judgement:
etition (Criminal) No. 8061 of 1981.
(Under article 32 of the Constitution of India.) Dr. N.M. Ghatate for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by SEN, J.
By this petition under article 32 of the Constitution, one Ashok Kumar seeks issuance of a writ of habeas corpus challenging the validity of the order of detention dated August 11, 1981, passed by the Commissioner of Police, Delhi under sub section
(2) of section 3 of the (for short 'the Act ') on being satisfied that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of 710 public order".
The main issue is as to whether the activities of the petitioner fall within the realm of 'public order ' or 'law and order '.
It appears that on August 12, 1981 while the detenu was held at the Central Jail, Tihar in connection with some of the offences committed by him, he was served with the aforesaid order of detention passed a day earlier i.e. on August 14, 1981.
Two days later i.e. on August 14, 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention.
It seems that the Commissioner of Police forthwith made a report to the Administrator about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same.
The said report and the other particulars were considered by the Administrator and he, by his order dated August 20, 1981, approved of the detention order under sub section
(4) and sent a report to the Central Government as required under sub section
(5) of section 3 of the Act.
The Administrator by his order dated August 20, 1981 informed the petitioner that his order of detention had been approved by him and that he had a right to make a representation.
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for the detention of the petitioner and accordingly the Administrator by his order dated September 15, 1981 confirmed the aforesaid detention order under sub section
(1) of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention i.e. w.e.f. August 12, 1981.
In support of the petition, four points are canvassed.
First of these is that there was a denial of the constitutional imperatives of article 22(5) read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention" inasmuch as there was unexplained delay of two days in furnishing the grounds of detention; secondly, there was a failure on the part of the Commission of Police as well as the Administrator to apply their mind and specify the period of detention while making the order of detention under sub section
(2) of section 3 of the Act and therefore the impugned order of detention is invalid; thirdly, the grounds of detention served on the detenu are not connected with "maintenance of public order", but they relate to "maintenance of law and order" and fourthly, the facts as set out in the grounds of detention did not 711 furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague, irrelevant and lacking in particulars.
We are afraid, none of these contentions can prevail.
There is no substance in the contention that there was denial of the constitutional imperatives of article 22(5) read with section 8 of the Act, because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the grounds of detention along with the order of detention.
It is said that delay even for a day, if it remains unexplained ' means deprivation of liberty guaranteed under article 21, and this is impermissible except according to procedure established by law.
The contention that the constitutional safeguards in article 22(5) were not complied with merely because the detenu was not 'simultaneously ' furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded 'the earliest opportunity of making a representation against the order of detention ' as enjoined by article 22(5) read with with section 8 of the Act, cannot be accepted.
The language of article 22(5) itself provides that where a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, "as soon as may be", communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Sub section
(1) of section 8 of the Act which is in conformity with article 22(5) provides that when a person is detained in pursuance of a detention order made under sub section
(1) or sub section
(2) of section 3 of the Act, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made.
Parliament has thus by law defined the words "as soon as may be" occurring in article 22(5) as meaning normally a period of five days.
The matter is no longer res integra.
Chandrachud, C.J. in A.K. Roy vs Union of India observed : "This argument overlooks that the primary requirement of section 8(1) is that the authority making the order of 712 detention shall communicate the grounds of detention to the detenu "as soon as may be".
The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay.
It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances.
If there are any such circumstances, the detaining authority is required by section 8(1) to record its reason in writing.
We do not think that this provision is open to any objection.
" Under our constitutional system, therefore, it is not the law that no person shall be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention.
The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made.
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case.
Admittedly, the detenu here was served with the grounds of detention within a period of two days i.e. within the period allowed by section 8 of the Act and that was "as soon as practicable".
This is not a case where the detenu alleges that his detention was for non existent grounds.
Nor does he attribute any mala fides on the part of the detaining authority in making the order.
The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later.
We find it difficult to conceive of any discernible principle for the second submission.
It is submitted by learned counsel appearing for the detenu that the right to make a representation under article 22(5) of the Constitution read with section 8 of the Act means what it implies, "the right to make an effective representation".
It is urged that unless the period of detention is specified, there can be no meaningful representation inasmuch as the detenu had not only the right of making a representation against the order for his detention but also the period of detention.
On this hypothesis, the contention is that the impugned order of detention is rendered invalid.
The 713 entire submission rests on the following observations of Chandrachud, C.J. in A.K. Roys case, supra : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention.
The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period.
The detaining authority can always exercise its discretion regarding the length of the period of detention.
" The majority decision in A.K. Roys case, supra, as pronounced by Chandrachud, C.J. is not an authority for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub section
(1) or (2) to specify the period of detention.
The learned Chief Justice made the aforesaid observations while repelling the contention advanced by learned counsel for the petitioner that section 13 of the Act was violative of the fundamental right guaranteed under article 21 read with article 14 as it results in arbitrariness in governmental action in the matter of life and liberty of a citizen.
The challenge to the validity of section 13 of the Act was that it provides for a uniform period of detention of 12 months in all cases, regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed.
In repelling the contention, the learned Chief Justice observed that there was no substance in that grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence.
In upholding the validity of section 13 the learned Chief Justice observed : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the grounds of detention".
And then went on to say : "It must also be mentioned that under the proviso to section 13, the appropriate government has the power to revoke or modify the order of detention at any earlier point of time.
" 714 It would thus be clear that the Court was there concerned with the validity of section 13 of the Act and it is not proper to build up an argument or by reading out of context just a sentence or two.
There is no doubt in our mind that the Court has not laid down that the detaining authority making an order of detention under sub section
(1) or sub section
(2) of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order.
It is plain from a reading of section 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention.
It will be noticed that sub section
(1) of section 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detaining authority shall also specify the period of detention.
Otherwise, there should have been the following words added at the end of this sub section "and shall specify the period of such detention".
What is true of sub section
(1) of section 3 is also true of sub section
(2) thereof.
It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a section.
Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of.
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act.
The most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of 'public order ' or 'law and order '.
The contention is that the grounds of detention served on the detenu are not connected with 'maintenance of 'public order ' but they relate to 'maintenance of law and order ' and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub section (2) of section 3 of the Act is liable to be struck down.
It is urged that the facts alleged in the grounds of detention tend to show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if, in every case where there is a failure of the prosecution to proceed with a trial or where the case ends with an order of discharge or acquittal, the Executive could fall back on its power of detention because the verdict of the Court goes against it.
Put differently, the contention is that resort cannot be had to the Act to direct preventive detention of a person under sub section
(2) of section 3 of the Act for the Act is not a law for the 715 preventive detention of gangsters and notorious bad characters.
The detention here, it is said, is not so much for the "maintenance of public order" but as a measure for the past criminal activities of the detenu.
It is further urged that the grounds of detention have no rational connection with the object mentioned in the Act for which a person may be detained.
Further, that there is no sufficient nexus between the preventive action and the past activities of the detenu which are not proximate in point of time but are too remote.
There is no substance in any of these contentions advanced.
The true distinction between the areas of 'public order ' and 'law and order ' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
That test is clearly fulfilled in the facts and circumstances of the present case.
Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires.
Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.
It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.
It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence.
There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public 716 order.
It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate.
There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.
The prejudicial activities of the detenu leading to public disorder, as revealed in the grounds of detention, consist of a consistent course of criminal record.
Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse.
From the facts alleged it appears that the detenu has taken to a life of crime and become a notorious character.
