first instance by the very same officer and if he is not afforded such an opportunity, it will amount to a deprivation of his constitutional rights, let us view the matter from a practical aspect and on pragmatic considerations.
If an order of detention is made by a specially empowered officer and if by the time the representation of the detenu is received by him, the officer is not there to consider the representation either by reason of his proceedinng on leave or falling sick or transfer or retirement or being placed under suspension or death, then the inevitable consequence would be that the detenu has to be invariably set at liberty solely on the ground that his representation had not been considered by the very same officer who had passd the order of detention.
Can we conceive of such a situation or permit such consequences to follow when it is common knowledge that the services of a government officer in the same post for any length of time can never be guaranteed.
As already stated, the officer may fall sick or he may proceed on leave on other grounds or he may retire from service or he may be transferred elsewhere due to exigencies of service etc.
If therefore, we are to sustain the view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service or being transrred etc.
Surely, the Act and the Constitution do not envisage such situations.
I. is because of these factors Dr. Chitale contended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which it was enacted.
We will now consider the decisions relied on by Mr. Lalit for contending that the High Court has not balzed a new trail in holding that since D.N. Capoor was the detaining authority he should have communicated to and afforded opportunity to the detenu to make the representation to himself in the first instance while informing him that he had a right to make representations to PG NO 846 the State Government and the Central Government.
The first two cases Jayanarain vs W. Bengal, ; and P.K. Chakrabarty vs W. Bengal, ; were cases pertaining to detention orders passed under the Preventive Detention Act by District Magistrate empowered under the Act to pass the detention orders.
In both the cases the detention orders were quashed on the ground that the government had failed to consider the detenu 's representation expeditiously and instead had sought umbrage for its action on the ground it had awaited the opinion of the Advisory Board to which it had forwarded the detenu 's representation.
While upholding the detenu 's contentions in each of the two cases it was observed in passing that "though Clause 5 (of Article 22) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make representation and to consider it when so made . . " Abdus Sukkur vs The State of West Bengal, was a case relating to a detention order passed under the West Bengal (Prevention of Violent Activities) Act, by the District Magistrate, Bardna.
Since the State Government had failed to consider the representation made by the detenu for a period of 27 days without giving satisfactory explanation for the delay, the detention order was quashed.
In so doing the Court observed that 'the requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity." Vimal Chand vs Shri Pradhan & Ors., [ ; was a case where an order of detention was passed under the COFEPOSA Act by the Secretary, Government of Maharashtra, Home Department in exercise of the power conferred on him under Section 3(1) of the Act.
The detention order was quashed by this Court on the ground that the Government had failed to consider the detenu 's representation expeditiously and instead had postponed consideration of the representation till the report of the Advisory Board was received.
In the Course of the judgment it was observed that the detenu must be afforded the earliest opportunity of making a representation would be rendered illusory "unless there is a corresponding obligation of the detaining authority to consider the representation of the detenu as early as possible.
" In Tarachand vs State of Rajasthan, AIR 1980 SC 2133 the PG NO 847 grievance of the detenu detained under the COFEPOSA Act was that he had sent representations to the detaining authority viz.
The State Government and the Central Government on 23.2.1980 but there was a delay of 1 month and 5 days in his representation reaching the State Government and even then the State Government had failed to consider his representation and pass orders.
While striking down the detention order the Court observed that "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 (State Government in that case) to afford the earliest opportunity to make a representation and to consider the representation speedily." The attempt of Mr. Lalit was to highlight the reference to the "detaining authority" in the general observations in the abovesaid cases by taking them out of their context and build up an argument that in all those decisions it has been laid down that there is a constitutional obligation on every detaining authority to afford opportunity to the detenu to make a representation to the detaining authority himself before making representations to the State Government and the Central Government.
In order to point out the mis conception in the argument of Mr. Lalit we have set out in brief the facts of each case as well.
There was no controversy in any of those cases as to whether the detenu 's representation should have been considered by the officer passing the order of detention or by the Government.
On the other hand the challenge made in all those cases to the detention orders was on the ground there had been delay or failure on the part of the concerned Government in considering the representation.
The observations in these decisions, therefore, do not have any relevance to the debate in this case.
We then come to two other decisions of this Court which apparently lend support to Mr. Lalit 's contention.
The more decisive one is Santosh Anand vs Union of India, L1981] 2 SCC 420.
