judgement:
Civil Appeal No. 1926 of1969.
(From the Judgment and Decree dated S 2 68 of the Bombay High Court in First Appeal No. 4S1 of 1964).
Shaukat Hussain and Mohd. Mian for the appellant.
R. H. Dhebar and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal by certificate is directed against a judgment of the Bombay High Court, and it involves an important question namely, whether a court in dealing with a reference under s.14, Sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli, corresponding to section 18, sub section
(1) of the Land Acquisition Act, 1894, can go behind the reference made by the Collector if the application on which the reference has been made is beyond the period of limitation prescribed therein.
The material facts giving rise to this appeal are as follows: The case arises from that part of the erstwhile princely State of Hyderabad, known as Marathwada, which merged in the State of Bombay under the States Re organisation Act, l956.
The land belonging to the appellant admeasuring 2057 sq. yards in the city of Aurangabad, has been acquired by the State Government under s.5 of the Hyderabad Land Acquisition Act for the construction of a building for the medical college at Aurangabad.
The Government published a Notification under section 3 (1) on the 28th of February, 1958.
On the 13th of January, 1962 the Land Acquisition officer, Aurangabad made an award directing payment of Rs. 1,318.11 P. inclusive of 15 per cent solatium as compensation to the appellant at the rate of 37 np.
per sq. yard, as against his claim for payment of compensation at the rate of Rs. 10/ per sq. yard.
The said award was communicated to the appellant on the 20th of January, 1962.
The appellant instead of making an application for reference under section 14, sub section
(1) of the Act, filed an application for review before .he
Land Acquisition officer on the 5th of February, 1962 requesting him 'to revise the award ' stating further that in case it was not revised he would seek his remedy in a court of law '.
The Land Acquisition 268 officer obviously felt that the amount fixed by him was too low and accordingly on the 17th of February, 1962 made a recommendation, through the Collector, to the Secretary to the State Government that the award be reconsidered.
But, the Collector by his order dated the 23rd of March, 1962 declined to forward the same and informed the appellant that he must seek his remedy in! a court of law.
Eventually, on the 14th of May, 1962 the appellant made an application for reference under section 14, sub section
(1) of the Act and prayed that the period spent in the proceedings for the review before the Land Acquisition Officer subsequent to the date of the award be excluded while considering the question of limitation under section 14 of the Limitation Act.
A reference was made under section 14, sub section
(1) of the Act to the District Court of Aurangabad.
The Assistant Collector, Aurangabad, who was the Land Acquisition officer, while making a reference made no expression of his opinion whether the application was time barred or not, evidently taking the view that the point should be left for the decision of the court.
He, however, while making the reference gave a complete narration of facts and left the question open.
A preliminary objection was raised by the Government that the reference was incompetent, the application being time barred.
This objection prevailed and the contention of the appellant based on1 section 14 of the Limitation Act was negatived both by the Civil Judge, Senior Division Aurangabad by his order dated the 28th of June, 1962, and by the High Court of Bombay by its order dated the 5th of February, 1968 holding that the time taken between the 5th of February, 1962 and the 23rd of March, 1962 could not be excluded while computing the period of limitation prescribed under section 14, sub section
(1) of the Act inasmuch as section 14 of the Limitation Act was not applicable to the proceedings, and further, that even if it applied the appellant was not entitled to the benefit of section 14 of the Limitation Act, stating that good faith, which is also a necessary ingredient under section 14, was not established.
The learned Civil Judge raised an issue whether the application for reference was barred by limitation under section 14, sub section
(1) of the Act, and he answered that issue in the affirmative, and we have no doubt, whatever that his decision on that point, as well as that of the High Court affirming it, was right.
The application was clearly out of time.
Section 14, Sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli provides that: "Every person interested, who is displeased with the Taluqdar 's award may, within two months from the date of receiving notice of the award, apply to the Taluqdar in writing to refer 269 the case to the court for determination, whether his objection be to the measurement of the land, or to the amount of the compensation, or to the persons to whom it is payable or to the apportionment of the compensation among the persons interested.
" Section 15, sub section (1) enjoins that the Taluqdar in making the reference shall forward to the Court a statement in writing, containing certain particulars.
Sub section (2) there of provides that to the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested respectively.
It is conceded for our present purposes that section 14, sub section
(1) of the Hyderabad Land Acquisition Act is in pari materia with the provisions of section 18 of the Land Acquisition Act, 1894.
Hence hereinafter reference will be made only to the provisions contained in the Land Acquisition Act, 1894, 'the Act '.
Learned counsel for the appellant rested his submission on the .ground that the court while dealing with a reference under section 14, sub section
(1) of the Act, cannot go behind the reference and decline to answer it.
The point regarding applicability of section 14 of the Limitation Act was rightly not pressed before us.
Nor was any contention raised by him that the application for review made by the appellant before the Land Acquisition officer on the 9th of February, 1962, asking him to revise the award should, in law, be regarded as an application under section 14, sub section
(1) of the Act.
The short question that falls for determination in the appeal is whether the court can go into a question that the application for reference was not made to the Collector within the time prescribed in section 18, sub section
(2) of the Land Acquisition Act; and if so, can it refuse to entertain the reference if it finds it to be barred by time.
There was at one time a great divergence of judicial opinion on the question.
But almost all the High Courts have now veered round to the view that the court has the power to go into the question of limitation.
It not only has the power but also the duty to examine whether the application for reference was in accordance with law i.e., whether it was made within time prescribed under the proviso to sub section
(2) of section 18 of the Act or not.
The view taken by them is that a Collector 's jurisdiction is circumscribed by the conditions laid down in section 18, sub section
(1), that if he makes a reference even though the application for reference was not in accord 270 ance with the provisions of section 18, the court acquires no jurisdiction to hear the reference and that it can refuse to hear it if it was made on a time barred application.
The matter came up twice before this Court in State of Punjab vs Mst.
Qaiser Jehan Begum & Anr.(1) and the State of U.P. vs Abdul Karim(2) in which the conflict of judicial opinion in the High Courts was noticed but not resolved as the Court in both the case,s rested its decision on a narrower ground namely that the application for a reference was not barred by time.
In Mst.
Qaiser Jehan Begum 's case (supra) it was observed: "In the view which We have taken on the question of limitation, it is unnecessary for us to decide the other question as to whether the civil court, on a reference under section 18 of the Act, can go into the question of limitation.
We have al ready stated that there is a conflict of judicial opinion on that question.
There is no one side a line of decisions following the decision of the Bombay High Court in re.
Land Acquisition Act, which have held that the civil court is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference.
There is, on the other side, a line of decisions which say that the jurisdiction of the civil court is confined to considering and pronouncing upon any one of the four different objections to an award under the Act which may have been raised in the written application for the reference.