His main activities are theft, robbery and snatching of ornaments by the use of knives and firearms.
The area of operation is limited to South Delhi, such as Greater Kailash, Kalkaji and Lajpat Nagar.
A perusal of the F.I.Rs. shows that the petitioner is a person of desperate and dangerous character.
This is not a case of a single activity directed against a single individuals.
There have been a series of criminal activities on the part of the detenu and his associates during a span of four years which have made him a menace to the society.
It is true that they are facing trial or the matters are still under investigation.
That only shows that they are such dangerous characters that people are afraid of giving evidence against them.
To bring out the gravity of the crimes committed by the detenu, we would just mention four instances.
On November 19, 1979 Smt.
Anupam Chander of B 5/10, Safdarjang Enclave reported that she was robbed of her gold chain near East of Kailash and on investigation the petitioner along with his associates was arrested for this high handed robbery and there is a case registered against them which is pending trial.
Just a month after i.e. on December 11, 1979, one Munna of Lajpat Nagar reported that he was robbed of his wrist watch and cash by three persons who were travelling in a three wheeler.
On investigation, the petitioner and his associate Rajendra Kumar were arrested and the police recovered the stolen property.
They are facing trial in these cases.
On July 18, 1981 717 Kumari G. Radha reported that she had been robbed of her gold chain and a pair of tops in Lajpat Nagar at the point of knife by persons in the age group of 21/22 years.
On investigation, the petitioner and his associate Rajendra Kumar were arrested and the entire booty was recovered.
The case is still under investigation.
It appears that the detenu was enlarged on bail and two days after i.e. on July 20, 1981, he was again arrested on the report of Smt.
Ozha that she was robbed of her gold chain near Shanti Bazar, Khokha Market, Lajpat Nagar by two persons in the age group of 21 25 years at the point of knife.
On investigation, the petitioner and his companion Rajendra Kumar were arrested and she identified them to be the culprits and the booty was recovered from them.
The case is under investigation.
There have been similar incidents of a like nature.
What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder.
It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order.
Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely.
The question is of the survival of the society and the problem is the method of control.
Whenever there is an armed hold up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist watch or cash, or ladies relieved of their gold chains or ornaments at the point of a knife or revolver, they become victims of organised crime.
There is very little that the police can do about it except to keep a constant vigil over the movements of such persons.
The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order.
The contention that the facts alleged in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further that they were vague, irrelevant or lacking in particulars, cannot be accepted.
A bare perusal of the grounds of detention along with the particulars 718 of the 36 cases furnished in the accompanying chart, shows that the grounds furnished were not vague or irrelevant or lacking in particulars or were not adequate or sufficient for the subjective satisfaction of the detaining authority.
In the result, the petition must fail and is dismissed.
N.V.K. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner who was held at the Central Jail in connection with some of the offences committed by him, was served with an order of detention passed by the Commissioner of Police, under sub section (2) of section 3 of the , stating that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of public order." Two days later he was served with the grounds of detention and copies of documents and statements relied upon in the grounds of detention.
The Commissioner made a report to the Administrator about the passing of the detention order together with the grounds of detention.
The Administrator approved the detention order and sent the report to the Central Government, and also informed the petitioner that the order of detention had been approved by him and that he had a right to make a representation.
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for his detention.
The Administrator confirmed the detention order under sub section (1) of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention.
In his petition under Article 32 of the Constitution the petitioner contended that: (1) the unexplained delay of two days in furnishing the grounds of detention was a denial of the constitutional imperatives of article 22(5) read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention", (2) there was a failure on the part of the Commissioner as well as the 708 Administrator to apply their minds and specify the period of detention while making the order of detention under sub section (2) of section 3 of the Act, and (3) the grounds of detention served were not connected with "maintenance of public order", but relate to "maintenance of law and order".
Dismissing the petition, ^ HELD: 1.
(i) Sub section (1) of section 8 of the Act which is in conformity with Article 22(5) provides that where a person is detained in pursuance of a detention order made under sub section (1) or sub section (2) of section 3 of the Act, the authority making the order shall, "as soon as may be", but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention, communicate to him the grounds on which the order has been made.
Parliament has thus by law defined the words "as soon as may be" occurring in article 22(5) as meaning normally a period of five days.
[711 F] (ii) The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made.
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case.
[712 D] In the instant case, the petitioner was served with the grounds of detention within a period of two days i.e. within the period allowed by section 8 of the Act and that was "as soon as practicable.
" The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later.
[712 E F] (iii) In A.K. Roy vs Union of India, [1982] 1 S.C.C. 271 this Court has not laid down that the detaining authority making an order of detention under sub section (1) or sub section (2) of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order.
[714 B] 2.
Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of.
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act.
[714 E] 3.(i) The true distinction between the areas of 'public order ' and 'law and order ' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of 'law and order ' while in another it might affect 'public order '.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the act to disturb the even 709 tempo of the life of the community which make it prejudicial to the 'maintenance of public order. ' [715 C E] (ii) Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.
It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.
[715 F G] (iii) The Executive can take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.
[716 B] (iv) What essentially is a problem relating to 'law and order ' may due to sudden sporadic and intermittent acts of physical violence on innocent victims in a metropolitan city result in serious 'public disorder '.
It is the length, magnitude and intensity of the terror wave, unleashed by a particular act of violence creating disorder that distinguished it as an act affecting 'public order ' from that concerning 'law and order '.
Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest, and affect individuals only remotely.
[717 D E] In the instant case the particular acts enumerated in the grounds of detention clearly shows that the activities of the detenu cover a wide field and fall within the contours of the concept of 'public order '.
[717 G]


judgement:
Petition Nos.
528 529, 1645, 288,293, 362,363, 374, 388, 404 406, 510, 512 14, 644 46, 647, 663 65, 707, 710, 720 to 722, 745,793,1037 of 1979,341 43,344 47, 5257,519,5293, 3531 35, 4322 of 1980, 4824, 4825, 5246, 3236, 2963,3472 74,3415 17, 3420, 1363 65, 1327 28, 1337 41, 4101 2, 5326,4949 50 of 1981 and 311 of 1982.
(Under Article 32 of the Constitution of India) G.L. Sanghi, Dr. L.M. Singhvi, S.N. Kacker, Yogeshwar Prasad, Ashok Grover, V.N. Koura, S.C. Budhwar, L.K. Pandey, Ravindra Narain, D.N. Mishra, P. Krishna Rao, K.R. Nagaraja, Miss Kamini Jaiswal and Mrs. Rani Chhabra for the appearing Petitioners.
L,N. Sinha, Attorney General, S.C. Maheshwari, Additional Advocate General, O.P. Malhotra, G. N. Dikshit, H.R. Bhardwaj, B.P. Maheshwari, Suresh Sethi, Miss Asha Rani Jain, and Pravir Choudhary for the appearing Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
There is no substance in this group of writ petitions filed under article 32 of the Constitution whereby the petitioners, who carry on business, inter alia, of the wholesale vend of beer and Indian Made Foreign Liquor at various places in the State of U.P. on the strength of licences granted to them in Form FL 2 under the U.P. Excise Act, 1910, have challenged the constitutional validity of sections 1(2), 3 and (5) of U.P. Excise (Amendment) ordinance No. 4 of 1979 as also the constitutional validity of sections 1(2), 3 and 5 of U.P. Excise (Amendment) Act No. 13 of 1979 (which replaced the said ordinance No. 4 of 1979) as being violative of their fundamental rights under articles 14, 19 and 31 of the Constitution; the petitioners have also sought a declaration that section 30(2), proviso to cl.
