judgement:
ew policy which is in vogue.
The licensing period is for two years commencing from 1.4.1991 to 31.3.1993.
Admittedly, the petitioner had not submitted any tender in terms of the new policy for manufac ture of rectified spirit or liquor for grant of D 2 and D 1 licences, the licences have already been granted to the third parties and they are not before this court.
Any direc tion in this regard would not only interfere with the li cences granted to them, but also create a hiatus in opera tional system.
This Court cannot direct the State Government to create a new policy of receiving private applications or to direct the Commissioner of Excise to carve out a new policy area and to grant licence to the petitioner.
It is not possible to give such a direction for the reasons that the petitioner, admittedly, did not offer himself as a candidate for consideration when tenders were called for licensing period commencing from 1.4.1991.
As regards the Government Distilleries at Ratlam is concerned for grant of D 1(s) licence, as requested for, we have no sufficient material whether any arrangements have 494 been made to any other parties for supply area in that regard.
Under these circumstances, it is extremely difficult to accede to the request made by the counsel for the peti tioner.
[498E 499A] & ORIGINAL JURISDICTION: Writ Petition No. 729 of 1988.
(Under Article 32 of the Constitution of India).
R.F. Nariman and P.H. Parekh for the Petitioners.
V.N. Ganpule.
V.M. Tarkunde, S.K. Agnihotri, S.K. Sinha, Rajinder Narain.
R.S. Singh and Rameshwar Nath for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
In this writ petition under article 32 of the Constitution, the petitioner, a partnership firm seeks reliefs of mandamus to direct the State Government and the Commissioner of Excise of M.P. to allow the petitioner to set up a distillery pursuant to the cabinet policy dated December 30, 1984 and to grant D 2 licence; to declare the letter dated February 8, 1982 as unconstitutional, illegal and of no effect in law and to direct the respondent Nos. 1 and 2 to grant a licence to manufacture potable Alcohol within the state of Madhya Pradesh and to grant D 1 licence to supply country made liquor, etc.
This case has behind it chequered history which is necessary to adumbrate.
In the State of M.P. vs NandlaI Jaiswal & Ors., ; this court considered the legality of the policy, the subject matter in the writ petition.
It was held therein that nine distilleries in the State of Madhya Pradesh in cluding the one at U j jain were set up on the lands and buildings belonging to the Government.
The plants and ma chinery therein initially were of the Government, but in course of time the licensees installed or replaced the plants and machinery and became the owners.
The petitioner and its predecessors had licence for the distillery at Ujjain for well over 40 years to manufacture rectified spirit.
The last of the licences held by the petitioner was for the years April 1, 1976 to March 31, 198 1.
The period of licence was at that time for five years.
The practice as per the provisions of the M.P. Excise Act 1915 for short 'the Act ' and M.P. Distilleries, Breweries and Warehouses Rules for short 'the rules ' issued in exercise of the powers under section 62 was to call for the tenders to manufacture and supply the rectified spirit or denatured spirit, spirit (country made) to the retail vendors 495 within the area attached to the distillery.
Rajdahani Dis tillers Corporation, for short 'RDC ' became the successful tenderer for the licensing period starting from April 1, 1981 to March 31, 1986.
The petitioner challenged in Misc.
Petition No. 701/81 in the M.P. High Court under article 226.
Initially stay was granted, but later it was vacated on August 20, 1981 Licence was granted for the period starting from August 25,1981 to March 31, 1986 to RDC and the dis tillery, plant and machinery at Ujjain was handed over to RDC on August 28.
198 1.
Thereafter the petitioner filed another writ petition No. 169/82 on March 16, 1982 for redelivery Of the plant and machinery and the warehouses and other consequential reliefs.
That writ petition was dis missed by the High Court against which Civil Appeal No. 5483/83 was filed, which is just now disposed of.
The peti tioner had applied for grant of licence on February 19, 1982 and he reiterated his request in number of reminders includ ing one oh November 3, 1986.
In the interregnum the Govt.
changed the policy by a Cabinet Sub Committee policy deci sion dated December 30, 1984 under which they decided to grant licence to the existing licensees of the distilleries and that they should construct the factories at their ex penses on the land allotted by the State Govt.
or acquired and allotted by the State Govt.
and that they shift the business to new factories and the licence would be for a period of five years.
Calling in question of that policy several writ petitions including the one by the petitioner were filed in the M.P. High Court.
The Division Bench partly allowed the writ petition and quashed part of the policy decision.
Against it appeals and special leave petitions were filed by the State and the unsuccessful petitioners including the petitioner.
It was disposed of by this court reported in Jaiswal 's case.
During the hearing of the writ petition, the Attorney General of India conceded that if the petitioner makes any application for grant of licence it would be considered by the State Govt.
and be disposed of quickly.
That concession was noted and the argument was founded thereon to hold that the Govt.
did not intend to create any monopoly in favour of the existing licensees.
This court upheld the policy of the Govt.
and allowed the appeals and dismissed the special leave petitions of the petitioner and other.
Pursuant thereto the petitioner made an application on December 25, 1987 followed by several reminders.
Ultimately the State Govt.
rejected the petition by letter dated February 8, 1988, which is impugned in this writ petition.
Under section 13 of the Act, the State Govt. is empowered to grant licence to manufacture, possession and sale of recti fied spirit and the liquor in the distilleries or the brew eries.
Under section 14 and Rule XXII the licensee should also have licence to establish distillery to distil 496 rectified spirit or denatured spirit or liquor and a ware house wherein any intoxicant be deposited and kept without payment of duty, but subject to payment of the fee to the State Govt.
as it may direct.
No intoxicant shall be sold by operation of section 17, except under the authority and subject to the terms and conditions of the licence granted in that behalf.
Rule XXII provides the method of disposal of the licence which reads thus: "XXII.
Disposal of licences (1) Licence for the manufacture or sale of intoxicants shall be disposed of by tender.
auction.
fixed licence fee or in such other manner as the State Govt.
may, by general or special order, direct.
Except where otherwise prescribed, licence shall be granted by the Collector or by an Officer authorised by him in that be half." Rule III to V of the Distillery and Warehouse Rules also made inter alia under sub section 2(h) of section 62 deal with the subject of grant of ' licence and provide, in the follow ing terms, for different kinds of licences which may be issued, viz., licences in Forms D 1, D 1(s) and D 2: "III.
Subject to the sanction of the State Government, the Excise Commissioner may grant a licence in Form D 1 and Form D 1(s) for the wholesale supply of country spirit to retail vendors.
The Collector may issue, on payment of a fee of Rs. 1000 a licence in Form D 2 for the construction and working of a distillery to any person to whom a wholesale supply licence has been issued.
V. Subject to sanction of the State Government the Excise Commissioner may issue a licence in Form D 2 for the construction and working of a distillery on payment of a fee of Rs. 1000.
