Dinanath Pansari Vs. Collector &
D. M. Keonjhar & ANR [1975] INSC 84 (1 April 1975)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
KHANNA, HANS RAJ
CITATION: 1975 AIR 1093 1975 SCR 52 1975 SCC
(1) 725
ACT:
Maintenance of Internal Security Act, 1971,
Section 3(1)(a)(iii)--Order of detention under-Two views possible on the need
of detain-Court If can Interfere with subjective assessment and satisfaction.
HEADNOTE:
The order of detention dated 6-7-1974 passed
by the District Magistrate of Keonjhar, Orissa, recited that the District
Magistrate was satisfied that with a view to preventing the petitioner from
acting in any manner prejudicial to the maintenance of supplies and services
essential to the com- munity, it is necessary to make the order under Section 3
read with Section 5 of the Maintenance of Internal Security Act. The first
ground related to sale by him of two tyres without authority and cash memo. The
second ground related to the disposal of the 140 out of 149 tyres in
contravention of law.
Dismissing the- Writ Petition, challenging
the detention and also the Special Leave Petition directed against the order of
the Orissa High Court,
HELD : (i) As the Manager of the United
Commercial Company, the petitioner was certainly not a licensed dealer. The 149
tyres had been obtained by the company for actual use on the trucks but most of
them had, apparently, been disposed of in what is known, as the 'black market'.
The provisions relating to licensed dealers did not warrant such sales which
were struck by the provisions of clause 2 of the Orissa Automobile Tyres and
Tubes Control Order, 1973. The petitioner had not been detained for any
irregularity or illegality committed as a licensed dealer, bout as a person who
seemed to have been diverting tyres from their pretended use, to sales in
"black market". He was unable to repel the allegation regarding the
sale of two tyres. [55F; 56A] Debu Mahto v. State of West Bengal, A.T.R. 1974,
S.C. 816 and Messrs Pusparaj & Co. and Ors. v. Collector of Balasore
(ii)It cannot be said that the impugned
detention order is either arbitrary or not connected with the purpose for which
a detention may be ordered under s. 3(1)(a)(iii) of the Act.
In considering the legality of such an order,
this Court cannot function as a Court of Appeal. If there is any material to justify
the passing of the detention order the necessity for it is a matter of
subjective assessment and satisfaction by the detaining authority with which no
Court would be ordinarily justified in interfering. This Court would not
interfere even if two views about the existence of the need to detain for the
object set out in section 3(1)(a)(iii) of the Act were possible. It is only
when the order is shown to be of such a nature that it could not possibly fall
within the scope of the law conferring the power to make it that this Court
would intervene to quash it. [56H; 57AB] & ORIGINAL JURISDICTION : Writ
Petition No. 39 of 1975.
Petition under Art. 32 of the Constitution of
India and Special, Leave Petition No. 267 of 1975.
From the judgment and order dated 15-1-75 of
the Orissa High Court in C.J.C. No. 1133/74.
A.K. Sen, B. P. Maheshwari, Suresh Sethi and
R. K.
Maheshwari, for the petitioner (In W. P. No.
39/75).
Bishen Narain, B. P. Maheshwari, Suresh Sethi
and R. K.
Maheshwari, for the petitioner, (In S. L. P.
267/75).
Gobind Das and B. Parthasarthy, for the
respondents (In W.
P. No. 39/75).
The Judgment of the Court was delivered by
BEG, J.-This habeas corpus petition is directed against a detention order dated
6-7-1974 passed by the District Magistrate of Keonjhar in Orissa. The order
recites that the District Magistrate was statisfied that "with a view to
preventing Shri Dinanath Pansari s/o Shri Dwarikanath Pansari of Barbil town,
P. S. Barbil, District Keonjhar from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community, it is
necessary to make" the order under Section 3 read with Section 5 of the
Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the
Act'). On the same date, grounds of this satisfaction were communicated to the
petitioner giving the following particulars :
"1. On 15-2-1974 you received Automobile
(Truck) tyres from Madras Rubber Factory through Carry Co. at Barbil as Manager
of United Commercial Company, Barbil and these tyres were specified to be used
in the fleet of trucks owned by United Commercial Co. as a fleet owner. But
instead of using the tyres in the fleet of United Commercial Co. you sold two
of those tyres the same day (15-2-1974) to one Narayan Singh at Rs. 5400
without authority and cash memo. On this issue Barbil P.S. case No. 32 dated
15-2-1974 u/s. 7 E. C.
Act was registered and charge-sheeted against
you.