(c) of section 41 and Explanations I and II to cl.
(c) of section 41 of the U.P. Excise Act 1910 as amended by sections 3 and 5 of the said ordinance No. 4 of 1979 as well as by sections 3 and 5 of the said Act No. 13 of 1979 and the provisions of sub section
(2) of section 1 of the said ordinance (No. 4 of 1979) as well as of the said Act (No. 13 of 1979) are ultra vires the Constitution and have prayed for the issuance of an appropriate writ, order or direction restraining the respondents (the State of U.P., the Excise Commissioner and other officers) either directly or through their agents, servants or otherwise from giving effect to the amended provision.
759 It may be stated that the aforesaid challenge to the U.P. Ordinance No. 4 of 1979, the U.P. Act No. 13 of 1979 and the concerned amended provisions of the U.P. Excise Act, 1910 has been made solely with a view to avoid the payment of the "assessed fee" which the respondents are seeking to recover from the petitioners in addition to the "fixed fee" (auction money) as and by way of consideration for the grant of licences in Form FL 2 for the wholesale vend of beer and Indian Made Foreign Liquor.
However, as it became clear during the hearing that even without the amendments affected in the U.P. Excise Act, 1910 (being the Principal Act) by the said ordinance No. 4 of 1979 and by the said Act No. 13 of 1979 the "assessed fee" in addition to the "fixed fee" (auction money) could be and was being recovered under the Principal Act of 1910 as amended by the U.P, Amending (Reenactment and Validation) Act 5 of 1976 and the Rules framed thereunder, the aforesaid challenge was given up and no arguments in support thereof were at all advanced by any of the counsel for the petitioners and the contentions centered round the question whether such "assessed fee" in addition to the "fixed fee" (auction money) could be levied and recovered under the Principal Act of 1910 as amended by the Act 5 of 1976.
It was not disputed before us that the grant of exclusive privilege of manufacture, supply or sale by wholesale or by retail of liquor was always governed by the provisions of the Principal Act of 1910 and the Rules framed thereunder and that licences for wholesale vend of beer and Indian Made Foreign Liquor were granted in Form FL 2 which contained the terms and conditions on which sales by wholesale of the said commodities could be effected by the grantees thereof.
It appears that prior to April 1976 these FL 2 licences were not settled under any auction system but were renewable from year to year and the licence fee was based on the quantity of beer and Indian Made Foreign Liquor actually sold from the concerned shop and was assessed and charged at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle on beers.
But from April 1976 auction system was introduced whereunder FL 2 licences were auctioned under the provisions of paragraph 373 of the U.P. excise Manual Vol.
I and "fixed free".
being the highest bid (auction money) accepted at such auction came to be charged for the grant of FL 2 licences and this system was introduced on the strength of the amendments that were made in the Principal Act of 1910 by the Amending (Re enactment and 760 Validation) Act 5 of 1976.
Three or four amendments made by Act 5 of 1976 are material and we shall refer to these presently: A new section 24A dealing with the grant of exclusive or other privilege in respect of foreign liquor was introduced in the Principal Act, which reads as under: "24 A. Grant of exclusive or other privilege in respect of foreign liquor.
(1) Subject to the provisions of Section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive or other privilege: (a) of manufacturing or of supply by wholesale, or of both; or (b) of manufacturing or of supplying by wholesale, or of both and selling by retail; or (c) of selling by wholesale (to wholesale or retail vendors); or (d) of selling by retail at shops (for consumption 'off ' the premises); any foreign liquor in any locality.
(2) The grant of licence or licences under clause (d) of sub section (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises.
(3) Where more licences than one are proposed to be granted under clause (d) of sub section (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicants for every such licence.
(4) The provisions of Section 25, and proviso to Section 39 shall apply in relation to grant of a licence for an exclusive or other privilege under this section as they apply in respect of the grant of a licence for an exclusive privilege under Section 24," 761 Section 24 B which was also introduced by Act 5 of 1976 in the Principal Act reads thus: "24 B. Removal of doubts For the removal of doubts, it is hereby declared (a) that the State Government has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor; (b) that the amount described as licence fee in clause (c) of Section 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Government; (c) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government.
" By the same Act section 30 of the Principal Act was amended and the amended section 30 read thus: "30.
(1) Instead of or in addition to any duty leviable under the Chapter the State Government or on its behalf the Excise Commissioner may accept payment of a sum in consideration of the grant of licence for any exclusive or other privilege under section 24 or Section 24 A. (2) The sum payable under sub section (1) may be determined either by auction or by calling tenders or otherwise.
" Section 41 of the Principal Act which confers power on the Excise Commissioner to make Rules subject to the previous sanction of the State Government touching the matters or topics specified therein was amended by Act 5 of 1976 by substituting cl.
(c) thereby conferring power on the Excise Commissioner to frame Rules on the substituted matter or topic and the amended cl.
(c) runs thus: "(C) Prescribing the scale of fees or manner of fixing the fees payable for any licence, permit or pass including 762 any consideration for the grant of any exclusive or other privilege granted under Section 24 or Section 24 A or for storing of any intoxicant.
" In exercise of the power so conferred upon him under the amended cl.
(c) of section 41, the Excise Commissioner with the previous sanction of the State Government framed Rules called the U.P. Excise (Wholesale and Retail Vend of Foreign Liquor) (2nd Amendment) Rules, 1976 by issuing the Notification No. 27/Licence 3 dated 14th April, 1976, which were brought into force with effect from the date of publication in the Gazette, namely, 14th April, 1976, by this Notification the existing Rules 639, 641 and 642 as appearing in Excise Manual Vol.
I (1962 End.) were amended; Rule 639(2) as amended provides that "licences in form FL 2 shall be settled by public auction" while Rule 641 as amended provides that "the fee for a licence in Form FL 2 shall be the amount of money accepted at the auction of the licence as 'fixed fee ' together with an 'assessed fee ' charged on the basis of the scales of surcharge fee prescribed in the next paragraph following" and Rule 642 as amended runs thus: "642.
The scales of licence fee applicable to whole scale licences for the vend of foreign liquor shall be as follows: (i) For a licence in Form FL.1. (ii) For a licence in Form FL 2 The fixed fee obtained for the licence at the auction in addition to the assessed fees according to the following scales: (a) Spirits, Rs. 5.00 per wines, liquors reputed quart etc.
of all bottle on sale kinds.
to licensed vendors.
(b) Beer, Stout and Rs. 0.60 per other fermented reputed quart liquors.
bottle on sale to licensed vendors.
Note: The fixed fee in respect of licence FL 2: one fourth of the licence fee as obtained in the auction 763 shall be payable in advance immediately on the acceptance of the bid and the balance by such instalments as may be specified in the licence to be granted.
" By the very notification dated 14th of April, 1976 the Excise Commissioner added one more condition in the form of a proviso to the terms and conditions of FL 2 Licence and the said addition made after condition No. 1 (c), runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by the licencee." Obviously relying upon the aforesaid amendments made in the Principal Act of 1910, by Act 5 of 1976 (some of which were given retrospective effect from the date of the commencement of the Principal Act and others from 16th August 1972) and the said amended Rules 639, 641 and 642 and the insertion of the new condition in the FL 2 Licence (all of which came into force from 14th April, 1976), the respondents introduced the auction system for the grant of licences in Form FL 2 for wholesale vend of beer and Indian Made Foreign Liquor and started levying and recovering the "assessed fee" in addition to the "fixed fee" (auction money) from the grantees of the licences.
