Bombay High Court
Ramchand Santumal Bhatia vs Tarun Roy And Others on 7 August, 1987
Equivalent citations: 1987(3)BOMCR399
JUDGMENT Daud, J.
1. A short, but important question of jurisdiction in habeas corpus matters, arises in this petition under Art. 226 of the Constitution of India.
2. The Directorate of Intelligence Officers based at Calcutta acting on information on 9 April 1986 intercepted certain persons disembarking at Calcutta from a Thai Airways Plane being flight No. TG-313. One of the disembarkees was the petitioner's wife Smt. Durga Ramchand Bhatia. Being carried on her ticket were two pieces of registered baggage and a hand bag on her person. But there was something suspicious about her movements and therefore she was taken in for a personal search and interrogation. This search led to the recovery of gold in the form of biscuits of the value of Rs. 1,03,750/- from the lady's private parts. Detailed investigation showed that Smt. Durga was part of a syndicate of Bombay based ladies engaged in smuggling through the Calcutta and Madras Airports, though they left for foreign countries from the Bombay Airport. The detenu after arrest was put up before a Magistrate at Calcutta who directed her enlargement on bail. Being a resident of Ulhasnagar, District Thane, Maharashtra, she came to that place, after availment of bail. On 22 September, 1986 respondent 1, a Joint Secretary to the Government of India in the Ministry of Finance, passed an order of detention against the detenu under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the order reciting that this was being done "with a view to prevent her from smuggling goods". The same, together with the grounds, were served upon the detenu on 11 November, 1986 at Ulhasnagar. After this service the detenu was taken into custody and moved for detention at Presidency Jail, Calcutta, as directed in the order of detention. On 26 February, 1987 leave was obtained to move the Court on the next day and on 27 February, 1987 this Court directed the issue of rule nisi. As an interim measure, the Court directed that the detenu be transferred from the Presidency Jail, Calcutta, to a Jail at Kalyan. Impleaded to the petition are the detaining authority, the Union of India, and the Superintendent of Presidency Jail at Calcutta. The State of Maharashtra is also impleaded, though reasons for this joinder are not known.
3. Para 10 of the petition gives an explanation for the jurisdiction of this High Court to impugn the detention order in these words :
"the detenu was detained at Ulhasnagar, she is a permanent resident of the State of Maharashtra over which this Hon'ble High Court has territorial jurisdiction ...... since the same (order of detention) affects the fundamental rights of the detenu of being detained without trial, the said order can be challenged before this Hon'ble High Court under Art. 226 of the Constitution of India ...... subsequently the detenu came to the address at Ulhasnagar and moved to Calcutta ..... the entire and/or substantial part of the cause of action has arisen within the jurisdiction of this Hon'ble High Court and therefore, this Hon'ble Court has jurisdiction to entertain and try this petition."
The relief sought in the petition is a quashing of the detention order with the consequential direction for the release of the detenu. Inasmuch as the order of detention was made at Delhi and the detenu's place for detention was specified to be Calcutta, a doubt has arisen as to this Court's jurisdiction to entertain the petition. On behalf of the petitioner, the submission is that this Court has jurisdiction, because -
(1) The detention order relates to activities past and anticipated - of the detenu within the State of Maharashtra and therefore part of the cause of action has arisen within the jurisdiction of this Court.
(2) The detention order affects the fundamental rights of the detenu to freely move about and/or reside or settle in India inclusive of Maharashtra and therefore this Court has territorial jurisdiction to decide the petition.
(3) In habeas corpus petitions, the cause of action arises as soon as the liberty of the detenu is restricted. Such a restriction was placed upon the detenu's liberty on 11 November, 1986 at Ulhasnagar, when she was taken into custody for being whisked away to Calcutta. Therefore part of the cause of action, if not the whole, arose within the territorial jurisdiction of this Court.