" The State Govt.
rejected application of the petitioner on three grounds.
namely, (1) that the petitioner requested to issue a licence at the old place at Ujjain Distillery which is no longer available; (2) present policy of the State and the Central Govt.
was to discourage manufacture of liquor for drinking purpose, except for molasses.
(3) 497 However, if it is manufactured from other raw materials other than the Mahua, his application would be considered.
If the petitioner makes an application for establishment or manufacturing denatured spirit at other places and if they produce a No Objection Certificate from Central Government and Environmental Department, his application would be considered.
The contention of Sri Nariman, the learned counsel for the petitioner, is that the State Govt.
having made solemn undertaking before this court and the arguments were heard in Nandlal Jaiswal 's case on the basis that the application of the petitioner would be considered and disposed of it was with an intention to grant licence to the petitioner, but rejection is contrary to the undertaking given to this court.
It was also contended that the petitioner have a long, clean and commendable history of 40 years in manufac turing country made liquor in the distillery and supply thereof within the area attached to U j jain Distillery.
The State Government 's non grant of licence thereto is only a rouse to defeat the fundamental rights of the petitioner to establish and trade in the manufacture and distribution of the liquor in terms of the provisions of the Act and the rules and the instructions of the Govt.
in that regard.
Having given the licence to the other distilleries, the petitioner being similarly placed, non grant thereto is arbitrary, discriminatory and violating article 14 of the Constitution.
It was also further contended that the peti tioner if for any reason cannot be granted D 2 licence at U j jain, D 2 licence may be granted on Government distillery at Ratlam and supply area attached to it under D 1(s) so as to do complete justice to the petitioner.
It was resisted by Sri Ganpule, learned senior counsel for the State contending that pursuant to the undertaking given to this court, the application was considered and found not feasible to grant the licence to the petitioner due to grounds stated in the impugned order which are relevant and existant being in conformity with the change of the policy, and so this Court cannot interfere and may not issue the writ as prayed for.
Though rule nisi was ordered on March 17, 1989, despite notice of the Registry dated April 24, 1989, neither copies of the writ petition, nor the requisite process fee for service of the rule nisi on the respondents were deposited in the court.
As a result the rule nisi was not issued to the contesting respondents Nos. 3 to 10.
Along with the connected appeal which is just disposed, Sri Tarkunde, the learned senior counsel appearing for RDC which was impleaded as 5th respondent to whom licence was given for Ujjain Distillery, contended that unless there is cut in the supply area of the operation of the existing 498 licences and a separate supply area is carved out, no D 2 licence could be issued to the petitioner.
The licensing period of 1986 to 1991 had expired by efflux of time.
New policy is in vogue for the succeeding licensing period of 199 1 to 1993.
The licences having been granted to the respective persons, who are not represented in this court, the relief asked for cannot be granted in their absence.
In our view there is force in the contentions of the respondents.
The only question for consideration is whether it is a fit case for interference by this court due to the aforestated sequence of events.
Undoubtedly the learned Attorney General assured this court that the application, if filed by the petitioner, would be considered.
Obviously in accordance with the provisions of the Act and the rules.
The policy of 1984 was upheld by this court under which nine distilleries were granted D 2 licences to manufacture recti fied spirit and liquor and to supply to the retailers under D 1 licence within the area attached to each of the distill eries.
The petitioner admittedly made application to grant licence to manufacture country made liquor, obviously with Mahua flowers or molasses at Ujjain.
The RDC established new distillery at Ujjain in terms of the new policy, at its expense, and is manufacturing and supplying the liquor.
It vacated the old distillery at Ujjain which we are informed that the building is still existing.
RDC had manufactured the spirit and country made liquor in terms of D 2 licence and supplied in terms of D 1 licence.
The period of the licence also expired by efflux of time.
Again there is change in the new policy which is in vogue.
The licensing period is for two years commencing from April 1, 199 1 to March 31, 1993.
Admittedly, the petitioner had not submitted any tender in terms of the new policy for manufacture of rectified spirit or liquor for grant of D 2 and D 1 licences, the licences have already been granted to the third parties and they are not before this court.
Any direction in this regard would not only interfere with the licences granted to them, but also create a hiatus in operational system.
This court cannot direct the State Govt.
to create a new policy of receiving private applications or to direct the Commissioner of Excise to carve out a new supply area and to grant licence to the petitioner.
It is not possible to give such a direction for the reasons that the petitioner, admittedly, did not offer himself as a candidate for consideration when tenders were called for licensing period commencing from April 1, 1991.
As regards the Govt.
Distilleries at Ratlam is concerned for grant of D 1 (S) licence as requested for, we have no sufficient material whether any arrangements have been made to any other parties for supply area in that regard.
Under these circumstances, it is extremely difficult to accede to the request made by the 499 counsel for the petitioner, Though the petitioner had estab lished long career in the field to manufacture, supply and distribution of intoxicants in the State of Madhya Pradesh for about 40 years, we cannot issue any direction as asked for.
Under these circumstances we are constrained to dismiss the writ petition, but without costs.
Y.L. Petition allowed.

summary:
The petitioner and its predecessors had licence for distillery at Ujjain to manufacture rectified spirit and the last of such licence held by the petitioner was for the period 1.4.1976 to 31.3.1981.
For the licensing period commencing from 1.4.1981 to 31.3.1986, the petitioner was unsuccessful and the licence was granted in favour of Rajd hani Distillery Corporation.
The petitioner impugned the same but failed both before the High Court as also before the Court.
Thereafter, the petitioner filed a writ petition in the High Court claiming restitution of the distillery but failed and an appeal against the High Court 's order was preferred before this Court, which has been disposed of whereby this Court has declined to grant restitution but directed that the petitioner should move an application before the State Government to have the value of the plants licence on February 19,1982 and reiterated his request by number of reminders including the one in November 3, 1986.
In the interregnum, the Government policy was changed by a cabinet sub committe policy decision dated 30.12.1984, whereby they decided to grant licence to the existing licen sees of the distilleries and that they should construct the factories at their expenses on the land allotted by the State Government or acquired and allotted by the State Government and that they shift the business to new factories and the licence would be for a period of five years.
Several writ petitions including the one by the petitioner were filed in the High Court challenging the policy.
The High Court quashed part of the policy decision.
Against that order, petitions were filed by the State and the unsuccess ful petitioners including the petitioner in this Court.
Those petitions were disposed of by this Court by its judg ment in the case of State of M.P.v.
Nandlal Jaiswal and Ors.
, ; The court upheld the validity of the Government policy.
During the course of the arguments, the Attorney General of India conceded that if the petitioner makes an application for grant of licence, it would be considered by the Govern 493 ment and disposed of quickly.
