judgement:
Writ Petition (Criminal) No. 468 of 1989.
(Under Article 32 of the Constitution of India.) R.K.Garg, K. Subramaniam, E.C. Agarwala, Ms. Purnima Bhatt, Mr. V.K. Pandita, A.V. Pillai and Atul Sharma for the petitioner.
K. Alagiriswamy, Adv.
General of Tamil Nadu, N. Natara jan, G. Krishnamurthy, V. Krishnamurthy and K. Rajendra Choudhury for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This petition under Article 32 of the Consti tution of India, by Mrs. P. Devaki wife of the detenu R. Thamaraikani, challenges the validity of her husband 's detention under the order of the Collector and District Magistrate of Kamarajar District Virudhunagar, Tamii Nadu dated 15.8.
1989 issued under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drugof fenders, Forest offenders, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamii Nadu Act 14 of 1982) (as amended by Act 52 of 1986 and Act 1 of 1988) (hereinafter referred to as 'the Act ').
After heating arguments of the learned counsel for the parties at length, we allowed the petition on 10.11.
1989 and issued directions for the release of the detenu forth with.
We are now giving the reasons for our Order dated 10.11.
The detenu R. Thamaraikani is a member of the All India Anna Dravida Munnetra Kazhagam Party, briefly described as AIDMK.
He has been an active social and political worker.
He was elected Member of the Tamil Nadu Legislative Assembly from Srivilliputhur Constituency in the General Elections held in 1977, 1980 and 1984.
In the General Elections held in January 1989 to the Tamil Nadu Legislative Assembly, he was defeated by the Dravida Munnetra Kazhagam Party candi date.
He continues to be Joint Secretary of the AIDMK Party for Kamrajar District in Tamil Nadu and he has been taking active part in social and political activities in the Dis trict of Kamrajar.
The petitioner has stated that there has been personal and political animosity between the detenu and Thiru Durai Murugan, Minister for Public Works and Highways in the present DMK Government.
The District 839 Magistrate issued the impugned order for the detention of her husband at the behest of Thiru Durai Murugan, the afore said Minister, respondent No. 3.
The petitioner has referred to a number of incidents and to the proceedings of the Tamil Nadu Legislative Assembly in support of her submission that there was political and personal animosity between the aforesaid Minister and her husband and the order of deten tion was made mala fide at the instance of the Minister, respondent No. 3.
The facts leading to the making of the impugned deten tion order are necessary to be noted.
On 29.7.1989 a Seminar on Irrigation was ' held at Virudhunagar at the Dry Chilly Merchants ' Association Kalai Arangam, Aruppukkotai Road, which was attended by Thiru Durai Murugan and by Pon.
Muthu ramulingam, Minister of Labour and District Magistrate, Kamarajan and other important personalities.
A number of political and social workers and agriculturists attended the Seminar.
According to the petitioner the detenu was invited to attend the Seminar although it is denied by the respond ents but there is no dispute that the detenu was present in the hall where the Seminar was held.
The petitioner has asserted that the detenu wanted opportunity to address the gathering for placing the grievances of the local people before the gathering but he was not permitted to do so.
He insisted for placing the grievances of his Party before the audience whereupon he was forcibly removed away by the Police and later a false criminal case was registered against him under Sections 147, 148, 307 read with Section 149 of the Indian Penal Code and Section 27 of the Indian Arms Act at the Virudhunagar East Police Station.
These allegations have been denied by the respondents.
According to the respondents the detenu was not invited, even then he entered the hall where seminar was being held alongwith a number of persons and created disorderly scene in the hall which disturbed the Seminar.
He threw a knife towards the Minister respondent No. 3, with an intention to kill him but he missed the target, later on, he was over powered by the Police.
The violent activities of the detenu and his men caused panick in the hall, the audience raised alarm and ran outside the auditorium and outside the hail also people got scared, they ran helter skelter, causing obstruction to traffic.
The proceedings of the Seminar came to an abrupt halt for a while.
The detenu was taken into Custody and he was enlarged on bail by the Sessions Judge on 3.8.1989.
Thereafter the District Magistrate and Collector Kamarajan, respondent No. 2, issued the impugned detention order after 17 days of the aforesaid incident under Section 3(1) of the Act, as he was satisfied that it was necessary to detain the detenu under the Act with a view to prevent him from 840 acting in any manner prejudicial to the maintenance of public order.
Pursuant to the aforesaid order of the Dis trict Magistrate the detenu was kept in detention.
Mr. R.K. Garg learned counsel for the petitioner as sailed the validity of the detention order on two grounds.
Firstly, he urged that the order of detention was illegal since it did not specify the period of detention.
Secondly, the sole ground of detention has no relevance to the mainte nance of 'public order ' as the facts set out in the grounds do not make out any case of violation of public order, at best, it may be a case of law and order only.
This petition was heard by a Division Bench consisting of two learned Judges of this Court.
After hearing counsel for the parties at length the leaned Judges referred the matter to a three Judges ' Bench, in view of the conflict of decisions of this Court in Commissioner of Police & Anr.
vs Gurbux Anandram Biryani, [1988] Supp.
SCC 568 and Ashok Kumar vs Delhi Administration and Ors., on the question of validity of detention order on its failure to specify period of detention.
That is how the petition was heard by this Bench.
The first contention is rounded on the provisions of Section 3 of the Act which read as under: "3. Power to make orders detaining certain persons (1) The State Government may, if satisfied with respect to any bootlegger or drng offender (or forest offender) or goonda or immoral traffic offender or slum grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State government are satisfied that it is neces sary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub section (1), exercise the powers conferred by the said sub section: 841 Provided that the period specified in the order made by the State Government under this sub section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall ramain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government." Placing reliance on Section 3(2) Mr. Garg urged that since the impugned detention order did not specify the period for which the detenu was required to be detained, the order was rendered illegal.
On an analysis of Section 3 of the Act as quoted above, we find no merit in the submission.
Section 3(1) confers power on the State Government to detain a bootlegger or drug offender, or forest offender or goonda or an offender in immoral traffic or a slum grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
Section 3(2) empowers the State Government to delegate its power as conferred on it under sub section (1) to District Magistrate or a Commis sioner of Police, if it is satisfied that the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, make it necessary to delegate the power to them.
It further provides that the order of delegation shall be in writing and it shall also specify the period during which the District Magistrate or the Commis sioner of Police, are authorised to exercise the powers of the State Government under sub section (1) of Section 3.
Proviso to sub section (2) lays down that the delegation should not be for an unlimited period, instead it should not be for a period of more than three months.
If the State Government is satisfied that it is necessary to extend the period of delegation it may amend its order, extending such period from time to time but at no time the extension shall be for a period of more than three months.
Once the State Government 's power under Section 3(1) is delegated to the District Magistrate or the 842 Commissioner of Police, they are authorised to exercise that power on the grounds, specified in Section 3(1) of the Act.
Neither sub section (1) nor sub section (2) of Section 3 of the Act require the detaining authority to specify the period of detention for which a detenu is to be kept under detention.
Section 3(3) requires that where detention is made by the delegate of the State Government, namely, the District Magistrate or the Commissioner of Police, they should report the fact to the State Government together with the grounds on which the order may have been made and such other partic ulars as, in their opinion, may have a bearing on the mat ter.
A detention order made by a District Magistrate or Commissioner of Police in exercise of their delegated au thority does not remain in force for more than twelve days after the making thereof, unless in the meantime the deten tion order is approved by the State Government.
Section 8 requires the detaining authority to communicate to the detenu, grounds on which, the order is made within five days from the date of detention to enable the detenu to make representation against the order to the State Government.
Section 10 requires the State Government to place before the Advisory Board the detention order and the grounds on which such order may have been made alongwith the representation made by the detenu as well as the report of the officers made under Section 3(3) of the Act within three weeks from the date of detention.
Under Section 11 the Advisory Board is required to consider the materials placed before it and after hearing the detenu, to submit its report to the State Government within seven weeks from the date of detention of the person concerned.
In a case where the Advisory Board forms opinion, that there was no sufficient cause for the detention the State Government shall revoke the detention order but if in its opinion sufficient cause was made out, the State Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period as specified in Section 13 of the Act.
Section 13 provides the maximum period for which a person can be detained in pursuance of any detention order made and confirmed under the Act.
Ac cording to this provision the maximum period of detention shall be twelve months from the date of detention.
The State Government has, however, power to revoke detention order at any time, it may think proper.
Provisions of the aforesaid Sections are inbuilt safe guards against the delays that may be caused in considering the representation.