The decision of the Allahabad High Court in Secretary of State vs Bhagwan Prasad is typical of this line of decisions.
There is thus a marked conflict of judicial opinion on the question 'This conflict, we think, must be resolved in a more appropriate case on a future occasion".
In the case before us the question doe6 not really arise and is merely academic and we prefer not to decide the question in the present case.
That question now directly arises.
It is contended on behalf of the appellant that a reference to the Court having been made by the Collector, the court had no jurisdiction to question the validity of that reference and was bound to decide the matter on merits.
In support of this contention certain authorities have been cited to us, in which it has been laid down that it is for the Collector, and the Collec tor alone, to determine whether to make a reference under section 18, sub section
(1), and if he decides to make a reference, it is not (1) ; (2) Civi] Appeal No. 2434 of 1966 decided on 23 9 1969.
271 open to the court to go behind the decision of the Collector, and hold the reference to be out of time.
Illustrative of this line of decisions is that of Allahabad High Court in Secretary of State vs Bhagwan Prasad(1).
That view has been reiterated by the Full Bench of the same High Court in the State of U.P. vs Abdul Karim(2) and in its earlier decision in Panna Lal vs The Collector of Etah(3), and the decisions in Venkateswaraswami vs Sub Collector, Bezwada(4), Hari Kishan Khosla vs State of Pepsu(5).
Chandravarkar J. in re Land Acquisition Act(6) held that it is clear from section 18 that the formalities are matters of substance and their observance is a condition precedent to be Collector 's power of reference.
He held that the court is bound to go into the question whether the reference under section 18 was within time.
He also held that the court was not only entitled, but bound, to satisfy itself that the conditions laid down in section 18 have been complied with.
In stating the principle, Chandravarkar J. Observed: "These are the conditions prescribed by the Act for the right of the party to a reference by the Collector to come into existence.
They are the conditions to which the power of the Collector to make the reference is subject.
They are also the conditions which must be fulfilled before the court can have jurisdiction to entertain the reference.
" The principle laid down by him in that case was acted upon in Sukhbir Singh vs Secretary of State(7).
In that case the Collector had made a reference, although there was no application before him as required by section 18 and the Division Bench held that being so, there was no valid reference.
But in a latter case which came before another Division Bench in Secretary of State vs Bhagwan Prasad (supra), it was held that it was not open to the court under section 18 to go behind the reference, that it was for the Collector to decide whether the conditions justifying reference have been complied with and if he thought that they had been, the court was bound to answer the reference.
This view found favour with a Single Judge of the Madras High Court in Venkateswaraswami vs Sub Collector Bezwada (supra) and a Single Judge of the Punjab High Court in Hari Krishan Khosla vs State of Pepsu (supra).
All these decisions clearly do not lay down good law.
(1) ILR 52 All.
(2) AIR.
1963 All.
(3) ILR [1959] 1 All.
(4) AIR 1943 Mad.
(5) ILR [1958] 1 Punj.
(6) I.L.R. , 285, All. 212.
272 In State of U.P. vs Abdul Karim (supra) the Full Bench of the Allahabad High Court, on its view of the scheme of the Act, declined to follow the decision of Chandavarkar, J. in re Land Acquisition Act (supra) and the long line of decisions taking the same view.
It preferred to rest its decision on the earlier view of its Full Bench in Panna Lal vs The Collector of Etah (supra) and that in Secretary of State vs Bhagwan prasad (supra).
In the light of these decisions, it held that the Collector 's jurisdiction to make a reference is not circumscribed by the conditions laid down in section 18, sub section
(1) and (2), that if he makes a reference even though the application for reference was not in accordance with the provisions of section 18, the court acquires jurisdiction to hear the reference, and that it cannot refuse to hear it even if it was made or.
a time barred application.
Upon its view, it held that the court has no power to determine or consider a question of limitation as its jurisdiction is strictly limited by the terms of the section as laid down by the Privy Council in Pramatha Nath vs Secretary of State(1).
It further held that the legislature having contemplated the Collector to be an agent of the Government, as that is the position assigned to him by the Privy council in Ezra vs Secretary of State for India(2), his status is certainly not changed by the mere fact that he is required to make a reference under section 18 if the application is within prescribed time and complies with certain conditions.
That being so, even if the Collector wrongly decides that an application is within time or satisfies other conditions, the Government as its principal, may have a remedy against him but was bound by his act so long as it remains.
The act being of the agent is their own and they are bound by it.
The Government cannot, therefore, be permitted to contend at the hearing of the reference before the court that it was illegally made.
In view of all this, the Full Bench was of the view that this class of case does not fall within the class of cases where the jurisdiction of an inferior authority depends upon the existence of a certain state of facts, as indicated by Lord Eshar, M. R. in The Queen vs Commissioners for Special Purposes of the Income tax(1).
On principle, apart from authority, it is difficult to accept the line of reasoning of the Allahabad High Court, namely, whatever might be the defects and imperfections in the reference made, once it is before the court, the court is debarred from enquiring into its validity or otherwise.
The decision in Abdul Karim 's case (supra) proceeds on a com (1) ILR (2) ILR (3) 273 plete misunderstanding of the decision of the Privy Council in Pramatha Nath vs Secretary of State (supra), where the Judicial Committee interpreting section 21 observed: "Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections.
It only arises when a specific objection has been taken to the Collector 's award, and it is confined to a consideration of that objection.
Once therefore it is ascertained that the only objection taken, is to the amount of compensation, that alone is the "matter" referred, and the Court has no power to determine or consider anything beyond it.
" All that the Privy Council intended to lay down was that the jurisdiction of the court in dealing with a reference under section 18 is restricted by the terms of the section, as enjoined by section 21.
That decision cannot be interpreted to mean that the court while, hearing a reference under section 18 cannot enquire into competency or otherwise of the reference made by the Collector, i.e., whether the conditions precedent to the exercise of power by the Collector, and, therefore, of the court, and in particular the condition regarding limitation, are fulfilled or not.
In Ezra vs Secretary of State for India (supra) the Privy Council, while dealing with the functions of the Collector in making an award under section 11 laid down that the functions of the Collector are not judicial but administrative and all that he does is to make an offer to the claimants with regard to the, valuation of the property to be acquired.
In that context, it did not think it necessary to repeat the reasoning of the judgment under appeal where the sections and the questions as a whole were very satisfactorily stated, and observed: "The proceedings of the Collector resulting in the 'award ' are administrative and not judicial.
The award in which the enquiry results is merely a decision (binding only on the collector) as to what sum I shall be tendered to the owner of the lands and if a judicial ascertainment is decided by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court.
" These observations, however, related to proceedings under Part II of the Act and not under Part III.
Ameer Ali and Stephen JJ.