Pursuant thereto the petition er made an application on December 25, 1987.
The State Government rejected the application by letter dated February 8, 1988, which among other things is impugned in this peti tion under Article 32 of the Constitution.
It is contended on behalf of the petitioner that the intention behind the solemn undertaking given by the State in Nandlal Jaiswal 's case clearly showed that the intention was to grant the licence to the petitioner rejection is contrary to the undertaking and violating the fundamental right of the petitioner to establish and trade in the manu facture and distribution of the liquor; further it is dis criminatory is as much as licences have been issued to others similarly placed.
Alternatively, it is contended that if it is not found feasible to grant licence for Ujjain, the same be granted for Ratlam Distillery.
Counsel for the State urged that it has not been found feasible to grant licence to the petitioner due to grounds stated in the order which are in confermity with the change in policy and the court should not interfere.
On behalf of Rajdhani Distillery Corpn.
it was urged that unless there is cut in the supply area of the operation of the existing licences and a sepa rate supply area is carved out, no licence could be issued to the petitioner; that new policy is in vogue for the succeeding licensing period of 1991 to 1993, and the li cences having been issued to persons, who are not represent ed in this court, the court should not grant the relief asked 1or in the writ petition.
Dismissing the writ petition, this Court,


judgement:
: Criminal Appeal Nos 485 & 486 of 1991.
From the Judgment and Order dated 31.8.
1990 of the Bombay High Court in Crl.
W.P. Nos. 530 and 53 1 of the 1990.
R.K. Jain and V.V. Vaze (For the State), Maqsood Khan, R.S.M. Verma, S.A. Syed, M.T. Khan and A.S. Bhasme (For the State) for the Appellants.
A. Subba Rao, A.D.N. Rao and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
The events leading to the filing of these two appeals, briefly stated, are that on the afternoon of March 25, 1990, the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 3.45 p.m. driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his compa 448 nion.
On search of the vehicle 1400 gold bars were recov ered.
The statements of the two appellants were recorded and thereafter they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, Bombay.
The Chief Metropolitan Magistrate granted remand.
While the matter was under investigation a proposal was made to the first respondent.
Secretary (Preventive Detention), Govern ment of Maharashtra for invoking the powers conferred on him by Section 3 of the (hereinafter called 'the Act ').
On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants.
These orders were passed under sub section (1) of section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting, keeping and concealing the same.
After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed.
By clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Gov ernment; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired.
It was further stated that the representation to the State Government should be addressed to the Minister of State for Home Mantralaya, Bombay.
They were informed that to facili tate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration.
It was further stated that ' the representation to the Central Government may be ad dressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail.
In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman, Advisory Board constituted under the Act and may be forwarded through the Superintendent of Jail.
On the basis of this advice contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail, Arther Road Central Prison, Bombay.
It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation.
That paragraph reads as under: "I would also like to request you that the copies of these representations be sent to the State and Central Govern 449 ment for their kind consideration in view of the above facts so as to revoke and/or set aside my order of detention and order my release forth with.
" It is not disputed that the representation was considered and rejected by the State GoVernment.
It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders.
As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petitions Nos.
530 31 of 1991 in the High Court of Bombay under Article 226 of the Constitution.
The High Court on a detailed consideration of the various contentions raised by the appellants dismissed both the writ petitions.
On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government, the High Court answered in the negative for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of ad dress to various authorities could not be allowed to reap the benefit of their own default.
On the question whether the fundamental right guaranteed by Article 22(5) of the Constitution was violated, the High Court observed as under: "So far we have not come across any authority of this court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenu, if the detenu makes any representation, the Detaining Authority is under obligation under Article 22(5) of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government.
We are afraid, we cannot infer such obligation on the Detaining Authority or the State Govern ment under Article 22(5) of the Constitution.
But, however, it is advisable that upon re ceipt of such representation from the detenu, the Detaining Authority may immediately inform the detenu about the procedure that he has to follow in forwarding representations to the State Government, the Central Government or the Advisory Board against the order of deten tion.
" It is this view of the High Court which was vehemently challenged before us by learned counsel for the appellants.
In support of his contention counsel placed strong reliance on four decisions of this 450 Court reported in (i) Razia Umar Bakshi vs Union of India & Ors., ; (ii) Rattan Singh vs State of Punjab & Ors.
, ; (iii) Sat Pal vs State of Punjab & Ors., and (iv) Smt.
Gracy vs State of Kerala & Anr., JT On the other hand counsel for the State Government as well as the Central Government supported the view taken by the High Court and contended that the appellants cannot make a grievance if they have despite a clear direction in the grounds of deten tion chosen to deviate therefrom.
Once the procedure estab lished by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representation to take out copies thereof and forward the same to the Central Government cannot viti ate the detention order.
It was further pointed out that a subsequent representation dated June 5, 1990 made to the Central Government was considered with despatch and was rejected on June 12, 1990.
We may at this stage state that we are not concerned with the subsequent representation.
The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appel lants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/statutory right to have their representation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground.
The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed.
Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article.
Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder.
Clause (5) of Article 22 reads as under: "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.
" This clause casts a dual obligation on the Detaining Author ity, namely, (i) to communicate to the detenu the grounds on which the 451 detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order.
Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitu tion.
It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board.
The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obliga tion on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires.
The necessity of casting a dual obligation on the authority making the detention order is obviously to ac quaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of deten tion without trial conferred by section 3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time.
Once it is realised that Article 22(5) confers a right of represen tation, the next question is to whom must the representation be made.
The grounds of detention clearly inform the detenu that he can make a representation to the State Government, the Central Government as well as the Advisory Board.
There can be no doubt that the representation must be made to the authority which has the power to rescind or revoke the decision, if need be.
Our search for the authority must, therefore, take us to the statute since the answer cannot be found from Article 22(5) of the Constitution read in isola tion.
As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order.
If we are to go by the state ment in the grounds of detention our search for that author ity would end since the grounds of detention themselves state the authorities to which the representation must be made.
The question must be answered in the context of the relevant provisions of the law.
Now as stated earlier by clause (5) of Article 22 a dual obligation is cast on the authority making the detention order one on which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed.
But the author ity to which the representation is addressed must have statutory backing.
In 452 order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventive detention.
Section 2(b) defines a detention order to mean an order made under section 3.
Sub section (1) of section 3 empowers the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empow ered for the purposes of this section by that Government, to make an order of detention with respect to any person 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 doing any one of the five prejudicial acts enumerated thereunder.
Subsection (2) of that section provides that when any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
It is evident from this provision that whenev er a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days.
The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under section 3(1) by the State Government or its officer.
Then comes sub section (3) which reads as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circum stances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
" This provision is clearly intended to meet the obligation cast by Article 22(5) that the grounds of detention shall be communicated 'as soon as may be '.
