judgement:
Civil Appeal No. 1381 of 1980 Appeal by Special leave from the Judgment and order dated the 7th July, 1980 of the Punjab and Haryana High Court in Civil Writ Petition No . 1917 of 1980.
And Civil Appeal No. 2667 of 1983.
Appeal by Special leave from the Judgment and order dated the 8th July, 1980 of the Punjab and Haryana High Court in Civil Writ No. 2349 of 1980.
Jawahar Lal Gupta, Janendralal and B.R. Agarwal for the Appellant.
Randhir Jain for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
These appeals by special leave are by the Punjab University and directed against two Division Bench judgments of the Punjab and, Haryana High Court in writ Petitions 1917 of 1980 and 2349 of 1980, allowing those Writ Petitions without any order as to costs W P. 2319 of 1980 was allowed at the motion stage on 18.7.1980 as being covered by the decision in W P. 1917 of 1980 which was disposed of on 7.7.1980.
Kulwant Singh Tiwana, J. is a party to both the judgments and he sat with Harbans Lal, J for hearing W.P. 1917 of 1980 and with M.M. Punchi, J. for hearing W.P. 2349 of 1980.
In these circumstances, it is necessary to state only the facts relating to W.P. 1917 of 1980 alone briefly.
The system known as "10 plus 2 plus 3 system" was introduced in the educational institutions in the country some years ago.
The Association of Indian Universities decided the equivalence of this 10+2+3 system with the old 11+3 years degree course system which was prevalent in some States and it suggested that in all States where the pattern of education is such as to require 14 years for the first degree, i e. 11+3 years, the new plus 2 stage of the Central Board of Secondary Education be treated as equivalent to a pass in the first year of the three years degree course or for admission to the first year of the two years degree course.
This suggestion was 818 conveyed by the Association of the Indian Universities to the Chairman of the Central Board of Secondary Education by a letter dated 18.4.1978.
The appellant, Punjab University, decided on 10.2.1977 that the 12th standard examination conducted by the Boards/Universities under the new 10+2+3 system by recognised as equivalent to the Pre Medical/Pre Enginerering/B.A. Part I/B.Sc.
Part I/B.Com Part I examination according to the combination of the subjects.
Subsequently, on 4.6.1978 the Punjab University decided to treat the 11th standard of the new 10+2+3 system as equivalent to the pre University examination of the university.
Copies of those decisions dated 10.2.1977 AND 4.6.1978 were Annexures P. 2 and P. 3 respectively in W.P. 1917 of 1980.
These recognitions of the equivalence of those two examinations continued till the beginning of the year 1980.
But on 18.4.1980 the Punjab University decided that the first year student of the plus 2 course in the 10+2+3 system of the Central Board 's schools who does not take a public examination at the end of the first year should not be considered as equivalent to the student who has passed the pre University examination of the Punjab University for joining the Pre Medical/Pre Engineering/B.A. Part I/B. Sc.
Part I/B.Com.
Part I of the University.
On 7.5.1980, the Punjab University decided that the 12th Standard Examination in the new 10+2+3 system conducted by any recognized Board/Council/University shall be treated as equivalent to the pre University Examination of the University.
These decisions dated 18.4.1980 and 7.5.1980 are Annexures R 2 and R 3 respectively in W.P. 1917 of 1980.
Petitioners 1 to 37 in W.P. 1917 of 1980 had passed the 12th standard examination in the 10+2+3 system of the Central Board of Education and petitioners 38 to 92 in the Writ Petition had been promoted from the 11th standard to the 12th standard in that system.
These 92 petitioners filed W.P. 1917 of 1980 challenging the Punjab University 's decisions (Annexures R 2 and R 3) dated 18.4.1980 and 7.5.1980 contending that in view of the earlier decisions of the University, namely, Annexures P. 2 and P. 3 dated 10.2.1977 and 4.6.1978 respectively they had joined the classes in the plus 2 course with object of joining in the colleges affiliated to the University in the next class of equivalence as also Engineering and Medical Colleges and that the University cannot, therefore, change those decisions by the subsequent decisions, Annexures R 2 and R 3 to their deteriment.
They invoked the doctrine of promissory estoppel in regard to that ground of attack on those two decisions.
The second ground of attack by the petitioners 819 in W.P. 1917 of 1980 was that the decisions Annexures R 2 and R 3 are retrospective in operation and they have taken away their vested right and that the University has no power, either under the Punjab University Act or under any statute, regulation or rule to make any regulation, rule or ordinance adversely affecting their vested rights retrospectively.