, in delivering the judgment under appeal, explained the functions of the Collector under section 11 in Ezra vs Secretary of State for India(1) where they said: (1) ILR 274 "throughout the proceedings the Collector acts as the agents of Government for the purposes of acquisition.
He is in a sense of the term, a judicial officer, nor is the proceeding before him a judicial proceeding. he is not a Court.
The Government . at whose instance the land is being taken up is not entitled to demand a reference.
The reason of this is plain.
The Collector acts as the agent of the Government. and they are accordingly bound by the award of their agent.
. the Collector acts in the matter of the enquiry and the valuation of the land only as an agent of the Government and not as a judicial officer; and . consequently, although the Government . is bound by his proceedings, the persons interested are not concluded by his finding regarding the value of the land or the compensation to be awarded.
" On the basis of the Privy Council decision in Ezra 's case (supra), this Court in Harish Chandra vs Deputy Land Acquisition officer(1) held that the Collector in making an award acts as an agent of the Government, and that the legal character of the award made by the Collector was that of a tender or offer by him on behalf of the Government.
The Allahabad High Court has read more into the decision of the Privy Council in Ezra 's case (supra) than is there.
Merely because the Collector while making an award under section 11 or in serving a notice of the owner of the land under section 12, acts as an agent of the Government, it does not necessarily imply that while making a reference to the court under section 18, he acts in the capacity of an agent of the Government.
While it is true that the Collector in making the award under section 11 acts as an agent of the Government, he in making a reference to the court under section 18 acts as a statutory authority.
Section 18, sub section
(1) of the Act entrusts to the Collector the statutory duty of making a reference on the fulfilment of the conditions laid down therein.
The Collector, therefore, acting under section 18, is nothing but a statutory authority exercising his own powers under the section.
In the context, we may advert to the controversy that had arisen as a result of the Privy Council 's decision in Ezra 's case (supra) holding.
that the Legislature had assigned to the Collector the position of an: (1) [1962] 1 S.C.R. 676.
275 agent of the Government while making an award under section 11.
The problem that arose was that the claimants were left with no remedy where the Collector improperly declines to make a reference although the application fulfilled the requirements of section 18.
In The Administrator General of Bengal vs The Land Acquisition Collector, 24 Parganas(1) the Calcutta High Court while dealing with the question tried to draw a distinction between the functions of the Collector under Part Il of the Act land that under Part III, and observed: "It is admitted that up to and including the time of making his award the Collector was in no sense a judicial officer and that the proceedings before him were not judicial proceedings(Ezra vs Secretary of State) and however irregular his proceedings were, we cannot interfere with his award made under section 11 of the Act.
But when an application is made to the Collector requiring him to refer the matter to the Civil Court, the Collector may have to determine and, it seems to us, determine judicially whether the person making the application was represented or not when the award was made, or whether a notice had been served upon the applicant under sec.
12(2) and what period of limitation applies and whether the application is under the circumstances made within time.
The Collector 's functions under Part III of the Act are clearly distinguishable from those under Part II.
Part III of the.
Act relates to proceedings in Court.
In our opinion the Collector in rejecting the application was a Court and acting judicially and his order is subject to revision by this Court.
To hold otherwise would be to give finality to an award under sec.
11 even in cases in which the Collector acts irregularly and contrary to law and then refuses on insufficient grounds to make a reference under Part III of the Act.
The party aggrieved may be left without remedy which is implied by a judicial trial before the Judge.
" These observations were no doubt made in a different context but they bear some relevance to the point at issue.
The question at issue was whether the Collector 's order refusing to make a reference could be interfered with by the High Court under section 115 of the Code of Civil Procedure or section 107 of the Government of India Act, 1919.
The Calcutta High Court 's view that the Collector 's power was a judicial power and that the Collector was a Court subordinate to the High Court was obviously wrong but it persisted in taking (1) 276 that view to obviate injustice: Krishna Das Roy vs Land Acquisition Collector, Pabna;(1) Upendra Nath Roy vs Province of Bengal,(2) Leeth Elias Joseph Solomon vs H. C. Stork(3).
The Calcutta High Court tried to exercise its supervisory jurisdiction to provide the subject with a remedy.
The power of the Collector to make an order under section 18 was not judicial in nature, nor was the Collector a court subordinate to the High Court.
The other High Court, therefore, expressly dissented from the view of the Calcutta High Court: Abdul Sattar Sahib vs Special Deputy Collector, Vizagapatnam Harbour Acquisition, (4) Balkrishna Daji Gupta vs The Collector, Bombay Suburban,(5) Jagarnath Lall vs Land Acquisition Deputy Collector, Patna,(6) section G. Sapra vs Collector, Saugar;(7) Amar Nath Bhardwaj vs The Governor General in Council,(8) Kashi Pershad vs Notified Area of Mahoba.(9).
Even the Calcutta High Court later changed its view: Bhagwan Das Shah vs First Land Acquisition Collector,(10) Gopi Nath Shah vs First Land Acquisition Collector.(11) It was held that the functions of the Collector under section 18 were statutory or quasi judicial in nature.
The construction placed by the Allahabad High Court on section 18 of the Act is not borne out either by the plain language of the section itself or by accepted principles.
The following observations appear in Abdul Karim 's case (supra): "There is no support for the proposition that the necessary sine qua non of a reference is an application for Reference made in accordance with the provisions of section 18." "There is no provision.
which bars the Collector 's power to make a reference, if he is inclined to make one on a time barred application.
"If the Collector decides to make a reference the Land Acquisition Court cannot go behind the reference.
" "A Collector and a Collector alone has jurisdiction to make a reference and a reference by him is not a nullity merely because it is based on a time barred application.
" (1) (2) (3) (4) I.L.R. (5) ILR (6) I.L.R. Pat. 321.
(7) ILR (8) ILR (9) ILR 54 All. 282.
(10) (11) 277 "The facts regarding limitation of an application for reference are not required to be stated by the Collector in his reference, and indeed he is not bound to send the application along with the reference.
All that the Court has to do on receipt of the reference or can do is to hear it after giving notice of the date.
The word 'thereupon ' in Section 19 must be interpreted to mean "as soon as the collector makes a reference and states for the information of the Court various matters set out in Section 19." "A District Judge gets jurisdiction not from the Collector but from the receipt of a reference from him.
It is the receipt of the reference that confers jurisdiction upon him and not any finding of the Collector." "The Court has to perform a ministerial act of causing a notice to he given to the objector.
There is no provision entitling it to examine the question whether the Collector 's order was correct on the question of the application having been made within the prescribed time.
" The jurisdiction of the Court under the Act is a special one and strictly limited by the terms of section 18 to 21.