The legislation has, therefore, fixed the outer limit within which the grounds of detention must be communicated to the detenu.
Thus the first part of the obligation cast by Article 22(5) is met by section 3(3) of the Act.
Section 8 provides for the Consti tution of Advisory Boards.
This section is clearly to meet the obligation of 453 sub clause (a) of clause 4 and sub clause (c) of clause 7 of Article 22 of the Constitution.
Section 8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Govern ment may confirm the detention order and continue the deten tion of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Govern ment shall revoke the detention order and cause the person to be released forthwith.
This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person.
Then comes section 11 which reads as under: "Revocation of detention orders (1) Without prejudice to the provisions of section 21 of the , a detention order may, at any time, be revoked or modified (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Gov ernment.
(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.
" Sub section (2) is not relevant for our purpose.
It is obvious from a plain reading of the two clauses of sub section (1) of section 11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order.
Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order.
Now this provision is clearly without prejudice to section 21 of the which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued.
Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner.
This provision when read in the context of section 11 of the Act makes it 454 clear that the power to rescind conferred on the authority making the detention order by section 21 of the is saved and is not taken away.
Under section 11 an officer of the State Government or that of the Central Government specially empowered under section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to section 21 of the .
Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a represen tation he is convinced that the detention order needs to be revoked he can do so by virtue of section 21 of the since section 11 of the Act does not entitle him to do so.
If the State Government passes an order of deten tion and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under section 21 of the but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under section 21 of the .
This clari fies why the power under section 11 is conferred without prejudice to the provisions of section 21 of the .
Thus on a conjoint reading of section 21 of the and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government.
The power of revocation conferred by section 8(f) on the appropriate Government is clearly inde pendent of this power.
It is thus clear that section 8(f) of the Act satisfies the requirement of Article 22(4) whereas section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution.
The statu tory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order.
Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5).
We may now turn to the case law on which reliance was placed.
In Razia Umar 's case, section Murtaza Fazal Ali, J. sitting singly during vacation was concerned with a more or less similar situation.
In that case a detention order was passed by the State Government against which the detenu had made a representation to the said Government.
By that repre sentation he also prayed that his representation may be 455 forwarded to the Central Government for being considered.
That representation was disposed of by the State Government but it was not forwarded to the Central Government, notwith standing the specific prayer of the detenu.
The defence taken was that the detenu had himself sent a copy of his representation to the Central Government and, therefore, the Detaining Authority did not consider it necessary to forward the representation to the Central Government.
The defence of the State Government was held to be wholly unacceptable on the following line of reasoning: "Section 11 of the Act confers a constitution al right on the detenu to have his representa tion considered by the Central Government.
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is.
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation to the Central Government." (Emphasis supplied) This observation would show that the power of revocation conferred by section 11 of the Act has a nexus with the fight of representation conferred on the detenu by Article 22(5) and, therefore, the State Government when requested to forward a copy of the representation to the Central Govern ment is under an obligation to do so.
The learned counsel for the appellant further pointed out that our case stands on a stronger footing because, admittedly, the appellants had not forwarded a copy of their representation to the Central Government as in Razia Umar 's case.
The High Court distinguished this decision on the ground that the facts of Razia Umar 's case reveal that the detenu had sent a separate representation to the Detaining Authori ty with a request to forward the same to the State Govern ment and the Central Government whereas in our case only one representation was sent to the Detaining Authority with a request that copies thereof be taken out and sent to the State Government as well as the Central Government for their consideration.
With respect, this distinction has nothing to do with the ratio of the decision; if at all, as rightly pointed out counsel for the appellants, the facts of this case are stronger than those of Razia Umar 's case.
456 In Rattan Singh 's case the facts reveal that the detenu had written a letter to the Superintendent of Central Jail, Amritsar, enclosing therewith two representations one of which was addressed to the Joint Secretary, Department of Home, Government of Punjab, Chandigarh, and the other to the Secretary, Union Ministry of Finance, Department of Revenue, New Delhi.
The Jail Superintendent was requested to forward the representations to the State Government as well as the Central Government.
In the counter filed on behalf of the Central Government it was stated that no representation by or on behalf of the detenu had been received by the Central Government.
It was contended that failure to forward the representation to the Central Government and the consequent failure of the Central Government to apply its mind to the representation vitiated the detention order.
This Court held that the detenu was unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty.
Chandrachud.
who spoke for the three Judge Bench, observed as under: "But the laws of preventive detention afford only a modicum of safeguards to persons de tained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safe guards are not denied to the detenus.
Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer.
That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention.
The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu 's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government.
The continued detention of the detenu must, therefore, be held illegal and the detenu set free.
" In taking this view reliance was placed on an earlier deci sion of this Court in Tara Chand vs State of Rajasthan, In Sat Pal 's case also counsel for the detenu had for warded two representations one meant for the Central Govern ment and other for the State Government for exercise of power under section 11 of the Act.
The Jail Superintendent who was requested by a forwarding letter 457 to sent the representations to the appropriate Governments after obtaining the signatures of the detenu thereon for warded them to the Joint Secretary in the State Government with an endorsement that one of them may be forwarded to the Central Government.
The representation of the detenu to the Central Government was not forwarded to that Government by the State Government promptly.
It was; therefore, contended that the detention order was rendered illegal and liable to be quashed.
Dealing with this contention this Court observed that the making of an application for revocation of the order of detention by the Central Government under section 11 of the Act is part of the constitutional right a citizen has against his detention under a law relating to preventive detention.
It was, therefore, observed: "It is, therefore, idle to contend that this State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under section 11 of the Act." In taking this view the Court placed reliance on Rattan Singh 's case Gracy 's case may not be entirely apposite because the question which the court was required to consider in that case was that the representation made to the Advisory Board was not taken into consideration by the Central Government after the papers were laid before it with the opinion of the Advisory Board that there was sufficient cause to justify the preventive detention.
That was, therefore, a case in which the representation was very much before the Central Government and it failed to consider the same before con firming and fixing the duration of the detention order.
In that case, therefore, the question for consideration was whether it was incumbent on the part of the Central Govern ment to consider a representation addressed to the Advisory Board notwithstanding its rejection by the Advisory Board.
Such is not the question before us but counsel for the appellants invited our attention to certain observations made in paragraphs 8 and 9 which indicate that the detenu 's right for consideration of his representation by the Central Government flows from Article 22(5), irrespective of the fact whether the representation is addressed to the Detain ing Authority or to the Advisory Board or both.
These obser vations though made in a different fact situation do support the submission made on behalf of the appellants.
But counsel for the respondents argued that the observations were too broadly stated.
It is not necessary for us to examine this contention as the earlier decisions are sufficient to uphold the appellants ' contention.
