Madras High Court
The District Collector And District ... vs The Secretary To Government on 19 September, 2013
Author: S.Rajeswaran
Bench: S.Rajeswaran, A.Arumughaswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.09.2013 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN, J. and THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY, J. Writ Petition No.23890 of 2013 & M.P.Nos.1 and 2 of 2013 The District Collector and District Magistrate, Kancheepuram District, Kancheepuram. ... Petitioner -Versus- 1.The Secretary to Government, Home Affairs (Internal Security Department), Government of India, North Block, New Delhi. 2.Thiru.J.Guru @ Kaduvetti Guru @ Gurunath 3.The Chief Secretary to Government, Government of Tamil Nadu, Fort St. George, Public Department, Secretariat, Chennai 600 009. ... Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the entire records relating to impugned order No.II/15027/12/2013-NSA passed by the 1st respondent and to quash the same. For Petitioner : Mr.K.T.S.Tulsi, Senior Counsel, Assisted by Mr.S.Shanmugavelayudham, Public Prosecutor For Respondents : Mr.P.Wilson, Addl. Solicitor General of India, for Mr.C.Kanagaraj, CSC for R1 Mr.Altaf Ahmed, Senior Counsel and Mr.N.R.Elango, Senior Counsel for Mr.Vivekanandhan for R2 Mr.S.T.S.Murthy, Government Pleader for R3 O R D E R
(Order of the Court was made by A.ARUMUGHASWAMY.J.) The District Collector and District Magistrate, Kancheepuram District, Kancheepuram, representing the State of Tamil Nadu, has come up with this writ petition challenging the orders dated 01.07.2013 and 22.08.2013 respectively in No.II/15027/12/2013-NSA passed by the 1st respondent - Secretary to Government, Home Affairs (Internal Security Department), Government of India, North Block, New Delhi, revoking the orders of detention vide D.O.No.81 of 2013 dated 10.05.2013 and D.O.No.102 of 2013 dated 03.07.2013 passed by the 3rd respondent - Chief Secretary to Government, Government of Tamil Nadu, Fort St. George, Public Department, Secretariat, Chennai 600 009, detaining the 2nd respondent/detenu under The National Security Act, 1980.
2. Though all the Habeas Corpus Petitions connected to the orders of detention relating to the 2nd respondent/detenu and a few other detenus have been listed together before this Court, at the request of the learned senior counsel appearing for the petitioner; the learned Additional Solicitor General appearing for the 1st respondent and the learned senior counsel appearing for the 2nd respondent/detenu that the writ petition may be taken up, at first, for disposal so that the right of the 2nd respondent/detenu can be effectively adjudicated upon and then only he will be in better position to advance his case in HCP No.815 of 2013, we have heard the writ petition at first and the same is being disposed of by this order.
3. The back ground of the facts of the case are that originally the 2nd respondent was detained by the 3rd respondent by order dated 10.05.2013 under the National Security Act, 1980. Challenging the order of detention, the 2nd respondent filed HCP No.815 of 2013. In the mean time, as per the provision contained in the NSA Act, the 3rd respondent within seven days of the order of detention reported the fact to the 1st respondent together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, had a bearing on the necessity for the order. Having considered all the materials placed before him including the order of detention, the 1st respondent by his order dated 01.07.2013 revoked the order of detention [first revocation order]. The 1st respondent communicated the same to the 3rd respondent by way of wireless message. For a moment, it is worth to note here that the 1st respondent has communicated only a telegraphic order (substance of the revocation order) and not the entire text of the order of revocation. Thereafter, the 3rd respondent has again detained the 2nd respondent/detenu by order dated 03.07.2013 under the National Security Act, 1980. Challenging the order of detention, the 2nd respondent filed HCP No.1379 of 2013. Again, as per the provision contained in the NSA Act, the 3rd respondent within seven days of the order of detention reported the fact to the 1st respondent as done earlier. Having considered the same, the 1st respondent again by his order dated 22.08.2013 revoked the order of detention [second revocation order] and communicated the same to the 3rd respondent. This time also the 1st respondent had communicated only a telegraphic order (substance of the revocation order) and not the entire text of the order of revocation. Thereafter, again the 3rd respondent by his order vide M1.D.O.NO.121/2013 dated 23/08/2013 detained the 2nd respondent/detenu under The National Security Act, 1980. Challenging the same, the 2nd respondent dentenu has filed HCP No.1778 of 2013. In the mean time, the State represented by its District Collector, has come up with this writ petition assailing the orders of revocation passed by the 1st respondent on 01.07.2013 and 22.08.2013 respectively on various grounds.