If the time frame, as prescribed in the aforesaid provisions is not 843 adhered, the detention order is liable to be struck down and the detenu is entitled to freedom.
Once the order of deten tion is confirmed by the State Government, maximum period for which a detenu shall be detained can not exceed 12 months from the date of detention.
The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained.
The expression "the State Government are satisfied that it is necessary so to do.
they may.
by order in writing direct that during such period as may be specified in the order" occurring in sub section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention.
The Legislature has taken care to entrust the power of detention to the State Government, as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed for a period of three months and it shall be specified in the order of delegation.
But if the State Government on consideration of the situa tion finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months.
The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no rele vance at all to the period for which a person may be de tained.
Since the Act does not require the detaining author ity to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification.
Mr. R.K. Garg placed strong reliance on the decision of this Court in Gurbax Biryani 's case (supra) to support his submission.
In that case the detenu had been detained under the Maharashtra Prevention of Dangerous Activities of Slum lords, Bootleggers and Drug Offenders Act 55 of 1981.
The High Court quashed the detention order on the ground that the detenu had been released in criminal prosecution under Section 8(c) read with Section 21 of the and he had been released on bail, but that fact had not been placed before the de taining authority.
On appeal by special leave a Division Bench of this Court consisting of two Judges., dismissed the appeal without going into the merits of the case on the sole ground that the detention order was bad as the period of detention was not specified in the detention order.
The Court observed as under: 844 "The order is bad on another ground, namely, the period of detention has not been indicated by the detaining authority.
The scheme of this Act differs from the provisions contained in similar Acts by not prescribing a perioed of detention but as Section 3 of the Act indicates, there is an initial period of detention which can extend upto three months and that can be extended for periods of three months at a time.
It was open to the detaining authority to detain the detenu even for a period of lesser duration than three months.
That necessitated the period of detention to be specified and unless that was indicated in the order, the order would also be vitiated.
In scores of decisions this Court has been emphasising the necessity of strict compliance with the requirements of the preventive detention law; yet authori ties on whom the power is conferred have not been complying with the requirements and even if there be merit to support the order of detention, the procedural defects lead to quashing thereof as a result of which the purpose of the Act if frustrated and the suffering in the community does not abate.
" With great respect we do not agree with the view expressed by the learned Judges.
Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders Act, 198 1 is identical in terms to Section 3 of the Tamil Nadu Act.
Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of Police to specify period of detention in the order made by them for detaining any person with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
Section 3(1) which confers power on the State Government to make order directing detention of a person, does not require the State Government to specify the period of detention.
Similarly, sub sections (2) or (3) of Section 3 do not require the District Magistrate or the Commissioner of Police to specify period of detention while exercising their powers under sub section (1) of Section 3.
The obser vations made in Gurbux Biryani 's case that the scheme of the Maharashtra Act was different from the provisions contained in other similar Acts and that Section 3 of the Act contem plated initial period of detention for three months at a time are not correct.
The scheme as contained in other Acts providing for the detention of a person without trial, is similar.
In this connection we have scrutinised, the Pre 845 ventive Detention Act, 1950, the Maintenance of Internal Security Act, COFEPOSA Act, National Security Act but in none of these Acts the detaining authority is required to specify the period of detention while making the order of detention against a person.
This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention.
A Constitution Bench of this Court in Ujagar Singh vs The State of Punjab, while considering validity of detention order made under Section 3 of the held that non specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid.
In Suna Ullah Butt vs State of Jammu & Kashmir, ; validity of detention order made under Jammu and Kashmir Preventive Detention Act 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention.
The Court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention.
In Suresh Bhojraj Chela ni vs State of Maharashtra, while consider ing the validity of the detention order made under Section 3(1) of the this Court rejected simi lar submission made on behalf of the detenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention.
The Court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention.
When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.
In A.K. Roy V. Union of India & Ors., ; a Constitution Bench of this Court considered the validity of the National Security Act (65 of 1980), Chandrachud, CJ (as he then was) speaking for the Bench rejected the arguments made on behalf of the petitioner that the absence of provi sion requiring the detaining authority to provide for maxi mum period of detention was illegal.
The learned C J, ob served: "There is no substance in this grievance because, any law of preventive detention has to provide for the maximum 846 period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence.
We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention.
The fact that a person can be detained for the maximum period of 12 months does not place upon the detain ing authority the obligation to direct that he shall be detained for the maximum period.
The detaining authority can always exercise its discretion regarding the length of the period of detention.
It must also be mentioned that, under the proviso to Section 13, the appropriate Government has the power to revoke or modify the order of detention at any earlier point of time.
" On the basis of the above observations validity of a deten tion order passed under Section 3 of the National Security Act was challenged before this Court in Ashok Kumar vs Delhi Administration & Ors., on the ground that the Commissioner of Police, as well as the Administrator of Delhi Administration who confirmed the detention order failed to specify the period of detention while making the order of detention.
A three 'Judge 's Bench of this Court rejected the detention and upheld the validity of the deten tion order.
A.P. Sen, J. observed: "It is plain from a reading of Section 3 of the Act that there is no obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention.
It will be noticed that sub section (1) of Section 3 stops with the words "make an order directing that such person be detained", and does not go further and pre scribe that the detaining authority shall also specify the period of detention.
Otherwise, there should have been the following words added at the end of this sub section "and shall specify the period of such detention".
What is true of subsection (1) of Section 3 is also true of sub section (2) thereof.
It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a Section.
Under the scheme of the Act, the period of deten tion must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity com plained of.
It is not that the period of detention must in all circumstances extended to the maximum period of 12 847 months as laid down in Section 13 of the Act.
" It is thus clear that the view taken in Gurbux Biryani 's case on the interpretation of Section 3 of the Maharashtra Act is incorrect.
This Court has while considering the question of the validity of the detention order made under different Acts, consistently taken the view that it is not necessary for the detaining authority or the State Govern ment to specify the period of detention in the order.
In the absence of any period being specified in the order the detenu is required to be under detention for the maximum period prescribed under the Act, but it is always open to the State Government to modify or revoke the order even before the completion of the maximum period of detention.
We are, therefore, of the opinion that the impugned order of detention is not rendered illegal on account of the detain ing authority 's failure to specify period of detention in the order.
Mr. R.K. Garg then urged that the sole ground on which the detention order is rounded does not relate to mainte nance of public order, and it exhibits non application of mind by the detaining authority.
While considering this submission it is necessary to reproduce the detention order as well as the grounds in support thereof.
The detention order is as under: "DETENTION ORDER WHEREAS, I, Thiru T.S. Sridhar, IAS, Collector and District Magistrate, Kamarajar District, Virudhunagat, am satisfied with respect to the person known as Thiru Thama raikani son of Ramaswamy Nader, residing at Singammalpuram Street, Srivilliputhur Town and Taluk that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.
Now therefore in exercise of the powers con ferred by sub section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Of fenders and Slum Grabbers Act 1982 (Tamil Nadu Act 14/82) read with orders issued by the Government in G.O. Ms. No. 230, Prohibition and Excise Department, dated 23.3.1985 and subsequently amended in G.O. Ms. No. 815, Home Prohibition and Excise Department dated 13.7.1989 848 under sub section (2) of Section 3 of the said Act, I hereby direct that the said Thiru R. Thamaraikani son of Ramasamy Nader be detained and kept in Central Prison, Madurai.
S/d Collector and District Magistrate, Kamarajan, District Virudhunagar.
" The ground of detention supplied to the detenu stated that the detenu was a habitual criminal, a goonda and his activi ty had come to adverse notice in some cases reference to which was made by referring to some FIRs lodged against the detenu at the Police Station.
But the incidents referred in those FIRs have not been made ground for detention instead facts stated in paragraphs 3, 4, 5 and 6 of the grounds constitute material on which the District Magistrate formed the requisite opinion under Section 3(1) of the Act in making the order of detention.
These are as under: "(3) The ground on which the said detention order has been made as follows: On 29.7.1989, the Kamarajar District Irrigation Seminar was held at "Dry Chilly Merchants ' Association Kalai Arangam" at Arupoukottai Road, Viruthunagar Town.
Hon 'ble Minister for P.W.D. Thiru Durai Murugan and Hon 'bIe Minister for Labour Thiru Pon.
Muthumalaingam attended the Seminar which was presided over by the District Collector.
At about 12.30 p.m. while the proceedings of the Seminar were on, suddenly there was a commotion in front of the dias.