Question raised is whether such levy and recovery are legal and valid ? Before we deal with the question it will be desirable to set out the facts giving rise to it that lie in a narrow compass and it will suffice if the facts obtaining in Writ Petition No. 528 of 1979, being typically representative of the group, are stated.
The petitioners in that petition are liquor dealers and carry on business inter alia of wholesale vend of beer and Indian Made Foreign Liquor and for that purpose have wholesale depots in various districts in the State of U.P.
For the financial years 1976 77 and 1977 78 they acquired by auction bids wholesale vending rights in respect of Indian Made Foreign Liquor at Agra, Meerut, Varanasi, Kanpur, Bareilly and Dehradun; for the financial year 1978 79 they similarly acquired wholesale vending rights in Indian Made Foreign Liquor at Agra, Meerut and Varanasi and for the financial year 1979 80 they acquired by auction similar rights at Agra, Meerut, Ghaziabad 764 and Pilibhit.
In other words being the highest bidder at these places for these years licences for the wholesale vend of Indian Made Foreign Liquor in Form FL 2 were granted to them.
At the time of acceptance of their bids at these auctions the petitioners deposited the entire auction money called the "fixed fee" in respect of each of the said years with the respondents.
The petitioners ' case is that thereafter the respondents are seeking to levy and recover from them the "assessed fee" at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle on beers actually sold during each of the financial years by their concerned shops or depots in addition the "fixed fee".
Such levy and recovery of the "assessed fee" by the respondents is challenged on two or three grounds indicated hereunder.
In the first place Counsel for the petitioners have contended that under section 30(2) of the Principal Act of 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and U.P. Act 13 of 1979 it was open to the respondents to adopt either one or the other method of granting FL 2 licences and determine the licence fee payable by the grantee accordingly, that is to say the respondents could grant the licence "either by auction or by calling tenders" and once a particular mode was adopted it was incumbent upon them to apply the same for the purpose of determining the sum payable by the grantee; in other words the contention has been that it was not open to them to adopt a combination of two or more methods and claim "assessed fee" in addition to "fixed fee" and therefore the instant attempt on the part of the respondents to levy and recover the "assessed fee" in addition to "fixed fee" would be illegal and without authority of law.
According to the petitioners a combination of two or more methods became available to the respondents only under sec.
30(2) as amended by U.P. ordinance No. 4 of 1979 and by U.P. Act 13 of 1979.
Secondly, the petitioners have averred that at the time of the said auctions held for each of the said financial years the bidders were not informed that any "assessed fee" had been fixed by the State Government which would be payable by the successful bidder and therefore the persons who gave their bids including the petitioners whose highest bids were accepted were led to believe that no fee over and above the auction money would be charged and that the successful bidder would be granted FL 2 licence merely on payment of the auction money.
Counsel for the petitioners have therefore contended that the respondents ' attempt to levy and recover the "assessed fee" over 765 and above the "fixed fee" (auction money) is unwarranted and illegal in as much as the respondents cannot enhance the petitioners ' contractual liability which was limited to the payment of the auction money.
Yet another contention raised by Counsel for the petitioners has been that as per the newly inserted condition in FL 2 licence the "assessed fee" was required to be "prescribed by Government and announced at the time of auction" but in the instant case such "assessed fee" has been prescribed by the Excise Commissioner and not by the State Government and was not announced at the time of the auction and for this reason also the same would not be recoverable.
As will be shown presently none of these contentions has any merit and each one is liable to be rejected.
As regards the first contention a plain reading of section 30(2) prior to its amendment by U.P. Ordinance No. 4 of 1979 and by U.P. Act No. 13 of 1979 will show that there is no substance in it.
The said provision ran thus: "2.
The sum payable under sub sec.
(1) may by determined either by auction or by calling tenders or otherwise.
" In other words, the consideration for the grant of FL 2 licence could be determined either by auction or by calling tenders or otherwise.
The phrase "or otherwise" was sufficiently wide and conferred on its plain grammatical construction power on the State Government or the Excise Commissioner to grant the licence either by auction or by tenders or partly by auction and partly by tenders or even by adopting yet other methods than by auction or by inviting tenders.
In other words, the phrase "or otherwise" enabled the State Government or the Excise Commissioner to adopt a combination of one or more methods for granting the FL 2 licence and determine the licence fee accordingly.
Having regard to the phrase "or otherwise" occurring in the provision it is impossible to accept the contention that only one method to the exclusion of the others could be adopted by the respondents for granting the licence or that one type of fee appropriate to that method could alone be charged.
It is true that sub sec.
(2) of section 30 as amended by U.P. Ordinance No. 4 of 1979 or by U.P. Act No. 13 of 1979 runs thus: "2.
The sum payable under sub sec.
(1) may either be fixed by auction or inviting tenders or otherwise or be assessed on the basis of the sales made or quota lifted 766 under the licence or partly fixed and partly assessed in the aforesaid manner.
" But in our view it is manifestly clear that the aforesaid amended provision is clarificatory of the legal position which obtained under sec.
30(2) that was operative prior to the said amendment.
In this view of the matter the first contention has to be rejected.
The second contention has been that since at the time of holding the concerned auctions the bidders were not informed that any "assessed fee" had been prescribed by the State Government which would be payable by the successful bidder and since bids were offered on the representation that the successful bidder would be granted FL 2 licence merely on payment of the "fixed fee" (auction money) the respondents ' attempt to levy and recover the "assessed fee" over and above the "fixed fee" would be unwarranted and illegal because the respondents cannot enhance the contractual liability of the successful bidder which was limited to payment of the auction money.
There are two answers to this contention.
In the first place it was not disputed before us that to the knowledge of all the bidders these auctions for the grant of FL 2 licences were held under the provisions of the Principal Act of 1910 as amended by Act 5 of 1976 and the Rules framed thereunder which were then in force.
We have already referred to the provisions of the amended Rules 639(2), 641 and 642 which were published in the Gazette and brought into force with effect from 14th of April, 1976 and admittedly all auctions for the financial year 1976 77 were held subsequent to that date.
Under the amended Rule 641 it was clearly provided that the fee for the FL 2 licence shall be the amount of money accepted at the auction of the licence as "fixed fee" together with the "assessed fee" charged on the basis of the scales of Surcharge fee prescribed in the next following Rule and the amended Rule 642 prescribed the scales at which the "assessed fee" would be so charged.
In other words, the bidders who gave their bids must be deemed to have knowledge of the provisions of the aforesaid Rules subject to which the auctions were held and therefore it is difficult to accept the contention that the bidders including the successful bidder whose highest bid was accepted offered their bids believing that only "fixed fee" would be charged.
Secondly, the averment of the petitioners that at the time of these auctions the bidders were not informed that any "assessed fee" had been fixed or prescribed which would be payable by the successful bidder is not quite correct.
It has been admitted by the petitioners that at the time of these 767 auctions the new condition that was inserted by the Excise Commissioner in the FL 2 licence by his Notification dated 14th April, 1976 was read out and this newly inserted condition runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by licensee".
If admittedly the aforesaid condition inserted in FL 2 licence was read out at the time of the auction then it is clear that the fact that "assessed fee" on the sales made on the licence was also payable by the licensee was announced at the time of the auction.
