judgement:
he refund of cess paid by them.
[304D] & CIVIL ORIGINAL JURISDICTION: Writ Petitions Nos.
2687, 5822 of 1983 etc.
(Under Article 32 of the Constitution of India).
Dr. Shankar Ghosh, T.S.K. Iyer, M.L. Lahoty, P.S. Jha, D.D. Gupta, S.K. Jain, D.P. Mukherjee, S.R. Srivastava, P.N. Tewari and Parijat Sinha for the petitioners.
Tapas Ray, Anil B. Dewan, T.C. Roy, G.S. Chatterjee, Dalip Sinha and H.K. Puri for the respondents.
The judgment of the Court was delivered by PATHAK, CJ.
By these writ petitions and transferred cases the petitioners challenge the validity of the levy of cess in respect of tea estates under the West Bengal Rural Employment and Production Act, 1976.
The West Bengal Rural Employment and Production Act, 1976, (shortly referred to as the "West Bengal Act") is intended to provide the additional resources for the promo tion of employment in rural areas and for implementing rural production programmes.
The additional resources are sought to be raised from two sources, a surcharge on land revenue under section 3 of the Act and a rural employment cess under section 4 of the Act.
We are concerned here with the levy of the rural employment cess.
297 Originally section 4 of the West Bengal Act provided as follows: "4.(1) On and from the commencement of this Act, all immovable properties on which road and public work cesses are assessed according to the provisions of the Cess Act, 1880, shall be liable to the payment of rural employment cess: Provided that no raiyat who is exempted from paying revenue in respect of his holding under clause (a) of subsection (1) of section 23B of the West Bengal Land Reforms Act, 1955, shall be liable to pay rural em ployment cess.
(2) The rural employment cess shall be levied annually (a) in respect of lands, at the rate of six paise on each rupee of development value thereof; (b) in respect of coal mines, at the rate of fifty paise on each tonne of coal on the annual dispatches therefrom; (c) in respect of mines other than coal mines and quarries, at the rate of six paise on each rupee of annual net profits thereof.
" The West Bengal Taxation Laws (Amendment) Act, 1982 amended the West Bengal Act and by section 7(b) thereof amend ments were made in section 4(2) of the West Bengal Act with effect from 1 April, 1981.
As a result, as from that date, section 4(2) in so far as it is material read as follows: 4(2).
The rural employment cess shall be levied annually (a) in respect of lands, other than a tea estate, at the rate of six paise on each rupee of development value thereof; (aa) in respect of a tea estate at such rate, not exceeding rupees six on each kilogram of tea on the dispatches from such tea estate of tea grown therein, as the State Government may, by notification in the Offi cial Gazette, fix in this behalf: 298 Provided that in calculating the dispatches of tea for the purpose of levy of rural employment cess, such dispatches for sale made at such tea auction centres as may be recognised by the State Government by notification in the Official Gazette shall be excluded.
Provided further that the State Government may fix different rates on des patches of different classes of tea.
Explanation For the purpose of this section, "tea" means the plant Camellia Sinen sis (L) O. Kuntze as well as all varieties of the product known commercially as tea made from the leaves of the plant Camellia Sinensis (L) O. Kuntze, including green tea and green tea leaves, processed or unprocessed;" Section 4 was also amended further by the insertion of sub section
(4) which provided: "(4) The State Government may, if it considers necessary so to do, by notification in the Official Gazette, exempt such categories of despatches or such percentage of despatches from the liability to pay the whole or any part of the rural employment cess, or reduce the rate of the rural employment cess payable thereon, under clause (aa) of sub section (2), on such terms and conditions as may be speci fied in the notification.
Provided that the State Government may, at any time, add to, amend, vary of rescind any such notification.
" Thereafter the West Bengal Taxation Laws (Amendment) Act, 1982 was enacted with effect from 1 October, 1982.
section 4(2) of the West Bengal Act was amended and under clause (aa) thereof the first proviso was omitted.
Pursuant to the amendments in the West Bengal Act in 1981 and 1982, various notifications were issued by the State Government, which for our purpose broadly cover these different periods: (a) First Period: 1 April, 1981 to 30 Septem ber, 1982 299 Rural employment cess was levied at the rate of Rs.5 per Kg.
on all despatches of tea, but in respect of despatches to two tea auction centres within West Bengal the rate of duty was nil, and in respect of tea sold in West Bengal through registered dealers otherwise than through the two tea auction centres the rate of tax was Rs.2.50 per Kg.
(b) Second Period: 1 October, 1982 to 28 March, 1984 Rural employment cess was levied at the rate of Rs. 1.50 per Kg.
on all despatches of tea except that for despatches to the said two tea auction centres the rate of levy was 30 paise per Kg.
(c) Third Period: 29 March, 1984 onwards Rural employment cess was levied at the rate of Rs.3 per Kg.
on all despatches of tea except that for despatches to the said two tea auction centres in West Bengal the rate of tax was only 30 paise per Kg.
Learned counsel for the petitioners contend that the levy of the cess under section 4(1) read with section 4(2)(aa) of the West Bengal Act as amended in 1981 and 1982 is ultra vires inasmuch as the statutory provisions violate Article 14 and Article 301 of the Constitution and also lie outside the legislative competence of the State Government.
It seems to us that these cases can be disposed of on the short ground based on Article 301 of the Constitution and want of legis lative competence.
There can be no dispute that the rural employment cess is a tax.
cannot also be disputed that if the levy of a tax on goods has the direct and immediate effect of impeding the movement of goods throughout the territory of India, there is a violation of Article 301 of the Constitution.
If, however, the impact of the levy is indirect or remote, no valid complaint can be made in relation to Article 301.
In Atiabari Tea Co., Ltd. vs The State of Assam and Others, ; , Gajendragadkar, J (as he then was) speaking for the majority in that case held that tax laws would effect trade and commerce and could be violative of the freedom guaranteed by Article 30 1, provided they di rectly or immediately affect the freedom of trade and com merce and not indirectly or in a remote manner.
This princi ple was affirmed by this Court in The Automobile Transport (Rajasthan) 300 Ltd. vs The State of Rajasthan and Others, [1963] 1 S.C.R. 491 and again in Firm A.T.B. Mehtab Majid and Company vs State of Madras and Another, [1963] Suppl.
2 S.C.R. 435.
But the declaration in Article 301 that trade, commerce and intercourse throughout the territory of India shall be free is subject to Article 304(b) which provides: "304.
Restrictions on trade, commerce and intercourse among States.
Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law ( a ) .
. . (b) impose such reasonable restrictions on the freedom of trade, commerce or inter course with or within that State as may be required in the public interest.
Provided that no Bill or amendment for the purposes of clause (b) shall be intro duced or moved in the Legislature of a State without the previous sanction of the Presi dent.
" Therefore, there is no violation of Article 30 1 if the case falls under Article 304(b) and its proviso.
In Kalyani Stores vs The State of Orissa and Others, [1966] 1 S.C.R. 865 this Court held that a restriction on the freedom of trade and commerce which is guaranteed by Article 301 cannot be justified unless the procedure provided in Article 304 is followed.
That was also the view taken in State of Mysore vs H. Sanjeeviah; , and Andhra Sugars Ltd. & Anr.
vs State of Andhra Pradesh & Ors.
, [1968] 1 S.C.R. 705.
In other words, if the Legislature of a State enacts a law which imposes such reasonable restrictions on the free dom of trade, commerce or intercourse with or within that State as may be required in the public interest and further that the Bill or amendment for the purposes of clause (b) has been introduced or moved in the Legislature of a State with the previous sanction of the President, such enactment will not offend the Article 301.
The question then is whether the impugned levy impedes the free flow of trade and commerce throughout the territory of India, and if it does, whether it fails within the excep tion carved out in Article 304(b).
If the levy imposes a cess in respect of tea estates, it may well De said that even though the free flow of tea is impeded in its movement throughout the territory of India it is in consequence of an indirect or 301 remote effect of the levy and that it cannot be said that Article 301 is contravened.