The defence of the appellant University was that the decisions, Annexures R 2 and R 3 were taken in the place of the earlier decisions, Annexures P. 2 and P. 3 in the interest of eduction on the ground that the 11th standard examination in the new 10+2+3 system was not a public examination and the standard of education in the schools where that system was in vague was low and even the marking system in the examination was lenient.
The University further contended that even the syllabi in the equivalent examination in the schools and colleges were not the same.
The University stated that the Committee of Experts which was constituted by the Vice Chancellor of the University when the students in the engineering colleges started an agitation, went into the question and submitted a report suggesting the change in regard to equivalence in view of the difference in the syllabi and the deficiency in the teaching imparted in some subjects in the schools.
The University, therefore contended that the new decisions Annexures R. 2 and R. 3 were taken bonafide and are only prospective in operation and that the doctrine of promissory estoppel pleaded by the petitioners in the Writ Petitions does not apply to the University.
The decisions Annexures P. , R. 2 and R. 3 are of the Syndicate which has power to make rules etc under section 20 (5) of the Punjab University Act in the same manner as the Senate has similar power under section 31 of that Act.
The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under section 31 of the Act and held that the Syndicate has similar powers under section 20 (5) of the Act They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the.
matter and, however, held that petitioners 1 to 37 had joined the 10+2 course in the Central Schools lying within the territorial jurisdiction of the Punjab University in 1978 and passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3 year degree course and other courses after passing the 12th standard examination in the plus 2 820 system.
They found that similar is the case of petitioners 38 to 92 in W.P. 1917 of 1980 who had been promoted from the 11th to the 12th standard in the plus 2 system.
They held that Annexure R. 3 will deprive petitioners 1 to 37 and Annexure R. 2 will deprive petitioners 38 to 92 of the right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system, and Annexures R. 2 and R. 3 take away that right and are retrospective in nature.
In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of a full Bench of the Punjab and Haryana High Court in Punjab University vs Subhash Chander.
The learned Judges accordingly allowed W.P. 1917 of 1980 on the sole ground, namely, that Annexures R. 2 and R. 3 are bad as being retrospective in operation without an order as to costs and held that Annexures R. 3 and R. 2 will not stand in the way of petitioners 1 to 7 and 38 to 92 respectively before them from seeking admission to higher classes or in Engineering and Medical Colleges on the basis of the old decisions, Annexures P. 2 and P. 3.
The Other Division Bench which heard W.P. 2349 of 1980 allowed that petition without any order as to costs as being covered by the decision in W P. 1917 of 1980.
We are of the opinion that these appeals have to be allowed.
The learned Judges of the High Court allowed the Writ Petitions only on the ground that the new decisions Annexures R. 2 and R. 3 are retrospective in operation and that they cannot affect the writ petitioners before them from seeking admission to higher classes or in Engineering or Medical Colleges on the basis of tile earlier decisions Annexures P. 2 and P. 3, relying mainly upon the decision of the Full Bench in Punjab University vs Subhash Chander (supra).
We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case.
In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965.
At the time of his admission, under Regulation 25 read with r. 7.1, a student who fails in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared.
But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 821 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared.
at that time.
He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks.
Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks.
But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery.
The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal.
In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974.
It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.
In the present case also the new decisions are prima facie prospective in operation and they did not become.
retrospective merely because they subsequently appl ed to students who had already started their educational careers.
We, therefore, allow these appeals but without any order as to costs and set aside the judgments of the High Court and dismiss the Writ Petitions.
However, this decision will not effect the right which might have been granted to the petitioners in the writ petitions on the basis of the judgments of the High Court which have been reversed in these appeals.
S.R. Appeals allowed.

summary:
With the introduction of the system known as "10 plus 2 plus 3" in the educational institutions in the country, the Association of the Indian Universities decided the equivalence of this 10+2+3 system with the old 11+3 years degree course system still prevalent is some.
States and it suggested that in all States where the pattern of education is such as to require 14 years for the first degree i.e. 11+3 years the new plus 2 stage of the Central Board of Secondary Education be treated as equivalent to a pass in the first year of the three years degree course or for admission to the first year of the two years degree Course.
The appellant Punjab University, decided on 10.2.1971 that the 12th standard examination conducted by the Boards/Universities under the new 10+2+3 system be recognised as equivalent to the Pre Medical/Pre Engineering/B.A. Part I/B.Sc.
Part I/B. Com.
Part I examination according to the combination of the subjects.
Subsequently, on 4.6.1978 the Punjab University decided to treat the 11th standard of the new 10+2+3 system as equivalent to the Pre University examination of the University.
These recognitions of the equivalence of these two examinations continued till the beginning of the year 1980.