The only grievance made by the petitioners has been that the prescribed scales of surcharge fee (under Rule 642) were not announced but that is neither here nor there, for, if once it was announced at the time of the auction that "assessed fee" on sales effected on the licence at the prescribed scales shall also be payable by the licensee then obviously the bidders were put on enquiry to find out what scales of surcharge fee had been prescribed under the relevant Rule.
In other words the bidders present at these auctions had full knowledge that "assessed fee" at prescribed rates will also be charged and it was with full knowledge of this position that they gave their bids.
If that be so, there is no question of the respondents ' attempting to enhance the contractual liability of the successful bidder.
It will be interesting to mention in this context that the respondents have stated in their counter affidavit that not only did the bidders know that "assessed fee" would be charged over and above the "fixed fee" (auction money) but many of the successful bidders to whom FL 2 licences were granted have actually passed on the "assessed fee" at the prescribed rates to and recovered the same from the retailers to whom they have effected sales of beer and Indian Made Foreign Liquor.
At least in the case of those petitioners before us who have done so the aforesaid plea put forward on their behalf cannot be regarded as honest.
The second contention therefore fails and is rejected.
The last contention is merely required to be stated to be rejected.
In support of that contention reliance was placed on the newly inserted condition in FL 2 licence which states that the assessed fee "at such scales of surcharge fee as may be prescribed by the Government" shall also be payable by the licensee while 768 actually the scales of surcharge fee have been prescribed by the Excise Commissioner by framing the amended Rule 642 in exercise of the powers conferred upon him by cl.
(c) of 41 of the Principal Act.
Counsel urged that scales of surcharge fee ought to have been prescribed by the Government.
In this connection we might refer to sec.
24B(c) which expressly declares that "the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government".
It is thus clear that the Excise Commissioner has been statutorily declared to be the agent of the State Government and "while determining such fee" by framing the amended Rule 642 he acted for and on behalf of the State Government.
In other words, scales of "assessed fee" under Rule 642 must be deemed to have been prescribed by the State Government.
As regards the alleged non announcement at the time of the auctions we have already dealt with that aspect of the matter while dealing with and disposing of the second contention.
No other point was raised.
It is therefore clear that the levy and recovery of the "assessed fee" over and above the "fixed fee" by the respondents for granting FL 2 licences to all the petitioners would be legal and valid under the U.P. Excise Principal Act of 1910 as amended by Act 5 of 1976 and the amended Rules framed there under and all the petitions are liable to be dismissed.
We accordingly dismiss all the writ petitions with costs and quantify the costs payable by each of the petitioners separately at Rs. 5000.
S.R. Petitions dismissed.

summary/full:
In exercise of the power conferred upon him under the amended clause (c) of section 41, the Excise Commissioner with the previous sanction of the State Government framed Rules Called the U.P. Excise (Wholesale and Retail Vend of Foreign Liquor (2nd Amendment) Rules, 1976 by issuing the Notification No. 27/Licence 3 dated 14th April 1976, which were brought into force with effect from the date of publication in the Gazette, namely, 14th April 1976; by this Notification the existing Rules 639, 641 and 642 as appearing in Excise Manual Vol.
(1962 Edn.) were amended; Rule 639(2) as amended provides that "Licences in form FL 2 shall be settled by the public auction" while Rule 641 as amended provides that "the fee for a licence in form FL 2 shall be the amount of money accepted at the auction of the licence as 'fixed fee ' together with an "assessed fee" charged on the basics of the scales of surcharge fee prescribed in Rule 642.
By the very notification dated 14th of April, 1976 the Excise Commissioner added one more condition in the form of a proviso to the terms and conditions of FL 2 Licence and the said addition made after condition No. 1(c), runs thus: "Provided that the assessment fee on the sales made on the licence in the prescribed manner at such scales of surcharge fee as may be prescribed by the Government and announced at the time of the auction, shall also be payable by the licencee." Relying upon the amendments made in the U.P. Excise Act, 1910 by Act 5 of 1976 and the amended Rules 639, 641 and 642 and the insertion of the new condition in FL 2 licence, the respondents introduced the auction system for the grant of licence in form FL 2 for wholesale vend of beer and Indian Made 756 Foreign Liquor and started levying and recovering the "assessed fee" in addition to the "fixed fee" (auction money) from the grantees of the licences.
The Petitioners who were successful bidders and who had acquired vending rights in Indian Made Foreign Liquor for the financial years 1976 77, 1977 78, 1978 79 and 1979 80 challenged the levy of "assessed fee", in addition to the "fixed fee" on the following grounds: (i) Under Section 30(2) of the Principal Act of 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and U.P. Act 13 of 1979 it was open to the respondents to adopt either one or the other method of granting FL 2 licences and determine the licence fee payable by the grantee accordingly, that is to say, the respondents could grant the licence "either by auction or by calling tenders" and once a particular mode was adopted it was incumbent upon them to apply the same for the purpose of determining the sum payable by the grantee; in other words it was not opens them to adopt a combination of two or more methods and claim "assessed fee" in addition to "fixed fee" and this would be illegal and without authority of law.
A combination of two or more methods became available to the respondents only under Section 30(2) as amended by U.P. Ordinance No. 4 of 1979 and by U.P. Act 13 of 1979; (ii) In as much as the petitioners were not informed that any "assessed fee" had been fixed by the State Government, which would be payable by the successful bidder, the respondent 's attempt to levy and recover the "assessed fee" over and above the "fixed fee" (auction money) was unwarranted and illegal in as much as the respondents could not enhance the petitioners ' contractual liability which was limited to the payment of auction money and (iii) as per the newly inserted conditions in FL 2 Licence the "assessed fee" was required to be "prescribed by the Government and announced at the time of auction" but in the instant case such "assessed fee" had been prescribed by the Excise Commissioner and not by the State Government and was not announced at the time of the auction and for this reason also the same would not be recoverable.
Dismissing the petitions the Court, ^ HELD: 1.
The levy and recovery of the "assessed fee" over and above the "fixed fee" by the respondents for granting FL 2 licences to all the petitioners would be legal and valid under the U.P. Excise Act of 1910 as amended by Act 5 of 1976 and the amended rules framed thereunder.
[768 D E] 2:1.
A plain reading of Section 30(2) of the Uttar Pradesh Excise Act 1910 prior to its amendment by U.P. Ordinance No. 4 of 1979 and by U.P. Act No. 13 of 1973 makes it clear that the consideration for the grant of FL 2 licence could be determined either by auction or by calling tenders or otherwise.
[765 C E] 2:2.
The phrase "or otherwise" was sufficiently wide and conferred on its plain grammatical construction, power on the State Government or the Excise Commissioner to grant the licence either by auction or by tenders or partly by auction and partly by tenders or even by adopting yet other methods than by auction or by inviting tenders.
In other words, the phrase "or otherwise" 757 enabled the State Government or the Excise Commissioner to adopt a combination of one or more methods for granting the FL 2 licence and determine the licence fee accordingly.
Having regard to the phrase "or otherwise" occurring in the provision it can not be said that only one method to the exclusion of the others could be adopted for granting the licence or that one type of fee appropriate to that method could alone be charged.
[765 E G] 2:3.
Sub section (2) of Section 3 as amended by U.P. Ordinance 4 of 1979 or U.P. Act 13 of 1979 is clarificatory of the legal position which obtained under Sec.
30(2) that was operative prior to the said amendment.
[765G, 766A B] 3:1.
