Rajindra
Vs. Commissioner of Police [1993] INSC 452 (27 October 1993)
AHMADI,
A.M. (J) AHMADI, A.M. (J) PUNCHHI, M.M. CITATION: 1994 SCC Supl. (2) 716
ACT:
HEADNOTE:
ORDER
1.
This appeal arises out of a detention order passed by the State Government in
exercise of power conferred by sub- section (2) of Section 3 of the National
Security Act, 1980.
By
this order the Commissioner of Police, Nagpur, ordered the detention of Ravi
alias Ravindra son of Ishwarsingh Paigawar on the ground that his conduct was
prejudicial to public order. The grounds of detention of even date referred to
two specific instances, one of September 24, 1992 in regard to an offence
registered under Sections 143, 147, 353 and 323 of the Indian Penal Code, the
prosecution for which was pending in the Court of the Judicial Magistrate, 1st
Class, Court No. 4, Nagpur, under CC No. R.
261/92,
dated October 23, 1992. The second instance related to an
incident which occurred on January 23, 1993 in regard to which an offence was
registered under Sections 186, 187, 353, 506(B), 332 and 365 of the Indian
Penal Code which was then under investigation. On the basis of these two
instances the Commissioner of Police, Nagpur, concluded that the conduct of detenu was prejudicial to public order.
2.
Immediately after the detention order was passed and the detenu was taken in
custody, he made a representation dated February 12, 1993, addressed to the Central
Government. This representation was rejected on April 7, 1993. Two contentions were urged in the High Court, namely, (1)
that the grounds of detention, which referred to two specific instances, did
not justify the conclusion that the detenu was engaged in conduct prejudicial
to 'public order' and (2) there was an inordinate delay in dealing with his
representation. The High Court, dealing with the second contention in regard to
the delay, points out in paragraph 9 of its judgment that the first activity of
the Central Government 718 was to send a wireless message to the State
Government on March 4, 1993 seeking some details. There is no indication as to
how the representation was dealt with between February 12, 1993 and March
4, 1993. If, as
conjectured by the learned Additional Solicitor General, the representation
though dated February
12, 1993 was actually
handed over late for dispatch to the Central Government, that fact should have
been specifically pleaded in the counter expected to be filed by the Central
Government as well as by the State Government. It may be mentioned that since
the Central Government did not file any counter-affidavit in the Habeas Corpus
proceeding before the High Court this delay remained unexplained. Thereafter it
appears that in response to the wireless message dated March 4, 1993, the State Government sent its
reply on March 6, 1993; yet it took the Central Government
over a month to dispose of the representation.
The
learned Additional Solicitor General tried to explain this delay by saying that
further information was received by the State Government on March 18, 1993. In this connection our attention
was drawn by the learned Additional Solicitor General to the counter filed on
behalf of the State Government wherein the chronology of events was set out.
Nowhere we find in that chronology that the Central Government had sought
additional information from the State Government. What appears from the
chronology is that the Advisory Board took a decision on March 18, 1993, and that information was conveyed
to the Central Government. The Central Government has not filed any counter to
state that it was not satisfied with the reply sent on March 6, 1993 and had,
therefore, sought further information on any specific issue in connection with
the detention. The learned Additional Solicitor General tried to satisfy us
that between March 18,
1993 and April 7, 1993, there were only nine working days
and, therefore, there was no delay but the learned Additional Solicitor General
overlooks the fact that the Central Government has failed to explain the delay
between March 6, 1993 and March 18, 1993. An effort was made by the learned Additional Solicitor
General to persuade us to adjourn the matter to enable the Central Government
to produce the file for our perusal. It appears that of late the Central
Government does not show that sense of responsibility which is expected of it
while dealing with detention cases, namely, of filing a counter in time before
the Court dealing with the Habeas Corpus petition. Needless to say that the
Central Government should be alive to the need to act promptly in such
detention cases where the liberty of an individual is concerned. The Court is
expected to go by the pleadings and the Central Government is expected to place
the factual material in connection with the detention order by filing a
counter-affidavit so that the petitioner has an opportunity to meet with that
factual information. The indulgence shown by the courts in pursuing the file
seems to have given an impression that the Central Government is under no
obligation to file a counter- affidavit to explain the delay. We propose to
remove this impression once and for all if it persists and to impress upon the
Central Government that it is under obligation to file its counter within the
time permitted by the Court failing which the case may go by default. Let it be
clearly understood that production of the file is not a substitute for a
counter to be filed by the Central Government. The Court peruses the file not
to absolve the Central Government of its responsibility to file a counter but
to satisfy its conscience if it notices ambiguities in the Government's stand.