But on 18.4.1980 the Punjab University decided that the first year student of the plus 2 course in the 10+2+3 system of the Central Board 's schools who does not take a public examination at the end of the first year.
should not be considered as equivalent to the student who has passed the pre University examination of the Punjab University for joining the Pre Medical/Pre Engineering/B.A. Part I/B. Sc.
Part II B. Com.
Part I of the University.
On 7.5.1980, the Punjab University decided that the 12th Standard Examination in the new 10+2+3 system conducted by any recognised Board/Council/University shall be treated as equivalent to the pre University Examination of the University.
The respondents in CA 1977/80, namely 1 to 37 who had passed the 12th Standard Examination in the 10+2+3 system of the Central Board of Education and respondents 38 to 92 who had been promoted from the 11th Standard to the 12th Standard in that system challenged the two decisions 816 of the Punjab University dated 18.4.1980, and 7.5.1980 by filing W.P. 1917 of 1980 contending that in view of the earlier decisions of the University namely, Annexures P. 2 and P. 3 dated 10.12.1977 and 4.6.1978 respectively they had joined the classes in the plus 2 course with the object of joining the colleges affiliated to the University in the next class of equivalence as also Engineering and Medical Colleges and that the University cannot, therefore, change those decisions by the subsequent decisions, (Annexures R. 2 and R. 3) to their detriment.
They invoked the doctrine of promissory estoppel in regard to that ground of attack on those two decisions.
The second ground of attack by the petitioners in W.P. 1917 of 1980 was that the decisions Annexures R. 2 & R. 3 are retrospective in operation and they have taken away their vested right and that the University has no power, either under the Punjab University Act or under any statute, regulation or rule to make any regulation rule or ordinance adversely affecting their vested rights retrospectively.
The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under section 31 of the Act and held that the Syndicate has similar powers under section 20 (5) of the Act.
They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the matter and, however, held that petitioners 1 to 37 had joined tho 10+2 course in the Central School lying within the territorial jurisdiction of the Punjab University in 1978 and had passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3 year degree course and other courses after passing the 12th standard examination in the plus 2 system.
They held that Annexure R. 3 will deprive petitioners I to 31 and Annexure R. 2 will deprive petitioners 38 to 92 of right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system.
and Annexures R. 2 and R. 3 take away that right and are retrospective in nature.
In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of the Full Bench of the Punjab & Haryana High Court in Punjab University vs Subhash Chander, In view of their decision in W.P. 1911 of 1980, another Bench allowed another W P. 2349 of 1980 filed by the respondents in C.A. 2667/83.
Hence the appeals by the University.
Allowing the appeal, the Court.
^ HELD: 1.
The decisions dated 10.12.1977, 4.6.1978, 18.4.1980 and 7.5.1980 respectively are intra vires the powers of the Syndicate to make rules etc.
under section 20(5) of the Punjab University Act in the same manner as the Senate can do under section 31 of that Act.
[819F] 2.
In view of the decision of the Supreme Court dated 17.5 1984 rendered in Subhash Chander vs Punjab University (Civil Appeal No. 2828/ 1977 arising out of and reversing the said decision of the Punjab High Court relying on which the two Judgments now under 817 appeal, were passed, in the present case also the two impugned decisions are prima facie prospective in operation and they did not become retrospective merely because they subsequently applied to students who had already started their educational careers.
However, this decision will not effect the right which might have been granted to the petitioners in the writ petitions on the basis of the Judgments of the High Court which have been reversed in these appeals [820F; 821E F]


judgement:
: Criminal Appeal No. 57 of 1984.
From the Judgment and Order dated 25 10 1983 of the Allahabad High Court in Habeas Corpus WP.
No. 8420 of 1983.
Manjo Swarup and Dalveer Bhandari for the appellant.
Mrs. & Mr. Qamaruddin, Rizwan A. Hafiez and Desh Raj for the respondent.
The Judgment of the Court was delivered by SEN, J.
The State Government of Uttar Pradesh has preferred this appeal by special leave from the judgment and order of the Allahabad High Court dated October 25, 1983 by which the High Court issued a writ in the nature of habeas corpus quashing an order of detention passed by the District Magistrate, Moradabad dated November 6, 1982 for the detention of the respondent under sub section
(3) of section 3 of the on being satisfied that his detention was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of Public order.
" It appears that the respondent is alleged to have committed an offence of murder punishable under section 302 and of causing disappearance of evidence punishable under section 201 of the Indian Penal Code, 1860 in connection with the communal riots that occurred in the Moradabad city.
On November 6, 1982, the District Magistrate, Moradabad passed the impugned order of detention but it could not be served on the respondent as he was absconding.
