State Of J&K; & Ors vs Pervaiz Ahmad Bhat on 1 June, 2018

[Cites 123, Cited by 2]

Jammu & Kashmir High Court - Srinagar Bench

State Of J&K; & Ors vs Pervaiz Ahmad Bhat on 1 June, 2018

                           1

HIGH COURT OF JAMMU AND KASHMIR-
                                 SRINAGAR

Case No: COD 334/2016                                      Dated : 01st June, 2018
STATE OF J&K & ORS                      VERSUS             PERVAIZ AHMAD BHAT
                        ORDER SHEET
CORAM:
HON'BLE           MR. JUSTICE ALOK ARADHE - ACTING CHIEF JUSTICE
HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
i.      Whether to be approved for
        reporting in NET :                       Yes/No.
ii.     Whether to be approved for
        reporting in Digest/Journal :            Yes/No.

FOR THE APPLICANT/s :   MR. SHEIKH MANZOOR, Dy.AG
FOR THE RESPONDENT/s: . MS. M.M.DAR
(PER HANJURA-J)

 01/ The State of J&K, through Commissioner Secretary to the
 Government, Education Department, Civil Secretariat, has filed an
 application seeking the indulgence of this Court in condoning the
 delay of 505 days in filing the Appeal, against the judgement and
 order dated 27-05-2017 of this Court passed in SWP 978/2002,
 primarily on the grounds that immediately after attaining the
 knowledge of the passing of the judgement and order, the applicant
 - appellant No.1, vide letter dated 13-06-2016, requested the
 appellant No.2 to furnish a detailed report as also a copy of the writ
 petition so that further action in the matter is taken up. The appellant
 No.2, vide his letter dated 20-06-2016, sought necessary details
 including the relevant record from the appellant No.4, and the
 appellant No.4, by his letter dated 18-06-2016, asked for a report
 from the appellant No.5, who submitted the details vide
 communication dated 30-11-2016. It is further stated that the
 appellant No.4, furnished a detailed report to the appellant No.2 on
 23-02-2017 and the process to implement the orders was undertaken
 thereafter. It is stated further that the mater had to be examined and
 perused at various levels in the appellants' Department. However,
                       2

after examining the matter finally, it was decided that the remedy of
appeal be availed of and, accordingly, after collecting the record, the
matter was forwarded to the Administrative Department (School
Education), wherefrom, it was sent to the Department of Law, Justice
and Parliamentary Affairs for seeking necessary opinion/sanction to
file the LPA. The applicants - appellants have stated that in this
process a lot of time was consumed.
02/ It is further stated that after analyzing and perusing the record
in its entirety, the Department of Law, Justice and Parliamentary
Affairs, vide its letter dated 13-11-2017, accorded sanction to the
filing of the LPA with the request to the ld. Deputy Advocate
General concerned to file the LPA against the impugned judgement.
Learned counsel for the applicants - appellants has further pleaded
that since the Appeal is strong on merits, therefore, the appellants
are sure to succeed in it. It is further stated that the appeal has an
important bearing as far as the interests of the Appellants are
concerned and in case the delay in filing of Appeal is not condoned,
they will be thrown out of the Court, which will cause serious
prejudice to the interests of the State.
03/    The respondent has resisted and controverted the application
of the Appellants, chiefly on the grounds that the delay in filing the
appeal is reckoned at one and a half years and no reasonable
ground has been urged in the application and, therefore, on the face
of it, non application of mind and mismanagement is apparent, as a
sequel to which, the application deserves to be dismissed. The
respondent    further has stated that the applicant - State, at every
point of time, when the order/judgement is passed by the Hon'ble
Court, first sits over the judgement for months together and when the
aggrieved person/s decide to initiate the contempt proceedings, the
State wakes up from the deep slumber and instead of complying
                      3

with the orders of the Hon'ble Court, it comes up with the
applications seeking condonation of delay and such move is adopted
only to delay the justice to the aggrieved person/s.
04/ It is further stated by the respondent that the applicants-
appellants have, intentionally mentioned the date of judgement,
sought to be appealed against, as 27-05-2017, when as a matter of
fact, it is 27-05-2016, which tantamounts to suppression of actual
facts. It is further stated by the learned counsel for the respondent
that the applicants - appellants have taken more than one and half
years to form an opinion for filing of the appeal and sitting on the
judgement for so long a time, is unconstitutional, unjustified and
unreasonable. It provides a sufficient      cause to raise the finger
against the appellants - applicants. The time so taken is only to
mislead the Hon'ble Court and delay the justice supposed to be
meted out to the aggrieved. It is further stated that it is the settled
position of law that the applicant has to show sufficient reason and
has to explain each and every day's delay in filing the appeal within
the period stipulated by the law and the attempt of filing of the
application for condonation of delay       with the mere intention of
saving itself from contempt proceedings is bound to fail. The
respondent has finally prayed that the application seeking
condonation of delay in filing the appeal deserves to be dismissed
with heavy costs.
05/ Heard and considered.
06/ It cannot be disputed that the Law of Limitation has to be
applied with all its vigor and rigor as prescribed by the Statute. One
cannot escape the consequences of section 5 of the J&K Limitation
Act Samvat 1995, which provides that for the extension of the period
of limitation in a given case, the condition precedent is that the
applicant or the appellant has to satisfy the Court that he/she has
                        4

carved out a sufficient cause in seeking the assistance of the Court
for not preferring the Appeal or Application within the stipulated
time. The State cannot, as a matter of rule, take umbrage under the
plea that it has to be treated on a different pedestal in the matter of
the extension of time for filing the Appeal/Application. No doubt,
some latitude may be warranted to be given to the State promoting
social justice but it cannot escape the liability of satisfying the Court
that the Appeal was filed with due diligence. The Courts cannot
come to the aid and rescue of the State where the application for
condonation of delay does not spell out sufficient cause and the
approach of the State, in making such application, is casual and
cryptic.
07/ Testing the application of the Applicants on the touch stone of
the law, governing the subject, it will be profitable to quote
paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC),
herein below, in verbatim :
     "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR
     1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:
            "Law of limitation may harshly affect a particular party
            but it has to be applied with all its rigor when the statute so
            prescribe and the Courts have no power to extend the
            period of limitation on equitable grounds. The discretion
            exercised by the High Court was, thus, neither proper nor
            judicious. The order condoning the delay cannot be
            sustained. This appeal, therefore, succeeds and the
            impugned order is set aside. Consequently, the application
            for condonation of delay filed in the High Court would
            stand rejected and the Miscellaneous First Appeal shall
            stand dismissed as barred by time. No costs."
     8.     In another case, the Hon'ble Supreme Court, while deliberating
     upon the question of condonation of an inordinate delay of 264 days on an
     application preferred by the Government, has observed as under:
            "2. This special leave petition filed on November 16, 1993
            is delayed by 264 days. For quite some time in the past this
            Court has been making observations as to the grave
            prejudice caused to public interest by appeals brought on
            behalf of the Government being lost on the point of
                         5

              limitation. Such observations have been made for over a
              few years in the past. But there seems to be no conspicuous
              improvement as is apparent in the present petition which is
              filed in November 1993. The explanation for the delay, had
              better bet set out in petitioner's own words:
              ..........................................

..........................................

3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

08/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 505 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to file the LPA. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows :

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, 6 Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases." 09/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

..................

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

....................

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

                                (M.K. HANJURA)               (ALOK ARADHE)
                                               JUDGE              ACTING CHIEF JUSTICE
 Tariq MOTA
 SRINAGAR.
 01-06-2018
                                         8

HIGH COURT OF JAMMU AND KASHMIR-
                                              SRINAGAR

            Case No: COD(LPA) 349/2017                                   Dated : 01st of June 2018
            STATE OF J&K &ORS                        VERSUS               NAZIR AHMAD SHAH
                                     ORDER SHEET
            CORAM:
            HON'BLE           MR. JUSTICE ALOK ARADHE- ACTING CHIEF JUSTICE
            HON'BLE           MR. JUSTICE M. K. HANJURA- JUDGE
            i.       Whether to be approved for
                     reporting in NET :                       Yes/No.
            ii.      Whether to be approved for
                     reporting in Digest/Journal :            Yes/No

            FOR THE APPLICANT/s :   MR. SAJAD AHMAD (GA)
            FOR THE RESPONDENT/s: . MR. M.A.QAYOOM
            (PER HANJURA-J)




           01/     The applicants - appellants have filed this application seeking

the indulgence of this Court in condoning the delay of 315 days in filing the Appeal, against the judgement dated 17-11-2016 of this Court, passed in SWP 632/2014, inter alia, on the grounds that immediately after the copy of the said judgement was received by the applicants - appellants, the same was perused in the Head Officer along with the claim of the petitioner. The matter was taken up with the administrative department vide letter dated 14-12-2016. The administrative department took up the matter with the department of Law, Justice & Parliamentary Affairs for seeking instructions/advice. It is stated that the matter, thereafter, tossed from one table to the other and ultimately the department of Law, Justice & Parliamentary Affairs decided that the remedy of appeal be availed to assail the order/judgement of the Hon'ble Court. It is further stated that in terms of letter dated 26-07-2017, sanction was accorded for filing of the appeal against the judgement dated 17-11-2016 and the learned AAG was asked to file the appeal. The petitioner has proceeded to state that the learned AAG, took her own time in examining the judgement/order 9 and vide letter dated 12-09-2017, informed the department of Law, Justice & Parliamentary Affairs, about her inability to deal with the case on the ground that she has appeared as a counsel for the respondent in a contempt petition, and accordingly, requested for engagement of some other counsel to pursue the appeal. 02/ It is further stated that after considering the request of the learned AAG, the department of Law, Justice & Parliamentary Affairs, vide letter dated 16-10-2017 accorded sanction to the engagement of a Government Advocate (GA) to prepare the appeal in order to challenge the judgement dated 17-11-2016. The learned GA on receipt of the sanction, took up the matter with the Irrigation & Flood Control Department, vide his letter dated 21-10-2017 requesting them to provide the certified copy of the judgement dated 17-11-2016 along with the entire writ record. On receipt of the letter of the learned GA, the needful was done. However, after sifting the entire writ record, it was found that the reply/objections, filed in opposition to the writ petition by the respondents therein, were missing. In terms of yet another communication, the matter was taken up with the Irrigation & Flood Control Department, who after taking their own time, came up with the said reply/objections, which were then examined and the Letters Patent Appeal was prepared. It is stated further that the entire procedure consumed a lot of time and in the process delay was caused. However, it is stated that the delay has neither been deliberate nor intentional and the same be condoned because of the reasons well explained in the application. In the end, it is prayed that the application for condoning the delay in filing the appeal against the order/judgement dated 17-11-2016, passed in SWP 632/2014 be allowed.

03/ Learned counsel for the respondent has resisted and controverted the application of the Appellants, chiefly on the grounds that no reasonable ground has been pleaded in the application for the condonation of the delay in filing the appeal. It is stated that the order dated 17-11-2016 was served upon the respondents - applicants herein, by post and they were obliged to comply with the same within a period of four months from the date copy of the order was received by them. However, the order of the Court was not implemented and the applicants rendered themselves liable for contempt. In the contempt, the respondents - applicants, were put on notice and on 13- 10-2017, Mr. Javed Sathoo, GA, appeared on behalf of the applicants and sought two weeks time to file the Statement of Facts. It is stated that despite opportunity, needful was not done. Therefore, the Hon'ble Court, in terms of order dated 16-11-2017, directed the respondent No.2 to appear in person.

04/ It is further contended by the respondent that the applicants examined the order dated 17-11-2016 in the Head Office and the matter was taken up with the administrative department vide letter dated 14-12-2016 for further course of action. The administrative department took up the matter with the Law, Justice & Parliamentary Affairs Department, who gave its opinion that the appeal is the remedy and sanction was, accordingly, granted vide order dated 26- 07-2017 to file the Letters Patent Appeal against the order dated 17- 11-2016. However, it is not known as to why the decision for filing the appeal was not taken within the period of limitation. Regarding the assignment of the case to the learned AAG, it is stated that nothing is shown by the applicants as to why it took two months for the AAG, i.e. 26-07-2017 to 12-09-2017, to inform the Secretary to Govt., Law, Justice & Parliamentary Affairs Department, about her inability to appear in the case. It is stated further that such an approach on the 11 part of the applicants portrays how casual they have been in filing the application. It is also stated that on receipt of letter dated 12-09-2017 from the AAG, it took another month for the applicants to appoint the Government Advocate (GA) to file the appeal and no explanation whatsoever is provided in the application to justify such a delay. It is also pleaded that it is not known as to why, in terms of the letter dated 21-10-2017, the learned GA, sought a certified copy of the judgement dated 17-11-2016 besides the entire writ record, when the fact remains that the copy of the judgement was already served on the applicants by the respondent - petitioner in the writ petition. The respondent has further stated that the law for seeking condonation of delay is well settled. The applicant/s have to give an account for each and every day's delay in filing the appeal within the period prescribed by the law. In the premises it has been stated that in this view of the matter, the application seeking condonation of delay in filing the appeal, being legally untenable, deserves to be dismissed.

05/        Heard and considered.
06/        It cannot be disputed that the Law of Limitation has to be

07/ Testing the application of the Applicants on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim :

"7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

8. In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:

"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:

..........................................

3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present 13 and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

08/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 315 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to file the LPA. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows :

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, 14 has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases." 09/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

..................

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

....................

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

10/ Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the application appears to have been drafted recklessly without giving a proper account as to why such a delay was allowed to happen. The sequence of the events followed by the dates that prompted the State to file the appeal after a long delay had to be accounted for to satisfy the Court 15 that the delay in lodging of appeal was neither willful nor deliberate. This has not been done. The application projects a pretty dismal account. The dates and events portrayed in it reflect that the matter has been dealt with freedom and ease. What gets revealed further from the perusal of the objections of the respondent is that the application is a camouflage devised by the applicant - State to scuttle the contempt proceedings initiated by the respondent against it and that the State, after rising from a deep slumber, took resort to these proceedings simply to hoodwink the process of the law initiated against it to seek the implementation of the order of the Court in a contempt petition. 11/ Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 315 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.

                             (M.K. HANJURA)          (ALOK ARADHE)
                                          JUDGE          ACTING CHIEF JUSTICE
 Tariq MOTA
 SRINAGAR.
 01-06-2018
                             16




HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR

 Case No: CONDL NO.236/2016                            Dated : 01st of June. 2018
 STATE OF J&K & ORS               VERSUS        MOHAMMAD RAFIQ BHAT & ORS
                         ORDER SHEET
 CORAM:
 HON'BLE           MR. JUSTICE ALOK ARADHE - ACTING CHIEF JUSTICE
 HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
 iii.    Whether to be approved for
         reporting in NET :                  Yes/No.
 iv.     Whether to be approved for
         reporting in Digest/Journal :       Yes/No

 FOR THE APPLICANT/s :   MR. B.A.DAR, Sr. AAG

FOR THE RESPONDENT/s: . M/S. R.A.JAN, Sr.ADV. WITH MS. SHARAF WANI (PER HANJURA-J) 01/ The State of J&K, through Financial Secretary, Home Department, Civil Secretariat, Srinagar, has filed this application seeking the indulgence of the Court in condoning the delay of 640 days in filing the Appeal, against the judgement dated 31-12-2014 of this Court, inter alia, on the grounds that immediately on the receipt of the copy of the said judgement on 06-01-2015, the Armed Police Head Quarters (APHQ) took up the matter with the PHQ on 19-01-2015 and on the same day, after ascertaining the factual position of the matter, a report was submitted. However, the PHQ, vide its letter dated 23-02-2015, sought certain information, as a consequence of which, the matter was taken up with the DIG, CKR, Srinagar, in terms of letter dated 20-03-2015 and the information, sought for, was directly sent to the PHQ with an intimation to the APHQ. It is further stated that, subsequently, the PHQ, vide its letter dated 01-09-2015, sought some clarification, as a result of which, the DIG, CKR, Srinagar, being the Chairman, Range Level Recruitment Board, was yet again 17 requested by the APHQ to provide the requisite clarification, who filed the same along with the statement of facts of DIG, Traffic, Srinagar, (the then DIG, CKR, Srinagar).

02/ It is further stated that vide letter dated 16-09-2015, the applicants-appellants took up the mater with the PHQ again, who sought further clarification on the ground that the report submitted by APHQ does not serve any purpose. It is further stated by the applicants

- appellants that the relevant record from the DIG, CKR was called for and after discussing the matter in the light of the said record, a factual report along with clarification was prepared and submitted to the PHQ. It is also stated that on 24-03-2016, the matter was deliberated upon before the designated Committee of PHQ, where the remedy of appeal against the judgement dated 31-12-2014 of this Court was recommended.