If 719 the Courts have shown indulgence by perusing the file where affidavit is
not filed for good reason, let that indulgence not be misused by construing it
to be a licence to dispense with the obligation to file a return. In the
instant case no counter was filed and the High Court has taken note thereof
but, if we may say so with respect, the Court has shown indulgence by observing
that the counter is not filed 'presumably because there is no specific
allegation in this behalf in the petition'. Let it be stated that once a
representation is made, the detenu is entitled to the representation being
dealt with expeditiously. If there is some ex facie delay, the obligation is on
the State to explain that delay. There is no question of a specific allegation
to be made in the petition except pointing out by placing facts that there has
been a delay which ex facie calls for an explanation and that obligation has to
be discharged by filing a proper counter and explaining the delay. The Courts
have not been unduly strict in insisting that each day's delay must be
explained but it is obligatory on the part of the Government to show by filing
a counter- affidavit that it had acted promptly in dealing with the
representation. What is essential is that the Court must be satisfied that the
officers dealing with the representation were not indifferent to the urgency of
the situation of the detenu being in jail. We are afraid that in the instant
case by failing to file a counter-affidavit and by failing to explain the ex
facie delay, the Central Government failed in its duty and, therefore, we see
no alternative but to uphold the contention and quash the detention order.
3. In
the result this appeal succeeds. The order of detention is quashed. The detenu
will be set at liberty at once unless required in any other case. A copy of
this order be sent to the Secretary, Home Department, Government of India, to
ensure that no such lapse takes place in future.
720
Chanabasappa Vs. Hanmantha Order
1.
This appeal by special leave, against the judgment and order dated February II,
1975, of the High Court of Karnataka at Bangalore passed in Civil Revision Petition No.
2580
of 1974, must succeed for the reasons recorded hereafter.
2. The
appellants herein have a decree for possession of the disputed land in their favour.
They obtained it after two successive rounds of litigation up till the High
Court.
When
the decree was sought to be executed in the Court of the Munsif, objections
were filed by the respondents herein claiming that they had been inducted as
tenants over the disputed land by the defendant who later had become the
judgment-debtor and, therefore, being tenants on the land the decree against
them was inexecutable. The executing court dismissed the objections taking the
view that the respondents' motive in objecting was not clear and they had been
put up by the judgment-debtor to frustrate execution.
Further
it was viewed that since the respondents were inducted and put in possession at
a time when after the judgment-debtor had suffered a decree, and not in the
period prior thereto as claimed by the respondents, the so-called tenancy
having been created by a virtual trespasser would not confer any legal rights
on the respondents. This seems to be so when one goes through the definitions
of the words 'tenant' and 'landlord' respectively as given in the Karnataka
Land Reforms Act, 1961. Therein the word 'landlord' means a person who has
leased land to a tenant and includes a person entitled to receive rent from a
tenant. The word 'tenant' means an agriculturist who cultivates personally the
land he holds on a lease from a landlord and includes some other persons as
given therein.
Obviously,
the jural relationship of tenancy created by a trespasser with another is not
within the grip of the two words aforenoted. Since the finding of the executing
court was adverse to the respondents regarding the origin of their tenancy,
unless and until that finding was upset, the High Court had no power to
interfere with the order of the executing court in revision, and to have
deviated the matter to the Tribunal for settlement of the issue as to whether
there existed a tenancy or not under Section 133 of the Karnataka Land Reforms
Act, 1961. The exercise in our view attempted by the High Court was likely to
be of no use even if it was assumed that the respondents had been inducted as
tenants in possession in the manner found by the executing court over the
questioned land. This being a finding of fact not disturbed by the High Court
in revision, would govern the field meriting dismissal of the revision
petition. Accordingly, we allow this appeal, set aside the impugned order of
the High Court and dismiss the objections of the respondents. Let the execution
proceed further without delay. No costs.
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