In that case an order of detention made by the Chief Secretary, Delhi Administration, acting as an officer specially empowered under Section 3 of the COFEPOSA Act was challenged on two grounds, viz. (a) that it was obligatory upon the detaining authority (Administrator) to consider the representation before sending it to the Advisory Board and (b) that in any event the detenu 's representation ought to have been considered and rejected by the detaining authority itself, namely, by the Chief Secretary but the same had been straight away considered and rejected by the Administrator, who under Section 2(f) of the Act was the State Government PG NO 848 for the Union Territory of Delhi, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority.
The Court came to the view "that the continued detention of the detenu under the order dated April 3, 1979 is liable to be quashed on the second ground about which facts are clear and there is no difficulty in accepting the same.
" The Court further held as follows: "Under Article 22(5), as interpreted by this Court, as also under the provisions of Section 11 of the COFEPOSA it is clear that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked.
" The Court further observed as follows: "It is thus very clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same.
There is no affidavit filed by the Chief Secretary before us stating that he had rejected the representation The representation was, therefore, not rejected by the detaining authority and as such the constitutional sateguard under Article 22(5), as interpreted by this Court, cannot be said to have been strictly observed or complied with.
" The next decision is Pushpa vs Union of India, The decision was rendered by a single judge constituting the Vacation Bench of the Supreme Court.
That was also a case of a detenu under the COFEPOSA Act against whom an order of detention had been passed by the Chief Secretary to the Delhi Administration who was specially empowered under Section 3 of the Act.
The detention was challenged on the ground that the representation sent by the detenu had been considered by the Chief Secretary himself, though he was not Competent to reject the representation and the representation had not been considered and rejected by the appropriate Government viz. the Administrator.
The Court rejected the contention and held as follows: PG NO 849 "There is nothing in the scheme of Article 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf.
Undoubtedly the power to revoke the detention order under Section 11 is conferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made and considered by the State Government.
In fact, the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be convinced that the action taken by him is unjustified and required reconsideration.
After all the purpose of a representation is to convince the authority to reconsider its decision which has resulted in the detention of the detenu.
The representation is not in the form of an appeal to the higher authority and, therefore ipso facto it must go to the State Government.
Undoubtedly it would be open to the detenu to make a representation under Section 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention.
But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to re consider the same.
Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same.
The failure to submit the representation addressed to the detaining authority and considered by him, to the State Government, would not vitiate the detention order." PG NO 850 Though these authorities lend apparent force to the contentions of Mr. Lalit we are of the view that they cannot be taken as decisive pronouncements on the question of law raised for consideration before us.
In Santosh Anand 's case (supra) the challenge to the order of detention was on the grounds and this aspect of the matter has been noticed in Raj Kishor Prasad 's case (supra), while differentiating the decision.
The Bench, however, did not go further into the matter for not following the ratio in Santosh Anand 's case (supra) because it was dealing with an order of detention passed under the National Security Act and Section 8 of the said Act specifically provided that the detenu must be afforded opportunity at the earliest point of time to make a representation to the appropriate Government and to the detaining authority.
Apart from this fact we have to point out that we do not find any material to substantiate the view taken by the Bench that Article 22(5) has been interpreted by the Court and furthermore Section 11 of the COFEPOSA Act envisages that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order etc.
On the contrary, it has been held by a Bench of three judges in N.P. Umrao vs B.B. Gujral, [197912 SCR 315 at page 321 that "it is, therefore, well settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by this Court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to consider that representation 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.
" It is pertinent to note that in that case the order of detention was made by the Additional Secretary to the Government of India, Ministry of Finance (Department of Revenue) but even so the Court held that the Government was the appropriate authority to consider the representation made by the detenu and the Government had fulfilled its constitutional obligation in that behalf.
Besides we have already pointed out that Section 11 confers powers of revocation only on the State Government and the Central Government and the Act does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also exercising powers of revocation.
We must, therefore, hold that the decision in Santosh Anand 's case (supra) must stand confined to the facts of that case and it cannot be PG NO 851 treated as one in which a principle of law of general application in all cases has been enunciated.
In fact we may appositely refer in this connection to a decision by a Bench of three Judges of this Court in Devji Vellabbhai Tandal vs Administrator, where it was held that it is only the administrator in the Union Territory of Delhi who is entitled to consider the representation of a detenu and reject the same or accept the same and revoke the order of detention.