03/ It is also stated by the applicants - appellants that vide letter dated 28-04-2016, the PHQ requested the Administrative Department (Home Department), to accord sanction for filing the LPA against the judgement. Upon consideration, the Home Department sought fresh details for filing the LPA. Finally the matter was referred to the Department of Law, Justice & Parliamentary Affairs, who accorded sanction to the filing of the LPA vide its communication dated 24-08- 2016. Thereafter the matter was referred to the learned AAG for preparation of the LPA and the information/material, required to do the needful, was provided to him vide letter dated 01-12-2016. It is further stated that the delay, caused due to the procedure enumerated above, is neither intentional nor deliberate and the same was beyond the control of the applicants -appellants. It is further stated that the appeal is strong on merits and the applicants are sure to succeed in it. In the end it has been prayed that in order to safeguard the interests of the applicant - department, the Court, in exercise of its discretionary 18 powers, be pleased to condone the delay in filing the appeal, so that the same is considered on merits.

04/ In their objections, the respondents have resisted and controverted the application of the Appellants, chiefly on the grounds that the delay of about 02 years in filing the LPA, is on the face of it, completely sub-silentio with regard to the requisite details and particulars to support the cause of delay. As per the own version of the applicants - appellants, the copy of the judgement dated 31-12-2014, which is sought to be appealed against, was received by the Department on 06-01-2015 and the appeal is filed in the month of November, 2016. However, there are no particulars/details available, which are sine quo non for maintaining the application for condonation of delay. Apart from red tape, no sufficient cause is disclosed to invite the attention of the Court to condone the delay. The application being cryptic and there being no ground, much less a sufficient one, for the condonation of delay, the application is liable to be dismissed. In the objections, it is further stated that the plea of the applicants-appellants that they have a strong case on merits is falsified and belied by the fact that there has been no contest on the part of the answering respondents in the writ petition itself as is evident from the paragraphs 8 & 10 thereof that the entire selection process undertaken by the applicants - appellants was afflicted by large scale bungling, thereby the entire selection was vitiated. Learned counsel has further stated that although the applicants - appellants have stated that the judgement was perused at different levels and the same was referred to the Law Department that directed the filing of appeal, yet there is nothing to state as to when the applicants - appellants were advised to file the Appeal. In the face of what has been stated above, it is prayed that the application for condonation of delay deserves to be dismissed with costs as the same is bereft of any merit or substance and the applicants 19

- appellants have miserably failed to disclose any cause let alone a sufficient one, which can warrant indulgence of the Court to exercise the powers vested in it under section 5 of the Limitation Act, to allow the same.

05/    Heard and considered.
06/    It cannot be disputed that the Law of Limitation has to be

applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant or the appellant has to satisfy the Court that he/she has carved out a sufficient cause in seeking the indulgence of the Court for not preferring the Appeal or Application within the stipulated time. No doubt, some latitude may be warranted to be given to the State promoting social justice but it cannot escape the liability of satisfying the Court that the Appeal was filed with due diligence. The Courts cannot come to the aid and rescue of the State where the application for condonation of delay does not spell out sufficient cause and the approach of the State, in making such application, is casual and cryptic. 07/ In order to find out whether or not the appellants - State has been remiss and callous in seeking the condonation of delay in filing the LPA, it is reiterated here that the appellants have stated in the Application that the copy of the order/judgement was perused at various levels to derive satisfaction on the count whether the Appeal has or has not to be filed. It has also been stated that the entire record was sent to the Department of Law, Justice and Parliamentary Affairs, and the said Department accorded sanction to the filing of such Appeal. 08/ Testing the application of the Applicants on the touch stone of the law, governing the subject, it will be profitable to quote 20 paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, verbatim :

"7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:

..........................................

3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even 21 with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

09/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 640 days in filing the LPA and no satisfactory explanation has come forward in this regard except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellants took their own time to formulate an opinion that the Appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows :

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition.

The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

4/ We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.

....................

6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."

10/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

....................

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

11/ Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the explanation 23 offered for the delay in filing the Appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving proper details of the grounds agitated in it. Recourse has been had to the leisure and pleasure in moving the application. Delay cannot be condoned on a mere asking. The principle that adjudication of a lis on merits is seminal to the judicial dispensation system cannot form the base line of condoning delay. If it shall be interpreted in that context then the Limitation Act has to be wiped off from the Statute.

12/ Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 640 days in filing the Appeal against the judgement and order dated 31-12-2014 of this Court, passed in SWP 961/2009, as a corollary to which, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.

                               (M.K. HANJURA)         (ALOK ARADHE)
                                          JUDGE          ACTING CHIEF JUSTICE
 Tariq MOTA
 SRINAGAR.
 01-06-2018
                            24

 HIGH COURT OF JAMMU AND KASHMIR-
                                 SRINAGAR
 Case No: SWP 139/2009                                      Dated : 05th of June, 2018
 JAVED HUSSAIN DAR                       VERSUS                     STATE AND ORS.
                        ORDER SHEET
 CORAM:
  HON'BLE      MR. JUSTICE M.K.HANJURA- JUDGE
 i.     Whether to be approved for
        reporting in NET :                      Yes/No
 ii.    Whether to be approved for
        reporting in Digest/Journal :           Yes/No

FOR THE PETITIONER/s :               MR. H.SUHAIL ISHTIAQ
FOR THE RESPONDENT/s: .              MR. B.A.DAR, Sr.AAG



 01/    By the medium of this writ petition, a writ of Certiorari is

sought for dismissal of order bearing No. 2256 of 2005 dated 10-10-2005, issued by respondent No.3 - Senior Superintendent of Police, Srinagar, and order No. 182/2006 dated 07-06-2006, issued by the respondent No.2 - Inspector General of Police, J&K, Srinagar, in an appeal filed by the petitioner. Mandamus is also sought to command the respondents to re-instate the petitioner in the respondent department with all consequential benefits as admissible under rules. 02/ The brief facts, essential for arriving at a just conclusion in the matter, are that the petitioner was initially appointed as a Constable in the J&K Police Department vide order No. 757 of 1998 dated 29-10- 1998. It is stated that the petitioner was discharging his duties with utmost dedication. However, the respondents, without following the provisions as envisaged under the J&K Police Rules and without providing him an opportunity to defend himself, removed the 25 petitioner from service vide order No. 2256 of 2005 dated 10-10- 2005.

02/ Aggrieved by the order aforesaid, which is impugned herein, the petitioner filed an appeal against it, but it is stated that no decision thereon has been taken or communicated to the petitioner even after making repeated enquiries. The petitioner filed yet another appeal as the record pertaining to the earlier one was misplaced. Again no decision was taken on the appeal by the respondents although it was obligatory upon them to do so in terms of the mandate of the Police Rules. It is stated further that the petitioner came to know just a few days back that his appeal has been rejected by the respondent No.2 vide order dated 07-06-2006, which too is questioned in this writ petition.

03/ The orders impugned have been challenged on the grounds inter alia that the same have been passed without appreciating the relevant facts and the legal provisions in their proper perspective. The petitioner has further stated that the orders aforesaid have been passed without following the mandatory provisions of Rule 359 of the Police Rules. No evidence was recorded in presence of the petitioner after he denied the summary of allegations. The petitioner was not even provided the opportunity to cross examine the witnesses nor was his reply to the Charge Sheet entertained and appreciated. It is further stated that since the petitioner was a permanent employee of the 26 respondent department, he could not have been discharged from service without holding an enquiry in accordance with the rules and law. The petitioner has further stated that since he had pleaded not guilty to the summary of allegations served upon him, therefore, it was incumbent upon the Enquiry Officer concerned, in terms of Rule 359(4) of the Police Rules, to record the evidence if any available against him. The petitioner had also to be provided an opportunity to cross examine the witnesses. But unfortunately neither any evidence was recorded nor was any opportunity provided to him to cross examine the witnesses. It is further stated that the Enquiry Officer has not followed the mandatory provisions of Rule 5 of the Police Rules and has arbitrarily and without recording any evidence, as mandated by sub rule 5 of Rules 359 of the Police Rules, framed the charge sheet against the petitioner. It is also contended that in terms of Rule 359(6)(7) of the Police Rules, sufficient opportunity had to be provided to the delinquent official to produce defence evidence but no such option was given to the petitioner. Even the provisions of the Evidence Act had to be seriously followed by the Enquiry Officer while holding the enquiry as the same is mandatory in terms of Rule 360 of the Police Rules. However, the punishment of termination of service was imposed upon the petitioner without recording any evidence and without providing him the opportunity of hearing to prove his innocence. The petitioner goes further to say that the appeals 27 filed against the order of termination have been dealt with arbitrarily and without giving due consideration to the facts and legal aspects of the matter. The petitioner has further stated that his alleged absence, constituted an offence punishable under section 30 of the Police Act, and sanction of the District Magistrate was, thus, to be obtained before initiating the Departmental enquiry against him, which has also not been done in the case on hand. In this view of the matter, it is prayed that since the orders impugned have been passed in hot haste and without application of mind, the writ petition deserves to be allowed and the orders impugned herein need to be set aside & quashed.

04/ The respondents have filed the reply affidavit. It is stated therein that the writ petition is not maintainable as the orders impugned do not suffer from any malice or legal infirmity and the challenge thrown to the orders is totally misconceived and misdirected. The petition is time barred and is hit by the principle of delay and latches. It is further pleaded that the petitioner has not come to the Court with clean hands and has miserably tried to mislead the Court by misrepresentation of facts.

05/ It is further contended in the objections that no cause of action has accrued to the petitioner against the impugned orders and, therefore, he has no right or locus standi to challenge the same. It is further stated that the writ petition raises disputed questions of fact, 28 which cannot be adjudicated upon by this Court. The orders impugned do not suffer from any illegality as the same have been issued by the competent authority strictly under law. It is further stated that the petitioner was appointed by the respondent - department in the year 1998 and nothing extraordinary is revealed by his Service Book to depict that his conduct and work has been full of dedication, zeal and honesty. As a matter of fact his conduct has been irresponsible as he absented himself unauthorizedly w.e.f 06-02-2005. He was placed under suspension vide order dated 07-12-2005 and a departmental enquiry, headed by the SP, City, East Zone, Srinagar, was conducted against him. It is further stated that although a lenient view was taken and the petitioner was ordered to be reinstated into the service yet he again absented himself unauthorizedly for a period of 365 days and the Enquiry officer recommended his discharge from service. It is also stated that before passing the order of dismissal, the petitioner was provided ample opportunity to defend himself, which he miserably failed to do. The respondents have further stated that the summary of allegations was served upon the petitioner to which he pleaded not guilty. However, he did not, thereafter, make himself available before the Enquiry Officer and again indulged in gross misconduct, which made it manifestly clear for the respondents to believe that he is not interested in serving the respondent - department, resultantly, the orders impugned were issued. The 29 respondents have submitted further that in view of what has been stated hereinbefore, the writ petition is bound to fail on merits, and the Court may be pleased to dismiss the same with costs.

06/    Heard & considered.

07/    From the perusal of the record, which has been made available

to this Court, it can be seen from a naked eye that no enquiry, whatsoever, as provided under the rules, appears to have been conducted in the matter. The petitioner has been shown the exit by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. The petitioner appears to have made all attempts to persuade the authorities that his absence from duty was not willful and deliberate. An opportunity of being heard is the 'sine-qua-non' of every enquiry and in case of any departure, reasons justifying so have to be spelt out. The principles of natural justice appear to have been violated with impunity in this case. The defence of the petitioner has been shut by deception and the conduct of a full dressed enquiry has been given a complete go-bye.

08/ Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 09/ In 'AIR 2005 SC 2090', Canara Bank v. V. K. Awasthy, the Hon'ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under:

"10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence.

"Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".

Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond." 10/ Rule 359 of the Jammu and Kashmir Police Manual, running under the head Procedure in Departmental Enquiries under the cover of which the order of discharge has been passed, provides as under:

"359. Procedure in Departmental Enquiries - (1) The following procedure shall be followed in departmental enquiries: -

a) The enquiry shall, whenever, possible be conducted by a Gazetted Officer empowered to inflict a major punishment upon the accused officer. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (Vide order No. 636-C dated 27-6-1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, however, may be passed only by 31 an officer empowered to inflict a major punishment upon the accused police officer.

(2) The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.

(3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forth with to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.

Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.

When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution.

(4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered, however, to bring on to the record the statement of any witness whose presence cannot in the opinion if such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall -

a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or 32

b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring offices. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.

(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers.

(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazette officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purposes of sub-rule (4) above.

(10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.

(11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply :-

a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge,

b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.

(3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer to reduce him in rank, as the case may be, shall be final."

11/ What comes to the fore from the above rule is that the procedure for imposing the major penalty, i.e. the order of discharge here in this case, involves:

i. The delivery of a charge sheet;

ii. Appointment of an enquiry officer;

iii. Providing opportunity to the delinquent official to submit his defence and to be heard;

iv. The enquiry where oral and documentary evidence is produced by both sides;

v. The preparation of a report after the conclusion of the enquiry and forwarding of the same to the disciplinary authority (where the disciplinary authority is not itself the enquiring Authority);

vi. Action on the enquiry report by the Disciplinary Authority; vii. Notice to the delinquent official to show cause on the penalty proposed;

viii. Meaning of the order imposing penalty; and ix. Communication of the orders.

12/ In case titled 'Jehangir Ahmad Mir v. State of J&K', reported in '1998 SLJ 134', this Court had the occasion to examine the range, limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read with Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Indian Constitution and it held as under:

"It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed.

This position is supplemented by the police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee.

Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Thereafter depending upon the denial if any made by the delinquent, the enquiry officer was required to proceed to record such evidence as would be available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so."

13/ An almost identical view has been taken by this Court in the case of 'Ghulam Mohammad v. State of J&K', reported in '1998 SLJ 273', the relevant excerpts of which are reproduced below, verbatim et literatim:

"Rule 359 of Police Rules postulates two-fold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the charge sheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. The charge sheet depicts that a communication was sent to the petitioner and was provided an opportunity to question the witnesses which he did not but it does not indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside.

The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police Rules. Sub rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the sub-rules. The said sub-rule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/ officer.

After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written statement in his defence after the conclusion of the evidence in defence."

14/ In view of the aforesaid enunciations of law, the condition precedent for initiating a disciplinary action against a police officer/ 36 official is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules 337 and 359 has been followed. Any deviation thereof will render the order imposing penalty bad and liable to be set aside.

15/ In 'Ghulam Ahmad & Ors. v. Sr. Superintendent of Police', reported in '1988 JKLR 1367', although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of Rule 359 of the Jammu and Kashmir Police Manual had not been complied with while conducting the enquiry and, therefore, the Court opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law.

16/ In 'Syed Hussain v. State of J&K & Ors.', reported in '1988 JKLR 1047', where a Head Constable had been removed from services after conducting an enquiry, but without issuing the show cause notice to him against the proposed punishment, the Court came to the following conclusion:

"10. From the reading of this rule petitioner was to be given an opportunity of showing cause against the proposed action against him. This course can be dispensed with if he was found guilty on a criminal charge which led to his conviction or the officer competent to punish him could have recorded in writing that it was not reasonable to give the person an opportunity of showing cause or when it is not practicable for the security and interest of the state.

11. In the instant case petitioner was not convicted by a criminal court nor had the punishing authority recorded his reasons as to why he did not give show cause notice against the proposed punishment nor was it mentioned that it is not in the interest and the security of the state. Therefore, he was entitled to be given a show cause notice against the proposed punishment under Rule 359 (11) (2) of the J&K Police Manual Vol. II that has not been given. As such order of dismissal suffers from serious infirmity and cannot be sustained in the present form."

17/ The record placed by the respondents before this Court does not make even a whisper to state that any inquiry was conducted into the matter. There is no evidence on record to state and show that the statements summarizing the alleged misconduct on the part of the petitioner has been read over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down to conduct an enquiry in the rule cited above does not appear to have been followed at any stage, as a consequence of which, the impugned order of discharge cannot survive and sustain in the eyes of law. Not only this, the requirement of section 126(2) of the State Constitution read with article 311 of the Constitution of India which contemplate conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry have been done away with in this matter. Section 126(2) of the State Constitution provides for an additional safeguard of a second Show Cause Notice regarding the proposed punishment to be imposed, which has been followed in breach in the instant case.

18/ Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a consequence of which, the impugned order bearing No. 1037 of 2002 dated 16.10.2002, is quashed.