2. You, as Manager of the United Commercial
Co. received 149 truck tyres (137-through Tata Nagar Transport Corporation,
Barbil and 12 through Carry Co. Barbil) between 14-2-1974 and 27-4-1974 as a
fleet owner for use in a fleet of 10 trucks maintained by you. During enquiry
by the Special Magistrate, Barbil only six number of tyres were found in your
company's Godown and your office incharge Shri Shamasunder Pandit stated these
six tyres to be the only stock in hand. On verification of 8 trucks belonging
to your fleet on 19-5-1974 it was found that only 3 tyres fitted to these
trucks were new and the rest of the tyres were either too old or resoled or
damaged ones.
This reveals that you have disposed of tyres
received as a fleet owner otherwise in contravention of law.
By the above acts of yours the maintenance of
supplies and services of essential commodities namely Automobile tyres have
been dislocated", 54 The petitioner alleges that he is a law-abiding
citizen who, after completing his studies in 1966, started a business under the
name and style of M/s. Nancy Automobiles, Rourkela, in Orissa, to deal in auto
car parts, which he carried on until about the end of 1972; and, thereafter, he
became a Director of a private Transport Company, Soon afterwards, in 1972, he
started business under the name of Vivek. Automobiles in Barbil in the District
of Keonjhar.
He admits that he is "the Sole
Proprietor of the said business" and "was engaged in the purchase and
sale of automobile spare parts, tyres and tubes". He asserts that he is a
registered dealer under the Orissa Automobile Tyres and Tubes Control Order,
1973. He alleges that the Central Govt. has not fixed the selling prices of
tyres and tubes at any time. He states that, although originally the Control
order covered only 50 per cent of the tyres and tubes received by a licensee,
subsequently a total restriction was imposed upon dealings in these goods which
had been declared essential commodities. But, he claimed that, on 18-12-1973,
the Controller of Supplies had issued an order permitting free sales by licence
holders to the extent of 25 per cent of their stocks. He alleges that,
roundabout January, 1974, the District Magistrate of Keonjhar held a meeting at
which he insisted that 25 per cent of tyres and tubes available for free sale
by the licensed dealers be sold only for use on vehicles registered in Keonjhar
on which tax had been paid under the Bihar and Orissa Motor Vehicles Taxation
Act, and then issued a circular letter to dealers directing that this be done
by them. The petitioner states that he vehemently protested against the District
Magistrate's instructions which were invalid under the law. He also asserts
that he objected to the formation of an allotment committee by the District
Magistrate for the purpose of distributing tyres and tubes in the District with
the result that the District Magistrate was displeased with the petitioner.
The petitioner also alleges that, in Barbil,
which is a mining area, there is considerable transport business and that truck
owners in that District had formed an Association called "The Barbil Mining
Area Truck Owners' Association".
He asserts that he has always resisted the
illegal demands of truck owners. The petitioner goes on to state that his
sister, Smt. Sarda Devi of Chakradharpur, Distt. Singhbum, in Bihar started a
transport business at Barbil in 1970, under the name of "United Commercial
Company" (hereinafter referred to as 'the Company') which bad a fleet of
ten vehicles. According to the petitioner, this Company's competition with the
truck owners deprived them of big contracts and thus he incurred their
displeasure. He states that, while the Truck Owners' Association wanted to
raise the rates of freight, the rates of the company were not raised and that
this further displeased the truck owners' Association. He suggests that the
District Magistrate wanted to please the truck owners.
The petitioner does not state his own
position in or connection with the United Commercial Company, but, his
assertions show, on the one hand that he was associated with this Company as
its Manager, as stated in the grounds of the order of detention, and, on the
other hand, that he was anxious to justify sales of tyres to the public 55 at
any price which was no part of the business of this company. Such sales could
be made by him in another capacity and only according to the provisions of the
relevant Control Order. According to the opposite parties prices were also
controlled.
The petitioner has tried hard to prove the
mala fides of the District Magistrate in passing the detention order. But, he
has failed to discharge the difficult burden of doing that.
It has been urged on behalf of the petitioner
that even if the total quantity of 149 tyres shown to have been purchased
directly from the manufacturers by the petitioner as a Manager of the United
Commercial Company, between 14-2-1974 and 27-4-1974, specifically for the use
of the fleet of ten trucks maintained by the company had not been fully
utilised for the fleet but had been mostly sold clandestinely by the
petitioner, as was inferred by the District Magistrate from the failure of the
petitioner to account for more than 21 out of 149 tyres, yet, this activity of
the petitioner could not reasonably lead to the inference that it was necessary
to detain the petitioner for the purpose of maintaining the supplies of the
essential commodity in future. Reliance was placed upon Debu Mahto v. State of
West Bengal(1), the facts of which have little connection with the facts of the
case of the petitioner who must have appeared to the detaining authorities to
be using his dual capacity, one as a licensed dealer of tyres and tubes and
another as the Manager of the, United Commercial Company, as a cover for
systematic concealed illegal sales at exorbitant prices.