The bidders who gave their bids must be deemed to have knowledge of the provisions of the relevant Rules subject to which the auctions were held and therefore, the bidders including the successful bidders whose highest bid was accepted did not offer their bids believing that only "fixed fee" would be charged, since it was to their knowledge that the auctions for the grant of FL 2 licence were held under the amended provisions of the Act of 1910 by the Amendment of 1976 and that Rule 641 of Excise Manual clearly provided that the fee for the FL 2 licence shall be the amount of money accepted at the auction of the licence as "fixed fee" together with the "assessed fee" charged on the scales of surcharge fees prescribed in Rule 642.
Further even according to the petitioners, the new condition inserted by the Excise Commissioner in the said licence was read out.
If admittedly the said condition inserted in FL 2 licence was read out at the time of auction then it is clear that the fact that "assessed fee" on the sales made on the licence was also payable by the licensee was announced at the time of auction.
[766 D H. 767 B C] 3:2.
If once it was announced at the time of the auction that "assessed fee" on the sales affected on the licence at the prescribed scales shall also be payable by the Licensee, then the bidders were put on enquiry to find out what scales of surcharge fees had been prescribed under the relevant Rule.
In other words the bidders presented at these auctions had full knowledge that "assessed fee" at prescribed rates will also be charged and it was with full knowledge of this position that they gave their bids.
If that be so, there was no question of the respondents ' attempting to enhance the contractual liability of the successful bidder.
Further admittedly, not only did the bidders know that "assessed fee" would be charged over and above the "fixed fee" (auction money) but many of them actually passed on the "assessed fee" at the prescribed rates to and recovered the same from the retailers to whom they effected sales of beer and Indian Made Foreign Liquor.
[767 C F] 4.
Section 24B(c) which expressly declares that "the Excise Commissioner as the head of Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government, makes it clear that the Excise Commissioner has been statutorily declared to be the agent of the State Government and "while determining" such fees by framing the amended Rules 642 he acted for and on behalf of the State Government, in other words, scales of "assessed fee" under Rule 642 must be deemed to have been prescribed by the State Government.
[768 B C] 758


judgement:
ition No. 3783 of 1978.
(Under Article 32 of the Constitution of India) R.K. Garg and V.J. Francis for the Petitioner.
M.M. Abdul Khader, Mrs. Shobha Dikshit and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The Petitioners are Radio operators Grade (lII) (Naik) in the Signals branch of the Central Reserve Police Force.
They complain that under the Central Civil Services (Revised Pay) Rules, 1973 they have been placed in the pay scale Rs. 225 308 when they were entitled to the pay scale Rs. 260 430.
3 When the writ petition came on for hearing in the first instance, a Bench of this Court made an order on December 19, 1979 providing an opportunity to the petitioners to put in a representation before the Government and requiring the Government to dispose of the representation.
The petitioners did make the representation and the Government considered it but the relief claimed by the petitioners was denied.
In accordance with the further directions contained in the order dated December 19, 1979 this writ petition has now come on for consideration on its merits.
The Central Reserve Police Force forms a part of the Ministry of Home Affairs in the Government of India, and it has a Signals branch in which one of the categories is that of Radio operators Grade III (Naik).
The petitioners say that Naik Radio operators are appointed either by direct recruitment, in which case the candidate is required to be a Matriculate or his equivalent, or by promotion from the rank of Constable, in which case the Constable should have passed the Radio operators Grade III course.
Originally, members of the Central Reserve Police Force of the rank of Naik enjoyed the pay scale Rs.85 110, and Naik Radio operators were given a special pay of Rs. 30 in view of their special qualifications and the specialised nature of their duties.
By its order dated April 23, 1970 the Central Government appointed the Third Pay Commission to make recommendations in regard to the structure of the emoluments and the conditions of service of different classes of Central Government employees.
The Commission submitted its final report to the Central Government on March, 31, 1973.
Paragraph 30 of Chapter 29 of Part I of Volume 2 contains the recommendations in respect of Radio Mechanics in the Central Reserve Police Force.
It states : "30.
Post of Radio Mechanic, Grade I in the CRP and Sub Inspector (Radio Mechanic) in the BSF are on the scale of Rs. 150 10 290 15 380, but the Diploma holders are given the scale of Rs. 180 10 290 15 380.
We recommend for these posts the scale of Rs. 380 560 but the Diploma holders working on these posts should be remune rated on the scale of Rs. 425 700.
Below this level, posts of Radio Mechanic, Grade II and.
the Radio operators are on 4 the scale of Rs.150 10 210 or on the scale of Rs. 125 3 131 4 155 with a special pay of Rs. 35 per month and we recommend that these posts should be given the scale of Rs. 330 480.
For the posts of Radio Fitter on the scale of Rs. 125 3 131 4 155 we recommend the scale of Rs. 320 400.
" Admittedly, no reference has been made therein to Radio operators Grade III (Naik).
Following the recommendations of the Third Pay Commission the Central Government framed the Central Civil Services (Revised Pay) Rules, 1973 which came into force on January 1, 1973.
The petitioners exercised their option in favour of the revised pay scales.
They were paid a salary of Rs. 250 with a special pay of Rs. 30 from January, 1975 for a few months, together with arrears on that basis for the years 1973 and 1974.
The petitioners accepted the revised pay and special pay although, they say, it fell short of the pay to which they were entitled.
Subsequently, in April 1975, the petitioners were placed in the revised pay scale Rs. 225 308 given to Naiks and the excess amount paid earlier to them was sought to be recovered by deducting from future payments of their salary.
Aggrieved by the refixation of their pay and the deduction of the excess already paid, they have filed the present writ petition.
So far as the deduction is concerned, this Court has already directed by its order dated December 19, 1979 that the Government should restore to the petitioners the excess amount already recover ed from them.
Nevertheless, it will be necessary to examine the validity of the refixation of the salary now paid to the petitioners inasmuch as that question is relevant for the period commencing from the date from which salary has been actually paid on the refixed basis.
The question whether the petitioners have been properly placed in the pay scale Rs. 225 308 must be examined, therefore, from two aspects; 1, Their claim to the Pay scale Rs. 260.430 and 5 2.
Alternatively, their claim to the pay of Rs. 250/ and the special pay of Rs. 30 paid to them before the refixation of their salary.
On the first point, a few facts may be briefly stated.
On the basis of the recommendations of the Third Pay Commission the pay scales of all Central Government employees, including personnel in the para military forces, were revised with effect from January 1, 1973.
Under the original pay scales, Naik Radio operators were placed on the scale Rs.85 110 with a special pay of Rs. 30 in view of their special qualifications and the specialised nature of their duties.
They were entitled to allowances calculated on the aggregate of their basic pay and special pay.
The Commission prescribed a scale of Rs. 225 308 for the post of Naik, but did not make any separate recommendation in respect of the post of Radio operator Grade III (Naik).
Inasmuch as before the revision of the pay scales the scale of a Naik and Radio operator Grade III (Naik) was the same, that is to say, Rs. 85 110, the revised pay scale for the post of Radio operator Grade III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225 308, and in view of their special qualifications and the specialised nature of their duties Radio operators Grade III (Naik) were given a special pay of Rs. 30 also.
The petitioners urge that posts in other departments of the Central Government, for which the minimum qualification was the Matriculation examination and an additional requirement of training, carried the pay scale of Rs. 260 430 and since that requirement was also the basis of appointments to the post of Radio operators Grade III (Naik) they should also be held entitled to that pay scale.