Respondents 1 and 3 dispute the correctness of the grounds advanced by the petitioner for having the matter adjudicated by this Court. It is contended that the detention order read in the background of the grounds, clearly shows that the detenu had been carrying out smuggling activities outside the territory of Maharashtra. That she resided, had been served with the detention order at or had been whisked away from Ulhasnagar, was not germane to rule upon the issue of jurisdiction. In a habeas corpus petition the territorial jurisdiction depended upon the place where the order of detention was made, the base of the detaining authority, and the place specified for the detention of the detenu. In addition, what could possibly be taken into consideration, was, the nexus between the prejudicial activity and the detention order. In such a case, the Court having jurisdiction, could conceivably be that where the prejudicial activity had taken place. Counsel for the parties, Mr. Agarwal and Mr. Kotwal have all been heard at great length. The question that has arisen is one of great importance and not covered by any direct decision of the Supreme Court or this Court.
4. The first ground advanced by Counsel for the petitioner to justify recourse to this Court, has merely to be stated to furnish its own refutation. As said earlier, the order of detention made against the detenu is with a view to prevent her from engaging in smuggling goods. S. 3(1) of the COFEPOSA enables Governments and Officers specially empowered, to pass detention orders to prevent a detenu from engaging in five different types of prejudicial activities. Insofar as the detenu is concerned, only one such prejudicial activity, viz, "smuggling goods" has been specified as the prejudicial activity that had to be prevented by an order of detention made against her. This needs to be emphasised. For on the basis of certain recitals appearing in the grounds, it has been argued that the territory of Maharashtra also had been allegedly used by the detenu for carrying out such activities. The grounds referred to the Syndicate of ladies based at Bombay using that place as the starting point for journeys to different countries, the detenu being part of that Syndicate, selling of the smuggled goods in the market, four gold biscuits from out of those brought in to be delivered to a person at Bombay and her receiving U.S. Dollars equivalent to Rs. 10,000/- at Ulhasnagar etc. etc. These activities do not fall within the scope of the purpose behind the detention of the petitioner's wife. She was detained, to repeat, for the umpteenth time, to prevent her from smuggling goods and not activities that took place antecedent or subsequent to the smuggling of goods into India. It was said that the detenu's activities in the State of Maharashtra could not be separated from what she did elsewhere in the country and therefore, part of the events leading to the making of the order of detention, had taken place in Maharashtra. It is not possible to agree with this submission. Carefully read, the detention order would show that the object of the order was to prevent the detenu only from smuggling goods and that activity had not occurred in the State of Maharashtra.
5. The order of detention, it was next argued, could be assailed in any High Court throughout the length and breadth of the country. This was because its existence prevented the detenu from exercising the rights conferred on her under Art. 19 of the Constitution. In particular, it affected her liberty to move freely throughout the territory of India and to continue to reside in the territory of Maharashtra of which State she was a permanent resident. Reliance is placed in support of this contention upon Smt. Manjulaben v. C. T. A. Pillay, 1976 Cri LJ 889 (Gujarat High Court). The contention in that case was stated thus in the verdict :
"It is also contended that the impugned orders of detention constitute an interference with all rights guaranteed by Art. 19(1) of the Constitution and in particular the rights guaranteed under Art. 19(1)(d) and (e) of free movement within the territory of India and their rights to reside the settle in any part of India. On the theory of the cause of action as provided in Art. 226(1A) of the Constitution every High Court in India has a jurisdiction to entertain a habeas corpus writ application."
It does appear that this submission was accepted by the Bench. However, the reasons for the acceptance are not clear. With respect to the learned Judges, we find it difficult to agree with the rather spacious view taken by them. Art. 19 specifies various rights vesting in citizens. Breach of these rights gives the aggrieved a cause of action to approach the proper Court. Truly speaking no considered decision on the plea was given by the Division Bench. It merely observed -
"Moreover the provisions of Art. 19, Cls. (d) and (e) also indicate that the High Court has jurisdiction to entertain these petitions."