It only arises when a specific objection has been taken to the Collector 's award, and it is confined to a consideration of that objection.
A Court undoubtedly has certain jurisdiction over the reference, but it does not include any appellate jurisdiction over the Collector in respect of the reference made by him without statutory sanction.
" It is difficult to subscribe to these propositions which are not warranted by law.
In his celebrated judgment in The Queen vs Commissioners for Special Purposes of the Income Tax (supra) Lord Esher, M.R., while dealing with statutory Tribunals, divided them into two categories, namely: (i) "When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislatures has to consider what powers it will give that tribunals or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclusively to decide 278 whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
(ii) The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for other wise there will be none.
" The law as enunciated by Lord Eshar has been accepted by this Court as laying down the true principle in Jagdish Prasad vs Ganga Prasad (1) The word "require" in section 18 of the Act implies.
It carries with it the idea that the written application makes it incumbent on the Collector to make a reference.
The Collector is required to make a reference under section 18 on the fulfilment of certain conditions.
The first condition is that there shall be a written application by a person interested who has not accepted the award.
The second condition is as to the nature of the objection is which may be taken, and the third condition is as to the time within which the application shall be made.
The power of the Collector to make a reference under section 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
The conditions laid down in section 18 are 'matters of substance and their observance is a condition precedent to the Collector 's power of reference ', as rightly observed by Chandavarkar J. in re Land Acquisition Act (supra).
We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists.
It must accordingly be held that the making of an application for reference within the time prescribed by proviso to section 18.
Sub section
(2) is a sine qua non for a valid reference by the Collector.
From these considerations, it follows that the court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under section 18 complies with the conditions laid down therein so as to give the court jurisdiction (1) [1959] Supp. 1 S.C.R. 733. 279 to hear the reference.
In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim 's case (supra).
Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances.
Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen.
As observed by the Privy Council in Nusserwanjee Pestonjee vs Meer Mynoodeen Khan,(1) wherever jurisdiction is given to a court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.
If an application is made which is not within time, the Collector will not have the power to make a reference.
In order to determine the limits of his own power, it is clear that the Collector will have to decide whether the application presented by the claimant is or is not within time, and satisfies the conditions laid down in section 18.
Even if a reference is wrongly made by the Collector the court will still have to determine the validity of the reference because the very jurisdiction of the court to hear a reference depends on a proper reference being made under section 18, and if the reference is not proper, there is no jurisdiction in the court to hear the reference.
It follows that it is the duty of the court to see that the statutory conditions laid down in section 18 have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference It is ` only a valid reference which gives jurisdiction to the court, and, therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference.
In deciding the question of jurisdiction in a case of reference under section 18 by the Collector to the court, the court is certainly not acting as a court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and (1) LR (1855) 6 M.I.A. 134.
280 proper reference according to the provisions of the Act under which it is made.
That is a basic and preliminary duty which no tribunal can possibly avoid.
The court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the, proviso to sub section
(2) of section 18 of the Act, and if it finds that it was so made, decline to answer reference Beaumont C. J., delivering the judgment of the Division Bench in Mahadeo Krishna vs Mamlatdar of Alibag,(1) agreed with the view of Chandavarkar J. and observed: "It seems to me that the Court is bound to satisfy itself that the reference made by the Collector complies with the specified conditions, so as to give the Court jurisdiction to hear the reference.
It is not a question of the Court sitting in appeal or revision on the decision of the Collector; it is a question of the Court satisfying itself that the reference made under the Act is one which it is required to hear.
If the reference does not comply with the terms of the Act, then the Court cannot entertain it.
I have myself some difficulty in seeing on what principle the Court is to be debarred from satisfying itself mat the reference, which it is called upon to hear, is a valid reference.
I am in entire agreement with the view expressed by Chandavarkar J. that it is the duty of the Court to see that the statutory conditions have been complied with.
" The same view has been reiterated by almost all the High Courts except the Allahabad High Court :G. J. Desai vs Abdul Mazid Kadri(2) A. R. Banerjee vs Secretary of State,(3) K. N. Narayanappa Naidu vs Revenue Divisional Officer, Sivakasi;(4) State of Rajasthan vs L. D 'Silva,(5) Sheikh Mohommad vs Director of Agriculture, Madhya Pradesh;(6) Ramdeval Singh vs State of Bihar,(7) Anthony D 'Silva vs Kerala State;(8) Swatantra L. & F. Pct.
Ltd. vs State of Haryana,(9) and Swami Sukhanand vs Samaj Sudhar Samiti.(10) This is also the (1) TLR (2) AIR ' 1951 Bom 156.
(3) A.I.R. 1937 Cal.
(4) A.I.R. 1955 Mad.
(5) I.L.R. (6) (7) A.I.R. 1969 Pat.
(8) A.I.R. 1971 Ker. 51.
(9) I.L.R. (1974) 2 Punj.
(10) A.I.R. 1962 J. & K. 59 281 view expressed by a Full Bench of the Lahore High Court in Abdul Sattar vs Mt. Hamida Bibi.(1) The view to a contrary effect taken by the Allahabad High court in Secretary of State vs Bhagwan Prasad (supra), Panna Lal vs The Collector of Etah (supra) and State of U.P. vs Abdul Karim (supra) and by a Single Judge of the Madras High Court in Venkateswaraswami vs Sub Collector, Bezwada (supra) and by a Single Judge of the Punjab High Court in Hari Krishan Khosla vs State of Pepsu (supra) clearly do not lay down good law and these decisions are" therefore, over ruled.
It is impossible not to feel sorry for the appellant in this case, who was guilty of almost incredible folly by not filing an application for reference under section 14, sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli within the time prescribed therein, and is thus precluded from claiming what may be legitimately due to him by way of compensation.
But, the decision must depend upon the construction of the section and the law must take its course.
We trust that, as assured by its counsel, the State Government of Maharashtra will be generous enough to consider whether it should make an ex gratia payment to the appellant of a sufficient amount by way of compensation which will be Commensurate with the market value of the land acquired as on the 28th of February, 1958.
It certainly was a piece of land of some value as it was situate in the city of Aurangabad.
The result, therefore, is that the appeal must fail and is dismissed.
There shall be no order as to costs of this appeal and of the courts below.
M. R. Appeal dismissed.

summary:
The appellant 's land was acquired by the State Government under section 5 of the Hyderabad Land Acquisition Act, A notification under section 3(1) was published on the 28th February, l958 and on the 13th of January, 1962 the Land Acquisition officer, Aurangabad, made an award directing payment of compensation inclusive of 15% solatium to the appellant at the rate of 37 n.p.
per sq. yard as against his claim for payment of compensation at the rate of RS.10/ per sq. yard.
the award was communicated to the appellant on the 20th of January, 1962 and on the 5th February, 1962 he filed an application for review before the Land Acquisition officer who made a recommendation through the Collector to the Secretary to the State Government that the award be reconsidered.
