judgement:
minal Appeal No. 135 of 1956.
188 Appeal by special leave from the judgment and order dated November 25, 1955, of the Allahabad High Court, in Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment and order dated May 17, 1955, of the Court of Sessions Judge, at Moradavad in Sessions Trial No. 29 of 1955.
P. section Safeer, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
November 21.
The Judgment of the Court was delivered by IMAM J.
The appellant was sentenced to death for the marder of Daya Ram by shooting him with a country made pistol.
He was also convicted for being in possession of an unlicensed firearm under the Arms Act for which offence he was sentenced to two years rigorous imprisonment.
He appealed to the High Court of Allahabad, but his appeal was dismissed and the conviction and sentence was affirmed.
Against the decision of the Allahabad High Court the appellant obtained special leave to appeal to this Court.
According to the prosecution, the occurrence took place at about midnight of July 4, 1954, when Daya Ram was sleeping on a cot on a platform.
Near him were sleeping Gokul, Doongar and Jai Singh, while two women Ratto and Bhuri slept in a room to the north of the platform and adjoining it.
The report of the shot fired woke up these people.
According to them, they saw the appellant running towards the east.
He was accompanied by three others who were armed with lathis.
Daya Ram died almost instantaneously as the result of the injuries on his chest and stomach from where pellets were recovered at the time of the post mortem examination.
Daya Ram had been shot from a close distance because the skin was charred over the entire area of the wound.
Near the cot, on which he slept, a cartridge exhibit I. was found which was handed over to the Police Officer when he arrived for investigation.
A first information report was lodged at the police station five miles away at 8 10 a. m. on July 5, 1954.
189 The motive for the murder, as alleged by the prosecution, was that on the death of one Bhai Singh the appellant hoped to become guardian of Ratto 's property, who, however, appointed Daya Ram to take charge of it.
The appellant resented this very much.
Three days before the murder of Daya Ram there had been a quarrel between the appellant and his wife on the one side and Ratto and Bhuri on the other.
The quarrel arose over an attempt by the appellant to construct a wall over Ratto 's land. ' The appellant uttered a threat that he would soon settle with the person on whom Ratto was depending, that is to say, the deceased Daya Ram.
According to the High Court, the defence did not seriously challenge these allegations and the appellant himself admitted that Ratto wanted him to be turned out of his house.
The appellant was arrested on the night between July 5 and July 6, 1954, at a village fourteen miles away from the village of "occurrence Dhakeri.
On July 7, he informed the Sub Inspector that he was prepared to produce the pistol exhibit III.
The SubInspector and the appellant went to village Dhakeri and Kartar Singh, Mahtab Singh and Khamani were invited to witness the events that might follow.
On reaching the appellant 's house, which adjoins the resid ential house of Ratto, the appellant stated that the pistol exhibit III had been concealed by him in a corn bin.
From a secret place he took out a key and opened the lock of his house with it.
He then took the SubInspector and the witnesses to a mud corn bin inside his house, which appeared to be freshly plastered at one place.
The appellant removed the plaster at this place and from inside took out the country made 12bore pistol exhibit III, and three live 12 bore cartridges.
The cartridge exhibit I, which was found near the cot of Daya Ram, and the pistol exhibit III were sent to Shyam Narain, a Deputy Superintendent of Police, who is ,a fire arms expert of the C. I. D. of Uttar Pradesh Government.
He made scientific tests.
He came to the conclusion as the result of the various tests made by him that the cartridge Ex, I was fired from the pistol exhibit III and no other fire arm.
190 While the Sessions Judge believed the testimony of the eye witnesses, the learned Judges of the.
High Court were of the opinion that they were unable to accept the assertion of the eye witnesses that they actually saw the appellant with a pistol by the bedside of the deceased.
The High Court, however, relied upon the circumstantial evidence in the case in upholding the conviction of the appellant.
There was motive for the crime and a few days before the killing of.
Daya Ram the appellant had held out a threat against him.
The appellant was arrested fourteen miles away from his village which is the place of occurrence.
He produced a pistol exhibit
III from his house in circumstances which clearly showed that he only could have known of its existence there.
The opinion of the fire arms expert clearly established that the cartridge exhibit 1, found near the cot of Daya Ram, was fired with the pistol exhibit III produced by the appellant.
All these circumstances, in the opinion of the High Court, left no doubt in the minds of the learned Judges of that Court that the appellant murdered Daya Ram by shooting him with his pistol.
The learned Advocate for the appellant urged that the appellant could not have placed the pistol in his house and it must have been planted there by someone because none of the witnesses stated that they had seen him going to his house after the murder and the appellant was certainly not found in his house in the morning.
According to the situation of the house of the appellant and where the witnesses were immediately after the occurrence, it was impossible for the appellant to have entered his house without being seen.
It was further unlikely that after having committed the murder, the appellant, after having run away, would return to his house.
Both the Courts below, however, found no reason to disbelieve the Sub Inspector and the witnesses that the appellant had produced the pistol exhibit III from the corn bin inside his house.
The appellant had the key of the house which was hidden in a secret place and the com bin was itself freshly plastered at one place.
These circumstances clearly showed that no one but the appellant could have 191 known of the existence of the pistol in the corn bin in his house.
As to whether the appellant could or.could not have gone to his house after the occurrence that is a matter of pure speculation.
It does not appear that any witness was asked anything about it.
The High Court found that the witnesses might have caught a glimpse of the people who were fast disappearing from the scene but who had no reasonable opportunity of marking their features.
In the confusion of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards the east.
On the record, there is nothing to show that to enter the appellant 's house, after the occurrence, the appellant had necessarily to go into his house within the view of the witnesses.
It is quite unnecessary to examine this matter any further because the evidence concerning the production of the pistol exhibit III by the appellant from his house is ' clear and reliable and, therefore, it is certain that the appellant did enter his house after the occurrence without being seen by anyone.
It was next urged on behalf of the appellant, that,it was impossible for a cartridge to have been near the cot of Daya Ram, because after the shot had been fired the cartridge would still remain in the barrel of the firearm.
This again is pure speculation.
That the cartridge was ejected from the fire arm is certain.
Why it was ejected none can say.
It may be that the miscreant reloaded his weapon to meet any emergency.
The evidence of the Sub Inspector is clear that on his arrival at the place of occurrence the cartridge exhibit I was handed over to him by the witness Khamani who cannot be said to be unfavorable to the appellant.
The Courts below had no reason to disbelieve the evidence in the case that the cartridge exhibit I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify us saying that the Courts below took an erroneous view of the evidence.
On the facts found there was a motive for the murder.
Apparently, for no good reason the appellant was not found at his house on the morning of July 5, but was 192 in a village fourteen miles away at the time of his arrest.
The appellant produced the pistol exhibit III in circumstances clearly showing that he had deliberately kept it concealed.
We have no reason to doubt the evidence in this respect.
The real question is, whether it is safe to act upon the opinion of the fire arms expert that the cartridge exhibit I was fired from the pistol exhibit III produced by the appellant and none other, because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder.
The opinion of 'the fire arms expert, based on the result of his tests, does not seem to have been challenged in cross examination or before the High Court.
If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge exhibit I, found near the cot of Daya Ram, was fired from the pistol exhibit III produced by the appellant.
To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell cases by fire arms in order to ascertain that there is no error in the opinion of the fire arms expert in the present case.
Kirk in his book "Crime Investigation" at page 346 states: "Fired cases are less often encountered in criminal investigation than are bullets, but when found they are usually of greater significance because they receive at least as clear markings as do bullets, have a greater variety of such markings, and are not ordinarily damaged in firing. . . . . . . . .
The questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located.
In the ordinary case, quite definite answers can be given.