Article 19 confers on citizens as many as seven rights. There is no reason why the rights of free movement and residence and settling throughout and in any part of India should be given precedence over the other rights spoken of in the Article. If the existence of rights were to be the anvil on which to decide the question of jurisdiction, we do not see why only habeas corpus petitions should be excluded from the limitation imposed by Cls. (1) and (2) of Art. 226. The result would be that there would be complete freedom for "forum shopping" whenever petitions under Art. 226 were to be moved. This would be irrespective of the location of the person or authority to whom the writ or order had to be issued or the place where the cause of action wholly or in part, arose. The simple answer to an objection relating to territorial jurisdiction would be that the petition was for vindication of a fundamental right and irrespective of the nature of the writ claimed, all High Courts had jurisdiction, for the exercise of the rights could not be curtailed by the territorial limits contemplated by Cls. (1) and (2) of Art. 226. If the rights covered by Cls. (d) and (e) of Art. 19(1) give the right to move any High Court to question an order of detention there would be no reason to limit the filing of the petitions seeking relief in any other case from any High Court of the choice of the petitioner. Limits placed on territorial jurisdiction under Art. 226 would become meaningless. The result would be chaos - unimaginable and uncontrollable. Irrespective of the location of the person or authority to whom the writ had to be issued or the territory within which the cause of action arose, petitioners would move any High Court of their choice and get relief - at least interim and thereby frustrate the permissible activities of the State and other authorities. Different provisions of the Constitution have to be read reasonably, and, where there be an apparent conflict, Courts should try to so interpret the provisions as to bring about a harmonious construction. Nothing in Art. 19 warrants the supposition that breaches - actual or threatened - of the rights stipulated by the Article can be vindicated in a Court of the choice of the petitioner complaining against the breach. The forum where such complaints can be made is provided by the Constitution. Insofar as Art. 226 is concerned. Clause (1) entitles the High Court to issue writs to a person or authority within the limits of its territorial jurisdiction. Next, it can issue writs to an authority or person outside its territorial limits, provided the cause of action wholly or in part, arose in its territory. In the present case, the High Court exercising jurisdiction over Delhi would obviously have the competence to entertain the petition for the order of detention was made in that territory and the headquarters of the officer making the order, is also Delhi. The next place where the petition could have been filed is Calcutta where the detenu had to be lodged under the order of detention for the duration of the period of detention. There remains the argument that the cause of action, at least in part, arose in the State of Maharashtra inasmuch as the detenu was taken into custody at Ulhasnagar and the order of detention was served upon her at that place. In Manjulaben's case (1976 Cri LJ 889) (supra) which has been relied upon by the Counsel for the petitioner and Mr. Kotwal the facts were thus :
Detenus ordinarily resident and doing business within the State of Gujarat were detained under the Maintenance of Internal Security Act, 1971, and kept in jail at Baroda. Later on, the detenus were moved to the Central Jail at Jaipur, State of Rajasthan. Fresh orders of detention were passed under COFEPOSA and served upon the detenus at Jaipur. Relations of the detenus challenged the constitutional and legal validity of the COFEPOSA and the fresh orders of detention. The petition recited that the detenus had their place of residence and business at Gujarat, that their families resided in the State of Gujarat and that they were entitled to come back to Gujarat for the purpose of residence and business. As their rights to move freely throughout India and to come back and reside and carry on business in Gujarat had been affected by the detention order, a part of the cause of action had arisen in Gujarat which gave jurisdiction to the Gujarat High Court to entertain the writ petitions moved under Art. 226. The Additional Collector of Customs who filed returns on behalf of the respondents, contended that no part of the cause of action had arisen within the State of Gujarat inasmuch as the fresh orders of detention were made at New Delhi, the detenus had been served with orders at Jaipur and the detention also was to be undergone at Jaipur. To counter the preliminary objection raised on behalf of the respondents, the petitioners pleaded that there had been no break in the detention begun under orders of detention made vide Maintenance of Internal Security Act. Initially the detenus had been lodged at Baroda and a mere continuance of the detention at Jaipur, did not disrupt the causal connection necessary for deciding the question of territorial jurisdiction. It was the detention initially begun at Baroda and continued under the fresh orders of detention, which was sought to be resisted by the petitions moved before the Court. The Court sustained the plea of the petitioners in the following words :-