As required under sub section
(4) of section 3, the District Magistrate forthwith made a report of the fact to the State Government of Uttar Pradesh that he had passed an order for the detention of the respondent under sub section
(3) of section 3 of the Act, together with the grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the matter.
The State Government received the order of detention on November 8, 1982 and approved of the same on November 11, 1982 under sub section
(5) of section 3, and as required thereunder, forwarded a report to the Central Government on the next day i.e. On November 12, 1982.
The respondent surrendered to the police on May 24, 1983 and the impugned order of detention was served on him in District Jail, 792 Moradabad on June 1, 1983 and the grounds of detention were furnished to him on June 2, 1983.
The respondent made a representation dated June 18, 1983 through the Superintendent, District Jail Moradabad and he immediately forwarded the same to the District Magistrate.
On June 20, 1983 the District Magistrate forwarded the representation to the Advisory Board and the same was received by the Advisory Board on June 21, 1983.
The State Government had in the meanwhile on June 13,1983 made a reference to the Advisory Board under section 10 of the Act i.e. within three weeks from the date of detention together with the order of detention, and the grounds therefore, for its opinion.
On June 23, 1983 the representation of the respondent forwarded by the District Magistrate together with his comments was examined by the Joint Secretary, Home Department.
The file was placed before the Home Secretary on June 27, 1983 who placed it before the Chief Minister with his comments.
The Chief Minister took two days to study the file and ultimately passed an order rejecting the representation on June 30, 1983.
On July 2, 1983 the State Government forwarded the representation made by the respondent together with its comments to the Government of India and the Central Government rejected the same on July 19, 1983.
On July 5, 1983 the respondent through his counsel D.S. Misra simultaneously addressed two representations for revocation of his detention under section 14 of the Act, one addressed to the Prime Minister of India and the other to the State Government.
It appears that the representation made to the Central Government addressed in the name of the Prime Minister was received in the Prime Minister Secretariat on July 7, 1983 and the grievance of the respondent was that the Central Government had not dealt with his application for revocation of the order of detention under section 14 even now.
In his counter affidavit by one M.L. Miglani, Desk officer, Ministry of Home Affairs, New Delhi, it was stated that the Central Government had fully discharged its functions by expeditiously taking a decision on the earlier representation directly ad dressed by the respondent and it was under no statutory obligation to consider the subsequent representation for revocation addressed by the respondent through his counsel to the Prime Minister.
I was not a statutory representation for revocation of the impugned 793 order of detention under section 14 and therefore it was not at all necessary for the Central Government to deal with it.
The High Court placing reliance on the decision of this Court in Phillippa Anne Duke vs State of Tamil Nadu & Ors and certain of its own decisions held that the respondent had a right to make an application to the Central Government for revocation of the order of detention and the failure on the part of the Central Government to apply its mind to it made the continued detention illegal.
The only question canvassed in the appeal before us is that the judgment of the High Court betrays, complete lack of awareness a of the nature of the constitutional safeguards enshrined under article 22(5) of the Constitution.
It is urged that the constitutional imperatives enacted in article 22(5) are two fold; (1) The detaining authority must, as soon as maybe i.e. as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made.
And (2) The detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention.
In the present ease, it is said that the requirements of article 22(5) of the Constitution read with section 8(1) of the Act had been duly complied with.
There is no question of any violation of article 22(5) or of section 8(1) and further that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority.
The order of detention cannot therefore be challenged on the ground that the grounds furnished were not adequate or sufficient for the subjective satisfaction of the detaining authority, or for making an effective representation.
It is further urged that there being due compliance with the constitutional requirements of article 22(5) and of section 8(1), the High Court was wrong in holding that the continued detention of the respondent was invalid merely because the Central Government refused to act on his application for revocation of the order of detention under section 14 of the act.
We find considerable force in the submission.
We are not oblivious of the fact that this Court has in certain cases given expression to the view that any lapse on the part of the State Government in forwarding the representation made for revo 794 cation of his order of detention under s.11(1)(b) of the COFEPOSA Act, 1974 or the failure of the Central Government to expeditiously consider the same was a denial of the constitutional right of being afforded "the earliest opportunity of making a representation against the order" as contemplated by article 22(5).
At one time it was thought that section 14 of the which was in pari materia with section 14 of the Act, did not confer any right or privilege on the detenu but there is a definite shift in the judicial attitude, for which there appears to be no discernible basis.
In Shyam Ambalal Siroya vs Union of India & Ors., the contention was that because a representation properly addressed to the Central Government to order revocation under section 11 of the COFEPOSA Act was not forwarded by the detaining authority to the Central Government, the detention was illegal.