Thiru Murali, Sub Inspector of Police, Vembakottai alongwith posse of men who were on bandobust duty there, rushed up Thiru R. Thamaraikani inducing his henchmen saying "Finish Durai Murgan 's chapter today".
The same time he (Thamaraikani) also threw a dagger aimed at Hon 'ble Minister Thiru Durai Murugan shouting "Finish Durai Murgans Chapter today".
But the dagger missed the target and fell down on the stage.
At once Thiru R. Thamaraikani took out a bottle containing petrol and a match box out of a hand bag which he carried in his hand.
Instantly Thiru Murali, Sub Inspector of Police, Vembakottai and the P.C. 168 Murugesan 849 pounched and caught hold of Thiru R. Thamaraikani.
The former seized the bottle and the match box.
At the instiga tion of Thiru R. Thamaraikani, his henchmen viz. Thiru Valargal Kenna, son of Thangaraj Nader of Kammapatti, Na reeswaran, son of Smaraj Nadar of Kammapatti, Kalipandian, son of Krishna son thevar of Mall and Nagarajan, on of Paramasive Thevar of Mangeseri who accompanied him also attempted to attack the Hon 'ble Minister for P.W.D., with knives in their hands.
H.C. 829 Thiru Subbiahm P.C. 231 Thiru Subbiah and P.C. 469 Thiru Manraj duly assisted by some agriculturists surrounded and overpowered them and seized their knives.
Seeing the violent activities of Thiru R. Thamaraikani and his men, the gathering in the hall panicked.
They raised an alarm and ran outside the auditori um and the crowd outside also got scared and ran helter skelter, causing obstruction to traffic along Aruppukottai Road.
The proceedings of the Seminar also came to an abrupt halt for a while.
The Sub Inspector of Police arrested Thiru R. Thamaraikani and his four associates at about 1300 hrs.
and brought them out with the help of the Deputy Superin tendent of Police, Virudhunagar and other Police Officials who were then on duty there.
On seeing this about 10 other henchmen of Thiru R. Thamaraikani who were waiting outside the auditorium escaped, leaving behined an Ambassador Car IDR 667 and a van TCM 7797.
On searching the car, the Sub Inspector of Police found legal weapons viz. 1 sword, 4 koduvals and also 4 torch sticks, the cloths of which were doused in kerosene.
The said two vehicles along with the lethal weapons, hand bag containing bottle with petrol.
Rs. 1000 match box, papers etc., were seized under an attachi at 1330 hrs.
Then the Sub Inspector of Police, handed over the accused persons and the properties seized under a special report at Virudhunagar East Police station.
A case was registered in Cr. No. 180/89 u/ss 147, 148, 307 read with 149 I.P.C. and 27 Indian Arms Act at the Virudhunagar East Police Station.
The Inspector of Police, Law and order, Virudhunagar Rural Circle took up the investigation.
On Production before the Judicial Magistrate Court No. 1, Thiru R. Thamaraikani was remanded to judicial custody in Central Prison, Madurai on 30.7.89 and released on bail with condi tion to stay at Madurai on 3.8.89.
The case properties were deposited in the Court.
The case is still under investiga tion.
850 (4) The offence u/s 307 IPC is punishable under Chapter XVI of the IPC.
By committing the above described grave offence in public, in broad day light, Thiru R. Thamaraikani has created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order.
His unlawful, disorderly and dangerous activities on 29.7.89 are prejudicial to the maintenance of public order and have affected the even tempo of life of the community.
(5) I am aware that Thiru R. Thamaraikani is now on bail with condition to stay at Madurai since 3.8.89.
1 am satis fied that his unlawful activities warrant his detention under the Tamil Nadu Act No. 14 of 1982.
(6) I am satisfied that on the materials mentioned above, if Thiru R. Thamaraikani is left to remain at large.
he will indulge in ' further activities prejudicial to the mainte nance of public order and further recourse to normal law would not have the desired effect of effectively preventing him from indulging in activities prejudicial to the mainte nance of public order and therefore I consider that it is necessary to detain him in custody with a view to preventing him from acting in any manner prejudicial to the maintenance of public order." In substance the ground of detention states that while a Seminar was going on the detenu incited his men saying "Finish Durai Murgan 's Chapter today" and after saying that he threw a dagger aiming at Thiru Durai Murgan, Minister but the dagger missed the target and fell down on the stage.
Thereafter, the detenu took out a bottle containing petrol and a matchbox out of a hand bag which he carried in his hand.
Meanwhile, the Sub Inspector of Police, caught hold of the detenu.
seized the bottle and the matchbox.
It is fur ther stated that the detenu and those who accompanied him attempted to attack the Minister with knives in their hands but they were overpowered by the Police and the members of police.
As a result of the incident those present in the hall panicked and got scared and ran helter skelter, causing obstruction to traffic on Aruppukottai Road.
The Seminar also came to an abrupt bald for a while.
paragraph 4 of the detention order further states that the detenu by committing the aforesaid grave offence in public, in broad day light created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the 851 area and thereby he acted in a manner prejudicial to the maintenance of the public order.
His unlawful, disorderly and dangerous activities on 27.7.89 were prejudicial to the maintenance of public order which affected the even tempo of life of the community.
On the aforesaid facts, the District Magistrate was satisfied that if the detenu was left to remain at 'large he would indulge in further activities prejudicial to maintenance of public order and recourse to normal law would not have the desired effect of preventing him from indulging in activities prejudicial to the mainte nance of public order.
The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants ' Association Kalai Arangam Hall was prejudical to the maintenance of public order.
Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order.
There is basic difference between law and order ' and 'public order ', this aspect has been considered by this Court in a number of decisions, see: Dr. Ram Manohar Lohia vs State of Bihar, ; ; Pushkar Mukherjee & Ors.
vs The State of West Bengal, ; and Shymal Chakra borty vs Commissioner of Police Calcutta & Anr., ; In these cases it was emphasised that an act dis turbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquillity.
1t is the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order.
In Arun Ghosh vs State of West Bengal, the Court held that the question whether a man has only committed a breach of |aw and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society.
This view was reiterated in Nagendra Nath Mondal vs State of West Bengal, ; ; Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ; ; S.K. Kedar vs State of West Bengal, ; Kanu Biswas vs State of West Bengal, ; ; Kishori Mohan vs State of West Bengal, and Amiya Kumar Karmakar vs State of West Bengal, In the instant case the detenu was placed under deten tion on the sole incident which took place on 29.7.89 and in respect of which the 852 detenu is facing criminal trial before a court of law.
The alleged attempted murderous assault made by the detenu and his associates on Thiru Durai Murugan, Minister for Public Works Department may have been made on account of political rivalry.
In fact, in his affidavit Thiru Durai Murugan has admitted that in the past the detenu had misbehaved with him even on the floor of the Legislative Assembly of Tamii Nadu while participating in discussion.
The attempted assault took place in the hail of Dry Chily Merchants ' Association Kalai Arangam where two Ministers, a number of officials including the District Magistrate, as well as members of the public were present.
It is alleged that the attempted mur derous assault on Thiru Durai Murugan created scare and a feeling of insecurity in the minds of the persons present in the hail and the detenu 's action interrupted the "proceed ings of the Seminar for a while" (emphasis supplied).
This shows that the detenu 's activity disturbed the proceedings of the Seminar for a while but the Seminar appears to have continued later on.
The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality.
How could a single murderous assault on the Minister concerned at the Seminar could prejudicially affect the even tempo of the life of the community? No doubt in paragraph 4 of the grounds the detaining authority has stated that by commit ting this grave offence in public, in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and there by acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the commu nity.
Repitition of these words in the ground are not suffi cient to inject the requisite degree of quality and potenti ality in the incident in question.
A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy somuch as to bring the case within the purview of the Act.
Such a solitary incident can only raise a law and order problem and no more.
Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity.
In the absence of such material it is not possible to hold that the inci dent at the seminar was prejudicial to the maintenance of public order.
In Manu Bhusan Roy Prodhan vs State of West Bengal & Ors., ; this Court held that a solitary assault on one individual, which may well be equat ed with an ordinary murder which is not an uncommon occur rence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community, thereby 853 shaking the balanced tempo of the orderly life of the gener al public.
The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law.
On a careful consideration of the matter in all its aspects and having regard to the circum stances in which the alleged incident took place on 29.7.89, we are of the opinion that the solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the main tenance of public order.
The detaining authority, namely, the District Magistrate of Kamarajan District who was admittedly present at the Seminar, has filed his own affidavit stating that he was sitting on the dias alongwith the Minister for Public Works Department Thus the incident which is the basis for deten tion of the detenu took place in the presence of the detain ing authority.