Now the revised pay has been given with effect from January 1, 1973 and on that date the qualification in the case of a Naik was the Middle School examination, and it was only with effect from January 24, 19 75 that the qualification was raised to the Matriculation examination.
As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the matter of that basic s qualification it is not open to the petitioners to base their claim with reference to a qualification which did not exist on January 1, 1973.
In support of their claim to the pay scale Rs. 260 430, the petitioners have drawn our attention to the circumstance that the 6 immediately next senior category, Radio operators Grade II, carries the revised scale Rs. 330 480 and, it is contended, the revised pay scale in the case of Radio operators Grade III should not be far below It is not for this Court, we think, to examine how far below should be the revised pay scale of the Radio operators Grade III.
If the Government has prescribed a particular pay scale in respect of them, all that the court can do is to merely pronounce on the validity of that fixation.
In the event that the court finds that the prescription is contrary to law it will strike it down and direct thee Government to take a fresh decision in the matter.
It is a very different case from one where this Court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour Court dealing with such a matter.
In the latter case, this Court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the Labour Court enjoys.
That is not so in the present case.
We are satisfied that Radio operators Grade III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition.
It may be mentioned that ever since 1975 Radio operators Grade III (Naik) are selected only from the rank of Constables on the General Duty Side The revised pay scale of Radio operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260 350, with a special pay of Rs. 40 to Head Constables (Radio operators).
This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260 430.
The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side.
This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others.
Learned counsel for the respondents bas listed before us a number of such benefits.
It is pointed out that the petitioners are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on The civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house 7 allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.
We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.
The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30 According to the recommendations of The Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs. 1800 per month was to be augmented by an amount representing five per cent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50.
The Government of India Memorandum No. F. 67/II/23/ 74 lC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay the Government servant was to be given a special pay also.
The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion.
It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them.
It has not been shown to us that the basis adopted for refixation of the pay is invalid.
In the result, this petition fails and is dismissed, but in the circumstances there is no order as to costs.
This will not affect the order dated December 19, 1979 directing the Government to restore to the petitioners the excess paid to them earlier and subsequently recovered from them.
H.L.C. Petition dismissed.

summary/full:
An identical scale of pay was being enjoyed by both Naiks and Radio operators Grade III (Naik) in the antral Reserve Police Force before the revision of scales of pay of Central Government employees with effect from January 1,1973 consequent upon the recommendations of the Third Pay Commission.
However, Radio operators Grade III (Naik) were entitled to a special pay of Rs. 30.
The Pay Commission recommended the scale of pay of Rs. 225 308 for the post of Naik but did not make any separate recommendation in respect of Radio operator Grade III (Naik).
The petitioners who were Radio operators Grade III (Naik) were initially paid a salary of Rs. 250 with a special pay of Rs. 30 from January 1,1973.
They were subsequently placed in tho revised scale of pay of Rs. 225 308 given to Naiks with a special pay of Rs. 30 and the excess amount paid earlier was sought to be recovered from them.
The petitioners contended: (i) that they were entitled to the scale of pay of Rs. 260 430 as that was the scale of pay prescribed for posts in other departments for which matriculation was the minimum qualification, (ii) that their scale of pay could not be far below the scale of pay of Rs. 330 480 prescribed for the next immediate senior post of Radio operator Grade II and (iii) that they should be paid at par with comparable government employees on the civil side.
In the alternative, the petitioners contended that they were entitled to the pay of Rs. 250 and the special pay of Rs. 30 paid to them before refixation of their salary.
Dismissing the petition, ^ HELD: 1.
The minimum qualification prescribed for the post of Naik as on January 1,1973 was Middle School Examination and it had been raised to Matriculation Examination only from January 24, 1975.
As Naiks and Radio operators Grade III (Naik) had been uniformly treated at par in the matter of that basic qualification, it was not open to the petitioners to base their claim with reference to a qualification which had not existed on January 1, 1973.
[5 E G] 2 2.
It was not for the Court to examine how far below should be the revised scale of pay of Radio operators Grade Ill as compared to that of Radio operators Grade II.
If the Government had prescribed a particular pay scale in respect of them, all that the Court could do was to merely pronounce on the validity of that fixation.
If the prescription was found contrary to law, the Court would strike it down and direct the Government to take a fresh decision in the matter.
This case was very different from one where the Court had sought to prescribe scales of pay in appeals directly preferred from an award of the Labour Court dealing with such a matter.
In the latter case, the Court in its appellate jurisdiction could be regarded as enjoying all the jurisdiction which the Labour Court enjoyed.
[6 A C] 3.
Radio operators Grade Ill (Naik) had to be considered substantially on the same basis as Naiks and it was because of their special qualifications and of the specialised nature of their duties that they had been provided with a special pay in addition.
Ever since 1975 Radio operators Grade III (Naik) had been selected only from the rank of Constables on the General Duty Side.
The revised pay scale of Radio operators of the rank of Head Constable as well as Head Constables on General Duty was Rs. 260 350 with a special pay of Rs. 40 to the former.
As this post was the next immediate higher post above the rank of Naik.
it was apparent that there was no justification for giving to the petitioners, who were junior in rank, the scale of pay of Rs. 260 430.
[6 D F] 4.
The petitioners could not claim to be paid at par with comparable government employees on the civil side as they were entitled to certain benefits which were not available to the latter.
[6 G H; 7 A B] 5.
The revised pay initially paid to the petitioners had been computed in error inasmuch as when fixing the pay in the revised scale the special pay had been wrongly taken into account.
[7 D E]


judgement:
tition (Criminal) Nos.
271 272 of 1982.
(Under Article 32 of the Constitution of India) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
R.K. Garg and A.V. Rangam, for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Richard Beale and Paul Duncan Zawadzki, two British nationals, said to be friends and collaborators in smuggling enterprises are now under detention under the provisions of the .
Richard Beale arrived at Madras from Singapore on December 11, 1981.
He brought with him a Mercedez Benz van.
On examination by the customs authorities, the van was found to have secret compartments and hidden cavities.
It was laced and lined, as it were, with all manner of electronic equipment and goods worth several lakhs of rupees.
Richard Beale was interrogated and made a statement.
He was arrested and produced before the learned Metropolitan Magistrate of Madras.
His friend and collaborator Paul Duncan Zawadzki, who had separately arrived in India and who attempted to contact Richard Beale, was also interrogated, later arrested and produced before the Metropolitan Magistrate.
Orders of detention under the COFEPOSA 771 were made against both of them on January 7, 1982 and grounds of detention were duly served on them.
The detenus moved the High Court of Tamil Nadu for their release from detention, but their applications were dismissed.
They have now come to this Court seeking Writs of Habeas Corpus under article 32 of the Constitution.
The two petitions were argued together by Shri Jethmalani and they may be conveniently disposed of by a single order.
The first submission of the learned Counsel was that the representation made by the detenus to the Central Government to revoke the orders of detention so long back as March, 1982 remained undisposed of till this day and on that ground alone, the detenus were entitled to be released.
Shri Jethmalani drew my attention to section 11 of the COFEPOSA which enables the Central Government to revoke or modify an order of detention made by the State Government or its officers and to the decisions of this Court laying down that delay by the Central Government in dealing with representations of the detenu would also entail the detention invalidating itself.
Apart from the fact that there is no proper foundation for the submission, I am not satisfied that there is any merit in the submission.
The Writ Petitions were filed on March 12, 1982 and there was then no hint of this submission.
The counter affidavit on behalf of the State of Tamil Nadu was filed on April 5, 1982.