The pronouncement in this case, being one made by a Bench of three Judges, carries with it more binding force than the view taken in Santosh Anand 's case.
Turning now to Pushpa 's case, apart from being a judgment rendered by a single judge constituting the Vacation Bench of the Court, can be distinguished on facts.
The two representations made by the detenu, in that case, one through an advocate and the other by the detenu himself were both addressed to the Chief Secretary himself and secondly no representation was made by the detenu to the appropriate Government.
These factors had influenced the Court to hold that the Chief Secretary had acted within his competence in considering the representation addressed to him and in rejecting the same and that if the detenu had any grievance he should have moved the State Govenment under Section 11 to invoke its powers of revocation.
In such circumstances this decision cannot also be treated as one having precedential value.
In the light of our discussion our answer to the three posers formulated earlier has to be in the negative.
It, therefore, follows that we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu.
Having settled the position of law, it only remains for us to consider whether the order of detention should be restored and the detenu sent back to custody.
On this aspect of the matter Mr. Lalit fervently pleaded that this was not a case where the ends of justice required the detenu being arrested and placed in custody for the rest of the period of detention.
He stated that the detenu was a young boy of 19/20 years and that he had already been in custody for 5 months and 3 weeks.
It was further stated by him that no adverse information against the detenu had come to the notice of the authorities after he was set at liberty by the High Court.
In such circumstances Mr. Lalit pleaded that the Court may allow the appeal by the State only in so far as the settlement of the question of law is concerned and not going to the extent of ordering the re arrest of the detenu.
In support of his submission the learned counsel placed PG NO 852 reliance on State of Bombay vs Purshottam Jog Nayak, ; ,at 676 where the Court, following the precedent in King Emperor vs Vimal Bhai Deshpande, ILR 1946 Nagpur 651 at 655 proceeded to decide the appeal after making it clear that the State shall not in any event re arrest the detenu B who had earlier been detained under Section 3 of the Preventive Detention Act of I950.
Dr. Chitale had no serious objection to the Court following the same procedure in this case.
We, therefore direct that notwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu, he will not be re arrested and placed in custody for the rest of the period of detention.
In the result the appeal is allowed and the judgment and order of the High Court are set aside but, however, the detenu 's release will not be effected.
R. S .
Appeal allowed.

dataset_name: IN-Abs

summary:
The detenu, D.N. Shah, was caught on 23.10.1986 in the act of transporting ten gold biscuits of foreign origin.
On 2.2.1987 D.N .Capoor, Officer on Special Duty and ex officio Secretary to the Government of Maharashtra, in exercise of the powers specially conferred upon him by the Government of Maharashtra, passed an order of detention against D.N. Shah under section 3(1) of the COFEPOSA Act.
In the grounds of detention served on the detenu he was informed that he had a right to make a representation to the State Government as also to the Government of India. ^ The detenu 's representation addressed to D.N. Capoor was forwarded by the Superintendent, Central Prison, Nasik to the State Government who rejected the same.
In March, 1987, the detenu 's mother, respondent No. 1, filed a petition in the High Court of Bombay challenging the detention order inter alia on the ground that the order of detention having been passed under section 3(1) by D.N. Capoor in his capacity as a specially empowered person, the detenu had a right to make a representation, in the first instance, to D.N. Capoor himself as the detaining authority before availing of his right to make further representation, and failure to notify him of this right in the grounds of detention violated article 22(5) of the Constitution.
The PG NO 827 PG NO 828 High Court accepted this contention and quashed the order of detention.
Before this Court the appellant contended that: (1) neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afforded scope for holding that if an order of detention was passed by a specially empowered officer of the State Government or the Central Government, a different kind of procedure had to be followed in the matter of affording opportunity to the detenu to make his representation against the order of detention, and (2) the High Court was not right in holding that the detenu had a right to have his representation considered by the very same officer who had passed the order of detention.
The respondent, on the other hand, contended that unlike other Preventive Detention Acts such as the National security Act, etc.
there was no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by a specially empowered officer under section 3(1) of the Act and as such the officer issuing an order of detention constituted the Detaining Authority of the detenu.
Allowing the appeal, it was, HELD: (1) On the plain language of Article 22(5), that article does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make a representation to D.N. Capoor himself as he had made the order of detention.