The contention of the petition ers is, however, that it is ostensibly only in respect of tea estates but in fact it is a levy on despatches of tea.
If that contention is sound, there can be no doubt that it constitutes a violation of Article 301 unless the legisla tion is brought within the scope of Article 304(b).
To determine whether the levy is in respect of tea estates or is a levy on despatches of tea, the substance of the legis lation must be ascertained from the relevant provisions of the statute.
It cannot be disputed that the subject of the levy, the nature of which defines the quality of the levy, must not be confused with the measure of liability, that is to say, the quantum of the tax.
There is a plenitude of case law supporting that principle, among the cases being Union of India and Others vs Bombay Tyre International Ltd. and Others, ; But what is the position here? The statute speaks of a levy "in respect of a tea estate", and it says that the levy will not exceed Rs.6 on each Kilogram of tea on the des patches from such tea estate of tea grown therein.
The statute also provides that in calculating the despatches of tea for the purpose of levy of rural employment cess, the despatches for sale made at such tea auction centres as may be recognised by the State Government shall be excluded.
And there is a proviso which empowers the State Government to fix different rates on despatches of different classes of tea.
There is also section 4(4) which empowers the State Govern ment to exempt such categories of despatches or such per centage of despatches from the liability to pay the whole or any part of the rural employment cess, or to reduce the rate of the rural employment cess payable thereon under clause (aa) of sub section
(2) on such terms and conditions as it may specify by notification.
As from 1 October, 1982 the posi tion remained the same except that the first proviso to section 4(2)(aa) excluding the despatches for sale made at recog nised tea auction centres was deleted.
The remaining provi sions continued as before.
Now, for determining the true nature of the legislation, whether it is a legislation in respect of tea estates.
and therefore of land, or in respect of despatches of tea, we must, as we have said, take all the relevant provisions of the legislation into account and ascertain the essential substance of it.
It seems to us that although the impugned provisions speak of a levy of cess in respect of tea estates, what is really contemplated is a levy on despatches of tea instead.
The entire structure of the levy points to that conclusion.
If the levy is regarded as one in respect of tea estates and the measure of the liability is defined in terms of the weight of tea des patched from the tea estate there must be a nexus between the two indicating a 302 relationship between the levy on the tea estate and the criteria for determining the measure of liability.
If there is no nexus at all it can conceivably be inferred that the levy iS not what it purports to be.
The statutory provisions for measuring the liability on account of the levy throws light on the general character of the tax as observed by the Privy Council in Re: A Reference under the Government of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934, In R.R. Engineering Co. vs Zila Parishad, Bareilly & Anr., ; , this Court observed that the standard on which the tax is levied was a relevant consideration for determining the nature of the tax, although it could not be regarded as conclusive in the matter.
Again in The Hingir Rampur Coal Co. Ltd. and Others.
vs The State of Orissa and Others, ; , this Court observed that the method of determining the rate of levy would be relevant in consider ing the character of the levy.
All these cases were referred to in Bombay Tyre International Ltd. (supra) where in the discussion on the point at page 367 this Court said: "Any standard which maintains a nexus with the essential character of the levy can be regard ed as a valid basis for assessing the measure of the levy.
" It is apparent that the standards laid down for measur ing the liability under the levy must bear a relationship to the nature of the levy.
In the case before us, however, we find that the nexus with the tea estate is lost altogether in the provisions for exemption or reduction of the levy and that throughout the nexus is confined to despatches of tea rather than related to the tea estate.
There is nothing to suggest that a particular tea estate produces only one class of tea, and when reference is made to a certain class of tea the reference identifies a certain class of tea estates.
We may presume that a tea estate produces different classes of tea and not one class of tea only.
While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions.
Variations considered appropriate for the purpose of deter mining the measure must correspond to variations in the subject of the levy.
If the measure of levy is to vary with the despatches of different classes of tea there must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy.
So also if the measure varies with the centre of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate or classes of tea estates.
In other words, there must be a reason why one class of tea is treated 303 differently from another class of tea when deciding upon the rate to be applied to different classes of tea and that reason must be found in the nature of the tea estate con cerned.
Ultimately the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy.
When the provisions before us are examined in their totali ty, we find no such relationship or nexus between the tea estate and the varied treatment accorded in respect of despatches of different kinds of tea.
It seems to us that having regard to all the relevant provisions of the statute, including section 4(2)(aa) and section 4(4), in substance the impugned levy is a levy in respect of despatches of tea and not in respect of tea estates.
Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India, and the levy can avoid the injunction declared in Article 301 only if it satisfies the provisions of Article 304(b) and the proviso thereto.
For bringing the legislation within the saving provisions of Article 304(b) it is necessary that the Bill or amendment should have been introduced or moved in the Legislature of the State with the previous sanction of the President.
It is not disputed that the amendments to the West Bengal Act made in 198 1 and 1982 did not satisfy that requirement.
Indeed, it appears that the West Bengal Govern ment had sent an earlier Bill to the President with the object of levying a tax on the income from tea but the Presidential assent was not granted.
It appears further that the Finance Minister of WeSt Bengal made a statement in the West Bengal Legislature on 27 February, 1981 stating that he would introduce the rural employment cess on despatches of tea.
He referred to a Bill for amending the West Bengal Marketing (Regulation) Act, 1972 having been sent to the President and the President not having signified his consent to the amendment.
In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they purport to relate to tea estates are unconstitutional and void and cannot be given effect to.
Another aspect of the matter may be considered, and that relates to legislative competence.
If the impugned legisla tion were to be regarded as a levy in respect of tea es tates, it would be referable to Entry 49 in List II of the Seventh Schedule of the Constitution which speaks of "taxes on lands and buildings".
But if the legislation is in sub stance legislation in respect of despatches of tea, legisla tive authority must be 304 found for it with reference to some other Entry.
We have not been shown any Entry in List II or in List III of the Sev enth Schedule which would be pertinent.
It may be noted that Parliament had made a declaration in section 2 of the that it was expedient in the public interest that the Union should take under its control the tea industry.
Under the , Parliament has assumed control of the tea industry including the tea trade and control of tea prices.
Under section 25 of the Act a cess on tea produced in India has also been imposed.
It appears to us that the impugned legis lation is also void for want of legislative competence as it pertains to a covered field.
We do not consider it necessary to express our opinion on the other points raised between the parties in this case.
In the result, the writ petitions filed in this Court and the petitions in the Transferred Cases are allowed, the impugned amendments effected in the West Bengal Rural Em ployment and Production Act, 1976 by the amending Acts of 1981 and 1982 so far as they purport to relate to tea es tates are declared void and the petitioners are held enti tled to the refund of cess paid by them under the impugned statutory provisions.
The petitioners are entitled to their costs.
P.S.S. Petitions allowed.

summary/full:
Section 4(1) of the West Bengal Rural Employment.
and Production Act, 1976 provided for levy of rural employment cess on immovable properties.
Clause (aa) of section 4(2) as amended by section 7(b) of the West Bengal Taxation Laws (Amend ment) Act, 1981 provided for levy of rural employment cess in respect of tea estates on the despatches of tea grown therein.
The first proviso thereto provided for exclusion of despatches of tea for sale made at recognised centres.
The second proviso thereto empowered the State Government 10 fix different rates of cess on despatches of different classes of tea.
Sub section (4) of the amended section 4 provided for exemption of certain categories of despatches from the liability to pay the whole or part of the cess or to reduce the rate of the cess payable thereon.
The first proviso to section 4(2)(aa) was.
however, omitted by the West Bengal Taxa tion Laws (Amendment) Act, 1982.
Article 304(b) of the Constitution permits the legislature of a State to impose reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State provided the Bill or amendment for that purpose is introduced with the previous sanction of the President.