The Court construed the power conferred on the Central Government to direct revocation of an order of detention under section 11 of that Act to be "statutory".
It was observed that the power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power and a petition for revocation of an order of detention should be dealt with reasonable expedition.
Since a representation properly addressed by the detenu of the Central Government was not forwarded to the Central Government, the continued detention of the detenu was held to be illegal.
In Sabir Ahmed vs Union of India & Ors., the Court held that non consideration by the Central Government of a representation for revocation made by the detenu under section 11 of the COFEPOSA Act made the continued detention to be bad, following the decision in Shyam Ambalal Siroya 's case, supra.
It was however observed that the power conferred by section 11 on the Central Government was a supervisory power and it was intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government.
In Rattan Singh vs State of Punjab & Ors, the Court went still further.
There was, in that case, a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under section 11 of the COFEPOSA Act.
The 795 Court struck down the order of detention on the ground that there was a denial of the right of making representation to the Central Government for revocation of the order of detention under section 11 of the Act and this was tantamount to a denial of the constitutional safeguard of article 22(5).
Soon thereafter, the Court in Sat Pal vs State of Punjab & Ors examined the nature of the power of revocation conferred on the Central Government under section 11 of the COFEPOSA; Act and held that it was supervisory in nature, and it was observed: "That is, as it should be, under our federal structure the Centre must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Article 21.
Ours is a Constitution, where there is a combination of federal structure with unitary features while in a unitary State there is only one Government; federal State involves multi Governments namely, national or federal Government and the Governments of component States.
A federal State, in short, is a fusion of several States into a single State in regard to matters affecting common interest leaving each component State to enjoy autonomy in regard to other matters.
Under our Constitution: certain powers vest in the Central Government leaving certain to its component units to exercise autonomy in spheres assigned to them in the Constitution itself.
The component States are .
not merely delegates or agents of the federal Government.
Both federal and State Governments draw their authority from the same source, the Constitution The conferment of executive power on the States in relation to a subject with respect to which the legislatures of the States have no power to make a law under article 258(2) must necessarily be subject to the administrative control of the Union under articles 256 and 247(1), to the giving of such directions to the States as may appear to the Government of India to be necessary for that purpose.
" It was then observed that the constitutional imperatives of article 22(5) enjoin that where a detenu simultaneously makes a re 796 presentation to the detaining authority as well as an application for revocation under section 11 of the Act they must both be dealt with by the appropriate Government at the same time and there was no question of any conflict of jurisdiction.
To illustrate, it was said that if the Central Government were to revoke an order of detention under section 11 of the Act, there would be no representation for the State Government to consider, or refer the Advisory Board under section 8(b), nor will there arise any question of Advisory Board submitting a report to it, or on receipt of such a report confirming the order of detention under section 8(f).
It was further observed that the other types of cases would be where notwithstanding that the order of detention has been confirmed under section 8(f), the appropriate Government may, at any time, revoke the same under section 11 of the Act.
It was accordingly held that the power of revocation conferred on the appropriate Government under section 11 is independent of the power of confirming or setting aside an order of detention under section 8(f).
As to the nature of the power of revocation conferred on the Central Government under section 11 of the COFEPOSA Act, it was stated: "The making of an application for revocation to the Central Government under section 11 of the Act is therefore part of the constitutional right a citizen has against this detention under a law relating to preventive detention.
While article 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under section 8(a) of the Act, Parliament, has in its wisdom, enacted section 11 and conferred an additional safeguard against arbitrary executive action.
The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own source including that supplied by the State Government under sub section
(5) of section 3 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 797 case, In the present case, the detenu was not deprived of the right of making a representation to the detaining authority under article 22(5) of the Constitution read with section 8(1) of the Act.
Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forward the same forthwith.
The Central Government duly considered that representation which in effect was nothing but a Representation for revocation of the order of detention under section 14 of the Act.
That being so, it was not obligatory on the part of the Central Government to consider a second representation for revocation under section 14.
We may profitably refer to Phillippa Anne Duke 's case, supra, where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under section 11(1)(b) of the COFEPOSA Act handed over to t he Prime Minister during her visit to England did not render the continued detention invalid.
It was observed: "Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government under section 11(8)(b) of the COFEPOSA Act.
" The result therefore is that the appeal succeeds and is allowed.
The judgment and order of the High Court is set aside and the order of detention passed by the District Magistrate under sub section
(3) of section 3 of the is maintained.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The facts are that the respondent made a representation dated June 18, 1983 against an order of detention passed by the District Magistrate, Moradabad dated November 6, 1982 for his detention under sub section
(3) of section 3 of the , and the same was duly forwarded by the District Magistrate to the Advisory Board on June 21.