In his affidavit the District Magistrate has, however, stated that he made the detention order against the detenu on perusal of the materials, facts and documents placed before him by the police as he was satisfied that detenu 's detention was necessary for the purpose of mainte nance of public order.
He has denied the allegation that the detention order was passed by him under the influence of the Minister.
Since the District Magistrate was present on the dias alongwith the Minister and the alleged murderous as sault is alleged to have been made by the detenu in the presence of the detaining authority, one would expect him to have witnessed the occurrence himself.
But it is interesting to note that in paragraph 23 of his affidavit, the District Magistrate has stated that though he was present on the dias but did not witness the incident as he was concentrating on the proceedings of the Seminar and preparing replies to the querries raised by Speakers at the Seminar.
It is difficult to believe the District Magistrate that he could not see the occurrence although he was seated on the dias alongwith the Minister, on whom murderous assault was allegedly made by the detenu.
He is not ready to corroborate the occurrence as presented to him by the sponsoring authority, namely, the Police.
If the detaining authority was himself present and was an eye witness to the occurrence on the basis of which detention order was made, it was imperative for the detain ing authority to have honestly and bona fide formed the requisite opinion in making the order of detention on the basis of his own knowledge and perception instead of relying more on the version of the incident as placed before him by the sponsoring authority.
In a case where the detaining authority may not be present at the 854 place of the incident or the occurrence, he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where the detaining authority was himself present at the scene of occurrence he should have relied more on his own observation and knowledge than on the report of the sponsoring authority.
In the instant case the detaining authority though present at the scene of occurrence does not support the incident as pre sented to him by the sponsoring authority.
In the circum stances, we are of the opinion that there was non applica tion of mind by the detaining authority in making the im pugned order of detention.
In view of the above discussion the detention order is rendered illegal and it is accordingly quashed.
R.N.J. Petition allowed.

summary:
This petition under Article 32 of the Constitution of India was filed by the wife of the detenu challenging the validity of the Detention Order dated 15.8.1989 passed against her husband by the Collector and District Magistrate of Kamarajar District Virudhunagar, Tamil Nadu on allega tions inter alia that the District Magistrate had issued the impugned order for detention of her husband, who is an active member of the All India Anna Drayida Munnetra Kazha gam party, an active social and political worker and ex member of the Tamil Nadu Legislative Assembly, at the behest of Respondent No. 3 a Minister in the present DMK Govern ment, on account of personal and political animosity between the two.
Counsel for the Detenu urged two grounds to attack the order of detention.
Firstly that the order did not specify the period of detention, and secondly that the sole ground of detention as reflected in the Grounds of Detention has no relevance to the maintenance of 'Public Order ' as the facts mentioned therein donot make out any case of violation of public order.
At best, it may be a case of law and order only which exhibits non application of mind by the detaining authority.
837 Allowing the writ petition and quashing the impugned order of detention on the ground of non application of mind by the Detaining Authority in passing the Detention order, this Court, HELD: (1) Since the Act does not require the detaining authority to specify the period for which a detenu is re quired to be detained the order of detention is not rendered invalid or illegal in the absence of such specification in the Detention order.
[843E] Commissioner of Police & Anr.
vs Gurbux Anandram Birya ni, [1988] Supp.
SCC 568 Over ruled.
Ashok Kumar vs Delhi Administration & Ors., , Ujagar Singh vs The State of Punjab, ; Suna Ullah Butt vs State of Jammu & Kashmir, ; ; Suresh Bhojraj Chelani vs State of Maharashtra, and A.K. Roy vs Union of India & Ors., ; , approved.
(2) In a case where the detaining authority may not be present at the place of the incident or the occurrence, he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where the detaining authority was himself present at the scene of occurrence he should have relied more on his own knowledge and observation then on the report of the sponsoring author ity.
[853H; 854A] In the instant case, the detaining authority though present at the scene of occurrence does not support the incident as presented to him by the sponsoring authority, and yet he issued the detention order on the report of sponsoring authority.
In these circumstances, there was nonapplication of mind by the detaining authority in making the order of detention.
[854B] Dr. Ram Manohar Lohia vs State of Bihar, ; ; Pushkar Mukher]ee & Ors.
vs The State of West Bengal, ; ; Shyamal Chakraborty vs Commissioner of Police Calcutta & Anr., ; ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, ; ; Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ; ; S.K. Kedar vs State of West Bengal, ; Kanu Biswas vs State of West Bengal, ; ; Kishori Mohan vs State of West Bengal, ; Amiya Kumar Karmakar vs State of West Bengal, and Manu Bhusan Roy Prodhan vs State of West Bengal & Ors.
, ; , referred to. 838


judgement:
ivil Appeal Nos.
1402 & 1401 of 1990.
From the Judgment and Order dated 22.5.
1987 of Delhi High Court in C.W.P. No. 2687 of 1986.
N.S. Hegde, Additional Solicitor General, K. Swamy and Ms. A. Subhashini for the Appellants.
G. Ramaswamy, Rajiv Sawnney, A.K. Verma, Sukumaran, V.B. Saharya and S.D. Sharma for the Respondents.
T.C. Bhatia (In person) for the Intervener.
PUNCHHI, J. Special leave granted.
These two appeals respectively are directed by the Union of India and the Delhi Development Authority (hereinafter referred to as the DDA) against the full bench decision and order of the Delhi High Court dated May 22, 1987 declaring and by necessary implication directing that the DDA carry out and implement its resolution number 26 dated February 1, 1983, which resolution was said to have been substituted by it by a later resolution number 3 dated August 1, 1986 reiterated by another resolution dated November 3, 1986.
These resolutions related to some affairs of the Delhi Cloth Mills Limited (hereinafter referred to as the DCM), the writ petitioner before the High Court, and the official reaction thereon.
Some of the essential facts as culled out from the judgment of the High Court, and others which have come by in the meantime, would be necessary to be noticed.
The Mill has a complex over an area of about 63 acres at sites at Bara Hindu Rao and Kishan Ganj at Delhi.
The Delhi Development Act, 1956 envisages preparation by the DDA of a Master Plan for Delhi, which it did, and was enforced and one of its attributes is to assign land use.
Bara Hindu Rao is a non conforming area and the industry of the kind in which the Mill is engaged in has to be shifted out to a conforming area.
6 12 acres of land near about Narela was said to have been ear marked for conformed use of factories.
The DCM in September 1982 approached the DDA and putforth its proposal for shifting the Mill and for re developing the Mill area for group housing and flatted factories.
On February 1, 1983 the DDA by resolution number 26 agreed to the scheme as propounded by DCM as feasible for implementation in phases.
But in passing it 954 recorded a fact that the shifting of the Mill would involve a lot of working population and consequently income and products manufactured by the DCM would carefully need to be looked into by the Delhi Administration and Ministry of Industries in terms of its affectation to the economy of Delhi.
On the other hand in September 1983 the DDA turned down the request of the DCM for allotment of an alternate site measuring 150 to 200 acres of land in a conforming area for shifting having regard to the kind of industry the DCM was engaged in.
The DCM then applied to the Secretary, Labour/Labour Commissioner, Delhi Administration for permis sion to close down the Mill under the provisions of Section 25(O) of the Industrial Disputes Act.
The reasons advanced by the DCM inter alia were that the Mill could not be kept located in a non conforming area as otherwise penal conse quences would follow as also that it had run into tremendous losses, the industry being unprofitable.
On April 15, 1985, the request of the DCM was turned down by the Secretary, Labour/Labour Commissioner.
In this state of affairs when the DCM had been given no place to shift to and the closure of the Mill had been declined, the DDA reviewed the situa tion and passed a fresh resolution No. 3 dated August 1, 1986 reviewing its earlier resolution dated February 1, 1983 recalling the grant of approval with regard to the scheme propounded by the DCM.
Further it felt justified in taking such step as the Master Plan was under process of review keeping the perspective of the year 200 1 AD in view.
The DDA even reiterated its resolution of August 1, 1986, by another resolution dated November 3, 1986 during the penden cy of the writ petition in the High Court when asked to have a fresh look into the matter.
These two later resolutions, as said before, were quashed by the High Court restoring the earlier resolutions dated February 1, 1983 taking a broader view that the mill could not be kept working in a non con forming area as otherwise it would attract penal action under the law after the lapse of three years from January 18, 1986, and that.
the DDA could not justify its action as even the proposals to modify the Master Plan with the perspective of year 2001 AD in view did not contain any proposal for change of land use of the site under the DCM, and as of original, it was a site marked for group housing and flatted factories.