458 In the case before us the facts.clearly show that the appellants had made a request to the Detaining Authority to take out copies of his representation and forward them to the State Government as well as the Central Government for consideration.
Counsel for the Detaining Authority as well as the State Government contended that no such duty was cast on the said respondents to take out copies and forward them to the Central Government for consideration.
Counsel for the Union of India contended that since no such representation had reached the Central Government there was no question of the Central Government applying its mind thereto and taking a decision thereon.
In support, reliance was placed on Phil lippa Anne Duke vs The State of Tamil Nadu & Ors., ; a judgment rendered by O. Chinnappa Reddy, J. sit ting singly.
In that case the two petitioners who were British nationals were detained for smuggling electric equipments and goods secreted in specially made compart ments/cavities of their Mercedez Benz Van.
Representations were presented on their behalf to the Prime Minister of India during her visit to England.
No decision was taken on those representations and hence it was contended that the detention orders deserved to be quashed.
This Court held that representation from whatever source addressed to whoso ever officer of one or other department of the Government cannot be treated as representations under the Act.
It was further held that the Bout De Papier presented to the Prime Minister of India during her visit to Britain and the subse quent reminder addressed to the External Affairs Ministry could not be treated as representations to the Central Government.
It is, therefore, obvious that this decision turned on its special facts and is no authority for the proposition that the Detaining Authority or the State Gov ernment was under no obligation to forward the representa tions to the Central Government.
It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration.
It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial.
Detenus may be literate or illiter ate, they may have access to legal advice or otherwise, they may or may not be in a position to prepare more than one copy of the 459 representation and if they make a request to the authorities which have the facilities to take out copies to do so and forward them for consideration to the Central Government, would it be just and fair to refuse to do so? In such cir cumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22(5) of the Constitution read with section 11 of the Act.
We are, therefore, of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government.
We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22(5) read with section 11 of the Act to have their representation considered by the Central Government.
The request of the detenus was not unreasonable On the contrary the action of the Detaining Authority and the State Government was unrea sonable and resulted in a denial of the appellants ' consti tutional right.
The impugned detention orders are, there fore, liable to be quashed.
In the result we allow these appeals, set aside the order of the High Court and quash the detention orders on this single ground.
We direct that both the appellants who are in detention shall be set free at once unless they are required in any other pending matter.
PUNCHHI, J.
I agree to the release of the detenus, but in the facts and circumstances of the case.
I have reserva tions to section 11 of the being treated part of the constitutional guarantee under Article 22(5) of the Constitution of India.
Section 11 of the Act does not confer any constitutional right on the detenu to have his representation thereunder considered as if under Article 22(5), but merely a provision enabling the State Government or the Central Government, as the case may be, to revoke or modify detention orders.
Have section 11 of the Act repealed, it causes no affectation to the constitutional guarantee under Article 22(5) of the Constitution.
Corre spondingly, section 11 of the Act derives no sustenance from the said Article.
Both operate in mutually exclusive fields, though not as combatants.
Both the detenus may be set free as proposed by my learned brother, A.M. Ahmadi, J. V.P.R. Appeals allowed.

dataset_name: IN-Abs

summary:
On March 25, 1990, the officers of the Directorate of Revenue Intelligence intercepted a motor car driven by the appellant No. 1 with the other appellant as his companion and recovered 1400 gold bars.
The statements of the two appellants were recorded and they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, who granted re mand.
While the matter was under investigation, a proposal was made to the first respondent Secretary (Preventive Deten tion), Government of Maharashtra for invoking the powers conferred on him by Section 3 of the .
On the very next day after the receipt of the proposal the first respondent passed the orders of detention against the two appellants under sub section (1) of section 3 of the Act.
After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed.
The appellants were informed that they had a right to make a representation to (i) the State 444 Government; (ii) the Central Government; and (iii) the Advisory Board against the detention order, if they so desired.
They were informed that to facilitate expeditious consideration thereof, 'the Superintendent of Jails may be requested to forward the same to the detaining authority.
The appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superin tendent of Jail.
In the last paragraph of that representa tion a request was made that copies of the representation may be taken out and the same may be forwarded to the State Govt.
and the Central Govt.
The representation was considered and rejected by the State Government.
It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders.
As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions in the High Court which dismissed both the writ petitions, answering in negative on the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of address to various authorities, could not be allowed to reap the benefit of their own default.
This view of the High Court was challenged before this Court by the appellants.
The State Government as well as the Central Government supported the view taken by the High Court contending that the appellants cannot make a grievance if they have despite a clear direction in the grounds of detention chosen to deviate therefrom.
Once the procedure established by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representations to take out copies thereof and forward the same to the Central Government cannot vitiate the deten tion order.
The Union of India contended that since no representa tion had reached the Central Government there was no ques tion of the Central Government applying its mind thereto and taking a decision thereon.
445 On the question whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their considerational/statutory right to have their repre sentation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground, allowing the appeals, this Court, HELD: 1.
The Detaining Authority as well as the State Government were not justified in taking a hypertechnical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government.
Such action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants ' constitutional right.
The impugned deten tion orders are liable to be quashed and directed that the appellants, who were in detention, to be set free.
[459B E] Per A.M. Ahmadi, J. on his behalf himself and V. Ramas wami, J. 1.
Article 22(3)(b) (5) casts a dual obligation on the Detaining Authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportu nity of making a representation against the detention order.
Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a represen tation against the order would clearly violate the constitu tional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution.
It ' is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board.
The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires.
[450H 451C] 2.
The necessity of casting a dual obligation on the authority making the detention order is obviously to ac quaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of deten tion without trial conferred by section 3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time.
[451C D] 446 3.
Under section 11 an officer of the State Government or that of the Central Government specially empowered under section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to section 21 of the General Clauses Act.
Therefore, where an officer of the State Gov ernment or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of section 21 of the General Clauses Act since sec tion 11 of the Act does not entitle him to do so.
[454A C] 4.
If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under section 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under section 21 of the General Clauses Act.
[454C D] 5.
On a conjoint reading of section 21 of the General Clauses Act and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authori ties, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government.
The power of revocation conferred by section 8(f) on the appropriate Government is clearly inde pendent of this power.
It is thus clear that section 8(f) of the Act satisfies the requirement of Article 22(4) whereas section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution.
The statu tory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order.
Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5).
[454D G] 6.
It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be for warded to the Central Government as well as the State Gov ernment for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his 447 representation to the Central Government for consideration.
In such circumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22(5) of the Con stitution read with section 11 of the Act.
[458F G, 459B] Razia Umar Bakshi vs Union of India & Ors., ; Rattan Singh vs State of Punjab & Ors., ; Sat Pal vs State of Punjab & Ors., and Smt.