The State Government had in the mean while on June 13, 1983 made a reference tn the Advisory Board under section 10 of the Act i.e. within three weeks from the dale of detention together with the order of detention and the grounds therefor for its opinion.
On June 23, 1983 the representation was examined by the Joint Secretary, Home Department who marked the file to the Home Secretary on June 27, 1983 who on his turn placed the file before the Chief Minister for his comments on June 27, 1983.
The Chief Minister took to days to study the file and ultimately passed an order rejecting the representation.
On July 2, 1983 the State Government forwarded the representation made together with the comments to the Government of India and the Central Government rejected the same on July 19, 1983.
It appears that on July S, 1983 the respondent through his counsel simultaneously addressed two representations for revocation of his detention under section 14 of the Act, one addressed to the Prime Minister of India and the other to the State Government.
The representation made to the Central Government addressed in the name of the Prime Minister was received in the Prime Minister 's Secretariat on July 7, 1983 and the grievance of the respondent before the High Court was that the Central Government had not dealt with his application for the revocation of the order of detention under section 14 of the Act.
The High Court observed that the right of the detenu to make a representation to the Central Government for revocation of the order of detention under section 14 of Act was intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government and therefore the failure on the part of the Central Government to consider the same was tantamount to a denial of the constitutional safeguard as contemplated by article 22(5) 790 of the Constitution.
It accordingly held the continued detention of the respondent to be illegal.
Aggrieved by the order, the State preferred an Special Leave.
Allowing the appeal, the Court, ^ HELD: (1) The constitutional imperatives of article 22(5) enjoin that where a detenu simultaneously makes representation to the detaining authority as well as an application under section 14 of the Act, they must not be dealt with by the appropriate Government at the same time and there was no question of any conflict of jurisdiction.
If the Central Government were to revoke the order of detention under section 14 of the Act, there would be no representation for the State Government to consider, or refer to the Advisory Board under section 8(b) of the Act nor will there arise any question of Advisory Board making a report to it, or on receipt of such a report, confirming the order of detention under section 8(f).
The other type of cases can be where notwithstanding that the order of detention has been confirmed under section 8(f) the appropriate Government may, at any time, revoke the same under section 14.
The power of revocation conferred on the appropriate Government under section 14 is independent of the power of confirming or setting aside an order or detention under section 8(f) [795H; 796A D] 2.
The power of revocation conferred on the Central Government under section 14 of the Act is a statutory power which may be exercised on information received by tile Central Government from its own sources including that supplied by tile State Government under sub section
(5) of section 3, or from the detenu in the form of a petition or representation.
It is for the Central Government to decide whether or Dot it should revoke the order of detention in a particular case.
[796G H] Any lapse on the part of State Government in forwarding the representation made by the detenu to the Central Government for revocation of the order of detention under section 14 of the Act or non consideration of the same by the Central Government makes the continued detention of the detenu bad.
[793B C] In the present case, however, the detenu was not deprived of the right of making a representation to the detaining authority under article 22(5) of the Constitution read with section 8(1) of the Act.
Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forwarded the same forthwith.
The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under section 14 of the Act.
That being so.
it was not obligatory on the parr of the Central Government to consider a second representation for revocation under section 14 of the Act.
[797A D] 791


judgement:
Civil Appeal No. 1833 of 1970.
Appeal by Special leave from the Judgment and Order dated the 17.4.1970 of the Mysore High Court in Civil Revision Petition No. 1255 of 1969.
A.S. Nambiar, Ashok Kumar Sharma and M. Veerappa for the Appellant.
R.B. Datar, Divender Singh, Ms. Madhu Moolchandani and Ms. Meenu Verma for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the Order dated 17.4.1970 of a learned single Judge of the erstwhile Mysore High Court (now Karnataka High Court) in CRP 1255 of 1969 which was filed against an Order dated 3.3.1969 of the Principal Civil Judge, Bangalore in Misc.
Case 6 of 1969, filed by Kabidi Venku Sah who was the first respondent in the Civil Revision Petition and is the appellant in this Civil Appeal.
The Principal Civil Judge allowed the Misc.
Case which was filed under Order 21 Rule 58 of the Code of Civil Procedure for raising an attachment over the house property effected at the instance of Syed Abdul Hai who was the petitioner before the High Court in the Civil Revision Petition and is the first respondent in this Civil Appeal.
The house property belonged originally to one Vittal Sah who was the husband of the second respondent Sharada Bai.
Vittal Sah had executed a 114 simple mortgage over the property in favour of the appellant on 31.7.1948.