The reasons advanced by the Secretary, Labour/Labour Commissioner declining request of the DCM for closure of the Mill under section 25(0) of the Industrial Disputes Act as recorded were as follows: "The closure of the unit is not in public interest as this 955 would render almost 6000 workers jobless and adversely affect thousands of their families members.
Besides, trade and commercial activity associated with this Mill would be adversely affected on account of the closure.
It is in public interest that the management makes all out efforts towards the efficient functioning of this Mill.
Finally, the operations of this unit are not dangerous to the lives of the Industrial workers and the people living around the factory.
The location of the Unit in a thickly populated locality therefore does not involve any community risk.
" The DCM filed Civil Writ No. 1281 of 1985 in the High Court which was allowed by a Full Bench of the High Court on March 1, 1989 ordering closure of the Mill, though much after the decision instantly appealed against.
The Lt. Governor, Delhi Administration sought special leave vide SLP (C) No. 3630 of 1989.
Another sequential petition SLP (C) No. 3369 of 1989 was preferred 'by the DCM against the order of the Full Bench of the High Court passed two days later on March 3, 1989 extending time for grant of permission by the Lt. Governor for closure of the factory till March 30, 1989.
When these matters were called in this Court along with the SLPs, now appeals, it transpired that the DCM and its employees, ranging about 6,000 in number, had fortunately reached an agreement in the matter of closure of the factory.
The High Court also had come to the conclusion that indisputably the location of the factory in Bara Hindu Rao, within the munic ipal limits of New Delhi was not congenial from the point of view of sanitation and was otherwise hazardous.
Keeping such finding and the settlement between the DCM and its employees in view, the Full Bench judgment of the High Court dated March, 1, 1989 was left uninterfered with dismissing the special leave petition No. 3630 of 1989 on March 27, 1989, with a consequential direction: "So far as the payment of statutory compensation which forms part of the agreement, we direct that DCM shall credit the amounts payable to the individual employees by opening an account with a nationalised bank as per the time schedule indicated in the agreement by making fixed deposits for an initial period of 91 days.
Payment into the account and making over the fixed deposit receipt, so far as the dis bursement of the statutory compensation is concerned, shall be taken to have been satisfied when such fixed deposit receipt is made over to the respective employees." 956 Sequelly SLP No. 3369 of 1989 preferred by the DCM was also dismissed on the same date.
What survived on March 27, 1989, were the instant two special leave petitions, now appeals, and during the course of their hearing Mr. Nariman appearing for DCM on his own indicated that DCM was prepared to locate a community centre and a hospital to serve the requirements of the employees as also the residents of the locality.
He further.submitted that notwithstanding the pendency of those two petitions, the Delhi Administration, should proceed to process the application of DCM for requisite permission for locating the proposed flatted factories and residential accommodation for officers and workmen in accordance with the Master Plan, subject to the result of these petitions.
In these circum stances, the Municipal Corporation of Delhi, which was not a party to these proceedings (though later represented by counsel), as well as the two petitioners, Union of India and the DDA were given directions to process the applications for permission and proceed with the same in accordance with law pending disposal of the special leave petitions.
This order was later clarified on April 10, 1989 to say that processing of the applications by the three aforementioned functionaries did not include making of a final order and no final order disposing of the applications be made until the special leave petitions are finally disposed of.
It was further directed that in the matter of processing, the Master Plan and the relevant law be kept in view.
The scope of these matters is now considerably reduced and easily discernible.
The factory has been ordered to be closed and the employer and the employees have entered a settlement.
The supposed basis for reviewing or recalling resolution dated February 1, 1983 on the basis of its affec tation to the industry and economy of Delhi as also to the workmen has vanished.
On this footing and on the events which have come by, the challenge to the judgment and order of the High Court loses vigour and this does not now at least remain a case calling for interference under Article 136 of the Constitution except what we intend adding thereto to further the cause of justice.
Resolution No. 26 dated February 1, 1983 approving the scheme as given by the DCM provided that the scheme had taken all necessary safeguards and controls which would help triggering re development and rehabilitation in the congest ed areas of the central core of the capital.
The Technical Committee of the DDA assisting in the matter was even of the opinion that when permitting flatted factories, it could 957 be ensured that a reasonable percentage in the scheme is reserved for rehabilitating small industrial units presently functioning in the State in non conforming areas and that the scheme could only be implemented if it had the approval of the Delhi Administration and the Government of India.
To further that object, during the course of these proceedings upto date plans as prepared and submitted by the DCM to Municipal Corporation of Delhi, together with the sanction accorded thereon by the Standing Committee of the Municipal Corporation of Delhi vide resolution No. 1136 and 1137 dated November 24, 1989, were sent to the DDA for approval on December 6, 1989.
These had to be examined by the DDA in accordance with the assurance given to this Court by Shri G. Ramaswamy, its learned counsel and keeping in view the Master Plan.
These plans were examined vis a vis the plans earlier submitted by the DCM in 1982 83.
We have been con veyed that the objections as raised by the Municipal Corpo ration of Delhi within their own domain have been adopted by the DDA as their own objections, which are extracted below: 1.
FLATTED FACTORIES: The scheme has been formulated on a piece of land measuring 24.55 acres.
This land is earmarked for flatted factories in Delhi Master Plan and partly for widening of road.
The Master Plan provides on page 18 about the DCM site as follows: 'The Delhi Cloth Mills have to move out of this congested area to the extensive industrial districts accord ing to the time schedules given for non conforming uses.
The present site should be developed for flatted factories in gradual stages to relocate the industries now located in Ahata Kidara and other areas. ' 2.
Therefore, this site after development in stages for flatted factories is to be utilised only for providing accommodation to the existing units in the above referred areas.
The number of flatted factory units will depend upon/be related to the units located/functioning in these areas.
Therefore, in the proposed scheme of flatted factory, all these aspects have to be provided for and it should fulfil these requirements.
The Scheme has to be modified accordingly as no such details provision are indicated in the Scheme.
958 3.
Regarding the No Objection Certificate from the land use point of view, as required under bye law No. 6.2.2 which has come into force w.e.f. 2.6.83, DCM is required to obtain the NOC from the land use point.
of view from the DDA before the plans can be approved by MCD.
In the present case, no such NOC under bye law No. 6.2.2 has been applied for by the DCM. 4.
The right of way of National Highway No. 10 as per Master Plan for Delhi is 200 ft.
whereas in the Scheme, it is shown as 150 ft., the Scheme accordingly needs suitable modifica tion.
In the proposed scheme an entry/exit is provided from the proposed National Highway No. 10 which would not be techni cally feasible because of the proposed road underbridge at this point.
In the proposed scheme 2, basements have been provided equivalent to 40% of the ground coverage whereas the base ment should be equivalent to the ground coverage, provided in the scheme and should be used for essential services and for parking.
This condition has also been imposed in the NOC issued by Commissioner (Slum) under the Slum Improvement and Clearance Act, 1956.
GROUP HOUSING RESIDENTIAL COMPLEX AT KISHAN GANJ 1.
The scheme on an area measuring 39.73 acres has been formulated by the DCM in Kishan Ganj area comprising of (i) free hold land of DCM, (ii) lease hold land with DCM where Lessor is DDA measuring 11.98 acres and (iii) the DDA land encroached by the DCM, measuring 5091 sq. mtrs.
As per the terms of lease, the lessee cannot use, without permission, in writing, of the Lessor, land for any purpose other than that for which it has been given by the Lessor.
The Scheme, therefore, needs modification to exclude the lease hold land which has been included in this Scheme.
Land, measuring 5091 sq. mtrs.
has been illegally en croachedby DCM.
This land belongs to DDA which has 959 not been given on leasehold basis to the DCM.
This land has been included in the re development Scheme.
Since the owner ship of the land is with the DDA, the Scheme will have to be modified to exclude this land also.
Therefore, lands leased out and unauthorisedly occupied should be deleted and the scheme should confine to the free hold land.
The scheme needs modification.
The scheme formulated is without any distinction of the freehold, leasehold, and the unauthorisedly occupied land.
Therefore, the plan has to be modified to ensure that the scheme on the lease hold land is a separate entity because in the eventuality of permission being granted by the Lessor to allow use of the land for group housing purposes, it would be necessary as there may be occasion for determining the lease for violation of the lease terms and this will be possible only if the lease hold land has a separate identity on the ground.
As per June, 1983, Municipal Building Bye laws, under the byelaws 6.2.2 a 'no objection certificate from land use point of view from DDA is required to develop this land for residential use.