"Now it is clear from the facts of these cases that the detenus have their ordinary place of residence in this State. They were initially detained in the State and were then transferred to the Central Jail at Jaipur. These facts are undisputed. Their detention was continued under the fresh orders of detention issued under the provisions of the impugned Act. The detenus were not set at liberty on the expiry of the previous orders of detention passed under the Maintenance of Internal Security Act, 1971. Under their fresh orders of detention the detenus were kept in the Central Jail, Jaipur. Their initial detention at Baroda is continued. The effect of the impugned orders of detention is that the detenus are prevented to enter the State or to reside or to carry on their business therein. The aforesaid facts furnish a part of cause of action within the territorial limits of this Court and this Court has, therefore, jurisdiction to entertain these writ petitions. It is true that the statement made in the affidavit of the respondents that separate entries relating to the detention of the detenus in the jail register have been made to show that the detenus were taken afresh in the jail after service of fresh orders of detention under the impugned Act but that is not of much consequence in view of the fact that the detenus were not in fact set at liberty at any time before the fresh orders of detention were served on them. The detenus were not free agents when they were served with the fresh orders of their detention under the impugned Act ...... As initial detention of detenus which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this Court."
If the first part of the passage be a correct exposition of the law, the present petition would be within the jurisdiction of this Court, inasmuch as the detenu was taken into custody at Ulhasnagar and has a right to return to reside there. Interestingly, Manjulaben's case was completely overlooked by another Bench of the Gujarat High Court when it took up for consideration Special Criminal Applications Nos. 497 and 498 of 1985 (1985 decision). In that case, the prejudicial activity which took place at Delhi, led to the making of the detention orders at that very place. As a result of the detention orders, the detenus were lodged in Tihar Jail at Delhi. Petitions questioning the detention orders were moved in the Gujarat High Court and came up for hearing before a Division Bench comprising M. B. Shah and G. T. Nanavati, JJ. The Union of India took exception to the choice of the forum contending that no cause of action, whether wholly or in part, had arisen within the territorial jurisdiction of the Court. It was submitted that the cause of action in cases of preventive detention depended upon :
(a) the location of the office of the detaining authority, i.e. where the detention order was passed;
(b) place where the detenus were apprehended;
(c) location of the authorities sponsoring the detention proposals;
(d) the territory where the prejudicial activity had taken place;
(e) the territory where the statement of the detenus had been recorded prior to the making of the order of detention;
(f) the place where the entire enquiry culminating in the order of detention had been concluded;
(g) the place where orders of detention were served;
and
(h) the place where the detenus were lodged.
It was established that the detenus in both the cases were residents of and doing business at Ahmedabad in the State of Gujarat. Their prejudicial activity, viz. smuggling, had been detected because of intelligence received at Ahmedabad and the smuggled gold was meant for disposal at Ahmedabad. Shah J. speaking for the Bench held that even so no part of the cause of action had arisen in Ahmedabad. An intent to bring the gold to and dispose it of at Ahmedabad could not be said to be the cause of action for the making of the detention orders. The attention of this Bench was not drawn to Manjulaben's case. With respect to the Judges who heard and decided Manjulaben's case, it is difficult to agree with them. Taking into consideration Art. 19 or any part thereof for fixing the territorial jurisdiction under Art. 226, would be to permit the intrusion of an irrelevance and at the cost of the express language of the latter Article. The Delhi High Court in Smt. Ramadevi v. K. A. Gafoor, ILR (1976) 1 Delhi 72 considered a similar question at greater length. It went into the history leading to the Constitution (Fifteenth Amendment) Act, 1963. In Lt. Col. Khajoor Singh v. Union of India, , Chief Justice B. P. Sinha speaking for the majority had observed :-
"The concept of cause of action cannot in our opinion be introduced in Art. 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Art. 226."