Gracy vs State of Kerala & Anr., JT ; Tara Chand vs State of Rajasthan, ; referred to.
Per M.M. Punchhi, J. 1.
Section 11 of the Act does not confer any constitutional right on the detenu to have his representation thereunder considered as if under Article 22(5), but merely a provision enabling the State Government or the Central Government, as the case may be, to revoke or modify detention orders.
Have section 11 of the Act re pealed, it causes no affectation to the constitutional guarantee under Article 22(5) of the Constitution.
Corre spondingly, section 11 of the Act derives no sustenance from the said Article.
Both operate in mutually exclusive fields, though not as combatants.
[459F G]


judgement:
l Appeal No. 1036 of 1976.
551 From the Judgment and Order dated 11.6.1975 of the Kerala High Court in Appeal Suit No. 764 of 1972.
T.T. Kunhikannan for the Appellant.
section Padmanabhan and E.M.S. Anam for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave is against the judgment and decree of the Kerala High Court dated June 11, 1975 made in A.S. No. 764 of 1972.
The notification under section 3 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) was published in the Gazette on February 28, 1967 acquiring six acres of land in the city Of Calicut to construct staff quarters of P & T of Govt.
of India.
The Land Acquisition Officer by award dated February 29, 1969 awarded compensation @ Rs.230 per cent and also the value of the trees by capitalisation method in a sum of Rs.2,69,421.55 p. towards the land improvement together with 15 per cent solatium and 4 per cent interest.
On reference, the Civil Court enhanced the market value by judgment and award dated February 9, 1972 at Rs.500 per cent i.e., in total Rs.3,00,000 towards land value and confirmed the award of the Land Acquisition Officer of 2,69,421.55 p. towards land improvement making in all 5,69,421.55 p. with solatium at 15 per cent and interest at 4 per.
cent from the date of dispossession.
In the appeal by the State against the en hanced compensation, it was contended that the Civil Court committed grave error in fixing market value separately to the land and the trees on capitalisation basis to make up the compensation.
That contention was found favour with the High Court and it set aside the award of the Civil Court of the value of the land of Rs.3,00,000 and confirmed the award of Rs.2,69,421.55.
Calling in question the reversing decree of the High Court, this appeal has been filed.
Two contentions have been raised by Shri Padmanabhan, the learned senior counsel for the appellant.
Firstly he argued that there is an intensive cultivation in the ac quired land not only of the fruit bearing trees therein but also using the vacant space for other short term crops to establish which the appellant sought remand to the Civil Court to adduce additional evidence under Order 41 of Rule 27 etc.
The High Court had wrongly rejected the request for additional evidence.
we find no force in the contention.
It was not the case that the appellant was prevented to adduce evidence in this behalf.
Remand 552 under order 41 Rule 27, C.P.C cannot be made to adduce fresh evidence, when though available but was not adduced.
Even otherwise it was further argued that the land and the trees together constitute the value of the acquired lands and so are separately valued which would reflect the true and correct market value.
The Civil Court has correctly adopted the method and the High Court is unjustified in interfering with.the award of the Civil Court; It is also further contended that the land possessed of potential value as building sites and, therefore, the reliance by the Civil Court on exhibit A. 1 dated February 19, 1964 which worked out at Rs.400 per cent and exhibit A. 2 dated February 17, 1967 under which 14 were purchased worked out at Rs.556 percent and award of market value @ Rs.500 per cent by the Civil Court was not illegal.
exhibit B. 1 under which Rs.230 per cent accepted as claimed by the State cannot be relied upon as the document dated June 3, 1966 does not relate to the lands in the neighbourhood.
Admittedly they are situated six furlongs away from the limits of Calicut city and one mile from the acquired lands.
On the other hand, the lands under exhibit A. 1 and A. 2 are situated one furlong from the acquired lands.
Therefore, they provide the comparable sales for fixation of market value.
The second contention is that the appellant is entitled to 30 per cent solatium under section 23(2) of the Land Acquisition Act 1 of 1894 as amended under the Land Acquisition Amendment Act 68 of 1984.
The learned counsel appearing for the State has resisted the conten tions.
He argued that exhibit A. 1 and A. 2 relate to small extent of 5 cents and 14 cents together with the buildings situated therein.
Therefore, when a large extent of six acres was acquired they offer no comparable price.
Small plots always fetch higher price and that, therefore, they cannot form same basis to fix the market value at Rs.500 per cent.
He also further contended that the lands and the trees cannot be valued separately.
The court should adopt only either the value of the, land or income of the trees with suitable multiplier but not both.
The High Court is, there fore, well justified in rejecting the sale deeds and the total valuation and confirmed the capitalisation method of valuation.
He also contended that the Land Acquisition Act, 1894 and 1984 Amendment Act have no application since acqui sition proceedings were admittedly taken under the Kerala Land Acquisition Act.
The crucial question, therefore, is what is the proper method of valuation of the land in question.
The total extent of the land is six acres consisting of 1130 coconut trees; 65 arecanut trees and 45 pepper wines.
The Civil Court fixed the market value of the lands at 553 Rs.3,00,000.
Admittedly, the appellant did not file any cross objections in the High Court seeking any higher com pensation.
Accordingly the market value of the lands fixed at Rs.3,00,000 became final.
The fixation of the market value on capitalisation method also became final.
It is settled law that the methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are: (i) opinion of experts (ii) the price paid within a reasonable time in bona fide transaction Of the purchase or sate of the lands acquired or the lands adjacent to the lands acquired and possessing similar advan tages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
These methods, however, do not preclude the court from taking any other special circumstances obtained in an appropriate case into consideration.
As the object being always to arrive as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as tow lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.
In State of Kerala vs
P.P. Hassan Koya; , the question arose whether the separate valuation of the land and building would be proper method to be adopted to determine the market value of the acquired property. ' This Court held that "the land and the building constitute one unit" and the value of "the entire unit must be determined with all its advantages" and poten tialities.
When the property is sold with building it is often difficult to have sale of single land with building approximately in time to the date of the notification.
Therefore, the, method which is to be adopted in determining the value of the land and building is the method of capital isation of return actually received or which might reasona bly be received from the land or the building separate valuation of the land and building was not approved and the annual rent received with the proper capitalisation was adopted by the courts below was approved by this Court.
In Special Land Acquisition Officer v.P. Veerabhadrappa, etc.
; , this court held that the method of valuation by capitalisation should not be resorted to when other methods are available.
However, where definite materi al is not forthcoming either in the shape of sales of simi lar lands in the neighbourhood at or about the, date of notification under section 4(1) or otherwise,.
the court has no other alternative but to fall back on the method of valua tion by capitalisation.
In valuing land or an interest in land for purposes of land acquisition proceedings, the rule as to number of years purchase is not a theoretical or legal rule but depends 554 upon economic factors such as the prevailing rate of inter est in money investments.