19/ The Respondents shall, however, be free to hold a regular enquiry against the petitioner strictly in accordance with the provisions of the Jammu and Kashmir Police Manual. However, since a lot of water has flown down the Jehlum, since the date of passing of the order of the discharge of the petitioner, therefore, if the Respondents decide to hold any enquiry, the same shall be initiated and brought to its logical conclusion, as far as practical, within a 38 period of two months from the date the copy of this order is served on them. The quashment of the impugned order as above shall not entitle the petitioner to claim any salary/ remuneration or wages during the period he was out of service. The Respondents shall deal with this issue after the final report of the enquiry is received by them and shall decide the same in view of the conclusions drawn by the enquiry Officer.

20/ The writ petition along with connected MP(s) is disposed of as above.

21/      Record be returned back.
TARIQ Mota
SRINAGAR.
  -06-2018                                      (M.K.HANJURA)
                                                           JUDGE
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                             46

 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: SWP 1510/2015                                     Dated :      of May, 2018
 ISMA BASHIR                             VERSUS                       STATE AND ORS.
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 iii.    Whether to be approved for
         reporting in NET :                       Yes/No
 iv.     Whether to be approved for
         reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s :                MR. M.A.QAYOOM
FOR THE RESPONDENT/s: .               MR. A.M.MIR, Dy. AG



 01/     By the medium of this writ petition, the petitioner seeks the

indulgence of this Court in issuing a writ of Certiorari for setting aside the communication bearing No. ZEO/IDD/6425 dated 01-04-2015, annexure (k4), issued by respondent No.4, which has the effect of disqualifying the petitioner from being selected/appointed as Rehbar-i-Taleem (ReT). A writ of Mandamus is also sought to direct the respondents to take on record the Permanent Resident Certificate (PRC) of the petitioner issued by Tehsildar, Eidgah, Srinagar, on 25-06-2015. A further prayer is made to direct the respondents to select/appoint the petitioner to the post of ReT in view of her merit position.

02/ The brief facts, essential for the disposal of this writ petition, are that the petitioner responded to the advertisement notice dated 21-08-2014, issued by the respondent No.4, for filling up the post of ReT, that had fallen vacant in the Primary School, Bangladesh-B, in 47 revenue village Takanwari Pora, Eidgah, Srinagar. The cut off date for filing the application forms was prescribed as 10 days from the date of the publication of the advertisement notice. Besides other documents, the application forms were to be accompanied by the State Subject Certificate and Permanent Resident Certificate issued by the Tehsildar concerned. The petitioner has stated that at the time of publication of the advertisement notice, i.e. on 25-08-2014, she was having the State Subject Certificate but not the PRC. However, she had submitted an application before the Tehsildar concerned for issuance of the PRC in her favour, which was under process at the relevant point of time. It is further stated that immediately after obtaining the PRC, the same was produced before the respondents but they declined to entertain the same. The petitioner has further stated that it was only after taking resort to the RTI Act that she came to know that the respondents had received only 07 application forms for filling up the post of ReT. The merit list had also been prepared where the petitioner appeared to have obtained 54.71 points and figured over & above all the candidates. However, it is stated that to the dismay of the petitioner, her candidature was rejected on the ground that she had not annexed the PRC with her application form and had also not responded to the notification issued by the respondents in the daily Aftab informing her to do the needful within six days from the date of publication of the notification. Petitioner has 48 further stated that the panel of 03 candidates, viz. respondents 5,6&7 herein, even though they were inferior in merit than that of the petitioner, was submitted by the respondent No.4 to the respondent No.3, for their engagement as ReT in Primary School, Bangladesh-B. 02/ The petitioner has further stated that the respondent No.3, in the light of order No. 641-DSEK of 2015 dated 16-03-2015, issued by the respondent No.2, returned the said panel to the respondent No.4. The respondent No.4, however, refused to obey the said order on the ground that the post had been advertised in August, 2014 and the panel was submitted in March, 2015. It was also mentioned that the petitioner had been disqualified due to the deficiency of PRC, which she had not produced within the stipulated time.

03/ The petitioner has also stated that the respondents have not finalized the selection process of filling up the post of ReT as yet. She states further that she had not annexed the PRC with the application form but had attached her State Subject Certificate with it. She has further stated that when the PRC was issued in her favour, it was mentioned in it that the same is issued on the basis of the State Subject Certificate already issued in her favour by the Deputy Commissioner, Srinagar. The petitioner has further stated that she cannot be excluded from the zone of consideration for her selection/appointment to the post of ReT when, as per the merit list, she figures at S.No.1. She cannot be deprived of the 49 selection/appointment to the post in question merely on the ground that she had not produced her PRC along with her application form,. She further states that as a matter of fact, in terms of the PRC issued in her favour by the Tehsildar concerned on 25-06-2015, it was stated therein that the State Subject Certificate of the petitioner be treated as PRC. The petitioner has further stated that since the respondents, have refused to take on record her PRC and have also declined to consider her case for selection/appointment to the post of ReT, therefore, the impugned order dated 01-04-2015, issued by the respondent No.4, deserves to be set aside, being contrary to equity, fair play and good conscience.

04/ The respondents have filed the reply affidavit in which it is stated that the writ petition is not maintainable and deserves to be dismissed as none of the legal, constitutional or statutory rights of the petitioner have been violated by the respondents. It is further pleaded that the petitioner has not come to the Court with clean hands and has suppressed the material facts from this Court.

05/ It is further contended in the objections that the application form submitted by the petitioner was found deficient and she was informed through print media to report to the respondent office within 06 days, failing which her application form will be rejected. It is further pleaded that in terms of the advertisement notice dated 21-08- 2014, applications were invited from the eligible candidates having 50 10+2 qualification or above from the revenue village, Takanwari Pora, Eidgah, Srinagar, for the engagement to the post of ReT with further stipulation that no application form will be entertained after the cut off date which was fixed as 04-09-2014. It was clearly mentioned in the basic advertisement notice that, besides other documents, the application forms must be accompanied by PRC/Non migration Certificate by the concerned VEC, and the State Subject Certificate. It is further pleaded that the petitioner had not appended the PRC with her application form, which necessitated rejection of the same. However, it was felt necessary to provide a chance to her to do the needful and produce the PRC before the respondents within six days from the publication of the said notice, so that her case for being selected/appointed is taken forward, which she failed to do, leaving the respondents with no option but to reject her application form and proceed with the process of selection of ReT in Primary School, Takanwari Pora, Eidgah. The respondents have finally prayed that the contentions and submissions made in the writ petition by the petitioner, being contrary to what has been stated by them in their objections, the writ petition is liable to be dismissed.

06/    Heard & considered.
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                            54

 HIGH COURT OF JAMMU AND KASHMIR-
                                 SRINAGAR
 Case No: SWP 2090/2015                                 Dated :      of May, 2018
 MOHAMMAD SALIM DARZI & ANR                  VERSUS               STATE AND ORS.
                        ORDER SHEET
 CORAM:
 HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 v.     Whether to be approved for
        reporting in NET :                     Yes/No
 vi.    Whether to be approved for
        reporting in Digest/Journal :          Yes/No

FOR THE PETITIONER/s :               MR. HILAL AHMAD WANI
FOR THE RESPONDENT/s: .              MR. M.A.WANI, Sr.AAG

01/ The petitioner, by medium of this writ petition, seeks a writ of Certiorari for quashing and setting aside of the orders bearing NOs. 581 DRDK of 2015 dated31-08-2015, DRDK/Estt/9752 dated 29-06- 2015 & RD/Legal/49/2015 dated 14-08-2015 Writ of mandamus is also sought for directing the respondents to promote the petitioners as Panchayat Inspectors Grade-II/Plantation Rangers and BDOs retrospectively from the date, the private respondents have been promoted.

02/ The facts that are essential for arriving at a just conclusion in this matter are that in the year 1998, the petitioners were appointed as Village Level Workers (VLW) in the Rural Development Department. In terms of J&K Rural Development Department Subordinate Service Recruitment Rules 2007, which provides 5% quota from VLWs having the Post Graduate Diploma in the Rural Development Department (PGDRD), they were entitled for the 55 promotion to the post of Panchayat Inspectors - Grade-II/Plantation Rangers. The petitioners have further stated that, contrary to the said rules, the answering respondents have issued the promotion orders of the private respondents by considering the seniority of the employees from the date of passing of Post Graduate Diploma in Rural Development and in the process, they have completely ignored the petitioners. The petitioners, feeling aggrieved, filed a representation before the authorities, which has been rejected.

02/ The short grievance, as projected by the petitioners in this petition, is as to whether seniority for promotion to the post of Panchayat Inspector Grade-II/Plantation Ranger is maintained from the date of initial appointment of the employee or from the date of passing of PGDRD, which is the required eligibility for the post. 03/ The petitioners have further stated that without appreciating the legal position, the respondent have issued the impugned orders, by dint of which their case for promotion to the post of Panchayat Inspector Grade-II/Plantation Ranger and thereafter for Block Development Officer has been rejected. It is further stated that the petitioners have qualified their Post Graduate Diploma in Rural Development Department in June, 2000 and December, 1999 respectively. It is stated further that the private respondents 3-4, have been promoted as Panchayat Inspector Grade-II and Incharge BDO in the years 2009 & 2014.

04/ The petitioners, by the medium of SWP 169/2015, have already sought indulgence of the Hon'ble Court for commanding the respondents to promote them to the post of Panchayat Inspector Grade-II/Plantation Ranger, and the Court was pleased to dispose of the same with the direction to the respondents therein to take a decision in the matter in light of the rules aforementioned. The petitioners have further stated they non compliance of the said order, constrained them to file the contempt petition against the respondent

-department. While on notice in the contempt petition, the respondents, immediately took a decision and rejected the claim of the petitioners in terms of order No. 851 DRDK of 2015 dated 31-08- 2015, impugned herein, on the grounds, inter alia, as to whether the seniority of the employees of the department, for the purposes of promotion to the next higher position, has to be determined from the date of their initial appointments or from the date of acquiring the qualification of PGDRD, for which 5% quota has been reserved and if the former holds the field, in that eventuality, whether the promotion of the private respondents is in accordance with the statutory rules or not. It is further stated that in terms of the recruitment rules, the post of Panchayat Inspector Grade-II/Plantation Ranger is to be filled up 5% by way of promotion from amongst the employees having diploma in Rural Development & 75% from the general seniority of VLWs and 20% from the graduate VLWs, meaning thereby that the seniority of 57 the diploma holders in Rural Development will be determined from the date they have acquired their diploma. The petitioners have further stated that the rule has itself created three classes of VLWs, viz. graduate VLWs, general VLWs and diploma VLWs and in each class the seniority has to be reckoned from the date when the required eligibility is acquired. It is further stated that the respondents have failed to maintain the seniority list of these different categories of VLWs. They have also failed to maintain the different categories, thereby, depriving the petitioners of reaping this benefit. The petitioners have finally prayed that the writ petition be allowed and the impugned order be quashed and set aside.

05/ The respondent 1&2 have filed the objections, wherein the maintainability of the writ petition has been questioned on the doctrine of issue preclusion. It is stated that the petitioners have earlier also filed a writ petition (SWP 169/2015) on the same cause and they are guilty of suppression and concealment of the material facts before the Court, which is enough to entail dismissal of the writ petition in limine. Respondents have contended that the claim of the petitioners has been considered in terms of the order dated 06-02-2016 of this Court, passed in the SWP 169/2015, leading to the issuance of the order dated 31-08-2015, impugned herein. Respondents have further stated that the petitioners were appointed as VLWs in the months of August & October, 1998 respectively and the respondent No. 5 was appointed as VLW on 14-09-1990. The respondent No.5 being the senior most VLW, besides having the PG Diploma in Rural Development, was placed as Incharge Panchayat Inspector vide order 58 dated 01-10-2011. Thereafter, on the basis of his seniority, outstanding performance & PG diploma in Rural Development, the Departmental Promotion Committee (DPC) accorded sanction for his promotion against the post he was holding vide its order dated 08-07-

2014. The respondent No.6, having the requisite qualification/eligibility and having completed the prescribed tenure of service was also promoted as Panchayat Inspector on 02-12-2009 by the DPC. It is further stated that the petitioners had completed only 11 years of service at the relevant point of time and the criteria for being eligible for promotion to the post of Panchayat Inspector is 13 years, viz. 08 years in the pay scale of Rs.3050-4910 and 05 years in the pay scale of Rs. 4000-6000. Respondents have further stated that the well settled principal of law is that no employee can claim the promotion as a matter of right. The answering respondents considered the case of the petitioners and found that they are not entitled for promotion to the post of Panchayat Inspector/Planation Ranger Grade - II under 5% quota because they (the petitioners) were lagging behind in seniority, which is a sine qua non for being promoted. The respondents have submitted that keeping the above averments in view, the writ petition deserves to be dismissed in limine.

04/     Heard & considered.
                             59

 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: SWP 463/2014                                      Dated :       of May, 2018
 SHEERAZ AHMAD RATHER                     VERSUS                      STATE AND ORS.
                         ORDER SHEET
 CORAM:
 HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
 vii.    Whether to be approved for
         reporting in NET :                      Yes/No
 viii.   Whether to be approved for
         reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s :                MR. M.ASHRAF WANI
FOR THE RESPONDENT/s: .               MR. B.A.DAR, Sr.AAG



 01/     The petitioner, by medium of this writ petition, seeks a writ of

Certiorari for quashing the selection of the private respondents selected under the RBA category to the post of Constables in the J&K Executive Police in district, Kulgam. Writ of mandamus is also sought for commanding the respondents to select and appoint the petitioner on the post of Constable in the J&K Executive Police pursuant to the advertisement Notice NO. PERS-A-21/2010/14804-903 dated 07-04-2010 under the RBA category.

02/ The facts that are essential for arriving at a just conclusion in this matter are that the petitioner, who belongs to RBA category, responded to the advertisement Notice bearing No. PERS-A- 21/2010/14804-903 dated 07-04-2010, issued by the respondent No.2, whereby applications on prescribed forms, from the permanent residents of J&K, for filing up the posts of constables in J&K Executive Police were invited. The petitioner has further stated that he 60 fulfilled all the conditions and criteria provided in the advertisement notice for being selected/appointed on the said post. It is further stated that the petitioner successfully completed the physical as well as the outdoor test conducted by the respondents. The height test of the petitioner, which is a prerequisite for being selected/appointed as Constable, was also conducted and it was found that the petitioner's height is 5' x 8" and the chest is 32" (unexpanded) and more than 33" (expanded). It is stated that keeping in view the above criterion, the petitioner was most desirable, meritorious and best suited to be selected and appointed to the post of Constable in the Executive Police. It is stated further that the petitioner earned 26 marks/points, i.e. 15 marks/points for academic qualification of graduation and 11 marks/points for height.

02/ It is further stated that the Armed Police hqrs., J&K, Jammu, vide order No. 51 of 2011 dated 10-02-2011, issued a select list of constables for the districts Anantnag, Kulgam, Pulwama and Shopian and all the selected candidates were directed to report to the Inspector General of Police, Kashmir, Srinagar, along with their testimonials/additional qualification/professional certificates within 15 days. Petitioner has further stated that he has obtained the 26 points/marks in the RBA category, which is the lowest cut to be obtained in district Kulgam. However, in case of tie between the candidates, the elder one (senior in age) is to be selected. The 61 petitioner being senior in age than the private respondents ought to have been selected/appointed, but to his utter dismay, same was not the case. The petitioner was not selected. It is further stated that the petitioner approached the respondents enquiring about the cause of the denial of his selection to the post of constable, even though he was meritorious, but to his utter dismay and surprise, he was told that he had not annexed the RBA certificate with the application form. The petitioner has stated further that the fact remains that apart from making mention in the application form that he belonged to the RBA category, he had also attached photocopy of the same with the application form. Besides, at the time of filing of the application form, the annexures to the application form were checked by the respondents and then only the application was entertained. The petitioner has further stated that the RBA category certificate has been illegally removed from the application.

03/ It is stated further that denial of consideration to be selected for the post of Constable under the RBA category has infringed the rights of the petitioner guaranteed to him under articles 14 & 16 of the Constitution of India as envisaged under Reservation Act. The petitioner has further stated that the respondents have not reflected in the advertisement notice the total number of posts to be filled up, thereby it becomes their discretion and they get unbridled power to make appointments, which makes the advertisement notice itself bad 62 in law. The petitioner has finally prayed that the writ petition be allowed and the prayer granted.