But, the Collector by his order dated the 23rd of March, 1962 declined to forward the same.
On the 14th of May, 1962 the appellant applied for reference under section 14(1) of the Hyderabad Land Acquisition Act which is in pari materia with section 18 of the Land Acquisition Act, 1894, praying that the period spent in the proceedings for the review be excluded while computing the period of limitation prescribed under section 14 of the Limitation Act.
The Assistant Collector, Aurangabad, who was the Land Acquisition officer, made a reference to the District Court of Aurangabad, .without opining Whether the application was time barred or not.
The Government raised a preliminary objection the application being time barred.
the reference was incompetent.
The objection prevailed, both the District Court and the High Court.
The appellant contended that while dealing with a reference under section 14(1) of the Hyderabad Act, the court cannot go into the question that the application was time barred under section 18(2) of the and Acquisition Act, 1894 and tbereby refuse to entertain the reference.
Dismissing the appeal, the Court ^ HELD: (1) The power of the Collector to make a reference under section 18 is circumscribed by the conditions laid down therein.
These conditions are matters of substance and their observance is a condition precedent to the Collector 's power of reference.
The fulfilment of these conditions, particularly the one regarding limitation are the conditions, subject to which the power of the Collector to make the reference exists.
Therefore, the making of are application for reference within the time prescribed by proviso to section 18(2) is a sine qua non for a valid reference by the Collector.
[269G H, Z71B, 278FGl Abdul Sattar `Sahib vs Special Dy.
Collector, Vizagapatam Harbour Acquisition, ILR ; BalKrishna Daji Gupta vs The Collector,Bom 18 817SCI 79 266 bay Suburban, ILR ; Jagarnath Lall vs Land Acquisition Dy.
Collector Patna, ILR Pat. 321; section G. Sapre vs Collector Saugar, ILR ; Amar Nath Bhardwaj vs The Governor General in Council, ILR ; Kashi Parshad vs Notified Area of Mahoba, ILR 54 All 282, Bhagwan Dass Shall vs First Land Acquisition Collector, , and Gopi Nath Shah vs first Land Acquisition Collector, ; approved.
Of State vs Bhagwan Prasad, ILR 51 All. 96; State of U.P. vs Abdul Karim, AIR 1963 All.
556; Panna Lal vs The Collector of Etah, ILR [l959] 1 All.
628; Venkateshwarasawami vs Sub Collector, Bezwada, AIR 1943 Mad. 327 and Hari Krishan Khosla vs State of Pepsu, ILR [19S8] 1 Punj.
844; over ruled.
Krishna Das Roy vs Land Acquisition Collector Pabna, ; Upendra Nath Roy vs Province of Bengal, ; Leath Elias Joseph Solomon vs H. C. Stork, ; disapproved.
Pramatha Nath vs Secretary of State, ILR ; Ezra vs Secretary of State for India ILR and ILR ; Harish Chandra vs Deputy Land Acquisition officer, [1962] 1 SCR 676; and The Administrator General of Bengal vs The Land Acquisition Collector, 24 Parganas, ; referred to.
Where the tribunal derives its jurisdiction from the statute that creates it and that statute also defines the condition under which the tribunal can function, it is bound to see that such statutory conditions have been complied with.
The court functioning under the Act, being a tribunal of special juris diction, it us its duty to see that the reference made to it by the Collector under section 18 complies with the conditions laid down therein.
[279B C, D] Even if a reference is wrongly made by the Collector the court will still have to determine its validity, because the very jurisdiction of the court to hear a reference depends on a proper reference being made under section l8 and if the reference is not proper, there is no jurisdiction in the court.
to hear the reference.
The court has jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to sub section
(2) of section 18 of he Act, and if it finds that it was so made, deoline to answer reference.
[279EG] The Queen vs Commissioner for Special Purposes of the Income Tax, LR ; Jagdish Prasad vs Ganga Prasad, [1959] Supp. 1 SCR 733 and Nusserwanfee Pestonjee vs Meer Mynoodeen Khan, LR [1855] 6 M.I.A. 134; applied.
Land Acquisition Act, ILR ; Sukhbir Singh vs Secretary of State, ILR 49 All. 212; Mahadeo Krishna vs Mamlatdar of Alibag, ILR ; G. J. Desai vs Abdul Mazid Kadri, AIR l951 Bom.
156; A. R. Banerjee vs Secy.
of State, AIR 1937 Cal.
680, K. N. Narayanappa Naidu vs Revenue Divisional officer Sivakasi, AIR 195S Mad. 20; State of Rajasthan vs L. D. Silva, ILR [19S6] ; Sheikh Mohommad vs Director of Agri culture; M.P., ; Ramdeval Singh vs State of Bihar AIR 1969 Pat. 131; Anthony D ' Silva vs Kerala State, AIR l971 Ker. 51; Swatantra L. & F. Pvt. Ltd., vs State of Haryana, ILR [1974] 2 Punj.
7S; Swami Sukhanand vs Samaj Sudhar Samiti, AIR 1962 J & K 59; and Abdul Sattar vs Mt. Hamida Bibi Pak.
L.R. l95O Lah.
568 (FB); approved.
267 State of Punjab vs Cst.
Qaisar Jahan Begam & Anr. ; , and A State of U.P. vs Abdul Karim, [CA No. 2434/1966 decided on .
3 9 1969] referred to.
Secretary of State vs Bhagwan Prasad, ILR 52 All. 96; State of U.P. vs Abdul Karim, AIR 1963 All. 556; Pannalal vs True Collector of Etah, ILR 11959] 1 All.
628; Venkateswaraswami vs Sub Collector, Bezwada, AIR 1943 Mad. 327; and Hari Krishna Khosla vs State of Pepsu, ILR [1958] 1 Punj. 8S4; over ruled.


judgement:
N: Criminal Appeal No. 451 of 1978.
Appeal by Special leave from the Judgment AND order dated S G 78 of the Bombay High Court in Criminal Application No. 15 of 1978.
Ram Jethmalani Ashok Desai, section J. Thakore, K. R. Krishnamurthy, Sri Narain for M/s J. B. Dadachanji and Co. for the Appellants.
H. R. Khanna and M. N. Shroff for the State of Maharashtra.
P. N. Lekhi, Girish Chandra and Miss A. Subhashini for Union of India.
The judgment of the Court was delivered by SEN, J.
This appeal by special leave directed against a judgment of the Bombay High Court dated 5th June, 1978, dismissing a petition filed by the appellant under Article 226 of the Constitution, by which he prayed for the issue of a writ of habeas corpus, and the connected petition under Article 32 of the Constitution by his wife for the issuance of a writ of habeas corpus for his release raise a common question and therefore they are disposed of by this common judgment.