This is true both of shotgun shells and of cartridge cases from pistols, revolvers, and rifles. . . . . .
In general, it is possible to identify a certain firearm as having fired a particular shell or cartridge.
It is often possible to identify the type or make of gun ' which fired it, though in many instances this must be tentative or probable identification only." ` 193 After :dealing with the marks left by breech block, firing pin impressions, marks from extractors and ejectors, marks due to expansion, magazine marks and loading mechanism marks,he states, "Summarizing, the cartridge or shell case us.
ally carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter.
Those marks arise from a variety of contacts with various parts of the gun, an analysis of which is useful in, determining the type of weapon in case no suspected gun is available . . . .
Thus, the recovered shell or cartridge case is one of the most useful types of physical evidence which can be found in shooting cases.
" Soderman and O 'Connel in their book "Modern Criminal Investigation" also deal with the subject and they refer to the marks from the fire pin, the extractor, the. ejector and the breech block.
After referring to comparison being made of the cartridge or shell fired from a fire arm for the purpose of test, they state at page 200, If they are in the same position in relation to one another and their general appearance is the same, one may conclude that they have been fired from a pistol of the same make.
An absolute conclusion about the origin of the shells, however, can be reached only after a photomicrographic examination of the markings from the breech block on the rear of the shell. . . . . .
Identification, with the aid of the enlargement, should not prove difficult.
The characteristic scratches can be easily seen.
A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used in the ' identification of fingerprints.
" In Taylor 's book on Medical Jurisprudence, Tenth Edition, Vol. 1, at page 459, it is stated, " It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite 25 194 different, and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well defined marks.
In general, however, though it is unlikely that all marks will be equally good, it is usually possible to obtain definite information from the marks of the firing pin, extractor, ejector, or breech block.
on the base or rim, or from grooves or scratches on the surface.
In weapons of the same manufacture, the marks are of the same general nature, but in each weapon there are individual differences which usually enable it to be definitely identified.
" The expert 's evidence in this case shows that he had fired four test cartridges from the pistol exhibit III He found the individual characteristics of the chamber to have been impressed upon the test cartridges Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge exhibit 1.
He made microphotographs of some of these individual marks on Exs. 1 and 10.
In giving his reasons for his opinion, the fire arms expert stated that every fire arm has individual characteristics on its breach face striking pin and chamber.
When a cartridge is fired gases.
are generated by the combustion of the powder, creating a pressure of 2 to 20 tons per square inch.
Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them.
By firing a number of test cartridges from a given fire arm and comparing them under a microscope with the evidence cartridge, it can definitely be stated, if the marks are clear, whether the evidence cartridges had been fired or not from that fire arm.
It seems to us that the fire arms expert made the necessary tests and was careful in what he did.
There is no good reason for distrusting his opinion.
The learned Judges of the High Court examined the micro photographs in question and were satisfied that there was no ground for distrusting the evidence of the expert.
They were accordingly justified in coming to the conclusion that the cartridge exhibit 1, found nor the cot of Dava Ram, 195 was fired from the pistol exhibit III produced by the appellant from his house.
There can, therefore, be no room for thinking, in the circumstances established in this case, that any one else other than the appellant might have shot Daya Ram.
He was, therefore, rightly convicted for the offence of murder.
The appeal is accordingly dismissed.

summary/full:
One Daya Ram had been murdered by shooting with a country made pistol.
The circumstantial evidence established against the appellant was (1) that he had a motive for the murder, (2) that three days before the murder the appellant had held out a threat to murder the deceased, (3) that a cartridge exhibit I was found near the cot of the deceased, and (4) that the appellant produced a country made pistol exhibit III from his house in circumstances which clearly showed that he alone could have known of its existence there.
The fire arms expert examined the recovered pistol and the cartridge and after making scientific tests was of the definite opinion that the cartridge exhibit I had been fired from the pistol exhibit III : Held, that the opinion of the fire arms expert conclusively proved that the cartridge exhibit I had been fired from the pistol exhibit III.
The circumstantial evidence was sufficient to establish the guilt of the appellant.


judgement:
Civil Appeal No. 1981 N of 1970.
From the judgment and order dated the 21st May 1970 of the Punjab and Haryana High Court in Letters Patent Appeal No. 195 of 1966.
G.L. Sanghi, S.K. Metha, P.N. Puri and M.K. Dua for the Appellants.
O.P. Sharma and M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by certificate is directed against the judgment dated May 21, 1970 of a Division Bench of the High Court of Punjab and Haryana accepting a Letters Patent Appeal and holding that in view of the provisions of sections 5, 5 A and 5 B of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), the concerned Collector had no jurisdiction to vary the reserved area of a land owner by including therein the lands sold by him to others.
593 2.
Most of the relevant facts are undisputed and may be briefly stated thus.
Sadh Singh, respondent No. 3, who is a displaced person from Pakistan, was allotted more than 60 standard acres of land in village Karyam, Tehsil Nawanshehar, District Jullundur, in lieu of the land left by him in Pakistan.
He also owned a little more than 1 standard acre of land in village Surwind, Tehsil Patti, District Amritsar.
About 3 years after the Act came into force, i e., on March 9, 1956, respondent No. 3 made an oral gift of some of his land in lieu of maintenance to his wife Nirmal Kaur, respondent No. 4, who entered into an agreement dated January 21,1957 with the three appellants for sale to them of the land gifted to her.
against a consideration of Rs. 4200.
The land covered by the gift was mutated in favour of respondent No. 4 on April 17,1957 and she conveyed the same to the three appellants by a registered sale deed dated August 8, 1957.
The agreement mentioned above as well as the sale deed following it were attested by respondent No. 3 as a marginal witness.
The proceedings for declaration of the surplus area out of the land owned by respondent No. 3 were initiated by the Collector on June 20, 1958.
They passed through various stages before the Collector and in appeal before the Commissioner.
Ultimately the Special Collector, Punjab, declared the surplus area of respondent No. 3 after hearing him and the appellants, through an order dated March 30, 1962, and while doing so, he included the land sold to the appellants by respondent No. 4 in the "select area" of respondent No. 3, as prayed for by the appellants.
The order was based on some rulings of the Financial Commissioner, Punjab, to the effect that all sales for valuable consideration effected by a land owner after the enforcement of the Act should be included in his "select area".
Respondent No. 3 unsuccessfully challenged the order in an appeal which was dismissed by the Commissioner as time barred.
The order of the Commissioner was upheld in revision by the Financial Commissioner.
It was then that respondent No. 3 knocked at the door of the High Court through a petition under article 226 of the Constitution of India which was dismissed by a learned Single Judge on the ground that the order of the Special Collector had become final by reason of the appeal taken against it being time barred.
The learned Judge observed that respondent No. 3 was not entitled to any relief in exercise of the extra ordinary jurisdiction of the High Court under the said article in view of the fact that he had failed to pursue diligently the remedy of appeal which was open to him.
594 In the appeal which respondent No. 3 filed under clause 10 of the Letters Patent, the Division Bench observed: "In accordance with section 5 of the Punjab Security of Land Tenures Act, 1953, the appellant intimated his reserved area in form E to the Collector before making the gift in favour of his wife.
This fact is not so stated in the pleadings, but the counsel of both the parties admit this fact to be so".
and after referring to the provisions of sections 5, 5 A and 5 B of the Act concluded: "The Collector has no jurisdiction to vary the reserved area of a landowner by including the land sold by him to others in his reserved area.