[835G H; 836A] (2) Even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, it is the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is for that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5).
and not to the officer making the order of detention.
[840E G] (3) Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to Communicate expeditiously to the detenu the grounds of detention and PG NO 829 also afford him opportunity to make representation to the appropriate government against his detention.
[840G H] (4) Unlike in other preventive detention acts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently, an order of detention passed by an officer acquired 'deemed approval ' by the Government from the time of its issue, and by reason of it, the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition.
[843A B] (5) In view of the fact that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation, any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise.
(6) Since it has been pointed out that a detention order passed by an officer having empowerment under the COFEPOSA Act to make an order of detention would also constitute an order of the Government by reason of deemed approval, this Court cannot accept or sustain the view taken by the High Court that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention.
[844H; 845A B] Kavita vs State of Maharashtra, ; ; Smt.
Masuma vs State of Maharashtra.
[1982] I SCR 288; Santosh Anand vs Union of India, ; Pushpa vs Union of India, [1980] Supp.
SCC 391; Abdul Karim vs State of W. Bengal; , ; John Martin vs State of West Bengal, [ ; ; Jayanarayan Sukul v .
State of W.B., ; Haradhan Shah vs State of W B. ; ; Satpal vs State of Punjab, ; Raj Kishore Prasad, ; P.K. Chakraharty vs State of W. Bengal; , ; Abdul Sukkur vs State of West Bengal ; Vimal Chand vs Shri Pradhan, [l979] 3 SCK 1007; Tarachand vs State of Rajasthan, AIR 1980 SC 2133; N.P. Umrao vs B.B. Gujral, ; ; Devji Vellabhai Tandal vs Administrator, ; State of Bombay vs Purshottam Jog Nayak, ; and King Emperor vs Vimal Bhai Deshpande.
ILR 1946 Nagpur 651.
PG NO 830


judgement:
Civil Appeal No. 3189/1989.
From the Judgment and Order dated 11.3.1987 of the Delhi High Court in C.W.P. No. 875 of 1986 R.B. Datar and Ranjit Kumar for the Appellant.
V.B. Saharya for the D.D.A. Jose P. Verghese and O.P. Verma for the Respondent.
The Judgment of the Court was delivered by SEN, J.
The main question involved in this appeal from a judgment and order of a Division Bench of the Delhi High Court dated March 11, 1987 is whether the High Court was justified, in the facts and circumstances of the case, in issuing a direction to the appellant Municipal Corporation of Delhi to construct a stall or a kiosk on the pavement near the OPD gate of the Irwin Hospital, Delhi within two months from the date of its order or in the alternative, to furnish a plan with requisite sanction to the respondent Gurnam kaur to enable her to construct a stall of her own.
The issue involved is as to the precedential value of a direction earlier made by this Court on a petition under article 32 of the Constitution based on consent of the parties with the reservation that it should not be treated as a precedent.
It appears that sometime in 1984, the appellant Municipal Corporation of Delhi sought police help to clear the pavement near the OPD gate of the Irwin Hospital, now known as Lok Nayak Jai Prakash Narain Hospital, which is one of the largest hospitals in Northern India, on a complaint made by the Hospital authorities that the pavement hawkers by setting up their stalls or pitching their wares were causing inconvenience to the ingress or egress of the ambulances besides causing congestion on the pavements and obstructing the free flow of traffic.
The Municipal Corporation was satisfied that if the squatters continued to cover pathways meant for pedestrians, a time would come when no room would be left for people to walk on the footpaths.
In a police action, the pavements hawkers were removed from outside the main gate of the Irwin PG NO 933 Hospital in and around the subway of Jawahar Lal Nehru Marg on January 15, 1984.
On February 22, 1984, eight of these pavement squatters instituted separate suits in the Court of the Subordinate Judge, II Class, Delhi against the Municipal Corporation seeking the relief of perpetual injunction restraining the appellant, its officers and servants from interfering with their business of hawking on the pavements out side the main gate of the hospital and/or from demolishing or removing any temporary structures put up by them for plying their trade.
In denial of the claim, the appellant Municipal Corporation pleaded, inter alia, (i) that the construction of the kiosks or stalls by the plaintiffs was without permission and therefore amounted to an encroachment on the pavement.