The appellant obtained a decree on the mortgage on 4.9.1967 in O.S. 217 of 1966 on the file of the Principal Civil Judge and brought the property to sale in execution of that decree and purchased it himself on 24.7.1968 after obtaining the necessary leave of the Court to bid and set off.
The sale was confirmed on 28.8.1968 and the appellant took delivery of the property on 28.11.1969 in Misc.
Case 95 of 1968 as the court auction purchaser.
The first respondent Syed Abdul Hai obtained a money decree against Vittal Sah on 30.3.1967 in O.S. 386 of 1964 on the foot of a promissory note executed in 1961 for a sum of Rs. 20,000.
He obtained attachment before judgment over the same house property on 24.9.1964 on the same day on which filed that suit in the Court of the Principal Civil Judge, Bangalore.
He filed E.P. 31 of 1968 for realising the money due under the decree by bringing the house property to sale pursuant to the attachment before judgment effected on 24.9.1964.
Thereupon the appellant Venku Sah filed Misc.
Case 6 of 1969 under Order 21 Rule 58 of the Code of Civil Procedure for getting the attachment raised, alleging that the second respondent Sharada Bai had no saleable interest in the property on the date of the attachment and that the first respondent 's simple money decree cannot prevail over his mortgage decree and the sale of the property obtained in his favour in execution of that decree.
The first respondent Syed Abdul Hai opposed the claim petition, contending that the court proceedings referred to in the claim petition are collusive and fraudulent and that the delivery alleged by the appellant is only a paper delivery possession continued to be with the second respondent.
The Principal Civil Judge found that the mortgage decree, execution sale and delivery of the property to the appellant cannot be questioned in the first respondent 's claim petition as being collusive and could be questioned only in a separate suit.
He also found that there was no material on record to show that the second respondent continued to be in possession of the property after its delivery to the appellant pursuant to the court auction sale in his favour.
He rejected the contention that the appellant was not entitled to file any claim petition under Order 21 Rule 58 of the Code of Civil Procedure for raising the attachment before judgment effected under Order 38 Rule 5 and held that there is nothing on 115 record to show that the appellant was aware of the attachment and therefore there was no delay in filing the claim petition and that the claim petition could be filed under Order 21 Rule 58 even in the case of attachment before judgment in view of the provisions of Order 38 of Rule 8 which says that when any claim is preferred to property which has been attached before judgment, such claim shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for payment of money.
The Principal Civil Judge rejected the first respondent 's contention that the appellant had no interest in the equity of redemption even if the mortgage in his favour is true and that only the equity of redemption was attached on 24.9.1964 and held that what was attached the entire property and not the equity of redemption alone.
In this view, he allowed the claim petition.
Before the High Court it was contended for the first respondent that the appellant should show not only that he had an interest in the property attached on the date of the attachment but also possession thereof on that date before he could get the attachment before he could get the attachment before Judgment raised and that the property belonged to the second respondent 's husband and was in his possession on the date of the attachment and therefore the Principal Civil Judge could not have allowed the claim petition.
The appellant refuted that contention by peculiarly contending that he, a simple mortgagee, was in constructive possession of the property through the mortgagor.
The learned Judge of the High Court rightly rejected the contention that a simple mortgagee could be in possession of the mortgaged property constructively through the mortgagor and held that the appellant (claimant) should show that he had some interest in the property attached on 24.9.1964 and was in actual or constructive possession thereof.
He observed that the Principal Civil Judge has not recorded any finding on the question of the appellant 's possession of the property on the date of the attachment and that he has thereby wrongly exercised jurisdiction and acted with material irregularity in allowing the claim petition.
He found that the appellant had failed to prove that he had an interest in the property on the date of the attachment and was in possession of the property, either actual or constructive, on that date and held that he was therefore not entitled to have the attachment raised.
The matter is quite simple but has unfortunately dragged on for nearly 15 years on account of a wrong and ill advised step taken 116 by the appellant.
The learned Principal Civil Judge erred in observing that what was attached before judgment on 24.9.1964 is not the equity of redemption alone but the entire property.
He has rightly held that in the claim petition the question of the mortgage of 1948, the mortgage decree, the court auction sale and delivery of possession of the property to the appellant pursuant to that sale cannot be contended to be collusive and observed that the first respondent could, if at all, challenge them only in a separate suit.
That being so, undoubtedly the mortgage of 1948 in favour of the appellant was there and what remained with the mortgagor was only the equity of redemption until it was brought to an end by the sale in execution of the mortgage decree confirmed by the court on 28.8.1968.