Therefore, the DCM had have to obtain 'No objection Certificate ' from land use point of view from DDA for the development of this land under the provisions of this bye law before their scheme could be considered and sanctioned by the Municipal Corporation of Delhi.
In the Scheme formulated, it is observed that some of the areas for facilities such as nursery school, shopping etc. have been included for coverage and FAR calculations as part of the group housing area; while as per Master Plan stipula tions, the area for community facilities within group.
housing scheme cannot be included for the purpose of calcu lations of coverages and EAR.
These should be left as inde pendent plots for providing such facilities.
The present Master Plan Zoning regulations prescribe a height of 80 ft. for residential group housing whereas the height provided is more than that.
The present scheme has been formulated having some of the blocks of 12 floors (ground plus 11 storeyes).
The 960 Master Plan Zoning regulations provide a maximum height of 80 ft.
i.e. ground plus 7 storeyes.
Therefore, the scheme needs notifications accordingly.
In the proposed scheme 2 basements have been provided for parking, servicing and storage whereas the basement should be provided equivalent to the ground coverage for essential services and for parking which is also one of the conditions imposed by the Commissioner (Slum) while granting NOC under the Slum Improvement and Clearance Act, 1956.
OF INDIA MIN.
OF URBAN DEVELOPMENT COMMUNI CATION THIS REGARD.
Director (DD), Min of U.D. vide his letter No. 16021/3/87 DD II/VA date 11.12.89 has stated that the land use and the proportion in which the land has to be developed for various uses, the provisions of the Master Plan of 1962 and the proposals made in PDP 2001 will have to be borne in mind.
Further, it is mentioned that a view is to be taken for the use for which the Nazul Land given on lease is to be put.
Thus, keeping in view the above communication from the Ministry, the Scheme will require modifications in the light of the proposals made in PDP 2001.
" The DDA thus requires the aforesaid objections to be first met before it could give its final approval.
It is worthy of record that under interim directions of this Court, afore referred to, its approval shall proceed after the disposal of these appeals.
And we feel that time for that purpose has arrived.
Having heard learned counsel for the parties and having taken note of the objections above referred to, we take the view that the appeals be dismissed conveying a direction that the DDA shall grant to the DCM conditional approval subject to removal of the above enumerated objections raised or such of them as are valid and tenable in law after DCM is heard by the Municipal Corporation of Delhi which the DDA has adopted and the matter be formalised forthwith by the DDA and other authorities connected therewith within eight weeks from today so that the settlement between the workers and the DCM and other matters connected do not stagnate and rather move further to the benefit of all concerned.
It appears that to the 6,000 961 workmen the grant of such approval even though conditional, would be beneficial; so are the terms of the settlement.
Saddling the order appealed against with the above direction we dismiss these appeals.
No Costs.
I.A. No. 1 of 1989 for intervention by a co sharer named Tara Chand Bhatia voicing grievance that the DCM has under valued its property at Bara Hindu Rao etc.
and that it should be ordered to be revalued, is also dismissed as it has no connection with the main issue.
Y. Lal Appeals dismissed.

dataset_name: IN-Abs

summary:
The respondent Delhi Cloth Mills has a complex over an area of 63 acres at Bara Hindu Rao and Kishan Gnaj, Delhi, which is a nonconforming area and the industry of the kind in which the mill is engaged in was required to be shifted consequent upon the enforcement of Master Plan prepared by Delhi Development Authority under the Delhi Development Act, 1966, which plan amongst other things was to assign land use.
The Delhi Cloth Mills in September 1982, approached the DDA and put forth a proposal for shifting the mill and for redeveloping the Mill area for group housing and flatted factories.
The DDA by Resolution No. 26 agreed to the scheme to be implemented in phases but it took care to examine the matter further from Delhi 's economics point of view.
In September 1983, the DDA turned down the request of the respondent for allotment of an alternate site in a conform ing area for shifting the mill.
Thereupon the Mill applied to the Secretary, Labour/Labour Commissioner, Delhi Adminis tration for permission to close down the Mill under Sec.
25(D) of the Industrial Disputes Act, on the ground that the Mill could not be kept located in a non coforming area as otherwise penal consequences would follow.
On April 15, 1985, the request of the Mill was turned down by the Secre tary, Labour/Labour Commissioner.
Thereupon the Delhi Mill filed a writ petition before the High Court for direction that the DDA be directed to implement its resolution No. 26 dated Feb. 1, 1983.
It may be mentioned here that during the pendency of the writ petition before the High Court, DDA had reviewed the situation and passed a fresh resolution No. 3 dated August 1, 1986 reviewing the earlier resolution dated Feb. 1, 1983 recalling the grant of approval with regard to the scheme propounded by the DCM.
Thereafter DDA reiterated its Resolution of August 1, 1986 by another resolution dated November 3, 1986.
952 The High Court quashed the two later resolutions and re stored the resolution dated February 1, 1983.
It took the view that the Mill could not be kept working in a non con forming area as otherwise it would attract penal action under the law after the lapse of three years from Jan. 18, 1986.
Both Union of India and DDA have filed appeals in this Court by special leave against the High Court 's order.
In the meantime DCM filed a writ petition in the High Court which was allowed by a Full Bench of the High Court on March 1, 1989 ordering closure of the Mill.
Delhi Adminis tration filed special leave petition in this Court against the said order and the Mill filed another special leave petition against the order of the High Court dated 3.3.1989 extending time for grant of permission by the Lt. Governor for Closure of the factory till March 30, 1989.
When these matters reached hearing in this Court, DCM and its employees had reached an agreement in the matter of closure of the factory.
The Special Leave Petitions were therefore dis missed by this Court; and on the file of this Court remained these two appeals.
Dismissing the appeals with a direction, this Court, HELD: The factory has been ordered to be closed and the employer and the employees have entered a settlement.
The supposed basis for reviewing or recalling resolution dated February 1, 1983 on the basis of its affectation to the industry and economy of Delhi as also to the workmen has vanished.
On this footing and on the events which have come by, the challenge to the judgment and order of the High Court loses rigour.
[956F G] Resolution No. 26 dated February 1, 1983, approving the scheme is given by the DCM provided that the scheme had taken all necessary safeguards and controls which would help triggering re development and rehabilitation in the congest ed areas of the central core of the capital.[956G] Appeals dismissed conveying a direction that the DDA shall grant the DCM conditional approval subject to removal of the enumerated objections raised or such of them as are valid and tenable in law after DCM is heard by the Municipal Corporation of Delhi.
The matter be formalised forthwith by the DDA and other authorities connected therewith within eight weeks so that the settlement between the workers and the DCM and other matters connected do not stagnate and move to the benefit of all concerned.
[960G H] 953


judgement:
ivil Appeal No. 744 of 1987.
From the Judgment and Order dated 9.10.1986 of the Industrial Tribunal Karnataka in Serial No. 1/80 in I.D. No. 26 of 1979.
Narayan B. Shetye, Vineet Kumar and Vinay Bhasin for the Appellant.
M.C. Narasimhan and Jitender Sharma for the Respondent No. 2.
The Judgment of the Court was delivered by PUNCHHI, J.
Whether "night shift allowance" forms part of "wages" in the context of section 32(2)(b) of the Indus trial Disputes Act, 1947 (hereinafter referred to as 'the Act ') is the issue which crops up for decision in this appeal by special leave against the order dated October 9, 1986 of the Industrial Tribunal, Karnataka at Bangalore in Serial No. 1 of 1980 in I.D. No. 26 of 1979.
It arises on these facts.
Bharat Electronics Limited, Bangalore, the appellant herein, is the "management" and the respondent Shri B. Sridhar, "workman" 973 was in employment with the management as a bus driver.
The establishment of the management, at the relevant time, had about 13,500 employees out of whom about 2,800 were females.
The management provided transport facilities for picking up and dropping down its employees from and at stipulated official stops.
The driver,, plying buses of the establish ment on a rotational basis, working on night shifts, used to get a variable night shift allowance.
On May 1, 1979 the workman was detailed to work in the first shift for picking up certain employees of the second shift and general shift, and for drop.
ping school children at various scheduled points.
He was also detailed to pick up female employees, who were to report for the shift commencing from 10.30 a.m. to 7.00 p.m. from the stipulated official stops.
En route the workman did not park his vehicle at one of the stipulat ed establishment bus stops but rather quite away from it, which caught the attention of Shri K.L. Balasubramaniam, a senior Engineer in the employment of the Management wanting to go the factory.