The Municipal Corporation accordingly under section 322 of the Delhi Municipal Corporation Act, 1957 had the right and authority to remove such encroachment without notice, and (ii) that the plaintiffs had no legally enforceable right under the terms of the tehbazari licence, they having committed violation of the terms and conditions there of besides being in arrears of licence fee.
Accordingly, it pleaded that the plaintiffs ' claim in suit was wholly misconceived.
The suits were consolidated together for trial as they raised a common issue.
It is common ground that the plaintiffs had each been occupying a site admeasuring 6 ft.
x 4 ft.
on tehbazari basis since the year 1975.
The contention of the plaintiffs was that the Municipal Corporation having itself allotted the plaintiffs licence under section 321 of the Act on tehbazari basis to use the pavement in front of the main gate of the Irwin Hospital for carrying on their business on specific terms and conditions, such grant of licence or permission gave to them a right under section 430 of the Delhi Municipal Corporation Act, 1957 which could not be terminated unilaterally without affording them an opportunity of a hearing under proviso (a) to sub section
(3) of section 430 of the Act.
On February 24, 1984, Shri B.P. Bhalla, learned counsel appearing for the plaintiffs in all the suits made a statement to the effect: "The plaintiffs shall occupy only 6 ft.
x 4 ft. space as allotted to them by the defendants and no further space beyond those limits.
They have not constructed any permanent structure on the site and shall not construct any structure thereon, whether permanent or temporary. ' ' Accordingly, the learned Subordinate Judge during the course of his judgmeat observed: PG NO 934 "In view of the above statement by the counsel for plaintiffs, it is clear that the stall if any erected or posted at the suit sites is without authority.
Placing of such a stall at the suit site amounts to encroachment within the meaning of sec.
322 of the DMC Act which stall can be removed at any time by the defendant MCD without notice.
In this light the plaintiffs have no right to claim an injunction against demolition or removal of any stall or other structure if posted or placed or affat the same time defendant MCD cannot remove the plaintiffs nor interfere with their business at the suit site in any other manner without terminating their licence to occupy the said sites in accordance with the procedure contained in sec.
430(3) of DMC Act.
" The learned Judge accordingly partly decreed the plaintiff 's claim to the extent indicated hereafter: "Consequently, all these suits are partly decreed to the effect that the defendants are restrained permanently from removing the palintiffs from the suit sites without terminating the Tehbazari permission granted in their favour in accordance with the provisions of section 430(3) of the DMC Act.
The prayer for injunction against demolition or removal of the stalls of the plaintiffs is disallowed.
" It therefore follows that the learned Subordinate Judge accordingly disallowed the plaintiffs main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them on the pavement in front of the main gate of the Irwin Hospital.
He however held that by virtue of the tehbazari licence granted in their favour, the plaintiffs had acquired the right to occupy and carry on business at the suit site each admeasuring 6 ft.
x 4 ft.
in question and till their licence was not terminated by the Municipal Corporation after PG NO 935 following the procedure laid down in proviso (a) to sub section
(3) of section 430 of the Act.
It had no power to remove the plaintiffs nor interfere with their business at the suit sites.
It could not take recourse to its power of removal of encroachment without notice under section 322(a) of the Act.
It is equally evident that the learned Subordinate Judge partly decreed the plaintiffs ' claim only to that extent that it restrained the Municipal Corporation from taking any steps for removal of such encroachment by the plaintiffs inasmuch as the power under section 322(a) of the Act cannot be exercised without following the procedure laid down in section 430(3) of the Act and without terminating the tehbazari licence granted in their favour.
The respondent Gurnam Kaur was one of the plaintiffs and she had been in occupation of a site admeasuring 6 ft.
x 4 ft.
on the basis of tehbazari licence intermittently since the year 1960 and had been paying the licence fee therefor.
The decree passed by the learned Subordinate Judge not having been appealed from by the Municipal Corporation of Delhi has since become final.
The rights of the parties therefore stand crystallized by the terms of th decree passed by the learned Subordinate Judge.
There was a further development.
Two of the squatters, namely, one Jamna Das and his brother moved this Court by petition under article 32 of the Constitution, being Writ Petition Nos.
981 82/84 Jamna Das & Anr.
vs Delhi Administration & Ors., seeking a writ in the nature of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on the pavement in front of the main gate of the Irwin Hospital.