Under section 5 of the Act, the only jurisdiction with the Collector is to find out whether the reservation has been made in accordance with the directions contained in that section but the Collector has no jurisdiction to include an area in the reserved area of a landowner which is not covered by any of the clauses (a) to (f) of the proviso to section 5 of the Act." In coming to this conclusion.
the Division Bench relied upon three decisions of the High Court of Punjab and Haryana rendered by other Division Benches and reported as Bhagat Gobind Singh vs Punjab State and others, State of Punjab and others vs Shamsher Singh and others, and Mota Singh vs Financial Commissioner Punjab and if others.
An argument raised before it on behalf of the present appellants that the order of the Collector made in contravention of section 5 of the Act could at best be treated as an illegal order and not one passed without jurisdiction and therefore a nullity, was repelled.
In this connection, reliance was placed by the Division Bench on three judgments of this Court, namely, Nemi Chand Jain vs Financial Commissioner Punjab, Smt.
Kaushalya Devi vs K.L. Bansal, and Bahadur Singh vs Muni Subrat Dass, another.
In the result, the Division Bench held 595 that the order of the Special Collector dated March 30, 1962, directing a variation in the reservation made by respondent No. 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector.
It further held that a petition under article 226 of the Constitution of India by respondent No. 3 with the prayer that the order of the Special Collector dated March 30, 1962, be quashed was competent, even though he had not exhausted his remedies of appeal and revision.
In the above premises, the Division Bench accepted the Letters Patent Appeal and set aside the order of the Special Collector dated March 30, 1962, as also those orders which followed and confirmed it, and directed the Collector to declare the surplus area of respondent No. 3 after excluding therefrom the area reserved by him as his Permissible area.
Mr. Sanghi, learned counsel for the appellants, has raised the following contentions before us: (a) The admission to the effect that respondent No. 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel.
Actually no such reservation was ever made and the admission could at best be interpreted to mean that respondent No. 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section (1) of section 5 B of the Act.
(b) If no reservation was made by respondent No. 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No. 3 by way of adjustment of the equities arising in favour of the appellants.
After hearing Mr. Sanghi we find force in contention (a) but none in contention (b), as we shall presently show.
We may 596 mention here that respondent No. 3 has remained up represented before us in spite of service.
For a proper consideration of the two contentions, it is necessary to refer to certain provisions of the Act as they originally stood, the amendments made thereto in the year 1957 and the rules framed thereunder from time to time.
The Act was enforced on the 15th April 1953.
On that date section 5 thereof comprised 5 sub sections of which sub sections (4) and (5) were omitted in the year 1953 itself.
Sub sections (1) and (3) of that section are relevant and are reproduced below: "5.
(1) Any reservation before the commencement of this Act shall cease to have effect, and subject to the provisions of sections 3 and 4 any landowner who owns land in excess of the permissible area may reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority as may be prescribed: "Provided that in making this reservation he shall include his areas owned in the following order: (a) area held in a Co operative Garden Colony, (b) area under self cultivation at the commencement of this Act other than the reserved area, (c) reserved area excluding the area under a jhundimar tenant or a tenant who has been in continuous occupation for 20 years or more immediately before such reservation, (d) area or share in a Co operative Farming Society, (e) any other area owned by him, (f) area under a jhundimar tenant".
"(3) A landowner shall be entitled to intimate a reservation within six months from the date of commence 597 ment of this Act, and no reservation so intimated shall be varied subsequently whether by act of parties or by operation of law, save with the consent in writing of the tenant affected by such variation or until such time as the right to eject such tenant otherwise accrues under the provisions of this Act.
" The term 'reserved area ' was defined in clause (4) of section 2 thus: '(4) "Reserved area" means the area lawfully reserved under the Punjab Tenants (Security of Tenure) Act, 1950 (Act XXII of 1950), as amended by President 's Act, V of 1951, hereinafter referred to as the "1950 Act" or under this Act. ' The Act as originally framed did not contain any provision for the determination of what is now known as "surplus area" a term which was introduced into the Act for the first time in 1955 through the addition of clause (5 a) to section 2.
On the 19th May 1953 were promulgated the Punjab Security of Land Tenures Rules, 1953 (for short, the 1953 Rules), under rule 3 of which a landowner had to notify his reservation to the Patwari of the concerned estate in pursuance of the provisions of sub section (1) of section 5 of the Act in the Form designated as Annexure "B" to those Rules.
On the 27th April 1956 were promulgated the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as the 1956 Rules).
It was by rule 4 thereof that Form E was for the first time prescribed.
That rule stated: "4.
Where a landowner has not reserved the area permitted for self cultivation, he will, at the same time as he submits the declarations prescribed in rule 3 above, intimate, in writing, to the Patwari/Patwaris of the Circle/ Circles in which his lands are situated, the land/lands selected by him for self cultivation.
This intimation shall be in Form E." This rule clearly indicates that a landowner was given the right to select an area for self cultivation only in case he had not reserved such area on or before the 15th October, 1953.
598 Sections 5 A and 5 B were added to the Act in the year 1957 with effect from 11th December 1957 by means of Punjab Act No. 46 of 1957.
They state: Section 5 A "Every land owner or tenant.
who owns or holds land in excess of the permissible area and where land is situated in more than one Patwar Circle, shall furnish, within a period of six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1957, a declaration supported by an affidavit in respect of the land owned or held by him in such form and manner and to such authority as may be prescribed." Section 5 B "(1) A land owner who has not exercised his right of reservation under this Act, may select his permissible area and intimate the selection to the prescribed authority within the period specified in section 5 A and in such form and manner as may be prescribed: "Provided that a land owner who is required to furnish a declaration under section 5 A shall intimate his selection along with that declaration. "(2) If a land owner fails to select his permissible area in accordance with the provisions of sub section (1), the prescribed authority may, subject to the provisions of section 5 C, select the parcel or parcels of lands which such person is entitled to retain under the provisions of this Act: "Provided that the prescribed authority shall not make the selection without giving the land owner concerned an opportunity of being heard".
Simultaneously the definition of 'surplus area ' contained in clause (5 a) of section 2 of the Act was amended to read thus: 599 '(5 a) "Surplus Area" means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected under section 5 B or the area which is deemed to be surplus area under sub section (1) of section 5 C and includes the area in excess of the permissible area selected under section 19 B, but it will not include a tenant 's permissible area: 'Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the landowner admits a new tenant, within three years of the expiry of the said six months. ' In consequence of these additions rule 4 of the 1956 Rules was also amended so as to contain a provision that an intimation under section 5 B (1) of the Act shall be furnished by a landowner in Form E. 6.
In relation to contention (a) the following propositions emerge from the various provisions of law just above set out: (i) Reservation of land was envisaged only in section 5 (1) of the Act and had to be intimated within six months from the date of commencement of that Act, i.e., on or before the 15th October 1953.
(ii) No provision was ever made in the Act or the rules framed thereunder fora reservation of land by a landowner who had failed to send an intimation thereof on or before the 15th October 1953.
(iii)What was provided by section 5 B was, inter alia, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December, 1957, i.e. on or before 11th May, 1958.
Reservation ' was something different from the 'Selection ' 600 of permissible area.
The two terms were not only not synonymous but were mutually exclusive. 'Selection ' of permissible area was allowed only to a landlord who had not exercised his right of 'reservation ' (iv) Form was meant only for intimation of selection of permissible area under sub section (1) of section 5 B and not for reservation under sub section (1) of section 5 which could be made only through an intimation in the Form in Annexure "B" to the 1953 Rules.
The propositions just above enunciated bring out incongruity from which the admission made before the High Court suffers.
There could be no reservation in Form E by respondent No. 3.
If he send an intimation in that Form it could only be about a selection of his permissible area under sub section (1) of section 5 B. That this was really so clearly appears from the following observation made in the order of the Special Collector dated 2nd March 1961: "The counsel for the owner argued that area sold was not included in Form E filed before the Special Collector and that he was not prepared to include it in the select area of 50 S.A. to which he is entitled".