It was contended for the petitioners that the levy of the cess under section 4(1) read with section 4(2)(aa) of the Act, as amended in 1981 and 1982.
was violative of the freedom guaranteed by Article 301 of the Constitu 294 tion and also lay outside the legislative competence of the State Government.
Allowing the writ petitions.
HELD: 1.1 If the levy of a tax on goods has direct and immediate effect of impeding the movement of goods through out the territory of India, there is a violation of Article 301 of the Constitution.
If, however, the impact of the levy is indirect or remote, no valid complaint can be made in relation to Article 301.
There is also no violation of Article 301 if the case fails under Article 304(b) and its proviso.
[299F, 300D E] 1.2 Therefore, if the legislature of a State enacts a law which imposes such reasonable restrictions on the free dom of trade, commerce or intercourse with or within that State as may be required in the public interest and further that the Bill or amendment for the purposes of clause (b) has been introduced or moved in the Legislature of a State with the previous sanction of the President, such enactment will not offend Article 301.
The rural employment cess in the instant case was a tax.
[300F, 299F] Ariabari Tea Co., Ltd. vs The State of Assam & Ors. ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491; Firm A.T.B. Mehtab Majid and Company vs State of Madras & Anr., [1963] Suppl.
2 S.C.R. 435; Kalyani Stores vs TIre State of Orissa & Ors., ; ; State of Mysore vs Ii.
Sanjeeviah, ; and Andhra Sugars Ltd. & Anr.
vs State of Andhra Pradesh & Ors.
, ; , referred to.
2.1 To determine whether the levy was in respect of tea estates, and, therefore, of land thus making an indirect impact or was a levy on despatches of tea thereby directly impeding movement of goods, the substance of the legislation must be ascertained from the relevant provisions of the statute.
[301B] 2.2 The subject of the levy, the nature of which de fines the quality of the levy, however, must not be confused with the measure of liability, that is to say, the quantum of the tax.
Furthermore, the standards laid down for measur ing the liability under the levy must bear a relationship to the nature of levy.
[301B C, 302D E] 295 Union of India & Ors.
vs Bombay Tyre International Ltd. 2.3 If the levy is regarded as one in respect of tea estates and the measure of the liability is defined in terms of the weight of tea despatched from the tea estate there must be a nexus between the two indicating a relationship between the levy on the tea estate and the criteria for determining the measure of liability.
If there is no nexus at all it can conceivably be inferred that the levy is not what it purports to be.
[301H, 302A] 2.4 In the instant case, the nexus with the tea estate is lost altogether in the provisions for exemption or reduc tion of the levy and throughout the nexus is confined to despatches of tea rather than related to the tea estate.
There is nothing to suggest that a particular tea estate produces only one class of tea, and when reference is made to a certain class of tea the reference identifies a certain class of tea estates.
[302E F] 2.5 While there must always be a nexus between the subject of the levy and the measure of the levy that nexus extends into different dimensions.
Variations considered appropriate for the purpose of determining the measure must correspond to variations in the subject of the levy.
If the measure of levy is to vary with the despatches of different classes of tea, there must be something in the class of tea concerned which points to a reason located in the particular tea estate or classes of tea estates which are made the subject of the levy.
So also, if the measure varies with the centre of sale of tea, the variation must relate to a reason to be found in the nature of the tea estate concerned.
Ultimately, the benefit of exemption or reduced levy must be related to the need for exempting the tea estate from that levy or relieving it from part of the normal levy.
[302F, 303A] 2.6 In the instant case the relevant statutory provi sions, including section 4(2)(aa) and section 4(4), indicate no such relationship or nexus between the tea estate and the varied treatment accorded in respect of the despatch of different kinds of tea.
The levy of rural employment cess was, there fore, a levy in respect of despatches of tea and not in respect of tea estates.
It must, thus, be regarded as con stituting a direct and immediate restriction on the flow of trade and commerce in tea throughout the territory of India.
[303B C] 2.7 Such a levy could avoid the injunction declared in Article 301 296 only if it satisfied the provisions of Article 304(b) and the proviso thereto.
The amendments made to the West Bengal Act in 1981 and 1982 had not been moved in the Legislature of the State with the previous sanction of the President.
The provisions brought into the Act by the said amendments were, therefore, unconstitutional and void and could not be given effect to.
[303C D, F, G] 3.
Under the Parliament had assumed con trol of the tea industry including the tea trade and control of tea prices.
Under section 25 of that Act a cess on tea pro duced in India had also been imposed.
The State legislation imposing a cess on despatches of tea was, therefore, also void for want of legislative competence as it pertained to a covered field.
[304B]


judgement:
ivil Appeal No. 2948 of 1984 275 From the Judgment and Order dated 20.1.1984 of the Delhi High Court in L.P.A. No. 145 of 1982.
G. Ramaswami, Additional Solicitor General, S.C. Dhanda, C.S. Vaidyanathan, P. Chowdhary and S.R. Sethia for the Appellant.
Respondent No. 1 In person, Girish Chandra, Ms. Sushma Relan and P. Chowdhary for Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
This is an appeal by special leave against a judgment of a Division Bench of the High Court of Delhi in a Letters Patent Appeal upholding the judgment of a Single Judge of the High Court in a writ petition filed by the first respondent for a declaration that he continues to be in the service of the Jawaharlal Nehru University.
The sets forth as the objects of the Jawaharlal Nehru University "to dissemi nate and advance knowledge, wisdom and understanding by teaching and research and by the example and influence of corporate life, and in particular the objects set out in the first Schedule.
" The powers of the University extend to establishing within the Union Territory of Delhi or outside that territory such Special Centres as may be necessary for the furtherance of its objects, to create such teaching, administrative and other posts as the University may deem necessary, and to make arrangements thereto, and to appoint or recognise persons as Professors, Readers or Lecturers or otherwise as teachers of the University.
Section 7(b) of the Act declares that where the University establishes and maintains any institution or body outside the Union Territo ry of Delhi then the powers and jurisdiction of the Univer sity will extend to such institution or body subject to the rules and regulations of the University within whose juris diction the institution or body is situate.
On 21 September, 1970 the Additional Secretary, Ministry of Education and Youth Services wrote to the Vice Chancellor of the University informing him of the intention of the Government of India, to establish a Central University at Shillong to serve the needs of the North Eastern Region of India, and that in August, 1969, the University Grants Commission had approved the proposal of the Manipur Adminis tration to have a Post graduate Centre at Imphal under the auspices of the Gauhati University, and considering the fact that the 276 proposed Central University for the Hill Areas was also intended to cater to the needs of Manipur, it would be appropriate, he said, that the Jawaharlal Nehru University should establish a Centre at Imphal also which could later be made over to the proposed new University to be estab lished by the Centre.
On 3 October, 1970, a resolution was passed by the Executive Council of the Jawaharlal Nehru University agreeing with the proposal of the Ministry of Education to set up an Institute of Post graduate Studies at Imphal.
A committee was set up to study the problems con nected with the setting up of such an Institute and to submit concrete proposals in that regard.
On 12 June, 197 1, the Executive Council of the University recorded their agreement in principle to the proposal of the Ministry of Education to set up an Institute of Post graduate Studies at Imphal and noted that the committee had submitted its re port.
Then on 12 June, 197 1, the Executive Council passed a resolution that a Centre of Post graduate Studies be set up at Imphal under section 5(2) of the .
On 27 January, 197 1, the appellant University informed the respondent that he had been selected for the post of Research Assistant in the Department of South Eastern Stud ies, School of International Studies of the University, that the appointment would be temporary for a period of six months and his services could be terminated on one month 's notice on either side.
On 25 April, 1973, the term of tempo rary appointment as Research Assistant in the School of International Studies was extended by the appellant Univer sity for a further period of six months with effect from 4 June, 1973.
Thereafter, by letter dated 29 November, 1973 the Vice Chancellor of the appellant University offered the respondent the post of Associate Fellow in the Post graduate Studies Centre of the University at Imphal for a period of one year in the first instance, the appointment being made on ad hoc basis, and his regular appointment at the Centre of the Post graduate Studies at Imphal or at the New Delhi campus of the University would be subject to the recommenda tions of the Selection Committee.