04/ The respondent NOs. 1 to 4 have filed the objections, wherein the maintainability of the writ petition itself has been questioned as it does not disclose any legitimate cause of action having accrued to the petitioner. It is stated in the objections that none of the legal or constitutional rights of the petitioner have been violated in any manner whatsoever. The petitioner has pleaded mixed disputes as well as pure questions of fact, which cannot be adjudicated upon by this Court. The petitioner has neither annexed his RBA certificate with the application form nor has he produced the same before the Recruitment board, therefore, his case was treated in the open merit category, where he trailed behind as the cut off merit in the open merit category is 27 points/marks. The petitioner having obtained only 26 points/marks, did not qualify for being selected to the post of Constable in the J&K Executive Police. It is further stated in the objections that the reason for not mentioning the number of posts to be filled up in the advertisement notice is that the recruitment process takes a pretty long time and there is always chance that some more posts become available either by way of promotions or creation of such posts by the Government. It is further stated that the petitioner has not challenged the advertisement notice prior to filing of his application or before participating in the recruitment process. The 63 respondents have finally prayed that the writ petition, being meritless, deserves to be dismissed in limine.

04/     Heard & considered.




TARIQ Mota
SRINAGAR.
   -05-2018                                     (M.K.HANJURA)
                                                          JUDGE
                             64

 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: B.A. 68/2018 & CRMC 156/2018                       Dated : 21st of May, 2018
  ARYAN SHAM & ORS         VS.        STATE THROUGH I/C POLICE POST IMAM SAHIB SHOPIAN
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 ix.     Whether to be approved for
         reporting in NET :                      Yes/No
 x.      Whether to be approved for
         reporting in Digest/Journal :           Yes/No

FOR THE APPLICANT/s :             M/S. J.IQBAL, ATEEB KANT & MUDASIR BIN HASSAN
FOR THE RESPONDENT/s:             M/S. M.I.DAR, AAG & SANA MAJID



01/     In this Application, the applicants seek the grant of                 bail in

their favour in F.I.R No. 40/2018 dated 17-01-2018, registered against them at Police Station, Imam Sahib, Shopian, for the commission of offences u/s 409/420/506/34 RPC on the grounds, inter alia, that bald and unsubstantiated allegations have been levelled against them by the complainant - Gulzar Ahmad. It is further stated that the complainant has involved all the family members of the applicant No.2, with whom he (the complainant) has entered into a business venture for the supply of apple fruits amounting to Rs. 2,52,80,555/-. It is stated that these family members, which include the wife and the two sons of the applicant No.2, have nothing to do with the said business. The complainant has alleged that the accused fled away after liquidating a liability of Rs.1,00,00,000/- (rupees one crore) only through periodic payments leaving the outstanding of an amount of Rs. 1,52,80,555/-. The applicants have stated that this allegation formed the base line of registering the F.I.R against them. It is further stated that the applicant No.1 is just 24 years of age and is studying in the Amity International Business School. He got arrested from Noida and was taken into custody along with the applicant No.2.

02/ The applicants have further stated that the concerned police authorities, without checking the veracity of the statement of the complainant, have assumed it as a gospel truth and have painted the applicants with the same brush. It is further stated that the police concerned have erred in registering the F.I.R as there is nothing to indicate that the applicants have cheated and induced the complainant dishonestly to deliver the consignment of apple fruits to them. The complainant has admitted that he was paid rupees one crore by the applicant No.2, therefore, the ingredients of cheating are missing in the complaint as the intention of deception must be clear from the very inception of any business venture and before the delivery of the property. It is further stated that to hold a person guilty of cheating, it is incumbent upon the complainant to show that the accused had fraudulent or dishonest intention from the very beginning of making any promise, more so, the complainant has himself stated that the other fruit growers were also in the business with the applicants. 03/ The applicants have proceeded to state that they have approached the Hon'ble Court on 24-04-2018 through CRMC No. 156/2018 in which the operation of the F.I.R No. 40/2018 has been stayed and, therefore, the police has become functus officio. Thus, the accused having the right to presume innocence, the grant of bail, in the background of principle of presumption of innocence, is the rule and jail is an exception. The applicants have finally prayed that the Bail Application be allowed and they be enlarged on bail as their antecedents are clean and they have never been convicted, besides the applicant No.1 is a prospective student, studying in the Amity International Business School.

04/ In the objections filed by the respondent it is stated that the applicants are residents of Jehrol, Kotgarh, Shimla, and are the proprietors of Himachal Fruit Co., Dhalli, Shimla. They approached the 66 complainant in the month of September, 2017 for running a business venture of apple fruits, projecting their business turn over to be in crores. The accused induced the complainant to enter into the business. Having good faith, the complainant sold the apple fruits to the accused for an amount of Rs. 2,52,80,555/-, having been assured by the accused that the money will be liquidated in full within the shortest possible time. In this regard an amount of Rs.1/- crore (rupees one crore) was paid leaving behind the outstanding of an amount of Rs. 1,52,80,555/- which amount, on one pretext or the other, has not, so far, been paid to the complainant. So much so, the accused, after duping and deceiving the complainant, fled away from their temporary residence at Shopian. It is further stated that after recording the statements of the witnesses u/s 161 Cr.PC and after acquainting themselves with the facts and circumstances of the case, the investigation was set in motion by the police authorities and necessary formalities were completed. The accused No. 1 was arrested on 31-03-2018 and the accused No. 2 was arrested on 19-04-2018. Both the accused applied for grant of bail before the Court below in Shopian, which was rejected. The accused persons approached the Hon'ble High Court u/s 561-A Cr.PC and the Hon'ble Court issued the interim order staying the operation of the F.I.R No. 40/2018 with the direction to the respondents not to take coercive action against the accused - applicants. It is stated further that the accused have not come to the Court with clean hands as they have suppressed the fact that a bail application is pending before the Court below at Shopian. It is further stated that both the accused persons are presently on judicial remand.

05/ The respondents have further stated that the accused, while working in tandem, have willfully defrauded the complainant of an amount of Rs. 1,52,80.555/-. The accused are involved in the 67 commission of non bailable offences, which carries the punishment of life imprisonment and, therefore, they cannot claim bail as a matter of right. It is further stated that the accused reside outside the State and in case they are granted bail, there is every apprehension that they may not be available for facing trial before the competent Court. It is also stated that the accused/applicant No.2 is a habitual offender and is also involved in F.I.R No. 46/2018 of Police Station, Shopian, for similar a kind of allegation which is under investigation. In the end it is prayed that the instant bail application of the accused/applicants be rejected.

06/     Heard and considered.
07/     The settled position of law as evolved by the Supreme Court in

a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of "bail or jail" in non-bailable offences Court has to utilize its judicial discretion, not only that, as per the settled law the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principles as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure 68 their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

08/ The word "judicial discretion" has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable.

09/ Testing at the instant application from the above perspective there appears to be no reasonable ground for declining bail to the applicants. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek the attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicants have been languishing in the jail for a long period by now. They have to prepare for their defence which is of essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot get swayed by sentiments. The temper and passion have no role to play in exercising the discretion for the grant of bail.

10/ The contention of the learned counsel for the respondents that an offence u/s 409 RPC is met with a punishment of life imprisonment or 10 years and, therefore, the accused - applicants should not be admitted to bail, is spurious and spacious. Law is lucid and clear. Death or imprisonment for life is one punishment and imprisonment for life or imprisonment for a lesser term is another punishment. These two punishments cannot be equated together and treated on par. It is only in cases where the punishment provided be death or imprisonment for life that bail can be withheld and in all other cases, grant of bail is the rule and its refusal an exception. The further detention of the applicants is absolutely unnecessary now and cannot be directed in a case like the present one.

11/ In view of the preceding analysis, the applicants are admitted to bail, in case bearing F.I.R No. 40/2018 dated 17-01-2018, registered at Police Station, Imam Sahib, Shopian, u/s 409/420/506/34 RPC, and 70 they shall be released from custody provided they furnish a personal bond to the tune of Rs. 50,000/- each with a surety of the like amount each to the satisfaction of the Station House Officer (SHO), Police Station, Shopian, on the following terms and conditions:-

(i) That they shall present themselves before the Court, as and when asked to do so ;

(ii) that they shall not tamper or intimidate the prosecution witnesses.

12. A copy of this order shall be sent to the trial Court, with utmost dispatch.

13/ The application is, accordingly, disposed of, along with connected MP. The CRMC No. 156/2018, clubbed with this application, is segregated and shall be listed on its own. TARIQ Mota SRINAGAR.

 21-05-2018                                                  (M.K.HANJURA)
                                                                         JUDGE
                             71

that when the innocents are subjected to unnecessary prosecution and humiliation, the inherent jurisdiction has to be exercised by the Courts. The complaint filed against the applicants, even if taken to be correct on its face value, still it would not make out a cognizable offence as very vague allegations have been made against the applicant No.2 and his family, who are not even remotely associated with his business. The complaint does not inspire any confidence and same has been filed just to humiliate and pressurize the applicant No.2. Applicants have further stated that the allegations levelled in the complaint make it purely a civil dispute as it relates to the transactions, as the complainant has himself admitted to have received some payment and there has been some outstanding, therefore, the allegations of cheating and criminal breach of trust are not maintainable because an attempt has been made to give it a criminal touch. The applicants have stated further that it is unimaginable that when the family of the applicant No.2 are not even remotely related to his business, how the police has charged all of them u/s 34 RPC. In order to attract section 34 RPC, establishing prior meeting of mind is necessary, whereas the complaint does not suggest or establish the common interest. The applicants have further stated HIGH COURT OF JAMMU AND KASHMIR-

                                  SRINAGAR
 Case No: COD 382/2014                                            Dated : 17th of May, 2018
  RAFIQ AHMAD WANI                        VERSUS              GHULAM MOHAMMAD DAR
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 xi.     Whether to be approved for
         reporting in NET :                          Yes/No
 xii.    Whether to be approved for
         reporting in Digest/Journal :               Yes/No

FOR THE APPLICANT/s :                    MR. F.A.WANI
FOR THE RESPONDENT/s: .                  MR. Z.A. QURESHI, Sr. ADV.



01/     By the medium of this                  application the applicant seeks the

indulgence of this Court in condoning the delay of 363 days in filing the Civil 1st Appeal (C1A), against the decree/judgement dated 21st of April, 2012, passed by the learned 3rd Additional District Judge, Srinagar, in a Suit bearing File No. 23/Civil, titled Ghulam Mohammad 72 Dar versus Rafiq Ahmad Wani, on the grounds, inter alia, that the applicant - Appellant (respondent in the Suit), in the wake of the judgement passed in the Suit, engaged a lawyer for filing an appeal in the Hon'ble High Court, who did not institute the appeal in time, which resulted in undue delay. It is further stated that the delay caused in filing the appeal is neither deliberate nor intentional as the applicant - Appellant had, well in time, entrusted the case to the advocate to enable him to file the appeal against the decree of the Court below but for the reasons known to him, he did not institute the appeal well within the statutory period. The applicant - Appellant has further stated that the counsel, on one or the other pretext, mislead him till such time that he came to know that the appeal has not been filed. The applicant - Appellant has further stated that there are substantial grounds to maintain the appeal and if the application for condonation of delay is not allowed, he will be deprived of the right to defend his case. Finally the applicant - Appellant has prayed that the application for condonation of delay be allowed so that the appeal against the decree of the Court below is instituted.

03/ Objections to the maintainability of the application for condonation of delay, have been filed by the respondent. It has been stated that the only reason given by applicant - Appellant for the delay caused in filing the appeal is that he had entrusted the job to the advocate and had provided him the certified copy of the judgement/decree passed by the Court below, which had to be appealed against. It is stated that the decree has been passed on 21-04-2012 whereas the appeal has been preferred in the month of August, 2014. The respondent has further stated that there is a huge delay of more than two years in filing the appeal. It is further stated that it is no where reflected in the application for condonation of delay as to when did the applicant - appellant obtain the copy of the decree/judgement and who 73 was the counsel, whom the job of filing of the appeal was assigned. It is also not reflected anywhere in the application as to what were the reasons that made the applicant - appellant to wait for such a long time. The respondent has stated that the settled position of law is that each and every day of delay is to be explained by the applicant/s seeking condonation of delay. The respondent has further stated that the applicant - appellant has not made any mention in the application as to on which date he came to know that the appeal has not been filed by his counsel and what further steps he took to do the needful. The respondent has stated further that the application being vague merits dismissal.

04/     Heard and considered.
05/     It cannot be disputed that the Law of Limitation has to be

06/ Testing the application of the Applicant on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim : "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."8.

In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:.................................................................................... 3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

07/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 363 days in filing the appeal and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the applicant/s but in the instant case the applicant took his own time to come to the conclusion that an application for condonation of delay for 75 filing the appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows:

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

4/ We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay..................... 6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."

08/ Resort can also be had to an elaborate and a lucid judgement of the Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................31.Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

09/ Risking repetition, what is stated here is that the applicant has been negligent in prosecuting his claim within time and the explanation offered for the delay in filing the appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving a proper account of the dates and details of the grounds agitated in it and to cap it all, recourse has been had to the leisure and pleasure in moving the application.

10/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :

"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.3. Sufficient cause for the delay clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."

12/ Viewed in the context of what has been said and done above, the Court is of the considered opinion that the applicant has failed to explain the delay of 363 days in filing the application for condonation of delay for filing of the appeal. Consequently, the application for Condonation of Delay, is dismissed as barred by time.

TARIQ Mota SRINAGAR.

17-05-2018                                        (M.K.HANJURA)
                                                           JUDGE
                             78

 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: COD 517/2014                                       Dated : 16th of May, 2018
  GHULAM MOHAMMAD BHAT & ORS              VERSUS         MOHAMMAD YOUSUF BHAT & ORS
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 xiii.   Whether to be approved for
         reporting in NET :                     Yes/No
 xiv.    Whether to be approved for
         reporting in Digest/Journal :          Yes/No

FOR THE APPL-APPEL/s :                MR. SHOWKAT ALI KHAN
FOR THE RESPONDENT/s: .               MR. N.H.SHAH



01/      By the medium of this application, the applicants seek the

indulgence of this Court in condoning the delay of 437 days in filing the Civil 1st Appeal (C1A), against the judgement dated 25th of March, 2013, passed by the learned 1st Additional District Judge, Baramulla, in a Suit bearing No. 07/Numbri, titled Abdul Aziz Bhat versus Mohammad Yousuf Bhat & others on the grounds, inter alia, that the applicants - Appellants (legal heirs of the plaintiff - Abdul Aziz Bhat) were not aware about the passing of the judgement dated 25-03-2013 as the Suit was filed by their father, who after falling ill for about a year, died in January, 2014. It is stated by the applicants - Appellants that from the month of January, 2013, their father (plaintiff in the Suit) could not attend the case in the Court below nor could he approach his counsel in time because of the ailment aforesaid, and he had no knowledge of the passing of the impugned judgement. It is further stated that the applicants - Appellants were not fully aware of the pendency of the case before the trial Court and had no proper information about the same though they had some idea that their father was attending the case in the Court below himself. This goes without saying that during the period of ailment of the plaintiff, the applicants - Appellants were extremely busy in looking after their father in the 79 hospitals. The applicants - Appellants have further stated that the appellant No.1, without having sufficient knowledge of the case filed by his father, tried to acquaint himself with the fate of the Suit, but could not locate the lawyer till the month of August, 2014. The applicants - Appellants did not even know about the last date, when the Suit was listed before the Court of 1st Additional District Judge, Baramulla, and ultimately dismissed.

02/ The applicants - Appellants have further stated that the delay, caused in filing the appeal, is neither deliberate nor intentional but they acquired the knowledge of the dismissal of the Suit at a belated stage in view of the fact that the Suit was filed by their father and was even persued by him only. However, they lost the track of the proceedings due to his prolonged illness and death, which consumed a considerable period of time. Having regard to the attending facts and circumstances of the case, the applicants - Appellants have prayed that the delay of 437 days in filing of the appeal be condoned.

03/ Objections to the maintainability of the application for condonation of delay, have been filed by the respondent No.1. It has been stated that the applicants - Appellants have miserably failed to project a plausible cause to justify the delay in filing the application and the same being misconceived and devoid of merit, entails dismissal. The respondent has further stated that the delay caused in filing the application is not condonable as the fact situation in the case has considerably changed which cannot be retrieved. It is further stated that the plea of non location of the Suit as contended by the applicants - Appellants, does not hold any water as no concrete explanation has been put forth to support the contention. The settled position of law is that the applicants - Appellants have to be extra vigilant in pursuing the case, which in the present case is missing. There has been willful and deliberate negligence on the part of the applicants - Appellants to 80 file an appeal against the judgement of the Court below and, therefore, the application seeking condonation of delay in filing the appeal, cannot be allowed, and deserves to be dismissed.