It was this view which led to the introduction of the measure known as the Constitution (Fifteenth Amendment) Act, 1963. The statements of objects and reasons to that Act showed that the then Punjab High Court was the only High Court having jurisdiction under Art. 226 of the Constitution vis-a-vis the Central Government. This placed litigants from distant places at a considerable disadvantage. The object of the amendment was to provide relief to litigants seeking redress against any Government, authority, or person for any action taken, in permitting them to approach any High Court, provided, the cause of action had arisen within its jurisdiction. For that purpose an amendment was proposed and that is how Art. 226(1A) came into the basic code. In Ramadevi's case, the issue of territorial jurisdiction was being considered in the background of a detention order made under S. 3(1) of the COFEPOSA, but enlarged because of a declaration made under S. 9(1) of that Act. It was in the background of this enlarged arena that the Court observed :
"There can be and is really no dispute about the fact that the High Court within whose territorial jurisdiction the order of detention is made and/or the person is detained will have jurisdiction. It was at one time feebly contended by Shri Harjinder Singh, who appeared for the detenus in some of these petitions that once an order of declaration under S. 9(1) is made the order of detention itself will merge in the said order of detention and that the High Court within whose territorial jurisdiction the said order of detention was made initially and the person was being detained would no longer have jurisdiction to entertain a petition under Art. 226. But it did not take long for him to realise the difficulties (one of them being that considerations for making the two orders are separate) in the way of such a contention being accepted; he, therefore, abandoned the said argument."
Mr. Agarwal presses for our acceptance the limitations placed upon High Courts under Art. 226 as expounded in Ramadevi's case. According to learned Counsel, these limitations are in accordance with the language and intendment of the Article. To the extent the 1985 decision goes contrary to Manjulaben's case, Mr. Agarwal supports its correctness. But certain expressions in the former, so argues, the Counsel, go beyond the true scope of Art. 226. Mr. Kotwal on the other hand had drawn our attention to the judgment of a Division Bench of this Court delivered on 12 to 14 July, 1982 in Criminal Application No. 180 of 1982 (1982 decision) in support of the contention that in habeas corpus petitions, the cause of action arises as soon as the detenu's liberty is curtailed and this entitles him to move the Court where the restraining act is performed, irrespective of the situs of the authorisation or authoriser whereunder the liberty was being restricted. In that case the prejudicial activity had been detected in Bombay, where also the detenu and his associates were interrogated on several occasions between May and October 1981. A complaint under the Customs Act was put up against the detenu and he was released on bail by a Magistrate sometime after 15 June, 1981. From time to time, the detenu attended the Magistrate's Court at Bombay till November 1981. On 4 November, 1981, an order of detention was made by a person duly authorised to act for and on behalf of the Government of Maharashtra. In the meantime, the detenu had jumped bail and was untraceable till 18 February, 1982. On that date he was apprehended and produced at a Police Station in Surat for the purpose of undergoing the detention imposed upon him by the detention order. On receipt of information about his apprehension, the Bombay Police rushed to Surat and picked him. The detention and committal orders were served upon the detenu some five days after his apprehension and, before he was brought to Bombay. In the petition challenging the detention filed by his father, a contention assailing the detention was, that the order of detention had not been served immediately after the detenu was taken into custody. It was while assessing this plea, that the Court observed :
"The argument advanced by Shri Kotwal that the detention commenced only after detention order was served and that as the order was not served till 24th the earlier detention was not in pursuance to the detention order cannot therefore be accepted. The fact that the copy of the detention order was not served on the detenu when he was apprehended does not mean that he was not taken in custody in pursuance of the detention order. The detention order was passed on 4-11-1981 and efforts were made to trace the detenu who had jumped bail in the Customs case and had made himself scarce. There is therefore absolutely no doubt that the detenu was detained in the Randar Police Station (Surat) from 19th onwards as COFEPOSA detenu and in pursuance of the detention order dated 4-11-1981."