The order from which this observation has been extracted was set aside by the Commissioner, Jullundur Division, on the 8th January, 1962 when the case was remanded to the Special Collector for a fresh decision after hearing the three appellants as well as respondents Nos. 3 & 4.
The Special Collector then heard all these parties and passed his order dated the 30th March 1962 which also unmistakably indicates that the intimation given by respondent No. 3 to the Special Collector was not in respect of any reservation but covered only a selection of the permissible area.
Reference in this connection may be made to the fact that twice in that order the Special Collector used the term "select area" in relation to the lands which respondent No. 3 could be allowed to retain in his possession .
In assuming (on the basis of the admission made at the bar) that respondent No. 3 had intimated his reservation in pursuance of sub section (1) of section 5, the High Court was thus in error and 601 the case has to be decided on the basis of the factual position that respondent No. 3 had failed to make any reservation under that subsection but that he has made a selection in Form E in pursuance of the provisions of sub section (1) of section 5 B. Contention (a) raised by Mr. Sanghi is, therefore, accepted in full.
We now proceed to consider contention (b) in the light of the provisions above extracted, a bare reading of which leads to the following conclusions in relation to that contention: (a) 'Surplus area ' is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully.
(Clauses (4) and (5 a) of section 2.) (b) Where no area has been lawfully reserved by the land owner, surplus area is worked out under section 5 B or 5 C] (c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate, etc.
In doing so he is legally bound to include in his reserved area such land as conform to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub section (1) of section 5.
(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.
(e) If a land owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.
602 (f) The prescribed authority is given the power to select the permissible area of a landowner under sub section (2) of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section (1) of that section.
In other words, if the concerned land owner has already selected his permissible area in accordance with the provisions of sub section (1) of section 5 B, sub section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.
These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub section 5 B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case.
As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub section (1) of section 5 B a selection which the prescribed authority had no power to vary either under sub section (2) of section 5 B or under any other provisions of the Act.
The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.
In support of the proposition that the order of the Special Collector did not suffer from lack of jurisdiction, learned counsel for the appellants has relied upon the following observations in Gurcharan Singh and Others vs Prithi Singh and Others, wherein this Court defined the scope of powers of the Collector while acting under sub section (2) of section 5 B of the Act: "While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulter 's permissible and surplus areas, in exercising this power under section 5 B, the Collector has to act judicially.
He is bound to give notice to the landowner, and the transferees from him, 603 if known.
Thereafter he has to hear the parties who appear, and to take into consideration their representations and then pass such order as may be just.
In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the 'permissible area ' or the 'surplus area ' of the landowner.
Thus, in the process the Collector is not to ignore altogether the wishes of the landowner.
He may accept them to the extent they are consistent with the equities of the case".
It is urged on the authority of these observations that the Collector has in all cases the power to alter the particulars of an area reserved or selected by a landowner so as to bring it in conformity with any equities that may arise in the attendant circumstances.
This proposition is wholly unacceptable to us for the simple reason that in Gurcharan Singh 's case (supra), the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period, so that sub section (2) of section 5 B was undoubtedly attracted to his case.
The observations above extracted were obviously confined to a case of that type, and have nothing to do with a situation where the landowner concerned has selected his permissible area in accordance with the provisions of sub section (1) of section 5 B so that there is no occasion for the prescribed authority to exercise his powers under sub section (2) of that section.
Gurcharn Singh 's case, therefore, is of no assistance at all to the case of the appellants.
Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3.
It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4.
Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the consequences flowing therefrom in view of the provisions of the Act.
Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferor 's transferor).
In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.
604 In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants.
Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act and that is a risk which the appellants must be deemed to have bought with the land.
For the reasons stated we dismiss the appeal but with no order as to costs.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Respondent No. 3, a displaced person from Pakistan, was allotted more than 60 standard acres of land.
Out of this land he made an oral gift of some land in lieu of maintenance to his wife, respondent No. 4, who sold that land to the appellants.
In the proceedings for declaration of the surplus area of the land owned by respondent No. 3 the Special Collector included the land sold to the appellants in the "select area" of Respondent No. 3.
The appeal of Respondent No. 3 to the Commissioner was dismissed as time barred and this order was upheld in revision by the Financial Commissioner.
A single Judge dismissed his petition under Article 226.
In appeal, a Division Bench held that the order of the Special Collector, directing a variation in the reservation made by respondent No. 3 without his consent was not only contrary to the provisions of the Act but was without jurisdiction and a nullity in as much as the Act vested no power of such variation in the Collector.
In the appeal to this Court it was contended on behalf of the appellant, that: (1) the admission to the effect that respondent No. 3 had intimated his reserved area in Form E to the Collector before gifting the land to his wife was made before the High Court on behalf of the appellants on the basis of some misconception on the part of their counsel, that actually no such reservation was ever made and that the admission could at best be interpreted to mean that respondent No. 3 had sent an intimation in Form E to the Special Collector detailing therein the area selected by him as his permissible area in pursuance of the provisions of sub section (1) of section 5 B of the Act, and (2) If no reservation was made by respondent No. 3 the whole basis of the impugned judgment falls and the Collector would have jurisdiction to amend the permissible area of respondent No. 3 by way of adjustment of the equities arising in favour of the appellants.
Dismissing the appeal, ^ HELD: In assuming that respondent No. 3 had intimated his reservation in pursuance of sub section (1) of section 5, the High Court was in error 591 and the case had to be decided on the basis of the factual position that respondent No. 3 had failed to make any reservation under that sub section but that he had made a selection in Form E in pursuance of the provisions of sub section (1) of section 5 B. [600 H 601A] The inclusion of the land in question in the surplus area of respondent No. 3 does not effect the right of ownership of the appellants.
[604 A] 1.
(a) Reservation of land was envisaged only in section 5(1) of the Act and had to be intimated within six months from the date of its commencement i.e. on or before the 15th October, 1953.
[599 E] (b) No provision was ever made in the Act or the rules framed thereunder for a reservation of land by a land owner who had failed to send an intimation thereof on or before the 15th October, 1953.
[599 F] (c) What was provided by section 5 B was, that a landowner who had not exercised the right of reservation under the Act could select his permissible area and send intimation thereof in Form E to the prescribed authority within a period of six months from the 11th December, 1957 i. e. on or before 11th May, 1958. 'Reservation ' was something different from the 'Selection ' of permissible area.
The two terms were not only not synonymous but were mutually exclusive. 'Selection ' of permissible area was allowed only to a landlord who had not exercised his right of 'reservation '.
[599 G 600 A] (d) Form E was meant only for intimation of selection of permissible area under sub section (1) of section 5B and not for reservation under sub section (1) of section 5 which could be made only through an intimation in the Form in Annexure "B" to the 1953 Rules.
[600 B] 2.(a) 'Surplus area ' is arrived at by excluding the reserved area from the total area of a land owner in case a reservation has been made by him lawfully.
(Clauses (4) and (5 a) of section 2.) [601 C] (b) Where no area has been lawfully reserved by the land owner, surplus area is worked out under section 5B or 5C. [601 D] (c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form to the Patwari of the estates, etc.
In doing so he is legally bound to include in his reserved area such land as conforms to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub section (1) of section 5.
[601E] (d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of tenant affected by such variation.
(e) If a land owner has failed to reserve land in accordance with the provisions of section 5 he has another chance to select his permissible area within 6 months from the commencement of the Punjab Security of Land Tenures (Amendment) Act, 1937.
[601 G] (f) The prescribed authority is given the power to select the permissible area of a landowner under sub section (2) of section 5 B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub section (1) of that section.
In other words, if the concerned land owner has already selected his permissible area in accordance with the provision of sub section (1) of section 5 B, sub section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority or the power of selection.