The return which an investor will expect from an investment will depend upon the characteris tic of income as compared to that of idle security.
The main features are: (1) security of the income; (2) fluctuation; (3) chances of increase; (4) cost of collection; etc.
The traditional view of capitalised value being linked with gilt edged securities, no longer be.
rigorous when invest ment in fixed deposits with nationalised banks, National Savings Certificates, Unit ' Trusts and other forms of Govt.
securities and even in the share market command a much greater return are available.
The capital in agricultural lands normally when the rate of return on investment was 8.25per cent in the years.
1971 72, the proper multiplier to be applied for the purpose of capitialisation would not, in any event, exceeding 10 per cent.
In that case the State had agreed to apply 12 1/2 per cent capitalised value of the lands, this court upheld capitalisation of the value of land at 12 1/2 per cent In Admn.
General of West Bengal vs Collector, Varanasi, ; this ' Court held that usually land and building there9n constitute one unit.
Land is one kind of property; land and building ' together constitute an alto gether different kind of property.
They must be valued as one unit.
But where, however, the property comprises exten sive land and the structure standing thereon, do not show that full utilization of potential of the land realised, it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time.
In this method, building value is estimated on the basis of the prime cost or replacement cost less depriciation.
The rate of depricia tion, generally, arrived at by dividing the cost of con struction '(less the salvage valued at the end of the period of utility) by the number of years of utility of the build ing.
The factors that prolong the life and the utility of the building, such as good maintenance, necessarily influ ence and bring down the rate of depreciation.
In that case larger extent of 23.66 acres together with building of 25,000 sq.
feets comprises of 35 rooms,halls and other appurtenances, and 43 1 fruit bearing and 13 timber trees and 12 bamboo clumps situated in the city of Varanasi were acquired.
With regard to the value of the trees, this Court held that where the land is valued with reference to the potentiality for building purposes the trees on the land cannot be valued independently on the basis of its horticul tural value or with reference to the value of the yield but this principle does not come in the way of awarding the timber value after deducting costs for cutting and removing them from the lands as salvage value.
555 It is thus settled law that in evaluating the market value of the acquired property, namely, land and the build ing or the lands with fruit bearing trees standing thereon, value of both would not constitute one unit; but separate units; it would be open to the Land Acquisition Officer or the court either to assess the lands with all its advantages as potential value and fix the market value thereof or where there is reliable and acceptable ' evidence available, on record of the annual income of the fruit bearing trees the annual net income multiplied by appropriate capitalisation of 15 years would be the proper and fair method to determine the market value but not both.
In the former case the trees are to be separately valued as timber and to deduct salvage expenses to cut and remove the trees from the land.
In this case the award of compensation was based on both the value of the land and trees.
Accordingly the determination of the compensation of the land as well as the trees is illegal.
The High Court laid the law correctly.
It is seen that exhibit B. 1 relied on by the State was rejected by both the courts and, therefore, it cannot offer any reasonable basis to fix the market value of the land.
It is 'equally seen that exhibit A. 1 and A. 2 relate to small extent of land together with buildings standing thereon.
Therefore, they too do not also form any reasonable basis Or guide to determine market value of large extent of six acres of the acquired land.
The High Court rightly did not place reliance therein.
But from the evidence it is clear, as found by the Civil Court, that the lands possessed of poten tial value as building sites as the lands are situated in the city itself.
There was all round development around the lands.
The lands are situated half a furlong from the Bom bay Kanyakumari National Highway.
It also abutts the road to Naduvattom, a busy bus route within the Corporation, Cali cut.
It is situated nearby the industrial area.
The Western India Steel Mill, the Premier Steel Mills, Arts and Science College, Cinema Theatre, Police Station and other offices are situated in close proximity to the lands and that, therefore, the lands are possessed of potential value but unfortunately the appellant did not place any material of the prevailing prices as house sites.
However, the value of the land as fixed at Rs.3,00,000 became final.
The market value of the income from the trees with 15 years multiplier was ' worked out at Rs.2,69,42 1.55 p. by the Civil Court and the High Court accepted to be the correct valuation and it was also not questioned.
But it is lesser than the value of the land.
Being higher in value the appellant is entitled to the value of the land as determined by the Civil Cout at Rs.3,00,000 (three lakhs) in total.
The value of the trees as fire wood shall be determined towards compensation.
We have noted the number of coconut trees etc.
The learned counsel has left to this Court 556 to fix any reasonable compensation and On the totality of the facts and circumstances we are of the opinion that total sum of Rs. 10,000 would be reasonable compensation towards the value of the total trees as fire wood or as for use of other purposes after deducting salvage expenses.
Accordingly we hold that the appellant is entitled to total cOmpensation of Rs.3,10,000.
Admittedly, the appellant is entitled to solatium at 15 percent and 4 per cent interest under the Kerala Land Acqui sition Act.
Section 30 sub section (1) of the Land Acquisi tion Amendment Act 68 of 1984 reads thus: "Transitional Provisions (1) the provisions of sub section (1A) of section 23 of the Principal Act, as inserted by Clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amend ment) Bill, 1982, in the House of People), in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the com mencement of this Act".
(2) "The provisions of sub section, (2) of section 23 and section 28 of the principal Act, as amended by CI.
(b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award ' under the provisions of the, principal Act later the 30th day of April, 1982.
(the date of introduction of the Land Acquisition (Amend ment) Bill, 1932, in the House of the People) and before the commencement of this Act".
A reading of the provisions would reveal the legisla tive intendment that the transitional provisions could apply to every proceeding for acquisition of any land under the principal Act, namely, Act 1 of 1894 (Central Act), pending on the 30th day of April, 1982, 557 namely, the date of introduction of the Land Acquisi tion (Amendment) Bill, 2982 in the House of the People; in which no award has been made by the Collector before.
that date or the award made by the.
Civil Court at the date of the Amendment Act, namely, September 24, ,1984.
Thus it is clear that 'the Amendment Act 68 of 1984 including sub section (2) section 23 per se is inapplicable to the acquisition of the land under the Kerala Land Acquisition Act, 1961.
In Kanthitnathy Plantation Pvt. Ltd. vs State.
of Kerala & Ors., this Court held that,by operation of the Land Acquisition (Amendment) Act 68 of 1984 read with Art 254 of the Constitution, the Kerala Land Acquisition Act, 1961 by necessary implication stood repealed, in its application to the State of Kerala and that the Land Acqui sition Act 1 of 1984 as amended by Central Act 68 of 1984 stands applicable.
Therefore, the proceedings ' under the Kerala Act being pending proceedings would be continued from the stage at which they stood at.