A vessel known as 'Jamnaprasad ' BLS 61 valued at one lac of rupees was found grounded in a creek off the coast near village KimKhadi on the 20th August, 1977.
On receipt of information regarding the grounding of the vessel the Customs officers, Hansot, visited the spot and examined the contents of the cargo aboard the aforesaid grounded vessel.
It was laden with 12 rolls of stainless steel sheets each weighing one tonne, valued at Rs. 15,44,400/ .
The aforesaid vessel and the contraband goods found aboard it were seized by the 318 Customs officers for action under the .
They made inquiries about the whereabouts of the crew members of the aforesaid vessel 'Jamnaprasad ' and were successful in apprehending them and the others involved.
Intelligence gathered by the Customs officers clearly indicate that the appellant was the main person connected with the smuggling of the aforesaid cargo of contraband goods, namely 12 stainless steel sheets recovered from vessel 'Jamnaprasad ' BLS 61.
The appellant, who ostensibly carries on the business of manufacturing, sale and export of Umrao brand wick stoves, spray pumps, cash and jewellery metal boxes, in the name and style of "Umrao Industries" and has his factory for the manufacture of the aforesaid items at village Kim, has been detained by an order of the Addl.
Secretary to the Government of India, Ministry of Finance (Department of Revenue), New Delhi, dated the 1st of February, 1978 under sub section (1) of section 3 of the , with a view to prevent him from smuggling goods.
He was arrested and placed under detention on the 5th of February, 1978, and is at present detained in the Central Prison, Bombay.
At the time of his arrest, the appellant was served with the order of detention together with the grounds of detention with full particulars on which the order of detention was based.
On 15th February, 1978 the case was referred by the Government to the Advisory Board as required under section 8(b) of the Act to enable the Board to make its report under sub cl.
(a) of cl.
(4) of Article 22 of the.
Constitution.
The appellant made two representations against his detention to the Government, one dated the 4th and the other dated the 6th of March, 1978, which were received by the Government on the 7th and 8th March, 1978, respectively.
The Advisory Board had, in the meanwhile addressed a letter dated 21st of February, 1978, to the Government intimating that the case would be taken up on the 13th March, asking that the detenu be produced at the hearing and the Government should also forward the representation, if any, made by the appellant, together with the comments/decision of the Government, if any.
On the 13th of March, the appellant was accordingly produced before the Advisory Board.
The Government placed before the Board the two representations made by the appellant together with its comments.
The appellant was heard in person; the Government 's point of view was placed before the Advisory Board by the Deputy Secretary to the Government, Ministry of Finance, Department of Revenue, who was accompanied by the Assistant Collector.
Customs, 319 Bulsar.
On the 16th of March, 1978, the appellant sent a telegram to the Advisory Board supplementing his oral submissions.
The detaining authority rejected the representations made by the appellant on 1 8th of March, 1978.
On 10th of April, 1978 the Advisory Board submitted its report giving its opinion that there was sufficient cause for the detention.
The Government accordingly confirmed the order B, of detention.
In the light of the circumstances appearing, it was conceded that the grounds for detention set out the facts with sufficient degree of particularity and that it did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority.
The order of detention was, therefore, not challenged on the ground that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or for the making of any effective representation.
It is argued that the detention of the appellant was, however, bad for two reasons namely, (1) the detention was in violation of the constitutional right guaranteed under Article 22(5), inasmuch as the Government withheld consideration of the representations made by the appellant till after the hearing before the Advisory Board, and (2) the impugned order of detention is bad due to non application of mind inasmuch as the facts alleged clearly and distinctly show that the appellant did not himself smuggle the contraband goods.
Both the contentions are, in our opinion, wholly devoid of substance.
It is urged that the Government was under a constitutional obligation to consider the representations before the hearing before the Advisory Board.
There is no quarrel with the principle but the difficulty is about the application of the principle on the facts and circumstances of the present case.
In fact, the Government has to reach its decision uninfluenced by the opinion of the Advisory Board.
It is, however, urged that the Government; in This particular case, had not made up its mind till the hearing before the Advisory Board on 13th March, 1978, and therefore, its decision reached on the 18th March was not that independent application of mind that the law requires, because by then the proceedings had: begun before the Board and the Government must have been influenced in its decision.
There is no warrant for the submission that the disposal of the 1 representations made by the Government, in the instant case, was not in conformity with Article 22(5) of the Constitution.
First, we shall 320 deal with the law on the subject before dealing with the factual aspect.
Article 22(5) of the Constitution enacts: "When any person is detained in pursuance of an order made under any law providing for preventive detention, 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." In Abdul Karim & ors.
vs State of West Bengal(t) this Court interpreted the language of Article 22(5) and observed: "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.
" It was further observed: "In our opinion, the constitutional right to make a representation guaranteed by article 22(5) must be taken to in elude by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made.
The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality.
It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives! of the Secretariat till the time or occasion for sending it to the Advisory Board is reached.
If the view point contended for by the respondent is correct, the constitutional right under article 22(5) would be rendered illusory.
" Thus the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other.
(1) ; , 321 In Pankaj Kumar Chakrabarty & ors.
vs State of West Bengal(1), this Court again considered cl.
(5) of article 22 and enunciate the Following principle: "In our view, it is clear from cls.
4 and S of article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the board before it gives its opinion.
If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu.
Thus, whereas the Government considers the re presentation to ascertain whether the order is in conformity with its power under the relevant law, the board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention.
" 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.
The nature of the dual obligation of the Government and the corresponding dual right in favour of the detenu under article 22(5) was reiterated by this Court in Khairul Haque vs The State of West Bengal(2) in these words: "It is implicit in the language of article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
There was, therefore, no reason for the Government to wait for considering the petitioner 's representation until it had received the report of the Advisory Board.
As laid down in Sk.
Abdul Karim & ors.
vs State of West Bengal (supra), the obligation of the appropriate (1) [1970] I SCR 543.
(2) W.P. No. 246 of 1969, decided on September 10, 1969.
322 Government under article 22(5) is to consider the representation made by the detenu as expeditiously as possible.
The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board.
The fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean That such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.
" The same procedural safeguards were reaffirmed by this Court in Jayanarayan Sukul vs State of West Bengal (1) and Dhurus Kanu vs State of West Bengal.(2) The High Court in this case, and the Delhi High Court in Thaneshwar Singh vs The Union of India & ors.(3) appear to be labouring under misconception that merely because there is no express provision in s.8(b) of the placing an obligation to forward the representation made by the detenu along with the reference to the Advisory Board, unlike those contained in s.9 of the and s.10 of the Maintenance of Intemal Security Act, 1971 there is no obligation cast on the Government to consider the representation made by the detenu before forwarding it to the Advisory Board.