[602 A C ] In the instant case Respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub section (1) of section 5 B, a selection which the prescribed authority had no power to vary either under sub section (2) of section 5 B or under any other provisions of the Act.
The order of the Special Collector dated March 30, 1962 was therefore passed without jurisdiction and was a nullity.
[602 D E] Gurucharan Sing and Ors.
vs Prithi Singh and Ors. , distinguished.


summary/full:
In exercise of powers conferred by section 3 of the , Sugar Control order 1966 was issued by the Government of India, Ministry of Agriculture Clause 5 of that order empowered the Central Government to issue directions, inter alia, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar.
By order No. GSR 410 E/Ess.
Com/Sugar dated 14 7 1980, the Central Government issued directions to the effect that no recognised dealer shall keep in stock at any time (a) Vacuum pan sugar in excess of, (i) in Calcutta and other extended area recognised dealers who import sugar from outside West Bengal, 3500 quintals; other recognised dealers 250 quintals; (ii) in other places in cities and towns with a population of one lakh or more 250 quintals and with a population of less than one lakh 100 quintal and (b) Khandsari (open pan sugar) 250 quintals.
Further no recognised dealer shall hold any stock of vacuum pan sugar or khandsari (open pan sugar) for a period exceeding 10 days from the date of receipt by him of such stock of sugar or khandsari.
The recognised dealers, there fore, assailed the constitutional validity of the said order on three grounds: (I) the impugned order is not covered by section 3 of the and is ultra vires (2) the impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19 (1) (g) of the Constitution: (3) the impugned order is also violative of Article 14 of the Constitution for two reasons: (a) the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta: (b) the impugned order is unreasonable and impracticable.
Dismissing the petitions, the Court ^ HELD: 1, The order dated 14 7 1980 is not ultra vires section 3 of the .
The expression "to secure their equitable 511 distribution and availability at fair prices", is wide enough to cover the impugned order Likewise, the expression "storage and distribution" used in clause (d) of sub section (2) of section 3 of the essential Commodities Act, 1955 should be given a liberal construction to give effect to the legislative intent of public welfare.
Sugar, which term includes khandsari, is an essential commodity and over the years it has become a scarce commodity.
In the public interest it became essential to pass the order to secure its equitable distribution and availability at fair prices.
To that end it became 'necessary to prevent hoarding and black marketing.
[515 F H, 516 A E] 2.
Restrictions put by the impugned order can by no means be said to be unreasonable.
It is only regulatory and not prohibitory.
The direction enjoined recognized dealer not to keep sugar in stock at any time in excess of the quantity specified therein.
It only seeks to regulate the limit of storage of sugar and does not prohibit its storage.
By the Impugned order the Central Government sought to prevent hoarding and black marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market.[516 E, 519 D] A person has a right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of tho State to make a law imposing reasonable restrictions under clause (6).
The expression reasonable restrictions ' signifies that the limitation imposed on a person in eojoyment of that right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
No cut and dry test can be applied to each individual statute impugned, nor an abstract standard or general pattern of reasonableness can be laid down as applicable in all cases.
The Supreme Court in each case has to strike a proper balance between the freedom guaranteed by Article 19 (1) (g) and the social control permitted by clause (6) of Article 19.
[516 B D] State of Mysore vs H. Sanjeeviah, , explained and distinguished.
M/s. Laxmi Khandsari & Ors.
vs State of U.P. & Ors., , followed.
The order is not violative of Article 14 of the constitution.
The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification.
The government is the best judge of the situation in a particular State and what quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function.
For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone.
Besides, Calcutta being far away from the sugar manufacturing units in Bihar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit.
These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.
[519 F H, 520 A] 512 The fact that over the years sugar has become a scarce commodity and people have to purchase it even at a prohibitive price, the dealers would be able to sell the sugar in their stock without difficulty at any time at the prevalent market price.
In a rare exceptional case there may be some hardship on that score but it cannot be said, on that account, that the order is violative of Article 14 of the Constitution.
In such cases, we hope and trust that the concern ed Government would allow a reasonable time within which the dealers could dispose of the excess quantity of sugar, if any.
[520 G, 5 21 A C] Suraj Mal Kailash Chand & Ors.
vs Union of India & Anr., Writ Petitions Nos.
8334 48 of 1981 decided on September 25, 1981 (unreported case): Bishambhar Dayal Chandra Moharl & ors, etc.
vs State of Uttar Pradesh & Ors. etc.
Writ Petitions Nos.
2907 2908 of 1981 and connected writ petitions (a group of SOS writ petitions) decided on November S, 1981, followed.


judgement:
Civil Appeal No. 2031 of 1977.
Appeal by special Leave from the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition No. 905 of 1975.
WITH Civil Appeal Nos. 136 & 137 of 1978.
From the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition Nos.
796 & 922 of 1975 respectively.
Ramachandra Reddy, Advocate General and B. Parthasarthi for the Appellants P. Rama Reddy and A.V.V. Nair for Respondent No. 2 in CA.
2031, R. 3 in 136 & R. 2 in 137.
A. Subba Rao for RR I & 2 in CA.
136/78.
A.K. Sen, e. Rajendra Choudhury, G.R. Subbaryan, I. Koti Reddy and Mahabir Singh for Respondent No. 1 in CA.
137/78.
B. Ranta Rao for Respondent No. 1 in CA.
2031/77.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
these three appeals arise out of a common judgment dated June 30.
1977 of a Division Bench of the High Court of Andhra Pradesh, setting aside the judgment of a learned single Judge dated November 18, 1975 in Writ Petitions Nos.
1539 of 1974 and 798 of 1975.
Civil Appeal No. 2031 (NCM) of 1977 is by special leave while the other two appeals are by certi 503 ficate granted by the High Court The question which these appeals involve is whether the appellant, the Government of Andhra Pradesh, has the power to evict the respondents summarily in exercise of the power conferred by the Andhra Pradesh Land Encroachment Act, 1905.
This question arises on the following facts: We are concerned in these appeals with three groups of lands situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh.
Those lands are: R.S.
No 10/1, which corresponds to plot No. 94 admeasuring 10 acres and 2 guntas, R.S. No. 10/2 which corresponds to plot No. 104 admeasuring 9 acres and 33 guntas; and R.S. Nos. 7, 8 and 9 which correspond to plot No. 111 admeasuring 26 acres and 14 guntas.
These lands belonged originally to Nawab Zainuddin and after his death, they devolved on Nawab Habibuddin.
Sometime between the years 1932 and 1937, certain lands were acquired by the Government of the Nizam of Hyderabad under the Hyderabad Land Acquisition Act of 1309 Fasli, the provisions of which are in material respects similar to those of the Land Acquisition Act, 1894.
The lands were acquired for the benefit of the osmania University which was then administered as a Department of the Government of Hyderabad.
The University acquired an independent legal status of its own under the osmania University Revised Charter, 1947, which was promulgated by the Nizam.
E The question whether the aforesaid three plots of land were included in the acquisition notified by the Government of Nizam became a bone of contention between the parties, the osmania University contending that they were so included and that they were acquired for its benefit and the owner, Nawab Habibuddin, contending that the three plots were not acquired.
On February 13, 1956 the osmania University filed a suit (O.S. No. 1 of 1956) against Nawab Habibuddin, in the City Civil Court, Hyderabad, claiming that the three lands were acquired by the Government for its benefit and asking for his eviction from those lands.
That suit was dismissed in 1959 on the ground that plot No. 111 was not acquired by the Government and that though plots Nos. 94 and 104 were acquired, the University failed to prove its possession thereof within twelve years before the filing of the suit.