Shri Padmanabhan then.contends that the ratio in Union of India & Ors.
vs Filip Tiago De Game of Veden Vasco De Gama, [1990] 1 SCC 277 would attract the facts in this case and the appellant is entitled to 30 per cent solatium under the amended Act.
We are afraid we cannot accede to this contention.
The admit ted facts in this case are that the award was made by the Collector on February 29, 1969.
On reference the Civil Court made the award on February 9, 1972.
In Filip Tiago 's case the award was made on March 5, 1969 and the Civil Court on reference under section 18 made its award on May 28, 1985.
In the light of those facts, this Court by processual interpretation of transitional provision of section 30(2) avoided injustice by eschewing literal construction and advanced justice by mending the law.
The ratio is clearly distin guishable.
In Union of India & Anr.
vs Raghubir Singh (dead) by Lrs.
; , a Constitution Bench of this Court, to resolve the conflict of decisions as to the 'applicability of the Amendment Act to pending appeals in the High Court and in this Court, held authoritatively that the award made by the Collector referred to in section 30(2) is an award made under section 11 of the Parent Act and the award made by the Principal Civil Court of original juris diction under section 23 of the Parent Act, on reference made to it by the Collector under section 18 of the Parent Act.
There can, therefore, be no doubt that the benefit of enhanced solatium intended by section 30(2) is in respect of an award made by the Collector between April 30, 1982 and September 24, 1984.
Likewise the benefit of the enhanced solatium is extended by section 30(2) to the case of an award made by the Civil Court between April 30, 1982 and September 24, 1984 even though it be upon reference from the award made before April 30, 1982.
Thus it was held that the pend ency of the appeals against the 558 award made preceding the aforestated two dates in the High Court or this Court would not attract the application of section 30(2) and that, therefore, enhanced solatium under section 30(2) read with section 23(2) is inapplicable.
Thereby, the appellant is not entitled to enhanced solatium at 30 per cent.
As regards interest is concerned it is fairly conceded that the claimant is entitled only to 4 per cent as awarded by the courts below.
Accordingly we allow the appeal, set aside the judgment of the High Court and hold that the appellant is entitled to Rs.3,10,000 as enhanced compensation with 15 per cent sola tium and interest at 4 per cent on enhanced market value from the date of dispossession.
The appeal is accordingly allowed with costs of this Court.
V.P.R. Appeal al lowed.

summary:
The notification under section 3 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) was published in the Gazette on February 28, 1967 acquiring six acres of land to construct staff quarters of P & T of Govt.
of India.
The Land Acquisition Officer awarded compensation @ Rs.2.30 per cent and also the value of the trees by capital isation method in a sum of Rs.2,69,421.55 p. towards the land improvement together with 15 per cent solatium and 4 per cent interest.
On reference, the Civil Court enhanced the market value at Rs.500 per cent, i.e., in total Rs.3,00,000 towards land value and confirmed the award of the Land Acquisition Offi cer of 2,69,421.55 p. towards land improvement.
making in all 5,69,421.55 p. with solatium at 15 per cent and interest at 4 per cent from the date of dispossession.
The appeal by the State was allowed by the High Court.
Calling in question the reversing decree of the High Court, this appeal has been filed by the claimant contending that there was an intensive cultivation in the acquired land not only of the fruit hearing trees therein but also using the vacant space for other short term crops to establish, which the appellant sought remand to the Civil Court to adduce additional evidence under Order 41 of Rule 27 etc., which request the High Court had wrongly rejected; that the appellant was entitled to 30 per cent solatium under section 23(2) of the Land Acquisition as amended under the Land Acquisition Amendment Act 68 of 1984; and that the land and the trees together constitute the value of the acquired lands and so were separately valued which would reflect the correct market value, which method the Civil Court had correctly adopted.
The State contended that the lands and.
the trees cannot be valued separately; and that the Laud Acquisitiou Act, 1894 and 1984 Amendment Act have no application since acqui sition proceedings were admittedly taken under.
the Kerala Land ACquisition Act.
On the question, what is the proper method of valuation of the land, this Court, allowing the claimant 's appeal, HELD.1.
The methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are: (i) opinion of experts, (ii) the price paid within a reasonable time in bona fide transaction of the purchase or sale of the lands acquired or the lands adjacent to the lands acquired and possessing similar advan tages, and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
These methods, however, do not 'preclude the court from taking any other special circumstances obtained in an appropriate case into consideration.
As the object being always to arrive as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be.the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.
[553B D] 2.
In evaluating the market value of the acquired property, namely, 'land and the building or the lands with fruit bearing trees standing thereon, value of both would not constitute one unit; but separate.units; it would be open to the Land Acquisition Officer or the court either to assess the lands with all its advantages as potential value and fix the market value thereof or where there is reliable and acceptable evidence available on record of the annual income of the fruit bearing trees the annual net income multiplied by appropriate capitalisation of 15 years would be the proper and fair method to determine the market value but not both.
[555A C] State of Kerala V.P.P. Hassan Koya; , ; Spe cial 550 Land Acquisition Officer vs
P. Veerabhadarappa, etc.
; , and Admn.
General of West Bengal vs Collec tor, Varanasi; , , referred to.
3. SectiOn 30 sub section (1) of the Land Acquisition Amendment Act 68 of 1984 would reveal the legislative in tendment that the transitional provisions could apply to every proceeding for acquisition of any land under the principal Act, namely, 'Act 1 of 1894 (Central Act), pending on the 30th day of April, 1982, namely, the date of intro duction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People; in which no award has been made by the Collector before that date or the award made by the Civil Court at the date of the Amendment Act.
It is clear that the Amendment Act 68 of 1984 including sub section (2) of section 23 per se is inapplicable to the acquisition of the land under the Kerala Land Acquisition Act, 1961.
The pendency of the appeals against the award made preceeding the dates in the High Court or this Court would not attract the application of section 30(2) and that, therefore, en hanced solatium under section 30(2) read with section 23(2) is inapplicable.
[556H 557B, 557H 558B] Kanthimathy Plantation Pvt. Ltd. vs State of Kerala & Ors.
, , referred to.
Union of India & Ors.
vs Filip Tiago De Gama, [1990] 1 SCC 277, distinguished.
Union of India & Anr.
vs Raghubir Singh (dead) by Lrs.; , , followed.
On the totality of the facts and circumstances, total sum of Rs. 10,000 would be reasonable compensation towards the value of the total trees as fire wood or as for use of other purposes after deducting salvage expenses.
The appel lant iS not entitled to enhanced solatium at 30 percent: but is entitled to Rs.3,10,000 as enhanced compensation with 15per cent solatium and interest at 4 per cent on enhanced market value from the date of dispossession.
[556A B, 558B C] 5.
Remand under order 41 Rule27, C.P.C. cannot be made to adduce fresh evidence, when though available but was not adduced; [551H 552A]