04/     Heard and considered.
05/     It cannot be disputed that the Law of Limitation has to be

06/ The judgement assailed in the appeal has been passed on 25-03-2013 in presence of the counsel, representing the parties. The plaintiff in the Suit was admitted to the hospital on 18-01-2014 and he died on 24-01-2014 as is brought to the fore from the perusal of annexure-(A) attached to the application, which is an in-patient ticket of Government SMHS Hospital, Srinagar, placed on record by the applicants-appellants themselves. There is no other material on record to substantiate the contention of the applicants-appellants that their father was in a bad condition of health from the date of the delivery of the judgement till such time that he was hospitalized. 07/ Testing the application of the Applicants on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 81 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim : "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."8.

In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:.................................................................................... 3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

08/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 437 days in filing the appeal and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the applicant/s but in the instant case the applicants took their own time to come to the conclusion that an application for condonation of delay for filing the appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows: 82

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

09/ Resort can also be had to an elaborate and a lucid judgement of the Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................31.Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

10/ Risking repetition, what is stated here is that the applicants have been negligent in prosecuting their claim within time and the 83 explanation offered for the delay in filing the appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving a proper account of the dates and details of the grounds agitated in it and to cap it all, recourse has been had to the leisure and pleasure in moving the application.

11/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :

"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.3. Sufficient cause for the delay clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."

12/ Looking at the application of the applicant from another angel, the only exception that he has taken in the application in carving out a case in his favour is that the applicants - Appellants were not fully aware of the case before the Court below, which was being taken care of by their father, plaintiff therein, and they were busy in tending their father, who had fallen ill. The law is that a party has to be vigilant in the Court proceedings. It is the duty and responsibility of the party/s to contact his/her lawyer on every date. One cannot state that he/she was remiss and negligent in not attending the Court on the appointed date. The applicants have been callous in prosecuting the case and they have knocked at the doors of the Court after a great deal of time. There is a delay of 437 days in filing the appeal and the applicants have filed the 84 application after rising from a deep slumber. During this period, they did not, at all, take pains to enquire about the fate of the case. 13/ Viewed in the context of what has been said and done above, the Court is of the considered opinion that the applicants have failed to explain the delay of 437 days in filing the application for condonation of delay for filing of the appeal. Consequently, the application for Condonation of Delay, is dismissed as barred by time.

TARIQ Mota SRINAGAR.

16 -05-2018 (M.K.HANJURA) JUDGE 85 86 87 HIGH COURT OF JAMMU AND KASHMIR-

                                 SRINAGAR
 Case No: SWP 588/2005                                     Dated :      of May, 2018
 ASSADULLAH BHAT                          VERSUS                     STATE AND ORS.
                        ORDER SHEET
 CORAM:
 HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 xv.    Whether to be approved for
        reporting in NET :                      Yes/No
 xvi.   Whether to be approved for
        reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s :               MR. M.ASHRAF WANI
FOR THE RESPONDENT/s: .              MR. B.A.DAR, Sr.AAG



 01/    The petitioner, by medium of this writ petition, seeks a writ of

Certiorari for quashing the order bearing No. 1732/90 dated 12-12-1990, passed by respondent No.3 - Senior Superintendent of Police (SSP), Srinagar. Writ of mandamus is also sought for commanding the respondents to reinstate the petitioner on the post of Constable from the date of his termination and pay him all consequential benefits.

02/ The facts that are essential for arriving at a just conclusion in this matter are that the petitioner was initially appointed as a Constable in the J&K Police vide order dated 16-06-1982. It is stated by the petitioner that while rendering the service to the absolute satisfaction of the immediate authorities, he came to be arrested by the Security Forces on 08-02-1990 on frivolous and false charges and was kept in illegal custody of the respondent - State for more than 05 years without disclosing the whereabouts during the entire period of 88 his illegal custody. It is further stated that the petitioner was subjected to repeated interrogations in different interrogation centres during the period of his disappearance and ultimately, on the intervention of various Human Rights Organizations and International Red Cross Committee, his whereabouts were disclosed by the respondents. It is further stated that the respondents revealed that the petitioner was booked in F.I.R No. 29/97 & 11/95 and was detained, subsequently, under the provisions of the Public Safety Act (PSA), 1978. In the year 2005, the petitioner was released from the preventive custody. Immediately thereafter the petitioner approached to the respondent No.3 for joining his duties but he was not allowed to join his services and instead he was informed that his services stand already terminated. It is stated further that when repeated requests, for providing the copy of the order of termination to the petitioner, did not yield any result, he was compelled to approach this Court by medium of writ petition (SWP 238/2005), seeking a direction to the respondents to command them to provide the copy of the order of termination to the petitioner. the Hon'ble Court was pleased to allow the prayer of the petitioner vide its order dated 30-03-2005 and the respondents were directed to furnish a copy of the order of termination to the petitioner. It is further stated that due to the continuous detention of the petitioner coupled with the delay on the part the respondents to provide the copy of termination order to the petitioner, 89 he could not approach the Court in time to assail the order of termination of his service impugned herein. The petitioner has stated that the delay caused in challenging the said order is neither deliberate nor intentional but it happened due the unavoidable circumstances which were beyond his control.

02/ The order of termination is challenged inter alia on the grounds that it is illegal , unlawful and unconstitutional as the same has been passed under art. 126(2)(b) of the J&K Constitution on the plea of gross misconduct. The allegation of gross misconduct, being a serious allegation, requires to be determined by conducting a proper enquiry ordained by law. The order of termination having been passed without holding proper enquiry in the matter, is violative of the principal of natural justice and the mandate of article 311 of the Constitution of India. It is further stated that dispensing with the requirement of holding an enquiry on the ground that the prevailing conditions in the State of J&K, more particularly, in the valley of Kashmir, do not warrant to exhaust such a necessary option, is totally unjustified and uncalled for as the fact remains that anyone, who was terminated by the respondent department on the ground of misconduct right from 1990 till date, was given an opportunity of being heard by holding proper enquiry into the respective allegations levelled against them. However, the petitioner has been deprived of the benefit of the procedure established by law and has been singled out with mala fide 90 designs by the respondent No.3. It is reiterated by the petitioner in the petition that his conduct from the time of his inception into the service till date has remained flawless and quite satisfactory and nothing incriminating has ever been found against him. This aspect of the matter, in the case of the petitioner, has been given a complete go bye, which amounts to violation of the mandate of article 14 of the Constitution of India and, therefore, the impugned order of termination is patently illegal and deserves to be quashed. It is further stated that the rights and interests of the petitioner have been put to prejudice as there was no material available before the respondents to reach to the harsh conclusion of terminating his services. It is further stated that barring the allegation of being absent from duties from February, 1990, on account of his arrest, there was no other charge, at all, against the petitioner.

03/ The petitioner has further stated that the respondent have on the one hand terminated his services on the ground of being unauthorizedly absent and on the other hand the order of termination has been based on the allegation of gross misconduct of the petitioner. Thus, it is manifestly clear that there has been clear non application of mind on the part of the respondents while issuing the impugned order of termination. The petitioner has further stated that no Show Cause Notice was ever issued to him nor was he served the charge sheet to explain his position with respect to his absence or for 91 that matter to answer the allegation of misconduct. He has further stated that his absence from duty has neither been willful nor deliberate. It is further stated that the impugned order of termination is based on no material of whatsoever nature and the satisfaction of not holding an enquiry cannot be assumed unless there is cogent material before the competent authority to arrive at a conclusion that the enquiry is not practicable in the circumstances of the case. In the end it is prayed that in view of what has been stated above, the writ petition be allowed and the impugned order, being violative of the procedure established by law, be quashed and the respondents be further directed to reinstate the petitioner in service and pay him all the consequential benefits.

04/ The respondent No.3 has filed the counter affidavit, wherein the maintainability of the writ petition itself has been questioned. It is stated in the objections that the petitioner has assailed the order of termination after more than 14 years of its issuance. The petitioner has failed to avail an alternate efficacious remedy of review or appeal available to him against the termination order. It is contended in the objections that no cause of action has accrued to the petitioner against the impugned order and, therefore, he has no right or locus standi to challenge it. It is further stated that the writ petition raises disputed questions of fact, which cannot be adjudicated upon by this Court. The order impugned does not suffer from any illegality as it has been 92 issued by the competent authority strictly under law. It is further stated that the petitioner was appointed by the respondent - department in the year 1986 and not in the year 1982 as contended by the petitioner. He was placed under suspension vide order No. DAR/8/98858-62 dated 17-05-1990, when he absented himself from duty unauthorizedly. The respondents had no knowledge about the involvement of the petitioner in any criminal case nor did they knew anything about his arrest or release from the custody of security forces. The respondents have strongly pleaded the ground of latches and have stated that the petitioner has not been able to explain the delay by production of any material in support of his assertions. Respondents have further stated that the petitioner has absented himself at a time when his services were required the most for fighting the menace of militancy and the militancy which was at its peak in the valley, the holding of enquiry was not reasonably possible or practicable, therefore, same was dispensed with by the competent authority in exercise of powers vested in him. Besides no intimation or information was ever furnished to the respondent department by the relatives of the petitioner about his disappearance. In the end it is prayed that there being no legal infirmity in the impugned order of termination, the writ petition be dismissed.

04/     Heard & considered.
                             93

HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR

 Case No: SWP 2259/2017                                 Dated :      OF MAY, 2018
 S. K. MISHRA                VERSUS                UNION HOME SECRETARY & ORS
                         ORDER SHEET
 CORAM:
 HON'BLE           MR. JUSTICE ALI MOHAMMAD MAGREY- JUDGE
 HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
 iii.    Whether to be approved for
         reporting in NET :                     Yes.
 iv.     Whether to be approved for
         reporting in Digest/Journal :          Yes

 FOR THE APPELLANT/s :              M/S SHUJA-UL-HAQ & AIJAZ AHMAD BHAT - ADV.
 FOR THE RESPONDENTs                MR. T.M.SHAMSI, ASGI FOR RESP. 1
                                    MR. B.A.DAR, Sr,AAG FOR RESP.2&3
                                    MR. M.Y.BHAT WITH MR. RAHUL SHARMA FOR RESP.4
 (PER HANJURA-J)




01/      Impugned in this petition is the defensibility and pregnability

of the judgement dated 21-09-2017, passed by the learned Central Administrative Tribunal (CAT), Chandigarh, (Camp Court Jammu), in case titled S.K.Mishra versus Union of India and others bearing OA No. 061/00355/2017.

02/ In adumbrating and analyzing the facts leading to the filing of this petition, it need must be said that the CAT, Chandigarh, has given a vivid account of the facts in the judgement assailed in the appeal. These are that the petitioner is the senior most Indian Police Service (IPS Officer) of J&K, belonging to the 85 batch, whereas Shri S.P.Vaid, IPS - respondent No.4, belongs to the 86 batch of IPS. The petitioner, it is stated, was empaneled as ADG with 1985 batch officers by the Government of India, while as the respondent No.4 was dropped 94 and was not empaneled as such with his batchmates of 1986. The petitioner, it is stated, was illegally superseded by the respondent No.4, who is junior to him and he has been appointed by the official respondents as DGP vide order dated 28-12-2016, which is contrary to the law and which has the effect of bypassing the seniority. The petitioner, before passing of the impugned judgement, filed an OA bearing No. 061/00069/2017 before the CAT, Chandigarh, in which, by an order dated 24-01-2017, the competent authority was directed to consider and decide the representation dated 04-01-2017 by a speaking/reasoned order. In compliance thereof, the representation filed by him was considered and it was rejected by the competent authority vide order dated 23-02-2017, a copy of which is attached to the file. Aggrieved thereby, the petitioner challenged the legality of the impugned order before the CAT, Chandigarh, on the grounds, inter alia, that the selection of respondent No. 4 as DGP (HoPF), who is junior to him, was made without following proper procedure and the law of the land in a totally opaque manner to help him, giving a go bye to the judgement of the apex Court rendered in Civil writ petition No.310/1996, titled Prakash Singh versus Union of India and others decided on 22-09-2006 and the J&K Business Rules. The petitioner alleged that the Chief Secretary being the Cabinet Secretary, was required to issue a speaking order about the deliberations carried out in the Cabinet, the rules of business of preparing the Cabinet Note of 95 Memorandum, are stated to have been ignored by the respondents. The CAT, Chandigarh, after taking an over all view of the matter, determined the petition of the petitioner by directing that all important issues pleaded and urged by the petitioner in the OA have already been considered and decided by the competent authority in the right perspective and, therefore, there are no reasons, much less cogent, to interfere in the selection and appointment of the respondent No. 4 as DGP (HoPF), J&K State, in the obtaining circumstances of the case. The CAT, Chandigarh, further held that in the light of the aforesaid pragmatic reasons, there is no merit in the OA, which entails dismissal and is, accordingly, dismissed.

03/ The petitioner did not find favour with the judgement of the CAT, Chandigarh, and filed the petition before this Court, the nitty gritty of which is that the respondent No.4 came to be selected and appointed as DGP of J&K State. He challenged his appointment/selection in the OA No. 061/00355/2017 before the CAT, Chandigarh, (Camp Office Jammu), on the grounds, inter alia, that the order had been issued in violation of the J&K Business Rules buttressed with the direction extended by the apex Court in the judgement passed in the case titled Prakash Singh versus Union of India and others, besides being arbitrary, i.e. without considering the eligible candidates and also by selecting a person, who were ineligible for being selected as DGP in view of the fact that he was only 96 empaneled as IGP by the Ministry of Home Affairs on the said date and was junior to the petitioner. The said OA was considered by the CAT, Chandigarh, and vide order dated 24-01-2017, the respondents were directed to decide the representation dated 04-01-2017 by passing a speaking order. As a corollary to which, the respondent No.3 - Principal Secretary, Home Department, once again, in violation of the J&K Business Rules, on extraneous considerations and inconsistent reasoning, rejected the claim of the petitioner vide order bearing No. 134-Home of 2017 dated 23-02-2017. The petitioner challenged the said order in OA No. 061/00355/2017 before the CAT, Chandigarh, and in the interim application, the respondent NO.4 was restrained from exercising the administrative control/power over the petitioner in any manner. Subsequently, the CAT, Chandigarh, passed the judgement dated 21-09-2017, whereby, it, without considering the entire material on record in its right perspective and without appreciating the relevant law, rules and the judgement of the apex Court, dismissed the OA of the petitioner. the judgement impugned passed by the CAT, Chandigarh, is perverse and perfunctory as it has incorrectly appreciated the facts and circumstances of the case. On the one hand the CAT, Chandigarh, has admitted the case of the petitioner by restraining the respondent No.4 from exercising any administrative control over the petitioner and on the other hand, it has dismissed the OA filed by the petitioner. the CAT, Chandigarh, has not only erred in 97 holding that the case of the petitioner along with respondent No.4 was considered by the Cabinet but has also fallen in grave error in holding that the directions passed by the apex Court in the case of Prakash Singh were directory in nature and not mandatory.

04/ Under the cover and shade of the above facts, the petitioner implored for the grant of following reliefs :

"i) By issuance of writ, order or direction one in the nature of certiorari, the judgement impugned dated 21-09-2017 passed by the ld. Central Administrative Chandigarh (Camp Court Jammu) in the case titled S.K.Mishra versus Union of India OA No. 061/0035/2017.

ii) By issuance of writ, order or direction one in the nature of mandamus, the respondents 1 to 3 be commanded to promote the petitioner on the post of DGP (HoPF) w.e.f. 28-12-2016 and pay all the consequential service benefits as admissible under law and rules unto the petitioner.

iii) By issuance of writ, order or direction one in the nature of mandamus, the respondents 1 to 3 be commanded to give the same pay scale (i.e. Pay level 17 Matrix) unto the petitioner w.e.f. 28-12-2016 under the principle of law 'Next Below Rule.'

iv) That since the respondents 2&3 have committed willful breach of the law laid down by the Hon'ble Supreme Court in Prakash Singh's case as such contempt proceeding may be initiated against them and they may be punished under law. It is further prayed that the State Govt. be directed to implement the directions passed by the Hon'ble Supreme Court in Prakash Singh's case in letter and spirit till a proper legislation is made by the State on the subject."