Therefore, there could be no doubt whatsoever that on 24.9.1964 when the property was attached before judgment long after the mortgage dated 31.7.1948 and two years before the suit on the mortgage was filed in 1966, the mortgagor had the equity of redemption and that what could have been attached in law on 24.9.1964 was the equity of redemption alone and not the entire interest in the property.
There should have been no difficulty for the learned Judge of the High Court holding that the appellant could not have been in possession of the property, actual or constructive, for he was only a simple mortgagee who had nothing to do with possession until he got delivery of the property through the court as a decree holder court auction purchaser on 28.4.1968 as noticed by the learned Judge in his judgment.
The appellant had no doubt an interest in the property as mortgagee, but he could not have been in possession of the property as he was only a simple mortgagee.
The appellant was a secured creditor as he had a mortgage in his favour, and any attachment effected after the date of the mortgage and during its subsistence can be only subject to that mortgage.
He had no interest in the equity of redemption on the date of the attachment and could not therefore have had any objection to that right of the mortgagor being attached by the first respondent.
Therefore he was not a person who could in law file any claim petition under Order 21 Rule 58 objecting to the attachment of the equity of redemption.
We may notice here what Order 21 Rule 58(1) says and it is this: "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is 117 not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained.
" The attaching creditor can bring the property to sale only subject to the mortgage as long as it is subsisting.
That is to say he could bring only the mortgagor 's equity of redemption to sale if it had not already been extinguished by its sale in execution of any decree obtained on that mortgage.
But if the equity of redemption has already been sold after the date of the attachment the attaching decree holder could proceed only against the balance, if any, of the sale price left after satisfying the mortgagee decree holder 's claim under the decree.
The mortgagee 's right is thus not affected at all.
Therefore it is we had observed carrier that the appellant had taken a wrong and all advised step in coming forward with the claim petition which has resulted in the matter dragging on for over 14 years from 15.1.1969.
The appellant could not object to the attachment of the equity of redemption.
The appeal fails and is dismissed, but under the circumstances of the case without costs.
H.L.C. Appeal dismissed.

summary:
On the basis of a simple mortgage executed in his favour in the year 1948, the appellant obtained a decree on 4 9 1967, brought the mortgaged property to sale, purchased it himself on 24 7 1968 and got the sale confirmed by court on 28 8 1968.
The first respondent who held a promissory note executed in his favour by the owner of the said property in 1961, instituted a suit for recovery of the sum on 24 9 1964 and got the property attached before judgment on the same day and thereafter obtained a money decree on 30 3 1967, and filed an execution petition for realising the money due under the decree by bringing the property to sale.
Thereupon the appellant filed a claim petition under O.21, r. 58 C.P.C., for getting the attachment raised.
The claim petition was resisted by the first respondent inter alia on the ground that it was incompetent as the appellant had neither any interest in the equity of redemption nor was he in possession of the property.
The trail court allowed the claim petition holding inter alia that what was attached on 24 9 1964 was the entire property and not the equity of redemption alone.
The Civil Revision Petition filed by the first respondent against the order of the trial court was allowed by the High Court which held that the appellant having failed to prove that he had an interest in the property on the date of the attachment and was in possession of the property, either actual or constructive, on that date he was not entitled to have the attachment raised.
Dismissing the appeal, HELD: The trial court erred in observing that what was attached before judgment on 24 9 1964 was not the equity of redemption but the entire property.
There could be no doubt that on 24 9 1964 when the property was attached before judgment long after the mortgage dated 31 7 1948 and two years before the suit was filed on the mortgage in 1966, the mortgagor had the equity of redemption and that what could have been attached in law on 24 9 1964 was the equity of redemption alone and not the entire interest in the property.
The property.
The appellant had no doubt an interest in the property as mortgagee, but he could not have been in possession of the property as he was only a 113 simple mortgagee.
He was a secured creditor as he had a mortgage in his favour, and any attachment effected after the date of the mortgage and during its subsistence could only be subject to that mortgage.
Since he had no interest in the equity of redemption on the date of attachment, he could not have had any objection to that right of the mortgagor being attached by the first respondent.
Therefore, he was not a person who could, in law, file any claim petition under O. 21; r. 58 objecting to the attachment of the equity of redemption.
[116 A; C D; F H] The attaching creditor can bring the property to sale only subject to the mortgage as long as it is subsisting.
That is to say, he could bring only the mortgagor 's equity of redemption to sale if it had not already been extinguished by it sale in execution of any decree obtained on that mortgage.
But if the equity of redemption has already been sold after the date of the attachment, the attaching decree holder could proceed only against the balance, if any, of the sale price left after satisfying the mortgagee decree holder 's claim under the decree.
The mortgagee 's right is thus not affected all.
[117 B C]