4. The point for consideration is:
(i) Whether the revocation order must be speaking order containing the reasons for revocation of the detention order has to be explained by the competent authority?
(ii) Whether the State Government is entitled to pass the second detention order after receiving the revocation order?
Held: YES.
5. Mr.K.T.S.Tulsi, the learned senior counsel appearing for the petitioner assailing the orders of revocation would firstly contend that in the first revocation order, no reason whatsoever has been assigned, which is against the fundamental principles of natural justice. Secondly, he would contend that in the second order of revocation even after having taken note of a judgment of a Division Bench of this Court in HCP No.1196 of 2013 dated 16.07.2013 [Lakshmi vs. Union of India and others], the 1st respondent has miserably failed to assign reasons for having come to the conclusion to revoke the order of detention. In fact, the 1st respondent without properly understanding the law laid down in the aforesaid judgment of this Court passed a non speaking order revoking the order of detention. In support of his contentions the learned senior counsel would rely on a Division Bench of this court in HCP No.1196 of 2013 dated 16.07.2013 [Lakshmi vs. Union of India and others] and MANU/MP/0256/2011 [State of Madhya Pradesh and another v. Union of India and another].
6. Mr.K.T.S.Tulsi, the learned senior counsel for the petitioner relying on the National Security (Second Amendment) Act, 1984 would further submit that it is the duty of the State Government to maintain the law and order, and in order to streamline the working of the Act, the State Governments have also been given power under the National Security Act to deal stringently with anti-national, extremist and terrorist elements in the country and curb their activities and to safeguard the lives and properties of lacs and lacs of people.
7. The contention of the learned Additional Solicitor General is that the supremacy of the Central Government cannot be questioned and the order passed by the State Government had been rightly revoked by the Government of India and in that judgment it has been held that the Government of India has got supremacy power to revoke the order of detention passed by the State Government. Hence, the order passed this Court in the Lakshmi vs. Union of India and others will not in any way helpful for the petitioner. Hence, he prays that the writ petition has to be dismissed and the revocation order passed by the Government of India has to be implemented.
8. The learned senior counsel appearing for the 2nd respondent would on the other hand vehemently contend that the orders of revocation passed by the 1st respondent are enforceable in law. Referring to Articles 246, 254, 256, 257 and 258 of the Constitution of India, he would further contend that the 1st respondent has supreme power and being the supervisory authority, a duty cast upon the Union of India to see whether there is any improper exercise of power of detention by the detaining authority or the State Governments. When the 1st respondent was of the opinion that there was no necessity to detain the detenu under the National Security Act and he might be tried under the normal law of the land, nothing more reason is required to assign to revoke the orders of detention. Relying on the judgments of the Hon'ble Supreme Court in Sabir Ahmed v. Union of India (1980) 3 SCC 295; State of Uttar Pradesh v. Zavad Zama Khan, (1984) 3 SCC 505; A.C.Razia v. Govt. of Kerala (2004) 2 SCC 621; and of this Court in Rajan v. State of Tamil Nadu, 1991-L.W. (Crl) 550, the learned Additional Solicitor General would submit that in similar situations, the Union of India revoked the orders of detention as per Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It is for the Central Government to modify or revoke any order of detention in exercise of its discretionary power under Section 14(10) of the NSA, on receipt of the report from the State Government. Hence, he prayed for dismissal of the writ petition.