It was stated that he was expected to take part in the teaching and research pro grammes of the University.
He was directed, in case he accepted the offer, to join the Post graduate Centre, Imphal (Manipur) as early as possible.
On the same date the re spondent accepted the offer of appointment as "Associate Fellow", Centre of Post graduate Studies, Imphal, under the terms and conditions of the Vice Chancellor 's letter of that date.
On 3 December.
1973 the respondent reiterated his acceptance of the offer of appointment as "Associate Fellow" at the Centre of Post graduate Studies, Imphal, and stated that he was reporting for duty to the Head of the Centre for Political Studies, School 277 of Social Sciences, New Delhi with effect from 3 December, 1973 so that after necessary briefing at the Centre he would proceed to Imphal as early as possible.
Thereafter by Office Order No. 2376 dated 24 August, 1974 the term of appointment of the respondent as "Associate Fellow" at the Centre of Post graduate Studies, Imphal, was extended for a period of one year from 3 December, 1974 to 2 December, 1975.
By Office Order No. 2440 dated 23 September, 1974 the respond ent 's term of appointment in the same capacity at the said Centre was now enlarged from 3 December, 1974 to 2 December, 1976.
His existing scale of Rs.400 40 800 50 950 was revised to Rs.700 40 1100 50 1600 by Office Order No. 295 dated 21 June, 1975 with effect from 1 January, 1973.
It appears that the temporary appointment of Associate Professor in Politi cal Science at the Centre of Post graduate Studies, Imphal, was extended upto 3 August, 1987 or until the post was filled on a regular basis whichever is earlier.
Thereafter on 23 December, 1977 an advertisement was issued by the Jawaharlal Nehru University, Centre of Post graduate Stud ies, Imphal (Manipur) for appointment to, inter alia, the posts of Associate Professor/Fellow and Assistant Professor/Assistant Fellow in the Political Science.
The respondent applied for the post of Associate Professor but the Selection Committee did not find him suitable for that post and recommended him for the lower post of Assistant Professor.
By letter dated 29 April, 1978 the Jawaharlal Nehru University offered him the appointment of Assistant Professor in Political Science on an ad hoc basis in the Centre of Post graduate Studies, Imphal, for a period of one year or until his services were required by the Centre, whichever was earlier.
The respondent, however, wrote back on 2 May, 1978 stating that he had not applied for the post of Assistant Professor in Political Science and that he deserved to be appointed as Associate Professor at the Imphal Centre.
By letter dated 21 March, 1979 the Jawaharlal Nehru University offered the respondent the post of Assist ant Professor in the Political Science Division at the Centre of Post graduate Studies of the University at Imphal for a period of two years.
He was informed that in all matters relating to leave and other conditions of service he would be required to enter into an agreement with the Centre of Post graduate Studies, Imphal.
This agreement was never executed.
On 29 August, 1979 the respondent joined as As sistant Professor in accordance with the terms mentioned in the University 's letter dated 21 March, 1979.
Thereafter the respondent was appointed as Assistant Professor by a Resolu tion of the Jawaharlal Nehru University dated 29 October, 1979 on a regular basis with effect from the date of his initial appointment dated 29 August, 1979 and he was con firmed with effect from that date.
278 In 1980 proceedings were taken to transfer the Imphal Centre from the Jawaharlal Nehru University to the Manipur University.
To effectuate this the Syndicate of the Manipur University passed a Resolution on 19 December, 1980 detail ing the terms for the transfer of the Centre to the Manipur University, and the Manipur University and the Manipur Government requested the Jawaharlal Nehru University for transferring the Centre accordingly.
The Jawaharlal Nehru University by its Resolution dated 3 February, 1981 accepted the proposal and authorised the Vice Chancellor to transfer the Centre to the Manipur University.
The date for transfer was fixed as 1 April, 1981.
Meanwhile, the Manipur Legisla ture passed the Manipur University Act, 1980, which was assented to by the Governor on 28 May, 1980.
Section 1(4) of the Act provided that on and from the date on which the Act came into force in respect of post graduate education and research, the Jawaharlal Nehru University would cease to exercise jurisdiction over the Centre of Post graduate Studies in Imphal, and that the State Government of Manipur may make provision for the transfer of employees from the Jawaharlal Nehru University, Centre of Post graduate Stud ies, Imphal to the Manipur University.
Thereafter an order dated 31 March, 1981 was made by the Governor of Manipur providing that the members of the faculties of the Jawahar lal Nehru University, Centre of Post graduate Studies, Imphal, immediately before its merger into the Manipur University would, on and from the 1 April, 1981, become members of the staff of the Manipur University on the same terms and conditions of service as they were entitled to immediately before that day.
Meanwhile on 3 February, 1981, the Syndicate of the Jawaharlal Nehru University provided for the transfer of the Centre to the Manipur University.
It was resolved that the said Jawaharlal Nehru University for Post graduate Studies would cease to exist as such and the Divisions of the Centre would become the Divisions of the Manipur University and function accordingly.
It was further resolved that the members of the faculty employed by the Jawaharlal Nehru University, Centre of Postgraduate Studies, Imphal, immediately before its merger into the University would on and from that date.
become members of the staff of the Manipur University.
The respondent filed a writ petition in this Court on 27 March, 1981 challenging his transfer from the Jawaharlal Nehru University to the Manipur University, and that peti tion was dismissed as withdrawn on 21 September, 198 1.
Thereafter the respondent filed a writ petition on 22 May, 1982 in the Delhi High Court praying for the quashing of the Resolution of the Jawaharlal Nehru University on 3 February, 198 1 transferring his services to the Manipur University.
The learned 279 Single Judge of the High Court held that the respondent could not be obliged to join the Manipur University, that he was confirmed as Assistant Professor in the employment of the Jawaharlal Nehru University in its Imphal Centre and was entitled to continue in service until he attained the age of 60 years and that the services had not been specifically terminated.
Accordingly, the writ petition was allowed and the respondent was deemed to continue, in the service of the Jawaharlal Nehru University and if no equivalent post was available for him in 1981 in the Jawaharlal Nehru University had he had become surplus, the said University was at liber ty to dispense with his services.
In appeal, the Division Bench of the High Court upheld the view that the services of the respondent could not stand automatically transferred from the Jawaharlal Nehru University to the Manipur Univer sity with effect from 1 April, 1981 by operation of law and that the order dated 31 March, 1981 transferring the employ ees at the Imphal Centre to the Manipur must be considered as implying or assuming that the concerned employee had exercised an option to join the Manipur University.
The learned Judges also rejected the contention of the appellant that there was an automatic termination of the respondent 's service without notice or order or discharge or dismissal.
They held further that the Centre at Imphal was commenced and conducted as part and parcel of the Jawaharlal Nehru University that the respondent must be regarded as an em ployee continuing with the Jawaharlal Nehru University even upon the transfer of the Centre from that University.
They further observed that if, in the result, the strength of the staff should be surplus, the principle of "last come first go" had to be applied, and that the application of the principle was to be effected with reference to the cadre to which the respondent belonged and also to the discipline in which he was competent.
In the event of it being found that he constitutes a class by himself, his services could be absorbed in some suitable post in the Jawaharlal Nehru University.
In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post graduate Studies, Imphal, and when the Centre was trans ferred to the Manipur University, his services were automat ically transferred to that University, and consequently he could not claim to be an employee of the appellant Universi ty.
The argument proceeds on the assumption that the Centre of Post graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University.
The submission proceeds on a fallacy.
The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University.
To give expression to that activity the appellant University set up and orga nised the Centre at Imphal and appointed a teaching 280 and administrative staff to man it.
Since the Centre repre sented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University.
In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University.
There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere.
The contract of service entered into by the respondent was a contract with the appellant University and no law can con vert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent 's consent.