Shri Balasubramaniam went there and in the process of boarding the bus enquired whether he could go to the factory in the same bus.
He was in for a shock to see the workman indulging in sexual act with a woman in the gang way of the bus.
The sudden appearance of Shri Balasubramani am surprised the workman and he abruptly and falsely replied in the negative.
The matter was reported to the high offi cials of the Management.
He confessed his guilt before Shri M.V. Subbarayappa, Deputy Manager, Transport.
The misconduct committed by the workman became the subject matter of a domestic enquiry.
At the enquiry S/Shri Balasubramaniam and Subbarayappa appeared for the management and deposed to the aforesaid facts.
The Enquiry Officer found the workman guilty of the misconduct imputed under Standing Orders 15(1)(h) and 15(1)(r) of the Standing Orders of the Company.
The workman was thereafter dismissed from service with effect from December 31, 1979.
On that very day, the management sought approval from the Industrial Tribunal, Karnataka at Bangalore under section 33(2)(b) of the Act of the action taken and towards meeting the requirement of the provision paid to the workman before hand a sum of Rs.607.90 as wages for one month, Before the Industrial Tribunal the workman filed an objection statement raising various contentions denying inter alia the allegations made against him and challenging the validity of the domestic enquiry.
It somehow kept pend ing for over six years though under the unamended section 32(5), it was required of the Tribunal to without delay hear the application and pass such order in relation thereto as it deemed fit.
Now with effect from 21 8 1984, three months time limit is 974 fixed though extendable by an order in writing.
Anyway while that was in progress, he made an application on July 13, 1986 before the Tribunal seeking amendment of the objection petition enabling him to urge an additional ground to the effect that one month 's wages paid to him were short by Rs. 12, the monthly sum due for night shift ' allowance.
The additional objection was based on the premises that since the workman was ordinarily expected to work on night shift on a rotational basis as per the Standing Orders of the Company, such allowance should have formed part of the wages.
On that basis it was urged that since full wages had not been paid to the workman, there was a serious infraction of the provisions of section 33(2)(b) warranting the sought for approval to be declined.
The management could not, and did not, deny that factu ally the night shift allowance had not been included in one month 's wages as paid to the workman.
The management however maintained that the question of the validity of the domestic enquiry, which the Tribunal had already undertaken, should first be settled and that in any case the additional objec tion raised by the workman required leading evidence.
The management further contended that the night shift allowance was neither paid nor was payable to the workman as he could not be said to have earned it automatically as part of wages unless he had actually worked on the night shift.
It was pointed out that the said allowance was variable in nature depending upon the number of shifts in which the workman had actually performed work.
It was asserted that the night shift allowance is not payable to the workman when he does not come for work for any reason and thus was not such allowance which would automatically flow even without work ing.
Lastly it was projected that since during the pendency of the domestic enquiry the workman was under suspension there could otherwise arise no occasion for his coming on duty to earn the night shift allowance.
The Presiding Officer, Industrial Tribunal, Bangalore relying on the views expressed by an Hon 'ble Single Judge of the Karnataka High Court in Writ Petition No. 6607 of 1985 decided on August 28, 1986, titled Ramakrishnappa vs The Industrial Tribunal & Another, sustained the objection of the workman taking the view that night shift allowance should have formed part of one month 's wages and on that score went alongwith the workman in abandoning giving any finding the validity of domestic enquiry.
Consequentially for the view so taken the management was declined approval to the dismissal of the workman.
So the order of the Tribu nal taking that view is directly under attack in this appeal by special leave and indirectly at issue is the 975 correctness of the decision of the Karnataka High Court in Ramakrishnappa 's case aforementioned.
Two provisions of the Act which would require being adverted to are these.
Section 2(rr) provides the definition to the word "wages".
It reads as follows: "2. DEFINITIONS In this Act, unless there is anything repugnant in the subject or context, (rr) 'wages ' means all remunerations capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles; (iii) any travelling concession; (iv) any commission payable on the promotion of sales or business or both; but does not include (a) any bonus; (b) any contribution paid or payable by the em ployer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; (c) any gratuity payable on the termination of his service; Section 33(2)(b) as extracted reads as follows: 976 "33.
CONDITIONS OF SERVICE, ETC.
TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute for where there are no such stand ing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman], (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or other wise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approv al of the action taken by the employer.
" It is not disputed that section 33(2)(b) was attracted to the facts of this case.
The only point, as said before, is whether night shift allowance was to be paid to the workman as part of wages even though he had not factually worked on the night shift.
The definition of the word "wages", as given in clause (rr) of section 2 is comprehensive enough to include (vide inclusion 1) such of the allowances as the workman is for the time being entitled.
Yet, despite such comprehension, the inclusive meaning is subject to a meaningful change if there is anything repugnant in the subject or context.
The proviso to section 33(2)(b) mandates that unless the workman is paid wages for one month and an application as contem plated is made by the employer for approval of his action, no such workman can be discharged or dismissed.
The inten tion of the legislature in providing for such a contingency is not far to seek and as was pointed out by this Court in the case of Syndicate Bank Limited vs Ram Nath Bhat, [1967 68] (XXXII) FJR 490 at 497 was "to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed".
One month 's wages as thought and provided to be given are con ceptually for the month to 977 follow, the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dis missal.
If the converse is read in the context of the provi so to section 32(b), it inevitably would have to be read as double the wages as earned in the month previous to the date of dismissal and that would, in our view be, reading in the provision something which is not there, either expressly or impliedly.
We have thus to blend the contextual interpreta tion with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working.
This Court in M/s. Podar Mills Ltd. vs Bhagwan Singh and Another, ruled that the date of dismissal under section 33(2)(b) is the date when the approval application is filed, after dissmissal With effect from that date, the occasion to earn night shift allowance cannot, and will not, arise.
This Court in Bennett Coleman & Co. (P) Ltd. vs Punya Priya Das Gupta, ; was called upon to rule whether car allowance and benefit of free telephone and newspaper were such allowances, includable in wages under section 2(rr) of the Act in order to determine a claim of gratuity of a journalist.
This Court held as follows: "Since wages has not been defined in the Act, its meaning is the same as assigned to it in the .
Under section 2(rr) of that Act, "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employ ment or of work done in such employment, and includes (i) such allowances (including dearness allowance) as the work man is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles; (iii) any travelling concession; but does not include any bonus and other items mentioned therein.
Mr. Ramamurthi 's argument was that the car allowance as also the benefit of the free telephone and newspapers would fall under the first part of the definition as they are remuneration capable of being expressed in terms of money.
The argument, however, cannot be accepted as neither of them can be said to be remunera tion payable in respect of emp 978 1oyment or work done in such employment.
Neither the car allowance nor the benefit of the free telephone was given to the respondent in respect of his employment or work done in such employment as the use of the car and the telephone was not restricted to the employment, or the work of the re spondent as the special correspondent.
There was no evidence that the car allowance was fixed after taking into consider ation the expenses which he would have ordinarily to incur in connection with his employment or the work done in such employment.
Even if the respondent had not used the car for conveying himself to the office or to other places connected with his employment and had used other alternative or cheap er means of conveyances or none at all, the car allowance would still have had to be paid.
So too, the bills for the telephone and the newspapers whether he used them or not in connection with his employment or his work as the special correspondent.
Therefore we have to turn to the latter part of the definition and see if the two items properly fall under.
So far as the car allowance is concerned, there was, as aforesaid, nothing to suggest that it was paid to reim burse him of the expenses of conveyance which he would have to incur for discharging his duties as the special corre spondent, or that it was anything else than an allowance within the meaning of section 2(rr) of that Act.
It would, there fore, fall under the inclusive part (i) of the definition.
Likewise, the benefit of the telephone and newspapers was allowed to the respondent and merely for the use thereof in connection with his employment or duties connected with it.
Both the car allowance and the benefit of the free telephone and newspapers appear to have been allowed to him to direct ly reduce the expenditure which would otherwise have gone into his family budget and were therefore items relevant in fixation of fair wages.
[See Hindustan Antibiotics Ltd. vs Workmen, That being the position, the two items could on the facts and circumstances of the present case be properly regarded as part of the respondent 's wages and had to be taken into calculations of the gratuity pay able to him." (Emphasis supplied) The above extract and more so the emphasised words are significant to convey that the car allowance and the bene fits of free telephone and newspapers were held allowances includable in wages in the 979 facts and circumstances of that case.
These allowances were held part of the wages of the journalist on the finding that he was entitled to them not as remuneration capable of being expressed in terms of money but as allowances within the meaning of the First inclusion.