In regard to plots Nos. 94 & 104, it was found by the trial court that Habibuddio had encroached thereupon in the year 1942, which was more than twelve years before the filing of the suit.
Civil Appeal No. 61 of 1959 filed by 504 the University against that judgment was dismissed on January 24, 1964 by the High Court which affirmed the findings of the trial court.
The State Government was not impleaded as a party to those proceedings.
On May 8, 1964 the osmania University wrote a letter to the Government of Andhra Pradesh, requesting it to take steps for the summary eviction of persons who were allegedly in unauthorised occupation of the 3 plots.
On December 8, 1964, the Tahsildar, Government of Andhra Pradesh, acting under section 7 of the Land Encroachment Act, 1905, issued a notice to Nawab Habibuddin to vacate the lands and on December 15, 1964 the Tahsildar passed an order evicting him iron the lands.
The appeal filed by Habibuddin to the Collector was dismissed in 1965 and the appeal against the decision of the Collector was dismissed by the Revenue Board in 1968 During the pendency of the appeal before the Revenue Board, the respondents purchased the plots from Habibuddin for valuable consideration and on the death of Habibuddin, they were impleaded to the proceedings before the Revenue Board.
They preferred an appeal from the decision of the Revenue Board to the Government but that appeal was dismissed on November 26, 1973.
On March 19, 1974, the respondents filed Writ Petitions in the High Court of Andhra Pradesh challenging the order by which they were evicted from the plots summarily under the provisions of the Act of 1905.
The learned single Judge dismissed those Writ Petitions observing: "The question whether the lands with which we are concerned in the writ petition were acquired by the Government or not and the question whether the Government had transferred its title to the University or not are questions which cannot properly be decided by me in an application under article 226 of the Constitution.
The appropriate remedy of the petitioners is to file a suit to establish their title.
" The learned Judge held that: "Though the title of the Government is not admitted by the alleged encroacher, there is a finding by the Civil 505 Court that there was encroachment by the alleged encroacher.
That is sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act.
" Three appeals were preferred to The Division Bench against the judgment of the learned single Judge, two of them being by the petitioners in one writ petition and the third by the petitioner in the other writ petition.
The Division Bench, while setting aside the judgment of the learned single Judge, held: "The question whether the lands.
belong to osmania University or not will have to be decided as and when the Government comes forward with a suit for the purpose.
Even if we assume for the purpose of our judgment, as we are not pronouncing any conclusion as to whether the land vested in the Government or University, that the Government is the owner, the dispute going back from 1942 cannot be dealt with in summary proceeding under section 7 of the Land Encroachment Act.
" The summary remedy provided by section 7, according to the Division Bench, cannot be resorted to "unless there is an attempted encroachment or encroachment of a very recent origin" and further, that it cannot be availed of in cases where complicated questions of title arise for decision.
We are in respectful agreement with the view taken by the Division Bench, subject however to the observations made herein below.
The Andhra Pradesh Land Encroachment Act, 1905, was passed in order "to provide measures for checking unauthorised occupation of lands which are the property of Government.
" The preamble to the Act says that it had been the practice to check unauthorised occupation of lands which are the property of the Government "by the imposition of penal or prohibitory assessment or charge" and since doubts had arisen whether such practice was authorised by law, it had become necessary to make statutory provisions for checking unauthorised occupations.
Section 2 (1) of the Act provides that all public roads, streets, lands, paths, bridges, etc.
shall be deemed to be the property belonging to Government, unless it falls under clauses (a) to (e) of that section.
Section 2 (2) provides that all public roads and streets 506 vested in any public authority shall be deemed to be the property of the Government by section 3 (1), any person who is in unauthorised occupation of any land which is the property of Government, is liable to pay assessment as provided in clauses (i) and (ii) of that section.
Section S provides that any person liable to pay assessment under section 3 shall also be liable, at the discretion of the Collector, to pay an additional sum by way of penalty.
Sections 6 (1) and 7, which are relevant for our purpose, read thus: "Sec. 6 (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collection Tahsildar.
or Deputy Tahsildar may deem reasonable, be liable to forfeiture.
Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct." "Sec. 7.
Before taking proceedings under section 5 or section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section S or section 6.
" It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in 507 unauthorized occupation of any land which is "the property of Government".
In regard to properly described in sub sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6.
A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act.
But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3 ' '.
Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bond dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title.
In the instant case, there is unquestionably a genuine dispute between The State Government and the respondents as to whether The three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the osmania University.
for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation.
The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period.
Having tailed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible.
The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law.
The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title.
That procedure is, therefore, not the due process of law for evicting the respondents.
508 The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum vs State of A.P. which was affirmed by a Division Bench.(2) It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person.
What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide.
Facts " which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the Ordinary courts of law.
The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision.
But duration of occupation is relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law.
The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act.
The long possession of the respondents and their predecessors in title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it.
The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit.
May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.
For these reasons, we uphold the judgment of the Division Bench of the High Court and dismiss these appeals with costs.
509 We do not propose to pass any orders on Civil Misc.
Petitions A Nos.
18974, 18975, 18976, 18497, 18498 and 18499 of 1981 which have been filed for adding certain parties as respondents to these appeals.
Those petitions involve the question of a Will alleged to have been made by Nawab Habibuddin in favour of Entashamuddin alias Anwar Siddiqui and his elder brother.
We cannot go into the validity of that Will and other incidental questions in these ap peals.
H.L.C. Appeals dismissed.

summary/full:
The Andhra Pradesh Land Encroachment Act, 1905 was enacted to check unauthorised occupation of government lands.
Under section 2 of the Act all public roads, streets, lands, paths, bridges etc, are deemed to be government property.
Any person who is in unauthorised occupation of any land which is the property of the government is liable to pay assessment as provided in section 3 of the Act.
Section 5 provides that any person, liable to assessment shall also be liable to pay an additional sum by way of penalty.
Under section 6(1) the Collector, Tahsildar or Deputy Tahsildar has the power to summarily evict any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 after issuing a show cause notice as provided in section 7.
Some time between the years 1932 and 1937 certain lands were acquired by the Government of Nizam of Hyderabad for the benefit of a University.
A question having arisen as to whether three specific plots of land had been included in the acquisition, the University filed a suit in 1956 praying for the eviction of the occupant.
This suit was dismissed in 1959 on the ground that one of the plots had not been acquired by the Government and in respect of the other two plots the University had failed to prove its possession within 12 years before the filing of the suit.
The trial court found that the heir of the original owner of the plots had encroached on the said two plots in 1942.
The judgment of the trial court was confirmed by the High Court in 1964.
The State Government was not a party to those proceedings.
The University activated the State Government for summary eviction of the heir of the original owner from the three plots of lands.
The Tahsildar initiated action and passed an order of eviction under section 6(1) of the Act on December 15, 1964.
Appeals against the order were rejected by the Collector in 1965 and by the Revenue Board in 1968.
The respondents who purchased the plots during the pendency of the appeal before the Revenue Board were impleaded as parties 501 to the proceedings on the death of the heir of the original owner and.
their appeal from the decision of the Revenue Board was rejected by the Government in 1973 The respondents challenged the order of eviction by a petition under article 226 which was dismissed by a Single Judge of the High Court who held that the question of title to the property could not properly be decided by him under Article 226 but the fact that there was a finding by the Civil Court that there was encroachment by the alleged encroacher was sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act.
The appeal of the respondents was allowed by the Division Bench which held that a dispute relating to as far back as 1942 could not be dealt with in summary proceedings under the provisions of the Land Encroachment Act.
The summary remedy could not be resorted to unless there was an attempted encroachment or encroachment of a very recent origin; nor could it be availed of in cases where complicated questions of title arose for decision.