Their grievance was that they were similarly situate like 10 other squatters who were all plying their trade on the pavement in front of the main gate of the Irwin Hospital catering to the needs of the visitors to the hospital by selling tea, snacks, pan, bidi etc.
and although the Municipal Corporation had rehabilitated the said 10 squatters by allotment of stalls to them, despite repeated applications there was no redressal of the wrong done to them inasmuch as the Municipal Corporation had arbitrarily and without any rational basis, denied them such facility.
Further, it was alleged in that case that the father of the petitioners had been occupying the site admeasuring 6 ft.
x 4 ft.
on tehbazari licence since the year 1947 till his death in 1975 and thereafter the petitioners were permitted to occupy the same on similar terms but the Municipal Corporation illegally caused their removal with police help.
It was averred that the Municipal Corporation could not take recourse to its power of eviction under section 322(a) of the Act without terminating the tehbazari licence in their favour and without following the procedure prescribed by proviso (a) to section 430(3) of the Act.
Several adjournments were taken in an effort to find a solution to PG NO 936 the problem by learned counsel appearing for the Municipal Corporation.
Eventually, Desai, J. speaking for a Bench of two Judges by his order dated March 29, 1985 made a direction for rehabilitation of the petitioners.
Virtually, it was a consent order as learned counsel appearing both for the Delhi Development Authority and the Municipal Corporation requested the Court to give a direction keeping in view the sketch plan furnished by the Municipal Corporation, and gave an undertaking that any direction made by the Court for rehabilitation of the petitioners would be carried out.
The Court accordingly directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan with a further direction that each of them would be put in possession of one of the stalls.
The direction was however made subject to the condition that such construction of stalls would not cause any further obstruction to the free flow of traffic.
The Court also made it clear that the direction should not be treated as a precedent.
Presumably because of the direction made by this Court in Jamna Das ' case.
the respondent Gurnam Kaur moved the High Court under article 226 of the Constitution in April, l986 for the issuance of an appropriate writ or direction restraining the Municipal Corporation from evicting her without the due process of law.
A Division Bench of the High Court by the impugned judgment has partly allowed the writ petition holding that the judgment of the learned Subordinate Judge which was a judgment inter partes had become final, not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the main OPD gate of the Irwin Hospital where she was squatting.
The learned Judges relied upon the decision of this Court in Jamna Das case where a direction was made requiring the Municipal Corporation to construct stall for the petitioners in that case, so that they could be rehabilitated.
The learned Judges felt that it was equally desirable that the respondent Gurnam Kaur instead of being allowed to squat on the pavement, should be provided with a stall of the same pattern and design as had been done for the two squatters in Jamna Das case.
The High Court gave an option to the Municipal Corporation either to construct a stall similar to the one they had constructed in compliance with the direction made by this Court in Jamna Das ' case or, in the alternative, furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly.
PG NO 937 We find it rather difficult to sustain the judgment of the High Court.
The learned Judges failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent.
It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc.
contrary to section 320 of the Act, as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement.
That apart,the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act.
section 320(1) in terms creates a statutory bar against illegal encroachment on any portion of a public street.
It provides that "No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street etc".
Having regard to this express provision, the High Court failed to see that the respondent Gurnam kaur had no legally enforceable right to the grant of a writ or direction in the nature of mandamus.
The High Court could not obviously issue any such direction which would be tantamount to a breach of the law.
Furthermore the High Court could not also make the impugned direction in view of the provision contained in section 322(a) of the Act, which expressly confers power on the Commissioner to cause the removal of any structure which constitutes an encroachment on a public place like a street which is meant for the use of the pedestrains.
It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle.
Quotability as 'law ' applies to the principle of a case, its ratio decidendi.
The only thing in a Judge 'sdecision binding as an authority upon a subsequent Judge is the principle upon which the case was decided.
Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.
The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice.
That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent.
The High Court failed to realise that the direction in Jamna Das 'case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which PG NO 938 was acceptable by all the parties concerned.
The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in article 38(2) of the Constitution and said: "Article 38(2) of the Constitution mandates the State to strive to minimise, amongst others, the inequalities in facilities and opportunities amongst individuals.
One who tries to survive by one 's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society.
Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing cold or torrential rain.
They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals.
A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed.
As far as possible this should be avoided which we propose to do by this short order.
" This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.
Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative.
With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it.