When the Manipur University Act pro vides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provi sion enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer.
It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent.
The position in law in clear, that no employee can be trans ferred, without his consent, from one employer to another.
The consent may be express or implied.
We do not find it necessary to refer to any case law in support of this con clusion.
Inasmuch as the transfer of the Centre of Post graduate Studies from the appellant University to the Manipur univer sity could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University.
The transfer of the Centre of Post graduate Studies to the Manipur University may be regarded as resulting in the abolition of post held by the respondent in the appellant University.
In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle "last come, first go" will apply, and someone junior to the respondent must go.
If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched.
But it appears that the respondent has been adjusted against a suitable post in the appellant University and has been working there without break during the pendency of this 281 litigation, and we cannot, therefore, permit the appellant University to retrench him.
In the result, the appeal fails and is dismissed with costs.
R.S.S. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
The appellant, Jawaharlal Nehru University, had set up a Centre of Post Graduate Studies at Imphal under section 5(2) of the University Act.
The Respondent while he was working as a temporary research Assistant in the School of International Studies of the University was offered the post of Associate Fellow at the Centre of Post graduate Studies, Imphal, on ad hoc basis which offer was accepted by him on 3 December, 1973.
His term of appointment was extended from time to time.
On 21st March, 1979 the University offered him the post of Assistant Professor in the Political Science Divi sion at the Centre at Imphal for a period of two years.
The respondent joined the post on 29 August, 1979.
Later, he was appointed as such on a regular basis from the date of his initial appointment, and was confirmed with effect from the same date.
The Centre of Post graduate Studies at Imphal was to be merged with the Manipur University as provided in the Mani pur University Act, 1980.
On 3 February, 1981 the Syndicate of the Jawaharlal Nehru University provided for the transfer of the Centre to the Manipur University and resolved that the members of the faculty employed by the Jawaharlal Nehru University Centre of Post graduate Studies, Imphal, immedi ately 'before its merger into the Manipur University would on and from that date become members of the staff of the Manipur University.
The respondent filed a writ petition in the Delhi High Court praying for the quashing of the Resolution of the Jawaharlal Nehru University whereby his services were trans ferred to the Manipur University.
The learned Single Judge allowed the writ petition holding that the respondent could not be obliged to join the Manipur University, and that he was confirmed as Assistant Professor in the employment of the 274 Jawaharlal Nehru University in its Imphal Centre and was entitled to continue in service until he attained the age of 60 years.
In appeal, the Division Bench upheld the view that the services of the respondent could not stand automatically transferred with the transfer of the Centre at Imphal, from the Jawaharlal Nehru University to the Manipur University.
Dismissing the appeal, this Court, HELD: (1) The Centre of Post graduate Studies was set up at Imphal as an activity of the appellant Jawaharlal Nehru University.
To give expression to that activity, the Univer sity set up and organised the Centre at Imphal and appointed teaching and administrative staff to man it.
Since the Centre represented an activity of the University the teach ing and administrative staff must be understood as employees of the University.
[279H; 280A] (2) The contract of service entered into by the respond ent was a contract with the appellant University and no law can convert that contract into a contract between the re spondent and the Manipur University without automatically making it, either expressly or by necessary implication, subject to the respondent 's consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or otherwise.
The position of law is clear that no employee can be transferred, without his consent, from one employer to another.
The consent may be express or implied.
[280B C, E] (3) The transfer of the Centre of Post graduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University.
In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle "last come, first go" will apply, and someone junior to the respondent must go.
If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched.
Since.
however, the respondent has been adjusted against a suitable post in the appellant University during the pendency of the litiga tion, the appellant cannot be permitted to retrench him.
[280F H; 281A]


judgement:
ICTION: Writ Petition (Crl.) No. 86 of 1989.
Criminal Appeal No. 376 of 1989.
(Under Article 32 of the Constitution of India).
R.B. Thakre, Avadhut M. Chimalker, Deepak and M.N. Nargolkar for the Petitioner/Appellant.
T.C. Sharma, Ms. A. Subhashini, A.M. Khanwilkar and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Rule nisi in the writ petition and leave granted in the special leave petition.
Both this writ petition and the criminal appeal are preferred by one Rama Dhondu Borade the detenu herein challenging the legality and validity of the Order of deten tion passed by the Commissioner of Police, Greater Bombay in exercise of the powers conferred by sub section (2) of Section 3 of the (Central Act 56 of 1980) (hereinafter referred as the 'Act ') read with clause 4 of the National Security (Conditions of Detention) (Maharashtra) Order, 1980 with a view to preventing the detenu from indulging .in activities that are prejudicial to the maintenance of public order in Greater Bombay.
In pursuance of the impugned order, the detenu is de tained in the Central Prison, Nasik from 31.8.88.
He has been furnished with the copies of the grounds of detention and other materials on the basis of which the detaining authority drew his subjective satisfaction.
In the grounds of detention the detenu is stated to have been involved in three incidents; they being: (1) On 9.4.1988 at about 11.30 p.m. the detenu and his associate 194 Sunil attacked one Laxman Devsingh Gurkha, during the course of which Sunil slapped on his face while the detenu caused an injury with a sword on the neck of Laxman.
In respect of this incident a case as CR No. 269 of 1988 for offences under Sections 324 and 114 Indian Penal Code has been registered by Dadar Police; (2) On 10.4.1988 the detenu along with his associates went to a pharmaceutical company at Worli and demanded a sum of Rs.3000 at the point of choppers from one Banwarilal Bhagi rath and on subsequent dates from one Babulal Mistry.
Relating to this incident, Babulal lodged before Worli Police Station a complaint which was registered as CR No. 183/88 for offences under Sections 384 and 114 of the Indian Penal Code.
On 14.4.88 the police attempted to arrest the detenu and his associ ates, but they all managed to escape.
However, the police arrested one of his associates Suresh P. Shelar who on search was found to be in possession of a chopper.
Subsequently the detenu was arrested on 9.8.88.
But later on he was released on bail; (3) On 1.8.88 the detenu was arrested near the gate of Century Bazar and on search he was found to be in possession of a Rampuri knife.
In this connection, a case vide LAC No. 2912,88 was registered in Dadar Police Station under the Bombay Police Act, 195 1.
On 2.8.88 the detenu was released on bail.
In view of the above alleged violent activities of the detenu creating a sense of insecurity in Greater Bombay, the detaining authority on being satisfied on the materials placed before him that the activities of the detenu were prejudicial to the maintenance of public order in Greater Bombay, passed the impugned detention order.
Challenging the correctness of this detention order, the detenu filed Writ Petition No. 1044 of 1988 before the High Court of Bombay which for the reasons mentioned in the judgment dismissed the same.
This criminal appeal is preferred against that judgment.
In addition to that, he has filed Writ Petition No. 86 of 1989 before this Court.
The learned counsel appearing on behalf of the appel lant/petitioner raised several contentions assailing the legality of the order one of which being that there is an inordinate and unexplained delay caused by the third re spondent (Union of India) in considering and 195 disposing of the representation of the detenu dated 26.9.88 and as such the continued detention of the appellant is unconstitutional and illegal being violative of the mandato ry provisions of Article 22(5) of the Constitution of India.
As we are inclined to dispose of this appeal and the writ petition on this ground alone we do not propose to traverse on other grounds canvassed before us.
With regard to the right of making the representation the detenu has been informed in the grounds of detention as follows: "You are further informed that you have a right to make a representation to the Central Government, the State Government and the undersigned against the order of detention and that you shall be afforded the earliest oppor tunity to make such a representation.
" It is not in dispute that the detenu made his represen tation both to the State Government as well as the Central Government on 26.9.88.
But the 3rd respondent which has already completed the examination of the report dated 6.9.88 sent by the 2nd respondent (the State Government) under Section 3(5) of the Act even on 13.9.88.
however, felt that certain informations were required from the State Government for its further consideration of the representation and, therefore, the 3rd respondent sent a wireless message on 3.10.