05/ The respondent No. 1 has resisted and controverted the petition of the petitioner, inter alia, on the grounds that the DGP (HoPF) is a selection post, therefore, the direction of "Next Below Rule" is not applicable in the matter. The apex Court in its judgement dated 22-09- 2006 passed in Civil writ petition No. 310/1996, in the case of Prakash Singh and others versus Union of India and others, on the subject of Police Reforms, had, inter alia, directed that the selection to the post of DGP in the State be made amongst the three senior most officers, who 98 have been empaneled by the UPSC and fixing a minimum tenure of tow years for them irrespective of their dates of superannuation. It is further contended that the Union of India filed an Interlocutory application before the Hon'ble Supreme Court, seeking clarification/modification in respect of the direction relating to the tenure of DGP, pleading that the UPSC should not be involved in the selection of DGP and two years' tenure of the DGP should be subject to the date of superannuation as specified in the AIS (DCRB) Rules, 1958. It is further stated that while accepting the recommendations of the 6th Pay Commission, the Government has approved grant of apex scale of Rs. 80,000/- (fixed) by upgradation of one post of existing of DGs as DGP (Head of Police Force) in each State Cadre. The scale of Rs. 80,000/- is allowed only to the incumbent, actually holding the post of DGP (Head of Police Force). The said direction came into effect from the date of notification of IPS (Pay) Amendment Rules, 2008, i.e. 27-09-2008. The respondent No. 1 proceeded to state that the subject matter of promotion/fixation of pay of the IPS officers in different grades falls within the purview of the State Governments concerned and the Central government has nothing to do in such matters unless any of its rules or instructions have been challenged. The facts pertaining to the case of the petitioner are available with the respondents 2&3, i.e. Government of J&K. 99 06/ The respondents 2&3 have pleaded in their objections that the impugned order, passed by the CAT, Chandigarh, (Camp Court Jammu), does not suffer from any legal infirmity, inasmuch as, the challenge to it, both on facts and in law, is totally misplaced, misdirected and misconceived and as such the writ petition is liable to be dismissed on that score alone. It is further contended that the writ petition is devoid of any merit and is bound to fail. The impugned judgement/order, passed by the CAT, Chandigarh, is perfectly legal, justified and a reasoned one and as such is not open to challenge. It is further contended that neither the legitimate cause accrued to the petitioner to maintain the instant petition nor does the writ petition itself disclose the genuine cause of action having been accrued to the petitioner to maintain the writ petition. Respondents 2&3 have further stated that none of the fundamental, statutory or any other civil rights of the petitioner stand infringed by the answering respondents and as such the writ petition is not maintainable. The CAT, Chandigarh, has, in unambiguous terms, held that the petitioner's claim has indeed been considered by the competent authority in right perspective. The position of respondent No.4 as DGP (HoPF), J&K State has not been disturbed by the State. No injustice has been caused to the petitioner by the impugned order. He has tried to mislead the Court by contending that the CAT, Chandigarh, has, in its order, observed that the directions passed by the apex Court in Prakash Singh's case are directory in 100 nature and not mandatory. It is also pleaded in the objections that the selection/appointment of the respondent No.4 as DGP was taken by the State Cabinet after considering the entire service record, merit, eligibility, suitability and qualification of the persons/candidates falling in the zone of consideration and as such the decision of the State is based on subjective satisfaction of the State Cabinet, which, in its wisdom, after taking all the relevant factors into consideration, found the respondent No. 4 to be the most suitable person for the post of DGP. The factors which weighed before the State Cabinet while according consideration for the selection/appointment of DGP, cannot be questioned as it is not the matter falling in the domain of any other authority to go into the suitability of the selection/appointment of a person as DGP. It is sole prerogative of the State Cabinet and the State Government. They have to take a call in order to find out as to who is the most suitable person amongst the eligible persons to man the post, more particularly, in the State of J&K, in the present scenario coupled with the fact that the respondent NO. 4 has already remained/posted as Special DGP, Law and Order. Even otherwise also, how and under what circumstances, the petitioner is aggrieved by the decision of the State Cabinet for posting the respondent No.4 as DGP is not forthcoming from the record/pleadings, more particularly, when no such prejudice has ever been caused to the petitioner nor has he even whispered such thing in the OA filed by him before the CAT, 101 Chandigarh. It is also stated that the Government order No. 727-Home of 2016 dated 28-12-2016 was issued pursuant to the Cabinet decision No. 121/12/2016 dated 28-12-2016, which was neither questioned in the OA filed by the petitioner before the CAT, Chandigarh, nor has the same been questioned in the writ petition. In absence of any challenge to the aforesaid Cabinet decision, the subsequent challenge thrown to the aforesaid Government order or for that matter to the detailed consideration order issued by the competent authority on 23-02-2017 is bound to fail. It is further contended that due consideration to the merit, seniority, experience, suitability and qualification has been accorded by the Government of J&K for selection of the DGP (HoPF). The procedure adopted by the Government was transparent. The allegation that the impugned action is violative of article 16 of the Constitution of India has no substance in it. The selection/appointment of respondent No.4 as DGP, J&K, has been after following proper procedure and practice. The action taken by the State can neither be termed as mala fide nor arbitrary. These assertions are just a figment of imagination on the part of the petitioner. The appointment of respondent NO.4 is not against the mandate of the law laid down in the case of Prakash Singh. The reference in the judgement with regard to the Constitution/creation of State Security Commission in the State is not disputed. The functions of the State Security Commission is not to make the selection of the DGP but its area of jurisdiction is to frame the policy so as 102 mitigate the exercise of undue influence of the Government in the working of police and for the purposes of upholding the law and Constitution of the country. The consolidated guidelines issued by the Ministry of Personnel, Public Grievance and Pensions Department of Personnel and Training dated 24-07-2014 for evaluating suitability of IAS and other All India Services and Group-A Central Services for Holding Joint Secretary/equivalent post at the Centre, inter alia, provide that the empanelment should be considered not as a reflection of the intrinsic merit or otherwise of an officer but the suitability of an officer to occupy senior levels in the Central Government............ ... It is further stated by the respondent No.4 that the contents with regard to his posting as DGP, which according to the applicant was talk of the town, as alleged by applicant in his application, is fig of his own imagination and contrary to record. The assertion of the applicant that the judgment in Prakash Singh's case with regard to constitution/creation of State Security Commission in the State has not been complied with, is factually incorrect and denied vehemently. In this regard it is expedient to reproduce the part of the judgment pertaining to State Security Commission;

"32. State Security Commission:

(1) The state Government are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State Police and for laying down the broad policy guidelines so that the State Police always acts according to laws of the land and the 103 Constitution of the Country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to junction independent of the Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commissions, the Ribeiro Committee or the Sorabjee Committee, which are as under :

NHRC                                      Ribeiro Committee                   Sorabjee Committee
1.Chief Minister/HM as Chairman           1.Minister l/C Police         as    1.Minister I/C Police
                                          Chairman                            (ex-officio
                                                                              Chairperson)
2.Lok Ayukta, or, in his absence , a      2.Leader of Opposition              2.      Leader     of
retired Judge of High Court to be                                             Opposition.
nominated by 1 Chief Justice or a
Member of State Human Right
Commission.
3. A sitting or retired Judge Nominated   3.Judge, Sitting or retired         3.Chief Secretary.
by Chief Justice of High Court            nominated by Chief Justice of
                                          High Court
4. Chief Secretary                        4.Chief Secretary                   4.DGP (ex-official
                                                                              Secretary)
5.Leader of Opposition in lower House     5.Three Non-political citizens of   5.Five independent
                                          proven merit and integrity.         members
6.DGP as ex-officio Secretary             6.DG Police as Secretary            -------------

The recommendation of this commission shall be binding on the State Government.

The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented function of the Police, evaluation of the performance of the State Police and preparing a report thereon for being placed before the State Legislature.'' 07/ It is further contended in the objections that so far as the creation of Security Commission is concerned, it is clear from the judgment itself that the Security Commission is not meant for making the selections of the DGP's Head of the Police force, whereas the domain of the Security commission is to frame the policies so as to mitigate the influence of the Government in the working of the Police and for the purpose of upholding law and the Constitution of the Country. Respondent has further pleaded that so far as the contention of the applicant with regard to the empanelment is concerned, it is 104 submitted that the Consolidated Guidelines issued by the Ministry of Personnel, Public Grievance and Pensions Department of Personnel and Training, vide Circular No. 12/3/2008-E0(SMIII) (Part-II) dated 24.07.20] 4 for evaluating suitability of IAS and others All India Services and Group-A Central Services for Holding Joint Secretary / equivalent post at the center, inter-alia, provide that if is empanelment should be considered not as a reflection of the intrinsic merit or otherwise of an officer but the suitability of an Officer to occupy senior levels in the Central Government. Given the background and experience of an officer, he or she may suited to occupy senior positions in the State Government. Likewise, another officer, in view of the background and experience, may be considered more suitable for Central Government Post. It is further submitted that the Ministry of Home Affairs Government of India vide its letter dated: 6"' of February 2017 addressed to Respondent No. 2 has stated that Union of India has filed an interlocutory application before the Supreme Court seeking clarification/ modification in respect of directions relating to tenure of Director General of Police, pleading that UPSC should not be involved in the selection process of Director General of Police. The matter is presently pending before the Supreme Court. lIt is additionally informed in the said communication that as per Notification dated 27.09.2008 of DOP&T, only DGP (HOPE) is eligible for Apex Scale of Rs. 80, 000/(Fixed). In addition to above, as 105 per notification dated 18.10.2011 'of DOP&T, no ex-cadre post of DGP (HoPF) in Apex Scale of Rs.80,000/(fixed) shall be created. It has been further informed that grant of pay scale is related to performance of function attached to that post and as long as a person has not been appointed to that post, he cannot be deemed to have performed the functions thereof and by implication. In light of the aforementioned communication of Ministry of Home Affairs Government of India the argument of the applicant qua factum of representation by private Respondent for empanelment as ADGP and communication of State Government written to Ministry of Home Affairs in this regard and subsequent non consideration of the private Respondent carries no weight and meaning. Respondent No.4 has further contended that it shall be worthwhile to mention here that both he and the applicant were working as DGP 's in the level 16 of pay matrix and were already placed in HAG + grade of above super time scale. The apex pay scale is granted to only DGP (HoPF) for the functions performed by him in his capacity as HoPF and to select and appoint DGP is the sole prerogative of the State Government and by the selection of Respondent No. 4 as HoPF no prejudice has been caused to the applicant and hence selection of Respondent No.4 as DGP (HoPF) cannot be questioned in any court or tribunal because the satisfaction with regard to selection is subjective satisfaction of the Cabinet/ Government for which no remedy in law exists unless mala 106 fides are attributed and there is no mention in this regard in the application filed by applicant no there is any foundation. However, no person can be allowed to hunt for a particular post, unless the action of the Government is patently illegal, biased, mala fide and unjustified. It is further stated that the application inn his allegation has failed to specifically point out illegal means devised by the Government of Jammu and Kashmir to appoint DGP (HoPF). The applicant is confused with regard to selection/ appointment of DGP and Constitution of State Security Commission which are two 3 81K different points dealt with by the Hon'ble Supreme Court of India while pronouncing Prakash Singh's Judgments on police reforms. It seems that the applicant is either con/44sec! or is trying to confuse by "beating about a bush" and is not clear regarding the purport of the judgment which is basically a landmark judgment on the police reforms and deals with seven basic issues which inter-alia includes State Security Commission and Selection and minimum tenure as DGP, which are two separate issues and at the cost of repetition it is again submitted that State Security Commission has nothing to do with Selection of DGP. The applicant has made a reference to the affidavit filed by the State Government in contempt petition N0. 92 of 2007 in Prakash Singh 's case wherein it is claimed that Chief Secretary J&K has filed an affidavit before Hon'ble Supreme Court mentioning therein that in view of the peculiar facts and circumstances 107 prevalent in the State of J&K at this stage it would not be expedient to implement direction 1,4 & 6 (which pertained to State Security Commission, Separation of Investigation and Police Complaint Authority) whereas out of seven directions State has already complied with directions No. 2, 3 & 5 (which pertained to Selection & Minimum tenure of DGP, minimum tenure of [G of Police and other officers & Police Establishment Board). The applicant in his application has very conveniently forgotten to mention the date of affidavit, which has been jailed 08.03.2008 and the Government of Jammu and Kashmir was in fact following the directions in Prakash Singh's case for selection and minimum tenure as DGP, but off late due to the issuance of circular No. 12/3/2008-E0 (SM-III) (Part-Il) dated 24.07.2014 by Ministry of Personnel, Public Grievance and Pensions, Department of Personnel & Training Government of India and existence of the fact that Union of India has moved an Interlocutory Application before the Hon 'ble Supreme Court seeking clarification/ modification in respect of the directions relating to tenure of the Director General of Police pleading that UPSC should not be involved in the selection process of Director General of Police, the question of empanelment has lost its significance. In fact the condition of empanelment is envisaged for the purpose of holding an Officer suitable to occupy senior level in Central Government. 108 08/ The respondent No.4 has further stated that the judgment was passed by the Learned Tribunal after affording reasonable opportunity as per procedure to both the parties and after appreciating the entire record produced before it during the proceedings and after appreciating legal and procedural issues involved in the matter. The fact with 'regard to the dismissal of Original Application filed by Petitioner herein is admitted, being a matter of record. The respondent No.4 has further submitted that even if there was no direction from the learned Tribunal restraining the Respondent No. 4 from exercising any administrative control over the Petitioner, still the DGP (HoPF) does not exercise any administrative control over Director General of Police (Prisons), as both the posts are manned by officer of the equal rank and status. It is amply clear from the pleadings of the Respondent No. 2 and 3 before the Learned Tribunal that Cabinet has accorded due consideration to the entire service record, merit, eligibility, suitability and qualification of the Petitioner and Respondent No. 4, and thereafter, appointed the Respondent No.4 as DGP (HoPF). It is submitted that it is only on the subjective satisfaction of the Cabinet that the State Government appointed the Respondent No.4 as DGP (HoPF). Further, the contention of the Petitioner with regard to mandatory nature of Prakash Singh case is bereft of any cogent reasoning. As a matter of fact, the learned Tribunal has followed the directions issued in Prakash Singh's Case. However, in view of the 109 peculiar facts of the present case, in which, only two candidates were in the zone of consideration, the learned Tribunal held that question of sending a panel of three senior most offices was not viable, as per the guidelines issued by the Hon'ble Supreme Court in Prakash Singh Case. No injustice, what so ever, has been caused to the Petitioner as his name has also been considered and he is holding the post, which is equivalent to one held by Respondent No.4. The appointment to the post of DGP (HoPF) has been made after carefully considering all the eligibility criteria and suitability of the persons who were in the consideration zones i.e Petitioner and the Respondent No. 04. It is settled position of law that mala fide has to be pleaded and proved. Moreover, the persons against whom such mala fide is alleged are required to be made party in their individual capacity. The Petitioner has made bald pleadings with regard to mala fide, without naming anyone or impleading anyone as party. Thus, the allegations of mala fide are not sustainable in law. Respondent No.4 has further stated that the assertion of the petitioner with regard to Prakash Singh case are incorrect and are denied vehemently. The Prakash Singh case deals with reforms in Police. The interpretation given by the Petitioner to the directions of the Hon'ble Supreme Court is wholly erroneous and does not contain any substance. It is further stated that the reference made in the grounds with regard to the IPS Pay Rules are matter of record. The post of DGP (HoPF) is a selection post, which is made 110 from amongst the officers holding the post of DGP in the State Cadre in Level 16 of the Pay Matrix. The Petitioner in his pleadings has cited the definition of the word "promotion" from Rule 3 sub-rule (2) of IPS Pay Rules and has contended that "the selection on the post of DGP (HoPF) is by legal implication "promotion." It is submitted that the post of DGP (HoPF) is a selection post, therefore, even if, it is assumed for the sake of argument that it is a promotion, it has to be promotion by selection, for which seniority is not the sole criteria. The Petitioner is trying to give choicest interpretations to the existing Rules, as per his own convenience, which cannot sustain in the eyes of Law. It is further pleaded that the decision of the State Government to appoint Respondent No. 4 as DGP (HoPF) is based on subjective satisfaction of State Cabinet. Therefore, the learned Tribunal has correctly held that "mere fact that the applicant is one step senior to selected candidate, ipso facto, is no ground, much less cogent, to challenge the validity of orders of appointment of Respondent No. 4 as DGP (HoPF) It is submitted that during the leave period of Sh. K. Rajendra Kumar Ex. DGP (HoPF), the Petitioner was given the charge of the said post, which does not confer any right upon him to be selected and appointed as DGP (HoPF). The Petitioner was placed as Incharge DGP of the State which was purely an interim/temporary arrangement during the leave period of Sh. K. Rajendra Kumar, the then DGP (HoPF) and same does not provide any un-fettered right to 111 the Petitioner to be selected and appointed as DGP (HoPF). It is further contended in the objections that the Petitioner has taken the ground that he should have been selected over and above the Respondent No.4, in view of his seniority and on the other hand, he himself admits that when the post is a selection post, the principle of merit cum seniority is to be followed. While applying the principle of merit cum seniority, the relevant consideration is to see, who is best suited for a particular post, and not that why others, who fall in the zone of consideration, are unfit for the post. In the present case, it was the subjective satisfaction of the Cabinet, pursuant to which Respondent No.4 was selected and appointed as DGP (HoPF) after considering the service record, merit, qualification, experience of Petitioner and Respondent No.4 who fell in the zone of consideration for the post of DGP (HoPF) and what weighed with the Cabinet in favour of the Respondent No.4 is a matter which is known only to Cabinet and cannot be a matter of discussion. Respondent No.4 has further contended the he and the petitioner both are governed by the Indian Police Service Pay Rules 2016. As per Note 2 to sub-rule 2 of Rule 3 of the Indian Police Service (Pay) Rules, 2016, the DGP (HoPF) in the Apex Scale (Level 17) has to be appointed by selection from amongst officers holding the post of Director General of Police in the State Cadre (Level 16) of the Pay Matrix. For the ease of reference, Note 2 to sub rule 2 of Rule 3 is extracted below: 112

"The post of Director General of Police (Head Of Police Force) in the apex scale (Level 17} Shall be filled by selection from amongst the officers holding the post of Director General of Police in the State cadre in the Level 16 of the Pay Matrix."