We have no doubt in our mind that when liberty of the subject is involved, whether be it under the or the or the , it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
The relevant Articles of the Constitution having a bearing on this question is article 22.
Two of these safeguards, which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are tor be found in article 22(5) of the Constitution.
(1) ; (2) AIR 1975 SC 571.
(3) Cr W. No 6 of 1978 decided on September 25, 1978 (Delhi High Court) 323 When any person is detained in pursuance of an order made under any law providing for preventive detention, 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 representation against the order, These procedural safeguards are ingrained in our system by judicial interpretation.
The power of preventive detention by the Government under the , is necessarily subject to the limitations enjoined on the exercise of such power by Art 22(5) of the Constitution.
as constructed by this Court.
Thus, this Court in Khudiram Das vs The State of West Bengal & ors (1) observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, 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 a representation against the order of detention.
These are the barest minimum safeguards which must be abserved before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.
" This has always been the view consistently taken by this Court in a series of decision.
It is not necessary to burden this judgment with citations of these decisions.
The view to the contrary taken by the Bombay and the Delhi High Courts that these procedural safe guards are not available to a person detained under the is clearly wrong.
The Constitution is all pervasive.
All laws made by a State must, therefore, yield to constitutional limitations and restrictions.
The citizen 's right to personal liberty is guaranteed by Article 22 irrespective of his political beliefs, class, creed or religion.
This Court has forged certain procedural safeguards in the case of preventive detention of citizens.
These safeguards might be designated as a regulative 'Postulate of Respect ', that is, respect for the intrinsic dignity of the human person.
(1) ; 324 In pursuit of the idealistic considerations as to the inherent worth and dignity of men, the Parliament, in the light of the experience gained recently, repealed the .
The repeal of that Act is necessitated to promote the citizen 's right to personal liberty, which is a fundamental and pervasive theme of the Constitution, to guard against the preventive detention of a person for political beliefs.
This was also in accord with the recommendation of the Law Commission in its Forty seventh Report, p. 2, para 1.4, that preventive detention should be retained only for preventing anti social and economic offences.
The repeal of the and the retention of the , however, does not imply that preventive detention, which is an anachronism in a democratic society like ours, can be freely used, without any power of judicial review and without any checks and balances, against persons engaged in anti social and economic offences.
This assumption by the two High Courts ignores centuries of judicial lawmaking when it denies the competence of courts to weigh competing social interests.
The courts have always viewed with disfavour the detention without trial whatever be the nature of offence.
The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government.
To put it less euphemistically, the alternative is the renunciation of judicial review itself, and acceptance of the intolerable principle that the Government is the judge of its own powers.
So, this Court observed in Prabhu Dayal Deorah vs District Magistrate, Kamrup: "We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading, the personal liberty of a citizen, except in accordance with the procedure established by the constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of procedure.
Observance of procedure has been the bastion against wanton assaults on personal liberty over the years.
Under our Constitution, the only guarantee of personal liberty for person is that he shall not be deprived of it except in accordance with the procedure established by law.
The need today for maintenance of supplies and services essential to the community cannot be over emphasized.
There will be no social security without maintenance of adequate supplies (1) ; at 22 23. 325 and services essential to the community.
But social security is not the only goal of a good society.
There are other values in a society.
Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty.
It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty.
" The constitutional safeguards embodied in article 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions of section 8(b) of to prevent any arbitrary executive action.
In the instant case, however, there was no infraction or the constitutional safeguards enshrined in article 22(5).
We are satisfied that there was no failure on the part of the Government to discharge its obligation under article 22(5).
The records of the Government as well as of Advisory Board have been placed before us It clearly shows that the Government had forwarded the two representations made by the appellant on the 4th and 6th of March, 1978, alongwith its comments in writing together with a forwarding letter on the 9th of March, 1978.
From a bare perusal of the forwarding letter and the accompanying para wise comments in writing, it is amply clear that the Government had already formed an opinion that the order of detention was in conformity with its powers under the law.
It cannot, therefore, be said that the Government in rejecting the representations made by the appellant by its order dated 18th March, 1978 was, in any way, influenced by the views expressed by the Board.
Though, the Government was represented at the hearing by the Deputy Secretary, Ministry of Finance, Revenue Department, and the Assistant Collector, Customs, Bulsar, it is nobody 's case that the Advisory Board had at the hearing indicated its mind as to whether there was sufficient cause for detention.
On the contrary, the telegram sent by the appellant on the 16th March, 1978 ex facie shows that the Board had not expressed its mind at the hearing.
It is, therefore, irrefutable that the Government had taken a decision uninfluenced by what transpired at the hearing before the Board.
The matter was dealt with by the Government at all levels, and the detaining authority had come to an independent conclusion of his own by applying his mind to the facts and circumstances of the case.
Here, similarly the Board by its report dated the 10th April, 1978 independently arrived at its opinion that there was sufficient cause for detention .
326 Learned counsel for the appellant next strenuously contends that there was non application of mind on the part of the detaining authority.
It was submitted that though the order for detention was made with a view to preventing the appellant from smuggling goods, i.e., under cl.
(i) of sub section (1) of section 3 of the Act, his case on the facts revealed in the grounds for detention clearly fell under cl.(ii) of sub s.(1) of section 3, as he could not, by any stretch of imagination, be treated to be a smuggler but he was only an abettor.
May be, he instigated, organised and facilitated the act of smuggling, but it is said, the actual smuggling of the contraband goods, was by others.
His act, there fore, constituted abetment of smuggling for which there is a separate clause under section 3(i)(ii).
The order of detention cannot, therefore, be justified under s.3(1) (i).
Applying a wrong clause, it is urged, shows non application of mind.
We are afraid, the learned counsel is stretching the argument too fine.
Section 3(1) of the Act, so far material reads: 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 em powered 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 em powered 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;" There is, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under section 3 (1) of the Act.
Nonetheless, the term "smuggling ' as defined in section 2(e) of the Act has the same meaning as in section 2(39) the , which, when read with section 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling or contraband goods as well as all persons dealing in such goods, etc.
Though the provisions of cls.
(i) and (ii) of sub s(1) of section 3 of the Act may operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given 327 to the term 'smuggling in section 2(e) of the Act, with a view to broaden the scope of preventive detention.
Sub section (1) of section 3 of the Act provides for the different grounds of detention.
Clause (i) relates lo smuggling of goods, clause (ii) relates to abetting the smuggling of goods, clause (iii) relates to engaging in transporting or concealing or keeping smuggled goods, clause (v) relates to harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.
It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention i.e., to take in all such activities which result in accomplishment of smuggling of contraband goods.