The argument is, that as in that case, the detention of the detenu in the instant case, began at Ulhasnagar the moment her liberty was restricted. This was so though the restriction was in pursuance of a detention order made at Delhi and to be carried into effect at Calcutta. The question arising in that case has been specified and the observations relied upon, have to be confined to the facts and circumstances obtaining there. What was challenged was the validity of a detention, initially void because of non-service of the order of detention and pleaded to be validated by service of such an order, though belatedly. In the present case there is no complaint of non-service or late service of the detention order. In fact it seems to be the admitted position that service of the order upon the detenu was contemporaneous to her being taken into custody. Therefore, the 1982 decision does not apply to the issue arising here. But the Gujarat High Court's 1985 decision does lay down that the place where the detention order is served on the detenu, can be said to be a place where part of the cause of action arises. On this point Mr. R. S. Desai for petitioner has referred us to Damomal v. Union of India, . In that case the Bombay High Court was held to have jurisdiction because the effect of the order would be felt upon the petitioner at Ulhasnagar, though the same was passed at New Delhi. The effect or impact of the order was held to constitute part of the cause of action. It is precisely at this point that Mr. Agarwal presses for acceptance the 1985 decision's delineation of the cause of action in detention cases barring one feature therefrom. It was there held that in detention matters the jurisdiction of the High Court under Art. 226 was limited to an examination of the detention order and its aftermath, so as to find out if the protection afforded by the Statute or/and the Constitution had been made available to the detenu. Viewed thus, it was held that the place where the detaining authority had acted as also that where the detention order had been served, would be a place where part of the cause of action had arisen. Mr. Agarwal says that the place of service of the detention order is not relevant, for the order takes effect as soon as it is passed. Counsel relies upon State of Rajasthan v. M/s. Swaika Properties, , in support of the above submission. In that case a notice prescribed by S. 52(2) of the Rajasthan Urban Improvement Act, 1959, relating to the notice's property in Rajasthan was served upon the noticee at its registered office at Calcutta. The notice moved the Calcutta High Court under Art. 226 and obtained an order staying further proceedings pursuant to the notice served upon them. The State of Rajasthan contended that there was total lack of inherent jurisdiction in the Calcutta High Court to entertain the petition. This contention was sustained by the Supreme Court. But in this case the offending act was the issue of notification under S. 52(1) of the aforementioned Act whereunder the property vested in the Rajasthan Government free from all encumbrances. That notification, rather than the service of notice under S. 52(2), constituted the cause of action. Is it correct to say that in detention matters the place of service of the detention order is totally irrelevant ? The analogy of the service of a notice in the above precedent does not appear to be apposite to service of a detention order, when the latter is challenged in a habeas corpus petition. In that case, the actionable cause had arisen antecedent to the service of the notice. In the latter case, the making of the order creates no cause that can be questioned in a writ petition. The cause to do so arises when the detenu is taken into custody to serve out the period of detention. This position is fortified when the detenu is served with the order and grounds of detention at the very time he or she is taken into custody and moved en route to the place where the detention is to be served. Therefore the place were the detention order and grounds are served, would be a place where part of the cause of action has arisen. Mr. Agarwal argued that even if this be correct the more appropriate Court to hear the petition would be that within whose territory the order was made or the detenu was to be lodged. On the authority of Ujagar Singh's case 1987 Cri LJ 958 of the Punjab High Court he wanted us to direct the petitioner to move either of the Courts. Convenience of the detaining authority which has to answer such petitions is not an insignificant factor. As against this is the fact that quite some time has passed since the commencement of the detention and filing of the petition. To now direct the petitioner to move the more appropriate court, would mean that time spent up to now has all gone waste. The detenu is a lady and inasmuch as the Court does not totally lack inherent jurisdiction, it would be too harsh a measure to drive petitioner to the remedy of a fresh petition. To sum up, Ulhasnagar being the place where the detenu was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court. We would however like to make it clear that convenience of the detaining authority and the factor of greater suitability of another forum are not to be ignored. In appropriate cases, a direction to the person questioning a detention to move other Courts also having jurisdiction, may be required to be given. For reasons given earlier, such a direction is not to be given in the present case. This case shall now proceed to a hearing on merits.
6. Order accordingly.