09/ Respondent No. 4 has further stated that as per Sub-rule (l)(c) to Rule 3 read with Schedule 2 of the Indian Police Service (Pay) Rules, 2016, only an officer having the scale of 'HAG+' and occupying the post of, or equivalent to that of, the Director General of Police (Prisons), would fall within Level 16 of the Pay Matrix. As on 28 December 2016, when the Government Order, bearing number 727-Home of 2016 was passed appointing the Respondent No. 4 as the DGP (HoPF), only two (2) officers in the State, i.e., the Petitioner and the Respondent No. 4 were placed in Level 16 of the Pay Matrix having the scale of HAG+. So, the contention of the Petitioner has no merit and his argument is based on incorrect interpretation of the law, statue and guidelines provided in the Prakash Singh's case. The Petitioner has made repeated reference to the affidavit filed by the State Government in contempt petition No. 92 of 2007 in Prakash Singh case wherein it is claimed that Chief Secretary J&K has filed an affidavit before Hon'ble Supreme Court mentioning therein that in view of the peculiar facts and circumstances prevalent in the State of J &K at this stage, it would not be expedient to implement direction 1,4 & 6 (which pertained to State Security Commission, Separation of Investigation and Police Complaint Authority) whereas out of seven 113 directions, the State has already complied with directions No. 2, 3 & 5 (which pertained to Selection & Minimum tenure of DGP, minimum tenure of IG of Police and other officers & Police Establishment Board). It is submitted that the directions of the Supreme Court in Prakash Singh's case have been followed by the State Government, while considering the case of the Petitioner and Respondent No. 4, for the post of DGP (HoPF). However, the Petitioner has failed to correctly interpret such directions, because of which such baseless pleas have been raised by him. However, the Respondent No. 4 submits that such empanelment has, nothing to do with the selection and appointment as DGP (HoPF) in the State and would be relevant, only for the purpose of Central Government posts. It is further contended in the objections that the allegations of violation of the Jammu and Kashmir Business Rules and extraneous considerations levelled is a figment of imagination of the Petitioner. The same have been alleged by the Petitioner only with the intention to cause aspersion against a well-reasoned order passed by the respondents. In any event, it is submitted that the Business Rules are framed only for the convenience of the business of the Government, and do not, in any event whatsoever, confer any right on any person to challenge the breach of the same thereof. The case of the petitioner and respondent No.4 was already under consideration with the State Cabinet and all the aspects, relating to seniority, services rendered/achievements made 114 by the officers falling in the zone of consideration were made available by the respondents ahead of the Cabinet meeting which was held on 28-12-2016 for selection and appointment of DGP (HoPF). Even otherwise also rule 19 of the J&K Business Rules empowers the Chief Minister to curtail the period of circulation, in case of emergency. Further, sub-Rule 3 of Rule 19 empowers the Chief Minister to consider any other item arising, during the course of Cabinet proceedings. So, the contention of Petitioner is not well founded in Law and the allegations of nepotism, favoritism are baseless and non est in the eyes of law. Respondent No.4 has further stated that as submitted by the petitioner, the cases of appointment by selection, the next below rule, as 4:38l has no applicability. Nobody has the right to promotion, particularly on a selection post. The respondent No.4 has been granted level 17 pay matrix, as a necessary corollary of his appointment to the post of DGP (HoPF) and the functions to be performed. The higher pay scale of level 17 is attached to the post of DGP (HoPF), which is a selection post, therefore, no one can claim level 17 pay matrix as a matter of right, unless he is being selected and appointed to the post of DGP (HoPF). It is submitted that grant of level 17 pay matrix is related to performance of functions attached to the post of DGP (HoPF) and as long as a person has not been appointed as DGP (HoPF), he cannot be deemed to have performed the functions thereof and by implication, 115 entitled to level 17 pay matrix. The judgment relied upon by the Petitioner has no applicability to the facts of present case. It is further contended by the respondent No. 4 that during his service tenure has received following medals and decorations besides numerous appreciations:

a) President Medal for Gallantry.

b) Presidents Medal for Meritorious Services.

c) President Medal for Distinguished Services.

d) Indian Wound Medal.

e) Indian Army Chiefs Disk.

f) Sher-i-Kashmir Police Medal for Meritorious Services.

g) Antarik Seva Medal.

h) DGP's Commendation Medal.

10/ It is further contended by the respondent No.4 that the President Medal for Gallantry and Indian Wound Medal signifies the contribution of the Respondent No.4 on the militancy front, which is the main concern in the State of J&K. In this regard a notification was also issued by President's Secretariat for being published in Part I Section I of the Gazette of India, dated Saturday the 23 rd of November 2002, depicting the act of bravery of the answering respondent. Respondent further pleaded that out of his total service period of over 30 years, he has mostly remained in Jammu and Kashmir State, whereas the Petitioner during his entire service period has hardly remained in the State for about 20 years. It is further contended that during his postings, the Respondent No.4 has gained sufficient experience because of serving in every nook and comer of the State and that too when the monster of terrorism was burning the 116 state. Though posting of a Government employee is the prerogative of the Government, but this fact cannot be ignored that the Respondent No. has served in almost all the Districts of the State having vast experience and knowledge about the people, topography, the circumstances, and the grievances of the public and redressal thereof, thus has merit over the claim of applicant. The respondent has further stated that the State of J&K cannot be compared with any normal State of the country and the priority of the Government is to maintain the peace and Harmony amongst the people and to deal with the menace of the militancy in an effective and efficient way by appointing a person who is well versed with the situation of the State and is competent to deal the present circumstances/situation. The Respondent No.4 has stated that he being the most suitable person to be appointed for the post of DGP, which fact can be gathered from the his service record, therefore, the cabinet has taken the decision of appointing him as DGP (HoPF). Respondent No. 4 has further pleaded that the judgment rendered by the Hon'ble Supreme Court in case, titled T.P Sen Kumar v. Union of India, in Civil Appeal No. 5227 of 2017 has no application to the facts of present case. In that case, the DGP (HoPF) was transferred before his superannuation as Chairman and Managing Director of the Kerala Police Housing and Construction Corporation Ltd. Therefore, the question before the Hon'ble Supreme Court was, with respect to legality of such transfer 117 order. In this context, the Hon'ble Supreme Court, inter alia discussed the Prakash Singh Case and observed that DGP should be allowed to complete his tenure posting. The issue of tenure of DGP is not involved in the present case, therefore, T.P Sen Kumar case has no applicability to the facts of present case. The judgement passed by the Hon'ble Tribunal in the original application filed by Petitioner is based on correct interpretation of Law, Rules, Statues and guidelines which cannot be called in question on flimsy and concocted grounds. .................. In the end it has been prayed that for the reasons and submissions made in the counter affidavit, the writ petition be dismissed.

11/ Heard and considered. The relevant record has also been perused by us.

12/ Before looking into the merits of the controversy raised by the petitioner in this petition, the relevant excerpts of the order of the CAT, Chandigarh, that have direct bearing on the decision of the instant petition, require to be enumerated and these are reproduced herein below verbatim et literatim :

..........25. Assuming for the sake of argument (though not admitted), that there were some minor irregularities in circulating the agenda item, even then the applicant cannot derive any benefit out of it, because the Rules of Business do not, in anyway, create any right, on a public servant to file any case for violation of the decision taken by the Cabinet. This matter is no more res-integra and is now well settled.

26. An identical question came to be decided by a Division Bench of the Hon'ble Karnataka High Court in the case of _The Commissioner BDA & Others Vs. State 0 Karnataka by its Secretary and Others, ILR 2006 118 KAR 318. Having examined the scope of Article 166 of the Constitution of India, it was ruled as under :

"62. The question as to whether the provisions of Article»166 itself are mandatory or directory in character and the further question as to whether the rules framed thereunder can be regarded as mandatory or directory have come up for consideration before the Courts on more than one occasion and the tenor of the judicial decisions appear to be, the provisions of Article-166 of the Constitution are themselves directory in nature and so are the rules framed thereunder. A Constitution Bench of the Supreme Court in the case of R.Chitralekha vs. State of Mysore (AIR 1964 SC 1823) held that it is settled that provisions of Article-166 of the Constitution are only directory and 4:; not mandatory in character and if they are not complied with, it can be g; established as a question of fact that they impugned order was issued in fact 6" by the State Government or the Governor. In the case of State of UP. vs. Om "é Prakash Gupta (AIR 1970 SC 679), the Supreme Court observed that the Court had repeatedly held that the provisions of Article-166(1) are directory and substantial compliance with these provisions was sufficient. So far as sub clause (3) of Article-166 of the Constitution is concerned, in the case of A. Sanjeevi Naidu vs. State of Madras (AIR 1970 SC 1102) it was held that, under the Constitution, the Governor is essentially a constitutional head and the administration of State is run by the Council of Ministers. The Constitution has authorized the Governor under Article-166(3) to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. The cabinet is responsible to the Legislature for every action taken in any of the ministries and that is the essence of joint responsibility; that does not mean that each and every decision must be taken by the cabinet. Neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the government has been delegated.

63. In the case of Arun Kumar Bhattacharjee vs. State of West Bengal (AIR 1968 CAL 35) the law with regard to Rules of Business has been enunciated by the Calcutta High Court thus :- the rules of business have been made for the convenience of public business. The opening words of clause (3) of Article-166 make it clear that the rules of business are framed by the Governor for more convenient transaction of business of the Government of the State. These rules have not been framed, and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ. under Article-226 of the Constitution for violation of these rules.

64. A Full Bench of the Bombay High Court n the case of Chandrakant Sakharam Karkhanis and others vs. State of Maharashtra and Others (AIR 1977 BOM 193) after noticing the aforesaid judgments 119 held that, the aforesaid decisions make the position quite clear that the provisions of Article-166 of the Constitution themselves are directory in nature and further the rules framed by the Governor under clause (3) of Article~166 must be regarded as rules having been framed for more convenient transaction of business of the Government and are directory in character and not mandatory and any non compliance thereof would be a mere procedural defect but would not confer any right upon any citizen to approach the Court under Article-226 of the Constitution. Since the Business Rules cannot be regarded as mandatory, it would not be possible to take the view that if any rules were framed by the Governor under the proviso to Article-309 without strictly following the procedure prescribed by such Business Rules, the same will not be effective or not have the force of law or that any rule framed in violation of strict compliance with the formality prescribed by such Business Rules will not amount to a rule framed under the proviso to Article-309 of the Constitution; a substantial compliance therewith would be enough.

65. In Gulab Rao vs. State of Gujarat (1996 2 SCC 26) it was held that a decision of Revenue Minister was not an order of the Government because of non-compliance with Article-166. But in that case there was a conflict between the Revenue Department and Urban Housing Department, whether proceedings under Section-4(1) of the Act were to be dropped or not. The Revenue Department was of the view that it should be dropped. The Urban Development Department disputed this. The Rules of Business framed by the State under Article-166(3) specifically provided that in such a controversy, the matter was to be submitted to the Chief Minister for placing before cabinet. This was not done nor was the order of the Revenue Minister's communicated to the appropriate authority. The Revenue Minister's decision which was noted on file was sought to be enforced by the owners. This was negatived by the Supreme Court.

66. When the decision was cited before the Supreme Court, in the case of State Government Houseless Harijan Employees Association vs. State of Karnataka (AIR 2001 SC 437), the Court held that this decision is factually distinguishable and cannot be construed as upsetting the law settled by the Constitution Bench in Chitralekha's case and the legal position that there these rules are not mandatory was reiterated.

67. The Supreme Court in the case of M/s. Biahamber Dayal Chandra Mohan vs. State of UP. (AIR 1972 SC 33) held that, the word "law" in the context of Article-300A must mean an act of the Parliament or of a State Legislation, a rule, or a statutory order having the force of law, that is positive or state made law. The executive order passed under Article-162 of the Constitution of India would not fall within the phrase "law". Therefore, any rules framed by virtue of the power conferred under Article-162 and 166 cannot be regarded as law.

68. Therefore, it is well settled that the provisions of Article-166 itself are directory in nature and not mandatory Rules framed by the Governor under clause (3) of Article-166 must be only regarded as rules having been framed for more convenient transaction of business of the Government and are directory in character and not mandatory. Non- compliance thereof would be a mere procedural defect. If there is any violation of the aforesaid rules it would not confer any right upon any citizen to approach the Court under Article-226 of the Constitution complaining of non-compliance of the said rules and contend that the action of the Government is vitiated. The cabinet is responsible to the legislature for every action taken in any of the ministries and that is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. In fact Rule-11 of the Rules 120 categorically state that the Council of Ministers shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorized by the Cabinet or by an individual Cabinet Minister. Rule-12 states that all matters referred to in the first schedule shall ordinarily be considered at a meeting of the Cabinet. Therefore, when a cabinet minister in charge of a particular subject takes a decision and an order is issued in the name of the Governor, in law the Cabinet is collectively responsible for the said order, whether it is authorized by the Cabinet or only by an individual minister. If there is no strict compliance of the aforesaid rules it cannot be said that the said order of the Government is vitiated or void and is liable to be struck down by this Court, that too at the instance of a citizen, who cannot found (find) his right on the basis of an irregularly in following the procedure."

27. Again, it was held by Hon'ble Calcutta High Court in the case of Arun Kumar Bhattacharjee & Others Vs. State of West Bengal and others, AIR 1968 CALCUTTA 35, that the Rules of Business do not create, much less confer, a right on a public servant, to challenge the validity of the decision taken in the Cabinet Meeting. The rules have been made for the convenience of the public business. The opening words of clause (3) of Article 166 makes is clear that the rules of business are framed by the Governor for more convenient transaction of business of the government of the State. These rules have not been framed and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ, for violation of the rules, if a public servant has no right to claim a promotion, seniority or selection, as the case may be.

28. Thus, seen from any angle, the alleged irregularity in circulating the agenda item relating to selection to the post of DGP (HoPF), J&K State, will not confer any right on the applicant to challenge the appointment of respondent no.4 to the indicated post, particularly when the case of the applicant was indeed considered for the post of DGP(HoPF), J &K State, by the Cabinet.