As the Manager of the United Commercial
Company, the peti- tioner was certainly not a licensed dealer. The 149 tyres
had been obtained by the company for actual use on the trucks but most of them
had, apparently, been disposed of in what is known as the "black
market". The provisions relating to licensed dealers did not warrant such
sales which were struck by the provisions of clause 2 of the Orissa Automobile
Tyres and Tubes Control Order, 1973. This provides as follows "2.
Licensing of dealers.-(1) No person shall obtain, attempt to obtain, or store
for sale or distribution or offer for sale or sell automobile tyres and tubes
except under and in accordance with the terms and conditions of a license
issued in this behalf by the Licensing Authority.
(2) Every dealer who is doing business on the
commencement of the order shall apply for the Licence within fifteen days of
such commencement".
(1) AIR 1974 SC 816.
10 SC/75-5 56 The petitioner had not been
detained for any irregularity or illegality committed as a licensed dealer, but
as a person who seemed to have been diverting tyres from their pretended use,
for which a large stock of tyres had been obtained directly from manufacturers,
to sales in what is known as the "black market" as a regular side
occupation. He was unable to repel the allegation that such a transaction with
one Narayan Singh had been detected. He put forward what did not appear to be
an honest plea-that he had loaned two tyres to Narayan Singh who had deposited
Rs. 5,000/- as security. However, it is not for this Court to pronounce on
possible inferences from evidence for or against the petitioner. It is for the
detaining authorities to satisfy themselves about these matters and about the
need to order the preventive detention and its duration. The Advisory Board had
also endorsed the action of the detaining authorities.
It was submitted on behalf of the petitioner
that, after a direction given on 19-8-1974 by the Collector, Keonjhar, to the
tyre manufacturing Companies not to supply tyres to the company as an owner of
a fleet of trucks, the sources of supplies of tyres were dried up and there
could be no necessity to detain the petitioner. We were referred to (Messrs)
Pusparaj & Co. and Ors. v. Collector of Balasore & Ors.(1) to show that
such a direction was not legal. If that is so, the petitioner can obtain relief
against the direction by appropriate proceedings. We cannot pronounce here upon
its legality.
The question whether the petitioner bad
satisfactorily accounted for the 149 tyres purchased from manufacturers from
14-2-1974 to 27-4-1974 was also one of fact. If the petitioner's case was that
all the 149 tyres had been actually used in this period on the ten trucks, as
he would like to make out, he was in the best position to prove this fact. He
could not take shelter behind the plea that the detaining authorities did not
ask the manufacturers to give the numbers of tyres sold by them to the United
Commercial Company when the petitioner, called upon to explain what had
happened to the 149 tyres, could not himself give their numbers or show that he
had them all fitted on to his trucks, or that he bad to discard so many tyres
in this period. No stock of discarded tyres was evidently shewn by the
petitioner to the Magistrate who came to his premises to inquire into actual
facts. However,' such questions of sufficiency of evidence are not for this
Court at all to determine. We mention them only as an attempt was made to raise
them before us.
We are unable to hold that the impugned
detention order against the petitioner is either arbitrary or not connected
with the purposes for which a detention may be ordered under Section 3 (1 ) (a)
(iii) of the Act. In considering the legality of such an order we cannot
function as a Court of Appeal. If there is any material to justify the passing
of the detention order the necessity for it is a matter of subjective (1) ILR
[1972] Cuttack. 74.
57 assessment and satisfaction by the
detaining authority with which no Court would be ordinarily justified in
interfering.
It is only when the order is shown to be of
such a nature that it could not possibly fall within the scope of the law
conferring the power to make it that this Court would intervene to quash it. A
reference to (Messrs) Pushparaj & Co. v. Collector of Balasore & Ors.
(supra), itself shows that the need to take drastic steps for maintaining the
supplies of an essential commodity, which had become scarce, was there in
Orissa. This Court would not interfere even if two views about the existence of
the need to detain for the object set out in Section 3 (1) (a) (iii) of the Act
were possible. It was for the detaining authorities to determine the duration
of the need to detain the petitioner provided they comply with the provisions
of law whenever they do so.
We are unable to find any legal flaw in the
proceedings which resulted in the impugned detention order of 6-7-1974.
Consequently, we dismiss this petition.
V.M.K.
Petition dismissed.
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