In a case like the present, where there is a widespread network employed by a person, it cannot be said that he is not engaged in the act of smuggling.
It is accepted before us that the appellant.
instigated, organised and facilitated the smuggling of the contraband goods in question.
Not only that but he is really the person to whom the goods belonged.
The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel.
He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of the appellant.
It is clear that Kunji Mohmed, in whose name the vessel 'Jamnaprasad ' BLS 61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40,000/ .
It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew.
It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977.
He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for his over stay.
During his period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs.
It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo.
The appellant told them that 328 he would go to Bombay and send Siddiq Hussain Sup.
It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine.
After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad.
There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai.
In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel.
The vessel again left Sarjah port but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather.
After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded.
It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed.
Then lt entered the aforesaid creek, some 20 kms.
away from the factory, where it ran aground due to damage to the rudder.
During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS 61 and a dairy containing telephone Nos.
395279, 375943 and 361973 and also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found.
The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay.
The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant.
Two more trunk call ticket Nos.
L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone.
The trunk call booked from telephone No. 91 okha was to the appellant 's office telephone No. 395279 in Bombay with P. P. Babubhai.
Obviously, the over stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15,44,400/ .
The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling pro pensities of the appellant.
329 It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters.
It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor.
Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of section 3(1) of the Act.
Thus, there was due application of mind.
It is manifest that the appellant could in the instant case be detained under sub s.(1) of section 3 of the both under clauses (i) and (ii) thereof.
In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl.
(i) section 3(1) of the Act was properly invoked.
In the result, both the appeal as well as the writ petition must fail and are dismissed.
There shall be no order as to cost P.B.R. Appeal and Petition dismissed.

dataset_name: IN-Abs

summary:
The appellant was detained under section 3(1) of the Conservation of Foreign Exchange an(1) Prevention of Smuggling Activities Act, 1974 with a view to prevent him from smuggling goods.
Two representations made by him against his detention were forwarded by the Government to the Advisory Board with its comments.
He was later produced before the Advisory Board.
On receipt of the Advisory Board 's report that there was sufficient cause for detention, the order of detention was confirmed by the Government.
The High Court dismissed his petition under article 226 of the Constitution.
In appeal the appellant challenged the order of detention on the ground that (1) it was in violation of the right guaranteed under article 22(5) inasmuch as the Government withheld consideration of the representations made by him till after the hearing by the Advisory Board, and (2) the impugned order of detention was bad due to non application of mind of the detaining authority inasmuch as the facts alleged clearly and distinctly showed that the appellant did not himself smuggle the goods.
Dismissing the appeal, ^ HELD: (1)(a) There was no warrant for the submission that the disposal of the representations made by the Government was not in conformity with article 22(5) of the Constitution.
[319H] (b) It is well settled that in case of preventive detention of a citizen, Art 22(5) of the Constitution enjoins that the obligation of the appropriate Government to afford the detenu an 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 material, to the Board to.
enable it to form its opinion and to obtain such opinion.
[321E] Abdul Karim & ors.
vs State of West Bengal; , ; Pankaj Kumar Cluakrabarly & ors.
vs State of West Bengal; , , Khuairul Haque vs The State of West Bengal W. P. No. 246 of 1969, decided on September 10, 1969, Jayanarayan sukul vs State of West Bengal; , Dhurus Kanu vs State of West Bengal, AIR 1975 SC 571; referred to.
(c) The constitutional safeguards embodied in article 22(5) must be read into the provisions of section 8(b) of the Conservation of Foreign Exchange and Preventional of Smuggling Activities Act, 1974 to prevent any arbitrary executive action.
Merely because there is no express provision in section 8(b) of the Act placing an obligation to forward the representation made by the detenu along 316 with the reference to the Advisory Board unlike the provisions contained in section 9 of the and section 10 of the , it cannot be said that there is no obligation cast on the Government to consider the representation made by the detenu before forwarding it to the Advisory Board.
[325C; 322D E] Thaneshwar Singh vs The Union of India & ors.
, Cr. W. No. 6 of 197 decided on September 25, 1978 (Delhi High Court); over ruled.
(d) When the liberty of the subject is involved, whether it is under the or the or the , it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law had been scrupulously observed and that the subject was not deprived of his personal liberty otherwise than in accordance with his.
[322 G] (e) When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the ground on which the order had been made and shall afford him the earliest opportunity of making representations against the order.
These procedural safeguards are ingrained in our system of judicial interpretation.
The power of preventive detention by the Government under the Act is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) of the Constitution.
[323A] Khudiram Das vs The State of West Bengal & ors. ; referred to.
In the instant case there was no infraction of constitutional safeguards enshrined under article 22(5) and there was no failure on the part of the Government to discharge its obligations under that article.
Quite clearly the Government had forwarded the appellant 's two representations alongwith its comments to the Advisory Board.
A perusal of the comments of the Government make it clear that the Government had already formed an opinion that the order of detention was in conformity with its powers under the law.
It cannot be said that in rejecting the appellant 's representations the Government was influenced by the views expressed by the Board.
At the hearing the Board had not indicated its mind as to whether there was sufficient cause for detention.
It is, therefore, irrefutable that the Government had taken a decision uninfluenced by what transpired at the hearing before the Board.
The matter was dealt with by the Government all: all levels, and the detaining authority had come to an independent conclusion of its own by applying its mind to the facts and circumstances of the case.
[325D H] (2)(a) The intention of the legislature in enacting section 3(1) was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct and both are separate grounds for detention i.e. to take in all such activities which result in accomplishment of smuggling of contraband goods. 'the term 'smuggling ' as defined in section 2(e) of the Act read with section 2(39) and s 111 of the Customs Act, is wide enough to include and make liable not only the actual smugglers but also persons abetting the smugglers, of contraband goods as well as all persons dealing with any such goods.
A wider meaning is given to the term 'smuggling ' in section 2(e) of the Act with a view to broaden the scope of Preventive detention.
In a case like the present where a wide 317 spread network is employed by a person, it cannot be said that he was not Engaged in the act of smuggling.
The appellant was not only the person who instigated, organised and facilitated the smuggling of the contraband goods but he was really a person to whom the goods belonged.
The facts set out in the ground of detention make it clear that the appellant was the person who was actually engaged in the act of smuggling of contraband goods into the Indian Customs waters For all intents and purposes the appellant was the actual smuggler and not a mere abettor His " activities were such that his case would be covered by both clauses (i) and (ii) of section 3(1) of the Act.
[326G H; 327A B] (b) Assuming that the appellant was merely an abettor in the smuggling of contraband goods on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself included in actual smuggling of the balance of contraband goods by remaining behind in the foreign country.
[329D]