It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority.
Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions.
A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.
So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter.
Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn.
explains the concept of sub silentio at p. 153 in these words: "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.
The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon.
It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court.
In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
In Gerard vs Worth of Paris Ltd. (k).
, [1936] 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant 's debt, and, on this argument being heard, the Court granted the order.
No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator.
When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs Bremith, Ltd., the Court held itself not bound by its previous decision.
Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided.
We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed.
Precedents sub silentio and without argument are of no moment.
This rule has ever since been followed.
One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened.
The weight accorded to dicta varies with the type of dictum.
Mere casual expressions carry no weight at all.
Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.
PG NO 940 At the end of the day, we must make a mention that Shri Verghese, learned counsel for the respondent made a valiant effort to bring into play the principles laid down by this Court in Olga Tellis & Ors.
vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors.
vs Bombay Municipal Corporation & Ors., ; We are afraid, we cannot permit the question to be raised for two reasons.
In the first place, no such point was taken in the writ petition nor any contention advanced before the High Court that the removal of the illegal encroachment by the Municipal Corporation constitutes a threat to life and liberty guaranteed under article 21 of the Constitution or that the right to life includes a right to livelihood.
Secondly, the rights of the parties now stand crystallized by the aforementioned judgment of the learned Subordinate Judge in the suit brought by the respondent, and the rights have to be worked out in terms of the decree passed by him which has since become final.
Besides, the decision in Olga Tellis is of little avail.
Chandrachud, CJ.
speaking for the Constitution Bench observed that the word 'life ' in article 21 included livelihood, but upheld the validity of sections 313(1) and 314 of the Bombay Municipal Corporation Act, 1888 which provided that the Commissioner may 'without notice, cause to be removed ' obstructions as an encroachment on footpaths could not be regarded as unreasonable, unfair or unjust.
The learned Chief Justice however said that the section conferred a discretionary power which like all power must be exercised reasonably and in conformity with the provisions of our Constitution.
In Bombay Hawkers ' Union, Chandrachud, CJ.
speaking for himself and one of us (Sen, J.) held that the impugned provision was in the nature of a reasonable restriction in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business.
The learned Chief Justice added: "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public.
Public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business.
" These cases undoubtedly raise a human problem and both the Delhi Development Authority as well as the Municipal Corporation of Delhi should seek to evolve an innovative plan to rehabilitate the unfortunate persons who by force of circumstances are forced to ply their trade by squatting in the open on the pavements.
At the same time, these pavement squatters create a serious problem to the civic administration as it creates congestion on the public streets and obstructs free flow of traffic.
As Chandrachud, PG NO 941 CJ.
rightly observed in Bombay Hawkers ' Union: "No one has a right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public", and further that "All public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business".
We feel that the Municipal Corporation authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers ' Union i.e. by creating Hawking and Non Hawking Zones and shifting the pavement squatters to areas other than Non Howking Zones.
The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause obstruction to the free flow of traffic, and rehabilitate those unfortunate persons who by force of circumstances, are made to ply their trade or business on pavements or public streets.
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court are set aside and the writ petition filed by the respondent in the High Court is dismissed.
We direct however that the appellant Municipal Corporation of Delhi shall act in conformity with the judgment of the Subordinate Judge, II Class, Delhi in the aforementioned suits, which, not having been appealed from, has since become final inter partes.
No costs.

summary:
Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957.
The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc.
These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade.
The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them.
He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act.
Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital.
(Jamna Das & Anr.
vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos.
981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls.
The Court made it clear that this was a consent order and that the direction should not be treated as a precedent.
The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law.
The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting.
Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly.
Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave.
Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent.
It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc.
contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement.
That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act.
[937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle.
Quotability as 'law ' applies to the principle of a case, its ratio decidendi.
The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided.
Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.
The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice.
That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent.
The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned.
[937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative.
With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it.
It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority.
Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions.
[938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.
[938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd., , referred to.
Precedents sub silentio and without argument are of no moment.
This rule 'has ever since been followed.
One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened.
The weight accorded to dicta varies with the type of dictum.
Mere casual expressions carry no weight at all.
Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement.
having the weight of authority.
[939G H] PG NO 932 Olga Tellis & Ors.
vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors.
vs Bombay Municipal Corporation & Ors., ; , referred to.