1988 to the State Government asking for further infor mations.
The required information was received by the third respondent only on 17.10.88.
Thereafter the representation was considered and the final decision to reject it was taken on 27.10.88 and the decision of the Central Government rejecting the representation was communicated to the appel lant through crash wireless message on 31.10.88.
In attempting to explain the delay from 17.10.88 to 27.10.88 it is stated in the counter affidavit filed on behalf of the third respondent that 18th, 20th, 22nd and 23rd October 1988 were the closed holidays; but no explana tion is given as to why the representation was not attended to and disposed of on 17th, 19th, 21st, 24th to 26th Octo ber.
In explaining the delay in communicating the decision taken on 27.10.88 it is stated that 29th and 30th October were holidays but the affidavit is silent as to why that decision had not been communicated to the detenu either on 27th or 28th October, 1988.
196 With regard to the delay of 14 days in passing the information required by the 3rd respondent, the 2nd respond ent (the State Government) in its affidavit states that it received the parawise comments of the detaining authority on the representation of the detenu on 12.10.88 and thereafter it forwarded the same to the 3rd respondent.
The 1st re spondent (the detaining authority) has filed a separate affidavit stating that since the officer of the Dadar police station was attending the meeting of the Advisory Board on the 7th and 11th October, 1988, a delay of 7 days had oc curred in forwarding his parawise comments to the 2nd re spondent.
These explanations given by both the Ist and the 2nd respondents are not at all satisfactory and we are left with an impression that the 1st and the 2nd respondents had not diligently collected the informations required by the 3rd respondent and thereby caused a considerable delay which had further delayed the consideration and disposal of the representation of the detenu by the 3rd respondent.
We shall now examine the proposition of law relating to the delayed consideration and disposal of the representation of a detenu with reference to the judicial pronouncements.
There is a line of decisions of this Court dealing with this aspect of law of which we shall make reference to a few.
In Dayanarayan Sukul vs State of West Bengal, ; the following observation has been made: "It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible.
The appropriate Government itself is bound to consider the representation as expeditiously as possible.
The reason for immediate consideration of the representation is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.
" This Court in Niranjan Singh vs State of Madhya Pradesh, ; expressed the view that it is incumbent on the State to 197 explain the inordinate delay in considering and rejecting the representation of the detenu and satisfy the Court that there was justification in that delay.
While dealing with the constitutional requirement of expeditious consideration of the detenu 's representation by the Government as spelt out from Clause 5 of Article 22 of the Constitution this Court, after referring to the deci sions in Abdul Karim and Others vs State of West Bengal, ; and Pankaj Kumar Chakraborty and Others vs State of West Bengal; , has stated in Rashik Sk.
vs State of West Bengal, , as follows: "It is undoubtedly true that neither the Constitution nor the Act expressly provides for consideration of a detenu 's representation by the State Government within any specified period of time.
The constitutional requirement of expeditious consideration of the petition er 's representation by the State Government has, however, been spelt out by this Court from clause (5) of Article 22 of the Constitu tion." XXXXXXX XXXXXXX XXXXXXX "The use of the words "as soon as may be" (occurred in Article 22(5) of the Constitu tion) is important.
It reflects the anxiety on the part of the framers of the Constitution to enable the detenu to know the grounds on which the order of his detention has been made so that he can make an effective representation against it at the earliest.
The ultimate objective of this provision can only be the most speedy consideration of his representa tion by the authorities concerned, for, with out its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representa tion is likely to be defeated.
This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion. ' XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX "Now, whether or not the State Government has in a given 198 case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases.
The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal." Chinnappa Reddy, J. speaking for the bench in Smt.
Shalini Soni and Others vs Union of India & Ors.
, ; has emphasised the constitutional obligation on the part of the authorities concerned in dealing with the repre sentation of a detenu as follows: "Quite obviously, the obligation imposed on the detaining authority, by Article 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representa tion, carries with it the imperative implica tion that the representation shall be consid ered at the earliest opportunity.
Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Arti cle 22(5) read with Article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed.
A breach of the procedural impera tive must lead to the release of the detenu.
" See also B. Sundar Rao and Others vs State of Orissa, ; Jnanendra Nath Roy vs The State of West Bengal, ; Frances Coralie Mullin vs W.C. Khambra and Others, ; ; Vijay Kumar vs State of Jammu and Kashmir & Ors., ; ; Raisuddin alias Babu Tamchi vs State of Uttar Pradesh and another; , and Mohinuddin alias Moin Master and Ors.
vs D.M. Beed; , The propositions deducible from the various reported decisions of this Court can be stated thus: The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitu tion of India.
199 Correspondingly, there is a constitutional mandate command ing the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermis sible and illegal, since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution.
True, there is no prescribed period either under the provisions of the Constitution or under the concerned deten tion law within which the representation should be dealt with.
The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the repre sentation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay.
What is reasonable dispatch depends on the facts and circumstances or ' each case and no hard and fast rule can be laid down in that regard.
However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the author ity is so unsatisfactory, such delay could vitiate the order of detention.
Coming to the facts of this case, we shall now examine whether the delay that had occurred in consideration and disposal of the representation of the detenu is so inordi nate and unreasonable vitiating the order of detention or whether that delay is satisfactorily explained by the third respondent.
In the instant case, the gap between the receipt and the disposal of the representation is 28 days but upto the date of service of the order of rejection on the detenu the delay amounts to 32 days.
The only explanation offered by the third respondent is that further information required from the State Government was received by the third respondent on 17.10.88 after a delay of nearly 14 days and then the repre sentation of the detenu was disposed of on 27.10.88 within which period there were certain holidays.
Barring that, there is no other explanation.
This delay when scrutinised in the light of the proposition of law adumberated above, we are of the view, that there is an inordi 200 nate and unreasonable delay and the present explanation given by the third respondent is not satisfactory and ac ceptable.
Hence, for the aforementioned reasons we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.
In the result the appeal as well as the Writ Petition are allowed.
The detenu is directed to be set at liberty forthwith.
Y.L. Petitions Allowed.

summary/full:
With a view to preventing the petitioner detenu from indulging in activities that were prejudicial to the mainte n ance of public Order in Greater Bombay, the Commissioner of Police, Greater Bombay, in exercise of the powers conferred on him by Sub Section (2) of Section 3 of the read with clause 4 of the National Secu rity (Conditions of detention) (Maharashtra) Order 1980 passed on Order of detention, pursuant whereof the Petition er detenu was detained in Central Prison, Nasik.
He was furnished with copies of grounds of detention and other material on the basis of which the detaining authority based his subjective satisfaction.
In order to challenge the legality and validity of the detention Order, the detenu filed a Writ Petition before the Bombay High Court which was dismissed.
Against the Order of the High Court, the detenu petitioner has filed criminal appeal after obtaining special leave.
He has also filed a separate Writ Petition in this Court challenging his deten tion.
Both were heard together by this, Court.
Counsel for the appellant raised several contentions assailing the legality of the detention order, one of which being that there was inordinate and unexplained delay caused by the Union of India in considering and disposing of his representation dated 26 9 88, as such his continued deten tion was unconstitutional and illegal being violative of Article 22(5) of the Constitution.
Allowing the appeal as also the Writ Petition this Court 192 HELD: The detenu has an independent constitutional right to make his representation under Article 22(5) of the Con stitution of India.
Correspondingly there is a Constitution al mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correct ness of the detention Order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible.
[198H; 199A B] (Jayanarayan Sukul vs State of West Bengal, ; ; A bdul Karim & Ors.
vs State of West Bengal, ; ; Pankaj Kumar Chakravarty & Ors.
vs State of West Bengal, ; This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutional ly impermissible and illegal; since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution.
[199B C] The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the repre sentation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay.
What is reasonable dispatch depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.
[199D] Rashik Sk.
vs State of West Bengal, Smt.