9. The learned senior counsel appearing for the 2nd respondent/detenu while adopting the arguments of the learned Additional Solicitor General would mainly rely on a judgment of the Hon'ble Supreme Court reported in (1982) 1 SCC 12 [Sat Pal v. State of Punjab and others]. That was a case where the legality of order of detention passed by the State under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 came to be considered. In that case the questions canvassed before the Hon'ble Supreme Court were (1) there was any duty cast on the State Government to forward to the Central Government the representation for revocation of the order of detention under Section 11 of the Act and (2) Whether the power of revocation of an order of detention by the Central Government under Section 11 of the Act, is execrable only after the representation has been rejected by the State Government and the Advisory Board and the order of detention is confirmed by the State Government under Section 8(f) and ultimately it has been by the Hon'ble Supreme Court thus:-
6. The whole purpose of a representation that a detenu makes under Article 22(5) of the Constitution read with Section 8 of the Act, is to secure revocation of the order of detention. It is evident from the scheme of the Act that the power of revocation is exercisable at two stages. In the first place, there is a duty cast on the appropriate Government, i.e. the Central Government or the State Government, as the case may be, to revoke the detention order under Section 8(f) of the Act and cause the person to be released forthwith, where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention Secondly, the Central Government, may, at any time, under Clause (b) of Sub-section (1) of Section 11 of the Act, revoke an order of detention that has been made by an officer of the Central Government or by a State Government. Under Clause (a) thereof, the State Government may likewise exercise such power in relation to an order made by an officer of the State Government. Under Section 11(1)(b) of the Act, the Central Government, therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government, under Sub-section (1) of Section 3 of the Act. That is as it should be, as under our federal structure the center must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Article 21.
10. From the perusal of the orders, it is seen that after passing the first revocation order dated 1.7.2013, the State Government has again passed an order of detention on 03.07.2013 and that order also has been revoked by the Government of India by passing an order of revocation dated 22.8.2013. In that order, it has been specifically stated that relying on the judgment reported in Lakshmi vs. Union of India and others, the first respondent has revoked the second detention order passed by the authority concerned. In fact, on a perusal of the order, it is seen that the first respondent has revoked the order of detention only relying upon the principles laid down in the judgment reported in Lakshmi vs. Union of India and others. Whereas in that judgment it has been held that the detention order has been revoked without any reason. Therefore, as per the principles laid down by the Supreme Court of India in various judgments and after observing those judgments the Division Bench relying upon the judgment reported in Lakshmi vs. Union of India it has been revoked. As per the principles laid down in aforesaid judgment, there must be reasons recorded in support of the conclusion to revoke the order of detention. Whereas to the surprise, the first respondent has again passed an order of revocation relying upon the very same judgment in Lakshmi vs. Union of India and others [cited supra] and the second revocation order has also been passed which is contrary to their case. The facts of the case in the judgment reported in (1985) 2 GLR 1, Somi Angkang and others vs. Union of India (Gauhati High Court), upon which much reliance has been placed by the learned Additional Solicitor General, will not be applicable for the present set of facts in the instant case. In the aforesaid case, the State Government had not forwarded the representation of the detenues to the competent authority within the time. Since the representation had not been forwarded to the competent authority, the Gauhati High Court has held that the failure on the part of the competent authority in forwarding the representation to the Central Government resulted in breach of procedural safeguard. Hence, the argument in that case was that the impugned order had to be quashed by holding that the Government of India had power of supremacy and, therefore, on that aspect the order had been quashed. But, in the instant case, the detenue's representation had been forwarded by the State Government in time, however, the same has been revoked without recording any reason. That was reason why this Court, in a recent judgment in Lakshmi vs. Union of India and others, held that there must be reasons recorded by the Central Government while passing the order revoking the order of detention passed by the State Government. The competent authority without reading the judgment in between lines, they themselves arrived at the conclusion as if the said judgment was in their favour for revocation and on that basis they revoked it. It therefore shows non application of mind on the part of the Government of India in passing the second revocation order. Therefore, the third detention order has been passed by the competent authority.