Thereafter, the clerk of the learned Counsel for the Petitioners has sworn to an affidavit mentioning the facts giving rise to the present submission.
It appears from the affidavit that when the Prime Minister of India was recently in England, a Bout De Papier was presented to the delegation accompanying her, expressing concern about the detention without trial of Richard Beale and Paul Duncan Zawadzki and suggesting that the detention order might be 'lifted ' and the detenus either released or charged and brought to trial without delay.
It further appears that the British High Commission in India also addressed the Ministry of External Affairs, Government of India, and reminded them about the Bout De Papiere presented to the Prime Minister 's delegation in Britain during her visit to that country.
According to Shri Jethmalani, the Bout De Papiere presented to the Prime Minister 's delegation in Britain and the subsequent reminder by the British High Commission constitute a representation to the Central Government demanding their immediate consideration in terms of the provisions of the COFEPOSA.
I have no doubt that the Bout De Papier and the reminder, diplomatic 772 communications that they are between the Governments of the two countries, will be attended to and answered through appropriate diplomatic channels in proper time and with necessary expedition.
But I find it difficult to treat such diplomatic communications between one country and another as representations to the statutory authorities functioning under the COFEPOSA, as representations which require immediate consideration by the statutory authorities and which if not considered immediately, would entitle the detenus to be set at liberty.
Nor is it possible to treat the countless petitions, memorials and representations which are everywhere presented to the Prime Minister and other Ministers as statutory appeals or petitions, statutorily obliging them to consider and dispose of such appeals and petitions in the manner provided by statute.
No doubt the Prime Minister and other Ministers, as leaders in whom the people have reposed faith and confidence, will deal with such appeals and petitions with due and deserved despatch.
But quite obviously that will not be because they are discharging statutory obligations.
It is not also possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as a representation to the Government requiring the appropriate authority under the COFEPOSA to consider the matter.
I do not consider that the Bout de Papiere presented to the Prime Minister during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by the British High Commission are representations to the Central Government which are required to be dealt with in the manner provided by the COFEPOSA.
It was next submitted by the learned Counsel that the Chief Minister, who according to the Rules of Business of the Government of Tamil Nadu, was required to deal with matters relating to preventive detention neither applied his mind to the making of the orders of detention, nor considered the representation of the detenus himself.
The relevant files have been produced by the learned Counsel for the State of Tamil Nadu and on perusing them, I find no substance in the submission of the learned Counsel.
The submission which was most strenuously urged by the learned counsel was that the detenus had been denied the right to 773 be represented before the Advisory Board by an Advocate or at least by a friend and that they were thus denied the right to make a proper and effective representation to the Advisory Board.
This was sufficient, said the learned Counsel, to vitiate the detention.
The learned Counsel urged that the detenus were foreign nationals and they were under a handicap being ignorant of the laws and procedures of this country.
To deny legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation.
According to the learned Counsel, this was a clear case where legal representation should have been permitted.
In any case, it was urged, the detenus ought to have been offered at least 'friendly ' representation, if not legal representation.
Reliance was placed upon the following observations of the Constitution Bench in A.K. Roy vs Union of India : "Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner.
Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.
A detenu, taken straight from his cell to the Board 's room, may lack the ease and composure to present his point of view.
He may be "tongue tied, nervous, confused or wanting in intelligence" (see Pett vs Greyhound Racing Association Ltd., , and if justice is to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas.
Incarceration makes a man and his thoughts dishevelled.
Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law.
It may be that denial of legal representation is not denial of natural justice 774 per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it.
Fairness, as said by Lord Denning M.R., in Maynard vs Osmond , 253, can be obtained without legal representation.
But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend.
Whenever demanded, the Advisory Boards must grant that facility.
" In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus.
It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment.
The detenus were heard personally by the Advisory Board.
After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation.
Regarding representation by a friend, there was never any such demand by the detenus.
A 'friendly ' representation would certainly have been provided if it had been so demanded.
It was not for the Advisory Board to offer 'friendly ' representation to the detenus even if the latter did not ask for it.
Relying upon a sentence in the counter Affidavit of Shri Thiru Bhaskaran that representation not only by a lawyer, but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation.
Shri Thiru Bhaskaran was speaking for the State of Tamil Nadu and not for the Advisory Board.
I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus.
I do not find the slightest hint of a demand for 'friendly ' representation or its denial anywhere.
The Advisory Board was neither asked nor did the Board deny any 'friendly ' representation.
A charge was made against the Advisory Board that there was inequality of treatment.
It was said that while the detaining authority was allowed to be represented by its officers and advisers, the detenus were allowed no representation.
There is no substance 775 in this charge.
From the affidavit of the Chairman of the Advisory Board, I find that all that happened was that some customs officers were allowed to be present in the corridor so as to enable them to produce the relevant files whenever required for perusal by the Board.
The charge of inequality of treatment is, therefore, baseless.
Yet another submission of the learned Counsel was that the Advisory Board failed to consider the question whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention.
The order of detention was made on 7.1.82 and the consideration by the Advisory Board was on 8.2.82.
The passage of time was not so long nor had any circumstances intervened to justify any compartment wise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board.
In the circumstances of the case, I think that the report of the Advisory Board that there was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was found by the Board to be justified on the date of its report as also on the date of the making of the order of detention.
A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government.
This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government.
This complaint is wholly unjustified.
As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his Affidavit, the correspondence etc.
is carried on through the Government because the Board has no separate administrative office of its own.
All the points urged on behalf of the detenus fail and the petitions are, therefore, dismissed.
N.V.K. Petitions dismissed.

summary/full:
The two petitioners who were British nationals and friends and collaborators in smuggling enterprises were detained under the provisions of the for smuggling electronic equipment and goods worth several lakhs of rupees in secret compartments and hidden cavities of a Mercedez Benz van.
The High Court dismissed their petitions for release from detention.
In their writ petitions under Article 32 it was contended that: (1) the representation made by them to the Central Government to revoke the orders of detention as long back as March 1982 remained undisposed of and on this ground alone they were entitled to be released; (2) the Bout De Papier presented to the Prime Minister of India during her visit to England pointing out that the order of detention passed against the petitioners might be lifted and the detenus be either released or charged and brought to trial without delay, had not been disposed of; and (3) that they had been denied the right to be represented before the Advisory Board by an Advocate or at least by a 'friend ' and thus they were denied an opportunity to make an appropriate and effective representation to the Advisory Board.
Dismissing the petitions, ^ HELD: (1) Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as representations to the Government under the COFEPOSA.
[772 D] (2) The Bout De Papier presented to the Prime Minister during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by 770 the British High Commission are not representations to the Central Government.
They were merely diplomatic communications between the Governments of the two countries which will be answered through appropriate diplomatic channels in proper time.
Such diplomatic communications between one country and another cannot be treated as representations to the statutory authorities functioning under the COFEPOSA.
[771 G H; 772 A E] 3(i) The Advisory Board consisting of three Judges of the High Court considered it unnecessary and inadvisable to allow legal representation to the detenus.
That was a matter for decision of the Advisory Board and this Court would not be justified to substitute its judgment in place of the Boards judgment.
[774 C] (ii) A 'friendly ' representation would have been provided by the Board had it been demanded.
But it was not for the Advisory Board to offer 'friendly ' representation to the detenus without being asked for.
[774 D E] In the instant case the order of detention made on January 7, 1982 was considered by the Advisory Board on February 8, 1982 and its report showed that the detention was justified.
[775 C D]