Shalini Soni & Ors.
vs Union of India & Ors.
, ; , In the instant case, the gap between the receipt and disposal of the representation is 28 days but upon the date of service of the order of rejection on the detenu the delay amounts to 32 days.
The only explanation offered by the 3rd respondent is that further information required from the State Government was received by the third respondent on 17 10 88 after a delay of nearly 14 days and then the repre sentation of the detenu was disposed of on 27 10 88 within which period there were certain holidays.
There is an inor dinate and unreasonable delay and the explanation given by the third respondent is not satisfactory and acceptable.
Detenu directed to be set at liberty forthwith.
[199F H; 200A, B] 193 B. Sundar Rao & Ors.
vs State of Orissa, ; Jnanendra Nath Roy vs The State of West Bengal, ; Frances Coralie Muffin vs W.C. Khambra and Others, ; ; Vijay Kumar vs State of Jammu and Kashmir State of Uttar Pradesh and another; , and Mohinuddin alias Moin Master and Ors., vs D.M. Beed, ; , referred to.


judgement:
vil Appeal Nos.
23 19 2320 of 1981.
From the Judgment and Order dated 14.3.1980 of the Madras High Court in Writ Petition Nos. 4959 and 4960 of 1975.
236 Soli J, Sorabjee, Harish N. Salve, section Ganesh, Mahapa tra, P.S. Shroff and Mrs. P.S. Shroff for the Appellant.
N.A. Palkhiwala, Gauri Shanker, S.C. Manchanda, J.B. Dadachanji, Mrs. A.K. Verma, D.N. Mishra, M.S. Harau, Ram Chandran, Mrs. J. Ramachandran Ms. A. Subhashini and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
These appeals by special leave are directed against the judgment and order of the High Court of Madras dismissing the writ petitions filed by the appellant against the refusal of the first respondent to rectify an assess ment order and pass consequential directions.
Shri Anantharamakrishnan, a reputed industrialist in Tamil Nadu, died in the state in Madras on 18 April, 1964.
He left behind his widow, Valli, his two sons, Sivasailam and Krish namoorthy and two daughters, Kalyani and Seetha.
Some time after his death, Sivasailam, as an accountable person ren dered the estate duty account.
All the heirs, other than Sri Sivasailam, who were also accountable persons wrote to the Assistant Controller of Estate Duty on 15 December, 1964 that as accountable persons they agreed to abide by the accounts , rendered by Sri Sivasailam and any explanation furnished by him with regard to the Estate Duty case would be binding on them.
Messrs. Amalgamations Private Ltd. (shortly referred to as 'Amalgamations ') is a company which holds shares in most of the companies including Simpson and Company Ltd. (shortly referred to as 'Simpson ') of the group.
By letter dated 27 April, 1965 Amalgamations informed the assessing authority that the deceased had transferred property in the form of shares in Simpson to it and that the deceased had controlling interest in that company at the time of his death.
On 13 September, 1965 the assessing authority wrote to Amalgamations that the deceased had transferred 80,377 shares of Simpson, and therefore Amalga mations was a controlled company within the meaning of section 17 of the Estate Duty Act.
By virtue of section 19(1) of the Estate Duty Act the controlled company had to be regarded as one of the persons accountable for the estate of the deceased.
Amalgamations was required to submit an account of the estate.
Amalgamations filed a return before the Assistant Controller.
No objection was raised by the heirs of the deceased or by Amalgama 237 tions to the latter being treated as an accountable person.
After due enquiry the assessment of Estate Duty was completed on 27 January, 1970 and the duty payable by the estate was determined at Rs. 1,67,74,697.58, of which provi sional duty had been paid in the amount of Rs.65,50,452.73 leaving a balance of Rs.1,02,24,244.85.
The assessment order was addressed to Amalgamations as well as Sri Sivasailam as accountable persons.
The Assistant Controller of Estate Duty proceeded on the basis that Amalgamations was a "controlled company" and the deceased had control over its affairs, and therefore valuation of the shares held by the deceased in the company had to be made in the manner laid down in Rule 15 framed by the Board under section 30(1)(e) of the Estate Duty Act.
The principal value of the assets was determined at Rs.2,12,29,998 and the duty was computed at Rs. 1,67,74,697.58.
There was no appeal against the assessment by any of the accountable persons.
Kalyani Sundaram, one of the daughters of the deceased and the appellant before us, became entitled to the death of Anantharamakrishnan to a fifth share in his estate under the Hindu Succession Act.
Her husband, K.S. Sundaram, as her agent constituted by power of attorney, wrote on 11 June, 1974 to the Assistant Controller seeking certain clarifica tions regarding the assessment.
The Assistant Controller replied on 25 June, 1974 referring to the specific agreement of the accountable persons to abide by the accounts rendered by Sri Sivasailam and to be bound by any explanation given by him.
The Assistant Controller referred to the fact that all subsequent proceedings had been completed after discus sion with Sri Sivasailam and Amalgamations and as the as sessment had now become final it was not possible to enter into any discussion concerning it.
On 2 January, 1975 the appellant 's husband as agent filed an application under section 61 of the Estate Duty Act contending that the assessment order was vitiated by several errors inasmuch as Rule 15 prescribed only the method of valuation of the shares and debentures of the controlled company and the Rule was an appendage to sections 36 & 37 of the Act, that unless property was transferred without considera tion by the deceased to Amalgamations and some benefit accrued to the deceased from the company section 17(1) of the Act would not be attracted, that the decision to treat Amalgama tions as an accountable person because of the transfer of shares rested on the transfer of shares made by the de ceased, that on a number of aspects of the case the assess ment order did not show any detail, and therefore a rectifi cation 238 order should be made indicating the exact amount included under section 17(1) of the Act as the property passing on the death of the deceased.
He required this information, he said, to enable him to work out the amount which his princi pal had to pay to Amalgamations by way of reimbursement of the duty.
If the apportionment of the duty had been effected by the order itself, he said, the need for rectification would not have arisen.
Section 61 empowers the Controller "to rectify any mistake apparent from the record" at any time within five years from the date of the order passed by him.
On 25 Janu ary, 1975 the Assistant Controller passed an Order declaring that he was unable to discover any mistake which called for rectification in the assessment order and therefore he declined to act under section 61 of the Act.
This order was challenged by the writ petitions out of which the present appeals arise.
The High Court dismissed the writ petitions.
Sethuraman, J. held that there was no apparent error, and therefore no reason for invoking section 61 of the Act and Balasubramanyan, J. in a concurring judgment, held likewise and also dealt with other aspects of the case.
BOth learned Judges were of the view that the proceeding reflected a private dispute between the appellant and other members of the family, and that the forum and remedy selected by the appellant were not appro priate for that purpose.
The fundamental question in these appeals is whether the appellant is right in invoking section 61 of the Act.
Learned counsel for the appellant contends that the heirs of the deceased on whom the estate devolves are liable to pay estate duty attributable to the property which falls to their respective shares and that if an accountable person pays any part of the estate duty in respect of any property not passing to him he is entitled to reimbursement by the person entitled to such property.
This, says learned coun sel, has no application in respect of the duty payable by virtue of section 17 of the Act, which provides that the slice of the assets of a controlled company shall be deemed to pass on the death of the deceased for the purposes of estate duty and the slice will be included in the property passing on his death if the deceased made a transfer of that property to the controlled company and benefit accrued to the de ceased in the three years ending his death.
The slice of the assets of the controlled company does not come to any heir; therefore no heir is called upon to pay the amount of estate duty attributable to the inclusion of that slice 239 in the chargeable estate.
By section 19 the controlled company itself is liable to pay the corresponding amount of estate duty.
In the present case, however, learned counsel urges, no slice of the assets of Amalgamations has been included in the estate of the deceased by the assessing authority as property deemed to pass on the death of the deceased and therefore the demand issued to the controlled company con stitutes a mistake apparent from the record.
The application of Rule 15 is also contested and this, according to learned counsel, is a clear mistake committed by the Controller.