11. The learned senior counsel appearing for the petitioner would contend that the judgments relied on by the learned counsel for the 2nd respondent relates to a case of COFEPOSA Act which is of course similar to that the National Security Act. But, in that case the argument before the Hon'ble Supreme Court was entirely on a different footing. In that case, the question as to whether the detenu was entitled to make representation under Section 11 of the Act simultaneously before the State Government as well as before the Central Government and in the light of Article 22(5) of The Constitution of India came to be considered. The next question came up for consideration before the Hon'ble Supreme Court was as to whether the power of revocation of the order of detention by the Central Government under Section 11 of the COFEPOSA Act is exercisable only after the representation has been rejected by the State Government and the Advisory Board and the order of detention was confirmed by the State Government under Section 8(f). Ultimately, those two questions had been answered. In the instant case, the short point that requires to be considered is whether the order of revocation must be a speaking order containing reasons or not. If so whether the 2nd detention can be passed by the State Government.
12. Admittedly, in the instant case, on both occasions, the 1st respondent had communicated only a telegraphic message alone. It is sufficient or not is to be seen.
13. The first revocation order dated 01.07.2013 communicated by the 1st respondent to the 3rd respondent by way of wireless message reads as follows:-
"Reference representation of Thiru.J.Guru @ Kaduvetti Guru s/o.Jayaraman against the order of detention passed by the District Magistrate, Kancheepuram on 10.05.2013 under The National Security Act, 1980. After careful consideration of the representation, the Central Govt. is pleased to revoke repeat revoke under Section 14(1) of The National Security Act, 1980 the detention order issued against the detenu. The detenu may be released forthwith from the jail unless he is required to be kept in jail for any other case. He may be tried in the cases registered under the normal law of the land. The Central Government may also be intimated by return signal of the compliance of the above order or the position otherwise. Mater most urgent."
14. So also, the second revocation order dated 22.08.2013 communicated by the 1st respondent to the 3rd respondent by way of wireless message reads as follows:-
"Reference representation of Smt.Kalyani W/o late Sh.Jayaraman, mother of the detenu Thiru.J.Guru @ Kaduvetti Guru @ Gurunath S/o.Thiru.Jayaraman against the order of detention passed by the District Magistrate, Kancheepuram on 03.07.2013 under The National Security Act, 1980. The detention of Thiru.J.Guru @ Kaduvetti Guru @ Gurunath under NSA, 1980 is squarely covered by the judgment dated 16.07.2013 of Hon'ble High Court of Madras in HCP No.1196/2013-Lakshmi v. UOI and others and HCP NO.1197/2013-Mallika v. UOI and others. The Central Govt. is pleased to revoke repeat revoke under Section 14(1) of The National Security Act, 1980 the detention order issued against the detenu. The detenu may be released forthwith from the jail unless he is required to be kept in jail for any other case. He may be tried in the cases registered under the normal law of the land. The Central Government may also be intimated by return signal of the compliance of the above order or the position otherwise. Mater most urgent."
15. In HCP No.1196 of 2013 dated 16.07.2013 [Lakshmi vs. Union of India and others], a Division Bench of this court has held as follows:-
18. From a reading of the above order of the third respondent, it is clear that the authority concerned has not given any reason for revocation of the detention orders passed by the second respondent. In the ratio laid down by the Supreme Court as well as this Court, it is emphasized that reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. Admittedly, no reason was assigned by the third respondent for revocation of the detention orders passed by the second respondent.