In Dilbagh RaiJarry vs Union of India & Ors., ; this Court was required to determine whether "run ning allowance" formed part of wages for the purpose of .
That was a case in which a railway guard, who was convicted in a criminal case but later acquitted, and who in the meantime had been dismissed from service but his dismissal too had been upset by the High Court followed by his reinstatement, had asked for back wages for the period between the date of his dismissal and the date of reinstatement.
Finally he was let to this Court reiterating his claim that a running allowance was part of his wages which he would have earned while on duty.
This Court in that context observed as follows: Mr. Bishan Narain further contends that Running Allowance was a part of the pay or substantive wages.
In support of this argument he has invited our attention to rule 2003 of the Railway Establishment Code, clause 2 of which defines 'average pay '.
According to the second proviso to this clause in the case of staff entitled to running allowance, average pay for the purpose of leave salary shall include the average running allowance earned during the months immediately preceding the month in which a Railway servant proceeds on leave subject to a maximum of 75 per cent of average pay for the said period, the average running allow ance once determined remaining in operation during the remaining part of the financial year in cases of leave not exceeding one month.
The crucial words, which have been underlined, show that such Running Allowance is counted towards 'average pay ' in those cases only where the leave does not exceed one month.
It cannot, therefore, be said that Running Allowance was due to the appellant as part of his wages for the entire period of his in active service.
Travelling allowance or running allowance is eligible if the officer has travelled or run, not otherwise.
We therefore negative this contention.
" (Emphasis supplied) It is noteworthy that running allowance or travelling allow ance, as the 980 case may be, had to be earned by actually travelling or running, and not otherwise, as held in Dilbagh Rai Jarry 's case (supra).
Only a fiction was available for a limited period as per Clause 2003 of the Railway Establishment Code.
The average running allowance once determined in accordance with the Clause, afore quoted, was to remain operative during the remaining part of the financial year only in those cases where the employee had taken leave not exceeding one month, and not otherwise.
In cases of leave exceeding one month the fiction on its 'own dropped.
Now confluencing the two legal thoughts expressed in Bennett Coleman 's case (supra) and Dilbagh Rai Jarry 's case (supra), the stream of thought which inevitably gurgles up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of section 33(2)(b) but an allowance which is earnable only by active serving is not an allowance which will form part of wages, within the meaning of the said provision.
In Ramakrishnappa 's case Hon 'ble Single Judge of the Karnataka High Court employed Bennett Coleman 's case to come to the conclusion that night shift allowance was part of the wages by observing as follows: "Therefore, I find it difficult to accede to the contention of the management that conveyance allowance, night shift allowance and turnout allowance were not wages as defined in section 2(rr) of the Act, and therefore, they were not required to be included in computing the wages of the petitioner for one month.
The decision of the Supreme Court in Bennett Coleman and Co. [1970] 37 FJR 498; AIR 1970 SC 427, though it arose in the context of quantification of gratuity, the view taken therein that the allowances given for purchase of newspapers, towards telephone and conveyance also should be calculated in computing one month 's wages for the purpose of computing gratuity, sup~ ports the construc tion placed on section 2(rr) of the Act for the petitioner, for, the Supreme Court invoked the said definition as the word "wages" had not been defined in the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955.
In the Case of Jarry; , , on which the learned counsel for the second respondent relied, the ques tion decided was, whether 981 wages payable to a railway guard for the period he was kept out of service consequent on his dismissal from service till he was reinstated included the amount of running allowance, which was under the rules payable only if the railway serv ant had gone on duty, and the Supreme Court held that it was not, in view of the condition.
Section 2(rr) of the Act did not come up for consideration in that case and, therefore, not apposite to this case.
" This view, as said before, was adopted by the Tribunal to decline approval to the management.
But for reasons set out before, we are of the view that the Hon 'ble Single Judge fell into an error in enlarging the scope of Bennett Cole man 's case and dwarfing that of Dilbagh Rai Jarry 's case.
Thus the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift.
The night shift allowance automatically did not form part of his wages and it was not such an allowance like in Bennett Coleman 's case which flowed to him as his entitlement not restricted to his service.
Thus we hold that the Tribunal fell into a grave error in declining the application of the management for approval on the ground of short payment of Rs. 12 on account of night shift allowance, which the workman suppos edly would have earned had he gone to report on duty, which in the circumstances he could not, or having worked rota tionally at night, which he did not, and that too fictional ly, in the month following the month and the date of the application, on which date the dismissal was to be effec tive.
We cannot refrain from expressing our concern to the manner in which the other issue before the Tribunal regard ing the validity of the domestic enquiry was side tracked.
Had there been a finding on the same, one way or the other, we could have easily finalised the matter.
For over six years the matter on that count was kept pending and the additional objection being permitted to be raised was unac countably abandoned.
The matter could have in this situation been sent back to the Tribunal but at this late stage we do not propose to do so and are inclined to close the matter, as we are otherwise satisfied that plea about the validity of the domestic enquiry was without merit and even though raised was by conduct abandoned.
Before concluding the judgment the observations in Syndicate Bank 's case, afore quoted, are again to be borne to mind.
In the facts and circumstances of this case the management paid to the workman a 982 sum of Rs.607.90 as a month 's salary "to soften the rigour of unemployment that will face the workman".
How could a short payment of Rs. 12 be said to have lessened the soften ing of such rigour is thought stirring.
Viewed in the con text, there could genuinely be a dispute, as in the present case, as to whether a particular sum was due as wages.
It is, of course, risky for the management to raise it as to pay even a paise less than the month 's wages due under section 33(2)(b), would be fatal to its permission sought.
But at the same time it needs to be clarified that it is for the management to establish, when questioned, that the sum paid to the workman under section 33(2)(b) represented full wages of the month following the date of discharge or dis missal, as conceived of in the provision and as interpreted by us in entwining the ratios in Bennett Coleman 's case (supra) and Dilbagh Rai Jarrv 's case (supra) and adding something ourselves thereto.
Thus for the foregoing reasons, we allow this appeal, set aside the judgment and order of the Industrial Tribunal, Karnataka at Bangalore and allow the application of the management under section 33(2)(b) of the without any order as to costs.
R.N.J. Appeal allowed.

summary:
Respondent workman was in employment of the Appellant management as Bus driver.
Following an incident of miscon duct committed by him, a domestic inquiry was conducted against him under Standing Orders 15(1)(b) and 15(1)(r) of the Company wherein he was held guilty by the Enquiry Offi cer and was eventually dismissed from the service w .e.f.
31.12.1979.
On that day itself the management moved an application before the Industrial Tribunal under section 33(2)(b) of the Act for approval of the action taken and towards meeting the requirements of the provisions of the act paid to the workman before hand wages for one month.
The workman filed his objection Statement to that application raising several contentions denying all the allegations made against him and challenging the validity of the domestic enquiry.
This application somehow was kept pending by the Tribunal for over six years when sometime in July, 1986 the workman moved an application before the Tribunal seeking amendment of his objection petition to urge an additional ground that one month 's wages paid to him were short by Rs. 12, being the monthly night shift allowance as he was ordi narily expected to work by rotation as per standing orders of the Company and thus as full one month 's wages had not been paid to him as required under section 33(2)(b) of the Act, the approval sought for ought to be declined.
The management contended that the night shift allowance is neither paid nor payable unless the night shift is actually performed and thus this amount cannot form part of the month 's wages automatically.
The Industrial Tribunal while abandoning giving any finding on the validity of the domes tic enquiry, upheld the additional objection taken by the workman and declined the management 's application seeking approval to the dismissal of the workman.
Hence this appeal by special leave by the management.
Setting aside the im pugned judgment and order of the Tribunal and allowing their application made under section 33(2)(b) of the , this Court in allowing the appeal, 972 HELD: The workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift.
The night shift allowance did not automatically form part of his wages and it was not such an allowance which flowed to him as an entitlement of his service.
[981C] The Tribunal fell into a grave error in declining the application of the management for approval on the ground of short payment of Rs. 12 on account of night shift allowance, which the workman supposedly would have earned had he gone to report for duty.
[981D] Syndicate Bank Limited vs Ram Nath Bhat, [1967 68] (XXXX) FJR 490 at 497; M/s. Podar Mills Ltd. vs Bhagwan Singh and Another, [4974] 3 SCC 157; Bennett Coleman & Co. (P) Ltd. vs Punya Priya Das Gupta, ; and Dilbagh Rai Jarry vs Union of India & Ors., ; referred to.