It is urged that there is a mistake apparent from the record in the directions requiring Amalgamations to pay the entire amount of estate duty.
It seems to us that all the heirs other than Sivasailam had agreed that as accountable persons they would abide by the accounts rendered by Sivasailam, and any information furnished by him with regard to the estate duty matter would be binding on them.
The appellant cannot be heard now to dispute the quantum of liability and the basis on which the liability was computed.
Nor is it open to her to contend that it is not Amalgamations which is liable to pay the duty, but the duty is payable by the heirs of the deceased.
The assessment has become final and no appeal against it has been attempted.
It was for the benefit of the heirs that there was general agreement to have the assessment made on Amalgamations and indeed when the assessment was completed and finalised, no objection was taken.
The appellant acqui esced wholly and completely in the assessment to estate duty being made on Amalgamations.
No separate assessment was made on the appellant nor on the other heirs.
The assessment was completed in 1970 and the entire estate duty has now been paid up.
It was only after the entire estate duty was paid that the appellant filed the application for rectification on 2 January, 1975.
It was contended by learned counsel for the private respondents that the appellant enjoyed no locus standi in order to maintain the application under section 61 and these appeals thereafter, but we do not propose to enter into this question.
Further, it appears that this litigation is woven around a private dispute among the family members.
That is hardly any justification for invoking section 61 of the Act.
We have carefully perused the reasons given individually by the two learned Judges of the High Court and we are in complete agreement with them that there is no mistake appar ent on the record.
240 In support of the contention that there was a mistake apparent on the record, learned counsel has referred us to Hari Vishnu Kamath vs Syed Ahmed Ishaque and Others, ; , 1123; Hind Trading Company vs Union of India & Anr., ; ; M.K. Venkatachalam, Income Tax Officer and Another vs Bombay Dyeing and Manufacturing Co. Ltd.; , , 149 50 and Commissioner of Income Tax, Madras vs Mr. P. Firm, Muar, 15,822 but having regard to the facts of the case before us we do not find anything in those cases which can be of assistance to the appellant.
Learned counsel for the appellant states that having regard to the terms of the order granting special leave to appeal the appellant is justified in requesting the court to consider the issues on the merits.
We are unable to spell out such intent of the Court from the terms of the order granting special leave to appeal.
We do not think that the observations of the Court in Thungabhadra Industries Ltd. vs The Government of Andhra Pradesh; , , 180 affect the position before us.
The real question is whether the assessment was justi fied on Amalgamations or should it have been taken against the heirs of the deceased.
In our opinion, that question stands concluded now and upon all the facts and circum stances of the case we do not think it permissible for the appellant to have recourse to section 61 of the Act in order to re open the case.
The appeals are dismissed, there is no order as to costs.
Y.L. Appeals dis missed.

summary/full:
Shri Anantharamakrishnan, a reputed industrialist died in Madras on April 18, 1964 intestate leaving behind his widow, Valli, two sons, Sivasailam and Krishnamoorthy and two daughters, Kalyani and Seetha.
Some time thereafter, his son Sivasailam, being an accountable person rendered the Estate Duty account.
All other heirs i.e. his mother, broth er and sisters, who were also accountable persons, being the heirs of the deceased wrote to the Assistant Controller of Estate Duty that as accountable persons they agreed to abide by the accounts rendered by Sivasailam and whatever explana tion is furnished by him would be binding on them.
M/s. Amalgamations Private Ltd. is a company which held shares in most of the companies including Simpson and Compa ny Ltd. in which company the deceased Anantharamakrishnan too held shares.
By a letter of April 27, 1965, Amalgama tions informed the assessing authority that the deceased had transferred property to it in the form of shares and that at the time of his death, he had controlling interest in the Company.
On September 13, 1965, the Assessing Authority wrote to Amalgamations that the deceased having transferred 80,377 shares of Simpson, as such Amalgamations was a con trolled company within the meaning of section 17 of the Estate Duty Act and thus the said company had to be regarded as one of the accountable persons in respect of the estate of the deceased.
Amalgamations was therefore required to submit an account of the estate.
Accordingly Amalgamations flied a return and no objection thereto was taken by any of the heirs.
Treating Amalgamations as a controlled company and in view of the fact that the deceased had control over its affairs, the assessing authority valued the shares as per the provisions of Rule 15 of the Rule framed by 234 the Board under Section 30(1)(e) of the Act.
The principal value of the shares was determined of Rs.2,12,29,998 and the duty was computed at Rs.1,67,74,697.58, out of which provi sional duty in the sum of Rs.65,50,542.73 had been paid.
The assessment order was addressed both to Amalgamations as also to Shri Sivasailam as accountable persons.
No appeal was preferred against the said assessment by the accountable persons.
K.S. Sundaram husband of the appellant as her agent and constituted power of attorney, on June 11, 1974 wrote to the Assistant Controller seeking certain clarifications.
The Assistant Controller referring to the agreement between the heirs of the deceased Anantharamakrishnan that they were bound by the accounts rendered or explanation given by Sivasailam, replied that, since all subsequent proceedings had been completed after discussion with Sivasailam and Amalgamations, the assessment had become final and that it was not possible to enter into any further discussion.
On 2nd January, 1975, appellant 's husband as agent filed an application under Sec.
61 of the Estate Duty Act, and it was contended by him that the assessment order was vitiated by several errors inasmuch as Rule 15 only prescribed the method of valuation of shares and debentures of the con trolled company and the rule was appendage to Sections 36 & 37 of the Act.
It was urged that the assessment order did not show any details and therefore a rectification order should be made indicating the exact amount included under Section 17(1) of the Act as the property passing on the death of the deceased.
He stated that he required this information to know the precise amount which his principal had to pay to Amalgamations, as the assessment order did not, in terms, indicate apportionment of the duty, for which reason rectification was required.
On January 25, 1975, the Assistant Controller declared by an order that he was unable to find any mistake in the assessment order which called for any rectification and therefore he declined to act under Sec.
61 of the Act.
Order passed by the Assistant Controller was challenged in the High Court by means of Writ Petitions.
The High Court dismissed the Writ Petitions holding that there was no error apparent on the record and therefore there was no reason for invoking Sec.
61 of the Act.
The High Court took the view that proceedings reflected a private dispute between the appellant and other members of the family.
Hence this appeal by the appellant.
235 Dismissing the appeal the Court, HELD: All the heirs other than Sivasailam had agreed that as accountable persons they would abide by the accounts rendered by Sivasailam and any information furnished by him with regard to the estate duty matter would be binding on them.
The appellant cannot be heard now to dispute the quantum of liability and the basis on which the liability was computed.
Nor is it open to her to contend that it is not Amalgamations which is liable to pay the duty, but the duty is payable by the heirs of the deceased.
The assessment had become final and no appeal against it had been attempt ed.
[239C D] The appellant acquiesced wholly and completely in the assessment to estate duty being made on Amalgamations.
[239E] The assessment was completed in 1970 and the entire estate duty has now been paid up.
It was only after the entire estate duty was paid that the appellant filed the application for rectification on January 2, 1975.
[239E F] The question whether the assessment was justified on Amalgamations or should it have been taken against the heirs of the deceased stands concluded now and upon all the facts and circumstances of the case it was not permissible for the appellant to have recourse to Sec.
61 of the Act in order to re open the case, as there was no mistake apparent on the record.
[240D E] That this litigation was woven around a private dispute among the family members.
[239G] Hari Vishnu Kamath vs Syed Ahmed Ishaque and Others, ; , 1123; Hind Trading Company vs Union of India & Anr., ; ; M.K. Venkatachalam, Income tax Officer and Another vs Bombay Dyeing and Manufacturing Co. Ltd., ; , 149 50; Commissioner of Income tax, Madras vs Mr. P. Firm Muar, ; ,822 and Thungabhadra Industries Ltd. vs The Government of Andhra Pradesh, ; , 180, referred to.