16. In MANU/MP/0256/2011 [State of Madhya Pradesh and another v. Union of India and another] the Madhya Pradesh High Court has held that judicial, quasi-judicial and administrative authority are bound to record reasons in support of its conclusion, if such decisions affect anyone prejudicially. In para 19, the Madhya Pradesh High Court has held thus:-
19. We do not want to comment about merits of the detention order because prima facie we have satisfied that the Union of India, Respondent No.1 has revoked the order without application of mind. In our opinion, it is the duty of the Union of India to consider the facts in detail before passing the order of revocation of the order of detention and also consider the grievousness of the conduct of the detenu.
17. From a reading of the above revocation orders of the 1st respondent, it is clear that the authority concerned has not given any reason for revocation of the detention orders passed by the second respondent. In the ratio laid down by the Supreme Court as well as this Court, it is emphasized that reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. Admittedly, no reason was assigned by the third respondent for revocation of the detention orders passed by the 3rd respondent.
18. In view of the above, we hold that the 1st respondent has revoked the orders of detention without assigning reasons therefor and in our opinion, it is the duty of the 1st respondent to consider the facts reported by the State Government including the materials culminated in orders of detention in detail before passing the orders of revocation and record his reasons in support of such order. Thus, the orders of revocation passed by the 1st respondent require interference by this court. Subsequent to the revocation order passed by the Government of India, the second detention order passed by the State Government is not correct and hence he prays that the writ petition has to be dismissed.
19. The learned senior counsel appearing for the petitioner contended that The National Security Act was amended in the year 1984 by way of The National Security [Second Amendment] Act, 1984 and as per the amended Section 14(2) of the NSA Act, the Central Government has to give reasons for revocation. The Statements of Objects and Reasons for amendment runs as follows:-
2. The Ordinance amended the National Security Act, 1980 ---
(a) to provide that the different grounds of detention shall be severable from each other so that the detention order is not vitiated simply because some of the grounds are considered vague, nonexistent, not relevant, invalid or not connected or not proximately connected with the person detained. Such a provision already exists in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974);
(b) to provide that the expiry or revocation of an earlier detention order shall not bar the making of a subsequent detention order against the same person subject to the condition that, where no fresh facts have arisen after the expiry or revocation of the earlier detention order, the maximum period for which a person may be detained in pursuance of the subsequent detention order shall not exceed the existing limit of the maximum period of detention of twelve months from the date of the earlier detention order. In the case of the application of the Act to the State of Pubjab and the Union Territory of Chandigarh, the said maximum period of detention will be two years.
20. Therefore, from the reading of the above cited decision, it is very clear that even though it is in the concurrent list, maintaining the Law and Order is the duty cast upon the State Government. Hence, they are entitled to pass such preventive detention orders under NSA. They are also entitled to pass subsequent orders under the NSA bearing in mind that they are the protector of the Law and Order within the State and also to protect the lives and properties of lacs and lacs of people.
21. In view of the above discussions, we hold that both the revocation order passed by the first respondent suffer from infirmity on account of failure on the part of the first respondent to record reasons in support his conclusion to revoke the orders of detention and same require interference at the hands of this Court.
22. In the result, the writ petition is allowed; the revocation orders vide Ref. No.II/15027/12/2013-C2 dated 01.07.2013 and 22.08.2013 respectively passed by the 1st respondent are hereby set aside. However, it will be open for the detenu to raise all his contentions in HCP No.815 of 2013 assailing the order of detention passed against him. Consequently, connected MP is closed.
(S.R.,J.) (A.A.,J.) 19.09.2013 Index : Yes Internet: Yes kmk/gr To
1.The District Collector and District Magistrate, Kancheepuram District, Kancheepuram.
2.The Secretary to Government, Home Affairs (Internal Security Department), Government of India, North Block, New Delhi.
3.The Chief Secretary to Government, Government of Tamil Nadu, Fort St. George, Public Department, Secretariat, Chennai 600 009.
3.The Public Prosecutor, High Court, Madras.
S.RAJESWARAN,J.
AND A.ARUMUGHASWAMY, J.
kmk W.P.No.23890 of 2013 19.09.2013