Dismissing the appeals, ^ HELD: (I) The summary remedy for eviction provided by section 6 of tho Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government.
If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that tho property belongs to it and on that basis take recourse to the summary remedy provided by s 6.
In the instant case there was unquestionably a genuine dispute , between the State Government and the respondents as to whether the three plots of land bad been the subject matter of acquisition proceedings taken by the then Government of Hyderabad, and whether the University for whose benefit the plots were alleged to have been acquired had lost title to the property by operation of the law of limitation.
The respondents had a bonafide claim to litigate and they could not be evicted save by the due process of law.
The summary remedy prescribed by section 6 was not the kind of legal process which was suited to adjudication of complicated questions of title.
That procedure was, therefore, not the due process of law for evicting the respondents.
[506 H; 507 A; 507 D H] 2.
The view of the Division Bench that the summary remedy provided for by section 6 could not be resorted to unless the alleged encroachment was of "a very recent origin" cannot be stretched too far.
It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person.
What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bonafide.
Facts which raise a bonafide dispute of title between the Government and the occupant must be ad judicated upon by the ordinary courts of law.
The duration of occupation is relevant in the sense that a person who is in occupation of a property openly for 502 an appreciable length of time can be taken prima facie to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.
In the instant case, the long possession of the respondents and their predecessors in title raised a genuine dispute between them and the Government on the question of title.
Whether the title to the property had come to be vested in the Government as a result of acquisition and whether the heir of the original owner had encroached upon that property and perfected his title by adverse possession had to be decided in a properly constituted suit.
[508 A D; 508 E G]


judgement:
etition (Criminal) No. 9516 of 1981.
(Under article 32 of the Constitution) Bhim Singh, P.D. Sharma & Subash Sharma for the Petitioner.
M.N. Phadke and Altaf Ahmed for the Respondents, 524 The Judgment of the Court was delivered by DESAI, J.
On February 9, 1982 we made an order quashing the detention order dated July 11, 1981 made by the District Magistrate, Jammu in exercise of the power conferred by Section 8 of The Jammu and Kashmir Public Safety Act, 1978 ( 'Act ' for short) and we announced that the reasons would follow.
Here are the reasons.
The detenu Vijay Kumar was arrested on June 26, 1981.
A petition was moved on his behalf before the Chief Judicial Magistrate Jammu praying for releasing the detenu, on bail.
This petition for bail appears to have come up before the learned Magistrate on July 4, 1981 when the following order was made: "I have heard the advocate for the applicant and perused the C.D. File.
Put up for orders on 6.7.81.
" When the matter again came up on July 6, 1981, the learned Magistrate made the following order: "Although there was nothing in the C.D. File about his (Petitioner) involvement in E.A.O. (Enemy Agents ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is u/s 3, E.A.O. which this Court is not competent to try.
Hence this application is returned to the applicant for presentation to the proper court alongwith report " The detenu thereupon moved an application for releasing him on bail before the learned Additional Sessions Judge, Jammu, who, we are informed, was competent to try the accused charged with an offence under Enemy Agents ordinance.
His petition for bail came up before the learned Additional Sessions Judge on July 11, 1981 when the following order was made: "This application pertains to Vijay Kumar accused who is involved for an offence under the Enemy Agents ordinance which is being investigated by the Counter Intelligence Police, Jammu.
The learned Chief Prosecuting officer and the learned counsel for the accused have been heard.
525 During the course of arguments an order has been A shown to me by the police that said Vijay Kumar accused has now been ordered to be detained under the Public Safety Act.
In view of this order, this bail application has become infructuous which is disposed of accordingly.
" The detenu was served with the detention order dated July 11, 1981 on the same day in jail because he was already in jail from June 25, 1981.
The grounds for detention were served on him on July 15, 1981.
The detenu submitted his representation dated July 29, 1981 addressed to the Secretary the Government Home Department to the Superintendent, Central Jail, Jammu where the detenu was detained.
One Shri K.D. Sharma, Incharge Superintendent, Central Jail Jammu has stated in his affidavit dated February 6, 1982 that the representation of the detenu dated July 29, 1981 was forwarded to the Government at Srinagar vide office letter No. 2595 dated July 29, 1981 and simultaneously a wireless message No. 2596 on the same day was also sent to the Government intimating that the representation of the detenu had been forwarded to the Government for appropriate action.
Mr. K section Salathia, Deputy Secretary to the Government of Jammu and Kashmir, Home Department, Jammu, in his affidavit dated February 9, 1982 has stated that the 1 representation of the detenu was received from the Superintendent, Central Jail, Jammu in the office of the Home Department at Srinagar on August 12, 1981.
The department also received the comments of S.P., C.I.D. Counter Intelligence, Jammu and thereafter the case was processed on August 24, 1981 in the office of the Home Department at Srinagar and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28,1981 to the Chief Minister (Home) From the same affidavit, it further transpires that the Chief Minister rejected the representation on August 31, 1981 and the same was communicated to the detenu on September 1, 1981.
In the meantime, the case of the detenu was referred to the Advisory Board on August 3, 1981.
The Advisory Board submitted its report to the Government on September 4, 1981.
one Rattanlal, the brother of the detenu moved Petition No. 31 of 1981 for writ of Habeas Corpus in the High Court of Jammu and Kashmir at Jammu.
The petition came up for hearing before 526 the learned Single Judge, who by his judgment dated December 7, 1981 rejected the same.
Thereafter the detenu by the present writ petition, moved this Court under Article 32 of the Constitution for a writ of Habeas Corpus.
Section 8 of the Act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the State.
The impugned order of detention recites that the detenu is detained with a view to preventing him from 'acting in any manner prejudicial to the security of the State. ' The expression 'acting in any manner prejudicial to the security of the State ' has been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use offence, to overthrew or overawe the Government established by the law in the State.
The detenu contended before the High Court that accepting all the activities attributed to the detenu in the grounds of detention at their face value.
the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the State. ' The definition of the expression as here in before extracted indicates that the person accused of 'acting in any manner prejudicial to the security of the State ' must be shown to be making preparations for using, or attempting to use, or using or instigating, inciting or provoking or otherwise abetting the use of force, and the intention or motive for the activity must be to overthrow or overawe the Government established by law in the State.
The learned judge of the High Court following an earlier Division Bench judgment of the same High Court in Kharotilal vs State,(1) negatived this contention of serving that where the Government accusation against the detenu is that he had been indulging in supplying information for Pakistan Army Intelligence and was passing on vital information pertaining to the Army department etc.
to that Agency, such activities were likely to assist Pakistan in any armed aggression against the State and were a threat to the security of the State.
This view needs examination but as the argument was not pressed before us, we refrain from examining the same.
Number of contentions were advanced at the hearing of this petition but we propose to deal with only two of them which in our 527 Opinion go to the root of the matter and which, when accepted, in our opinion, would result in invalidation of the order.
The first contention is that the order of the District Magistrate suffers from non application of mind inasmuch as the date on which he passed the impugned order of detention dated July li, 1981, the detenu was long before arrested and locked up in Jail on the allegation that he was suspected to have committed some offence under the Enemy Agents ordinance 8 of Samvat Year 2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the State.
The District Magistrate passed the impugned order of detention on being satisfied that with a view lo preventing the detenu from acting in a manner prejudicial to the security of the State it was necessary to detain him.
The order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail.
If the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail, the order ex facie would have shown that even though the detenu was in jail, with a view to preventing him from acting in a manner prejudicial to the security of the State it was necessary to detain him.
There is a foot note in the order that the order was forwarded to the S P., C.I D. Counter Intelligence, Jammu for execution of the order under section 3 of the Act.
The further direction was that notice of the order shall be given to Vijay Kumar s/o Anant Ram, r/o H. No. 609, Peer Mitha, Jammu, by reading over and explaining the same to him in language he understands.
The detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made.
There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than lo days before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and therefore power under section 8 of the Act is required to be .
exercised.
The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct 528 date being June 25, 1981, under a false and fabricated charge.
Shri K.S. Salathia, Deputy Secretary to Government of Jammu & Kashmir, Home Department, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very very ambiguous statement that for the purpose of J and K Public Safety Act the petitioner was arrested on July 11, 1981, pursuant to the detention order.
It is no where suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the State to pass the detention order.
lt may further be pointed out that Shri A. Sahasranaman, the District Magistrate of Jammu who has made the impugned detention order, filed an affidavit on February 7, 1982.
Of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of Hans Raj, another detenu whose detention was quashed by this Court subsequent to the order of this Court.
It may be noticed in passing that Hans Raj and the detenu were involved jointly in the activity, which led to the detention of the detenu.
Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a period of more than a fortnight before the date of the impugned detention order.
Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
May be, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an or der of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made.
This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order.
We, however, do not base our order on this ground.
529 The second contention which in our opinion goes to the root A of the matter is that there has been a violation of section 13 of the Act.
Section 13 provides as under: "13.
Grounds of order of detention to be disclosed to persons affected by the order: (I) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government.
" x x x The provision contained in section 13 (1) is on par with the constitutional protection conferred by Article 22 (5) of the Constitution of India.
The contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of detention, in order not to render it illusory simultaneously obliges the authority to whom the representation is made to consider the same expeditiously.
Submission is that a statutory right conferred on the detenu enabling him to make a representation which of necessity must be giving an opportunity to point out to the Government as to why the detention order was not justified and that it must be revoked and the personal liberty deprived under the detention order must be restored, is to convince the Government to take into consideration the facts and contentions set out in the representation, which must imply that the Government must consider the same.
The earliest opportunity to be afforded for making representation inheres the corresponding duty of the Government to consider the representation so received expeditiously.
The reason behind enacting this provision is manifest.
When power to detain without trial is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the Government/detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power.
In a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before 530 he is deprived of the liberty and; therefore, so soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same.
The word 'earliest ' which qualifies the opportunity must equally qualify the corresponding obligation of the State to deal with the representation if and when made, as expeditiously as possible.
The opportunity contemplated by the section is the opportunity to make a representation against the detention order to the Government and therefore ex hypothese soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation.
The representation is to be made tc.
the Government.
Therefore the detenu who has already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities.
The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order.
The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit.
If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude.
Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.
Reverting to the facts of this case, the detenu who in jail from June 25, 1981, was served with a detention order on July 11, 1981, the very day on which the detention order was made.
The grounds of detention were served upon him on July 15, 1981.
Admittedly the detenu submitted his representation to the Superintendent of Jail on July 29, 1981.
One K.D. Sharma, Medical officer, Central Jail, 531 Jammu, Incharge Central Jail, Jammu who has filed his affidavit dated February 6, 1982, has admitted that the detenu submitted his representation addressed to the Secretary to the Government, Home Department, on July 29, 1981.
He proceeds to assert that the said representation in original was forwarded by post to the Government in Srinagar vide his office No. 2595 dated July 29, 1981.
He further adds that a wireless message No. 2596 dated July 29, 1981, was also sent to the Government to intimate that the representation of the detenu had been forwarded to the Government for appropriate action.
Postal communication from Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication.
Nothing to that effect was brought to our notice.
Now, Shri Salathia has stated in his counter affidavit that as no representation was received a wireless message was sent on August 6, 1981, making reference to the wireless communication from the Superintendent of Jail that the representation referred to in the wireless message of the Jail Superintendent has still not been received at Srinagar.
He requested the Superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment.
Be that as it may, he says that the representation was received in the office on August 12, 1981.
The comments from S.P., C.I.D., Counter Intelligence were called for on August 14, 1981.
He does not state the date on which they were received but he says that the case was examined and processed on August 24, 1981 in the office and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28, 1981, and the Chief Minister (Home) rejected the representation on August 31, 1981, and the fact of rejection of the representation was communicated to the detenu on September 1, 1981.
There are two time lags which may be noticed.
Representation admittedly handed in the Superintendent of Jail on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days.
The second lime lag is, from our point of view, more glaring.
Even though the concerned office was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the .
first query about its non receipt came as per the wireless message dated August 6, 1981.
That can be overlooked, but it has one important message.
The concerned office was aware of the fact that a representation has 532 already been made and a duplicate was sent for.
With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being August 12, 1981.
If the representation was received on August 12, 1981, and the same office disposed it of on August 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of Shri Salathia is far from convincing.
In our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds.
In Khudi Ram Das vs State of West Bengal,(l) this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible.
Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of section 13 of the Act which would result in the invalidation of the order.
These are the reasons which had prompted us to quash and set aside the detention order.
P.B.R. Petition allowed.

summary/full:
The petitioner has arrested on June 26, 1981 under the Enemy Agent ordinance.
The Chief Judicial Magistrate rejected his application for bail on the ground that he had no jurisdiction to try him.
The Addl.
Sessions Judge rejected his bail application on the ground that as ha was by then ordered to be detained under the J & K Public Safety Act the bail application has become infructuous.
The detention order dated July 11, 1981 was served on the detenue in jail on July 15, 1981.
His representation dated July 29, 1 981 was forwarded to the State Government on July 29, 1981 and simultaneously a wireless message was sent on the same day.
The representation was received by the Government on August 12, 1981.
After investigations the file was put up to the Chief Minister on August 28, 1981 for approval.
The Chief Minister rejected the representation on August 31, 1981 which was communicated to the petitioner in jail on September 1, ]981.
The detenu 's case was referred to the Advisory Board on August 3, 1981.
Its report was submitted on September 4, 1981.
In this petition under article 32 of the Constitution it was contended before this Court on behalf of the petitioner that as section 13 (1) of the Jammu & Kashmir Public Safety Act 1978 imposes an obligation on the detaining authority to give the detenu the earliest opportunity of making a representation against the detention order the long unexplained delay in this case had invalidated the order of detention.
Allowing the petition, ^ HELD: The petitioner 's representation had not been dealt with as expeditiously as possible.
There was therefore contravention of section 13 of the Act which invalidated the detention.
[532 D] Preventive detention, unlike punitive detention, does not afford an opportunity to the detenu to explain his side of the matter before he is deprived 523 Of his liberty and therefore the statute makes it obligatory on the authorities to A afford him the earliest opportunity to represent his case and a corresponding obligation on the authority to consider the representation.
The word "earliest" which qualifies the term "opportunity" must equally qualify the corresponding obligation of the State to deal with the representation if and when made as expeditiously as possible.
[529 H; 530 A B] The jail authorities who are merely a communicating channel have to move with promptitude so that sufficient guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that time was lost in transit.
The State Government must gear up its own machinery to see that in these cases the representation reaches the Government as early as possible and is considered by the authorities with equal promptitude.
Any unexplained delay would be denial of the statutory protection given to the detenu.
[530 D G] In the instant case there were two time lags: the representation handed in to the Jail Superintendent on July 29, 1981 reached the Government on August 12, 1981 after a time lag of fourteen days and the representation was disposed of on August 31, 1981 after a time lag of nineteen days and the delay has not been explained on any convincing ground.
B] Khudi Ram Das vs State of West Bengal, ; , referred to.
Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
Where there is need to order preventive detention of a person already in jail the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
[528 F G] In the instant case there is nothing to indicate awareness of the detaining authority that the detenu was already in jail for more than 16 days and Yet the impugned order was made.
This clearly exhibits non application of mind and would result in invalidation of the order.
But the Court did not base its order on this ground.
[528 G H]