29. As regards, the next argument of the learned counsel for the applicant that the cabinet has not considered the comparative merits of applicant and respondent no.4 is concerned, again it has no 'force. As the post of DGP(HoPF) is a selection post & is of a very sensitive nature in J&K State, it could only be filled by an incumbent in whom the State Government must necessarily have highest confidence. As indicated herein above, the matter of consideration of comparative merit of both the candidates for selection and appointment to the rank DGP(HoPF) J&K State, was purely within the domain of the State Government. The choice of the State, in this regard, cannot lightly be interfered by this Tribunal, unless it is smeared with grave malice, mala fide or illegality, which is totally lacking in the present case This controversy is squarely covered by a judgment of the Hon'ble Apex Court in the case of State of West Bengal vs. Manas Kumar Chakraborty & Others, 2003 (2) SCC, 604, in which it has been observed as under :

"......Secondly, there is no dispute that the post of DG&IGP is a selection post like the other DGPs. The post of DG&IGP being a post of very sensitive nature can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence. We are, therefore unable to accept the contention of the respondent that deployment of an incumbent in such a post can go only by seniority. Merit in the nature of post record, the credibility and confidence which 121 one is able to command with the Government of the State must play a predominant role in selection of an incumbent to such a post. In the opinion of the appointing authority, the second respondent was the most suitable one. It is not open to the courts to sit in appeal over the view taken by the appointing authority in such a case or substitute its own view for that of the duly constituted authority. The Administrative Tribunal, as a matter of comparison of merit, was inclined to hold that the second respondent was by far the better and more meritorious candidate. The High Court has skirted this question and declined to decide this issue. Since we are of the view that. there was no legal ineligibility in the second respondent to hold the post of DG&IGP, we must necessarily accept the comparative assessment of merit by the first appellant State of West Bengal and give credence to its own choice, of a suitable incumbent for being posted, as such."

Likewise, it was further held that the posts of DG&IGP being the post of very sensitive nature can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence and plea that, deployment of the incumbent in such a post can go only by seniority, was negatived. In regard to the past record, the credibility and confidence which one is able to command with, the State Government must play a predominant role in selection of an incumbent to such a post. It was further ruled that it is not open to the courts to sit in appeal over the choice adopted by the appointing authority in such a case or substitutes its own View. Court. This matter is also stands clinched by Hon'ble Supreme Court.

30. An identical issue was decided in the case of Durgadevi and another Vs. State of Himachal Pradesh & ors [1997-SCC (L&S)-982 by the Hon'ble Apex Court and it was held as under :

"In the first instance, as would be seen from the perusal of the impugned order, the selection of the appellants has been quashed by the Tribunal by itself scrutinizing the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The Selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the Selection Committee. The observations of this Court in Dalpat Abasaheb Solunke case are squarely attracted to the facts of the present case. The order of the Tribunal under the circumstances cannot be sustained. The appeal succeeds and is allowed. The impugned order dated 10-12-1992 is quashed and the matter is permitted to the Tribunal for fresh disposal on other points in accordance with the law after hearing the parties."

Sequelly, in the earlier case of Dalpet Abasaheb Solanke Vs. B.S. Mahajan, AIR 1990 SC 434, the Hon'ble Supreme Court has held that it is needless to emphasize that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not, has to be decided by the duly constituted Selection Committee which has the expertise on the subject. Thus, the contrary arguments of the learned counsel for the applicant, stricto sensu, deserve to be and are hereby repelled and the ratio of law laid down in the 122 indicated judgments is, mutatis mutandis, applicable to the instant controversy and is the complete answer to the problem in hand.

31. There is yet another aspect of the mater, which can be viewed entirely from a different angle. Concededly, the applicant had moved a representation dated 4.1.2017 (Annexure 'D'), raising almost all the points, as now urged in the present OA. Having considered each issue, the representation filed by the applicant was duly considered and rejected by the competent authority, vide impugned detailed order dated 23.2.2017 (Annexure 'A'), which in substance, is as under:

"Whereas, based on Cabinet Decision No. 121/12/2016 dated 28.12.2016, the Government vide Order No. 727-Home of 2016 dated 28.12.2016 accorded sanction to the appointment of Shri S.P. Vaid, IPS (JK:86) as Director General of Police, J&K; and

2. Whereas, aggrieved of the aforesaid Government Order, Shri S.K. Mishra, IPS (JK:1985) through his representation dated 04.01.2017, requested to reconsider the aforesaid Government Order and appoint him as Director General of Police (Head of Police Force of J&K) in Apex Scale; and

3. Whereas, in his representation, the officer contested the decision of the Government, inter-alia, on the following grounds :-

a) Seniority was not taken into consideration,

b) Supreme Court directives in case of Prakash Singh & Others were not followed, no committee was constituted and no importance was given to empanelment.

c) State Government Business Rules were not followed (Procedure mentioned in the Government of J&K Business Rule was not followed appropriately and the order was issued as a non agenda item. No proposal from Home Department was sent. No agenda point was prepared).

d) IPS Pay Rule (2016) was not followed and

e) Merit was not taken into consideration. Educational background, field experiences, APR Grading, empanelment of the officer and previous postings were not taken into consideration.

4. xxxx

5. xxxx

6. Whereas, the representation dated 04.01.2017 of Shri S.K. Mishra, IPS, was examined in light of the aforesaid order dated 24.01.2017 of the Hon'ble Central Administrative Tribunal, pleas raised by Shri Mishra in his representation and the relevant rules, and it has been observed that :

*The post of Director General of Police, J&K is required to be filled amongst the officers in the zone of consideration with' due regard to merit and seniority. The seniority alone is neither the necessary nor sufficient criteria for making this selection and therefore the seniority alone does not confer any right upon the applicant, to the appointment as the Head of Police Force is DGP. It has been a practice that the appointments/postings at senior level including that of DGP are made after due deliberations by the State Cabinet.

* The Chief Secretary, in his capacity as Secretary to the Cabinet suitably apprises the Cabinet about the details of the officers falling in the zone of consideration. The Cabinet after considering all the aspects, relating to seniority, services rendered / achievements made by these officers in the State and other relevant factors, makes appointments to various senior positions. In the instant case, the requisite details in respect of the two officers, namely Shri S.K. Mishra, IPS (JK:85) and 123 Shri S.P. Vaid, IPS (JK:86), being in the consideration zone, were made available to the office of the Chief Secretary, ahead of the Cabinet meeting held on 28.12.2016.

*The Hon'ble Supreme Court of India vide its judgement dated 22 09. 2006, in Writ Petition (Civil) No 310 of 1996 titled Prakash Singh & Others Vs. Union of India and Others, passed several directions, with regard to the issues concerning Police Reforms.

*Shri S.K. Mishra has made a reference to the State Security Commission in the GA. filed before Hon'ble Central Administrative Tribunal, Chandigarh. In this context, it is pointed out that the Hon'ble Apex Court has directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State Police and for laying down the broad policy guidelines so that the State Police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the States have been directed to choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the Police revaluation of the performance of the State Police and preparing a report thereon for being placed before the State legislature.

*The Hon'ble supreme Court of India on the issue of selection and minimum tenure of DGP, in the same judgement, inter-alia, directed that the Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empaneled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any8 action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

*Since Government of India, Ministry of Home Affairs had also been arrayed as a respondent in the application filed by Shri SK. Mishra, IPS, vide their communication No. 16013/ 13/2017-IPS-II dated 06.02.2017, the Ministry of Home Affairs also furnished its inputs in the matter. In this communication, Ministry of Home Affair clarified that DGP (HoPF) is a selection post. The State Government has been advised to examine the representation dated 4.1.2017 of the applicant and pass appropriate speaking and reasoned orders, within stipulated time period, in order to implement the directions of the Hon'ble Tribunal.

*'The Hon'ble Supreme Court in its judgment dated 22.9.2006 in Prakash Singh's case relating to Police Reforms, inter-alia, directed that the selection to the post of DGP in the State be made amongst the three senior most officers who have been empaneled by the UPSC. In this context, the Ministry of Home Affairs, vide the aforementioned communication has informed that the Union of India has filed an 124 Interlocutory Application before the Hon'ble Supreme Court seeking clarification / modification in respect of the direction relating to tenure of Director General of Police, pleading that UPSC should not be involved in the selection process of Director General of Police and the two years tenure to Director General of Police should be subject to the date of superannuation as specified in the AIS (DCRB) Rules, 1958, and the matter is presently pending before the Hon'ble Supreme Court. *The Hon'ble Supreme Court in terms of the aforesaid order has not directed the States for constitution of a Committee to consider the selection of the Director General of Police, as contended by the officer in his representation.

*Further, the range of experience for heading the Police Force cannot be easily quantified, since some officers get an opportunity to work in several Branches of the Police Force like Law 8'. Order, Armed Police, Crime prevention, Intelligence, etc., while others may not get such an opportunity. In an era of specialization, it is difficult to find on 'all- rounder'. What is certain is that all the aspects of an officer are required to be considered.

*AS regards, the issue of empanelment, the consolidated Guidelines issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel Training vide Circular No.12/3/2008-EO(SM- III) (Part-ll) dated 24.7.2014, for evaluating suitability of IAS and other All India Services and Group A Central Services for holding Joint Secretary / equivalent posts at the Centre, inter-alia, provide that empanelment should be considered not as a reflection of the intrinsic merit or otherwise of an officer but the suitability of an officer to occupy senior levels in the Central Government. Given the background and experience of an officer, he or she may be highly suited to occupy senior positions in State Government. Likewise, another officer, in View of the background and experience, may be considered more suitable for Central Government posts.

*The Directions of the Hon'ble Supreme Court passed in Writ Petition (Civil) No. 310 of 1996 titled Prakash Singh 81. Others Vs. Union of India and Others, are under consideration of the State Government and steps are being taken to implement the directions. Besides, the Hon'ble Supreme Court is actively monitoring the status of the implementation of its directions and the State of J&K has from time to time filed the status with regard to the steps taken for the implementation of the directions.

*Rule 8 of the Jammu and Kashmir Government Business Rules, provides that subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule shall be brought before the Cabinet in accordance with the provisions of the Rules contained in Part II. The Second Schedule appended to the aforesaid Rules enlists the cases, which shall be brought before the Cabinet. Proposals for the appointment/ promotion of the following officers have been indicated at S.No.'20(l) of the Schedule:

a) Chief Secretary, Additional Chief Secretary and other promotions of All India Service Cadre Officers to various scales of pay within the respective services.

b) Heads of Departments and such other officers as are treated equivalent to a head of Department like Advisors, Consultants; and

c) KAS Officers.

* Further, the State Cabinet has been from time to time taking decisions on various important issues including senior level appointments that come up for discussion in the Cabinet, outside the circulated agenda. 125

The decisions in respect of Non-Agenda items are conveyed by the Chief Secretary (who is the Secretary to the Cabinet) to the concerned Departments for its implementation.

*Note 2 appended to sub-rule (2) of Rule 3 of the IPS Pay Rules, 2016 read with Schedule II of the said rules, provides that the post of Director General of Police (Head of Police Force) in the Apex Scale (Level 17) shall be filled by selection from amongst the officers holding the post of Director General of Police in the State Cadre in the Level 16 of the Pay Matrix. Both the officers, namely, Sh. S.P. Vaid, IPS, DGP, J85K and Shri S.K. Mishra, DGP, Prisons, J&K, in the consideration zone, were already placed in the HAG + grade of 'Above Super Time Scale'.

7. Whereas, the Chief Secretary (Secretary to the Cabinet), while informing about the deliberations of the Cabinet, relating to this matter has observed that the State Cabinet in its meeting held on 28.12.2016, considered the names of Shri S.K. Mishra, IPS (JK285) and Shri S.P. Vaid, IPS (JK:86) for the post of DGP, J&K. The Cabinet after carefully considering the service records of the two officers, their PAR's, experience, contribution made by them in different posts, the present security scenario obtaining in the State and other relevant aspects came to the conclusion that Shri SP. Vaid, would be a suitable choice for the post of DGP, The Cabinet, accordingly, decided to appoint Shri SP. Vaid, [PS (111(186) as DGP, J&K, upon completion of the extended term of service of Shri K. Rajendra Kumar on 31.12.2016.

8. Now. therefore, the representation preferred by Shri Mishra having been considered in due deference to Order dated 24.01.2017 of the Hon'ble Central Administrative Tribunal, Chandigarh, pleas raised by Shri S.K. Mishra, IPS, in his representation, relevant rules and the deliberations of the Cabinet in its meeting held on 28.12.2016, has not been found tenable and is hence rejected for the following reasons:

* The State Security Commission has no role so far as selection of Director General of Police is concerned. Hence, the contention of the applicant that the selection of DGP, J&K has to be made on the recommendations of a Committee does not hold good.

*The Cabinet has been from time to time taking decisions on various important issues including senior level appointments that come up for discussion outside the circulated agenda.

*The Cabinet after due deliberations and carefully considering the service records of the two officers, their PAR's, experience, contribution made by them in different posts, the present security scenario. obtaining in the State and other relevant aspects came to the conclusion that Shri S.P.Vaid, would be a suitable choice for the post of DGP and decided to appoint Shri S.P. Vaid, lPS (JK286) as DGP, J&K upon completion of the extended term of service of Shri K. Rajendra Kumar on 31.12.2016.

*The post of DGP, J&K (Head of the Police Force), in the Apex Scale, is to be filled by selection from amongst the officers in the consideration zone, for which the seniority alone is neither the necessary nor sufficient criteria for making this selection and therefore the seniority alone does not confer any right upon the applicant, to the appointment as the Head of Police Force i.e. DGP.

*Non empanelment of an IPS officer at the level of ADGP, cannot act as an impediment to the appointment as DGP, in the State, as contended by the applicant, if so chosen by. the Competent Authority".

32. Meaning thereby, all the important issues pleaded and urged by the applicant in the instant OA, indeed have already been duly considered and decided in the 126 right perspective by the Competent Authority. We do not find any reason, much less cogent, to interfere in the selection and appointment of respondent no.4 as DGP (HoPF), J&K State, in the obtaining circumstances of the case.

33. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

34. In the light of the aforesaid prismatic reasons, as there is no merit, so the instant 0A is hereby dismissed, as such. However, the parties are left to bear their own costs. At the same time, since the applicant is senior in the cadre, so respondent no.4, who is junior to him, is restrained from exercising any administrative control or power over the applicant, in any manner."

TARIQ Mota SRINAGAR.

21-02-2018            ( M.K.HANJURA )          (ALI MOHAMMAD MAGREY)
                                  JUDGE                                     JUDGE
                                              127

1) The contents are ground (m) and (n) are denied being false, misleading and unsubstantiated. It is specifically denied that the Petitioner is more meritorious than Respondent No.4, for the perusal of this Hon'ble Court, the Annual Performance Report of the Respondent No.4 is tabulated as under:

Year           Part            Initiating      Reviewing       Accepting
                               Officer         Authority       Authority




is annexed herewith as
Annexure-R1

During his service career, the Respondent No.4 has also worked in various capacities in the State of Jammu and Kashmir, during the period of militancy the detail of postings are tabulated as under :

Posting                                                  Details of postings
Tr
                             128

 HIGH COURT OF JAMMU AND KASHMIR-
                                   SRINAGAR
 Case No: COD 66/2016                                     Dated : 09th of May, 2018
  TARIQ AHMAD MIR               VERSUS         SHAHID MUSHTAQ PADROO AND ANR
                          ORDER SHEET
 CORAM:
  HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
 xvii.    Whether to be approved for
          reporting in NET :                     Yes/No
 xviii.   Whether to be approved for
          reporting in Digest/Journal :          Yes/No

FOR THE PETITIONER/s :                 MR. J.A.KAWOOSA
FOR THE RESPONDENT/s: .                MR. SHABIR AHMAD DAR



01/       By medium of this               application the applicant seeks the

indulgence of this Court in condoning the delay of 537 days in filing the Civil 1st Miscellaneous Appeal (CIMA), against the Award dated 12th of July, 2014, passed by the Presiding Officer, Motor Accident Claims Tribunal (Principal District Judge), Pulwama, in a claim Petition bearing No. 11/Claim, titled Shahid Mushtaq Padroo versus Tariq Ahmad Mir & another on the grounds, inter alia, that the applicant - Appellant (respondent No.1 in the claim petition) was not aware about the passing of the Award dated 12-07-2014 as the counsel representing him before the Court below did not inform him in time. The applicant - appellant has further stated that he being the employee of respondent No.2, was mislead by him. He, by taking advantage of his illiteracy, made him to state before the authorities that the offending vehicle has been purchased by him. Respondent No.2 also made him to believe that he being the registered owner of the vehicle, the compensation, if any, awarded, is to be paid by him (the respondent No.2). The applicant - appellant has further stated that neither the counsel nor the respondent No.2 ever informed him that any evidence is to be lead in the matter. That is why, the applicant - appellant did not pursue the claim petition and was unaware of passing of the Award by 129 the Court below. The applicant-appellant has further stated that it was only after he received a notice from the Court of learned Tribunal to cause appearance before him on 18th of March, 2016 that he came to know that an Award has been passed way back in July, 2014. The applicant-appellant has further stated that in the facts and circumstances of the case, the delay caused was neither intentional nor deliberate. 02/ The applicant-appellant has stated further that he was employed by the respondent No.2 as a driver and worked with him till the year 2008. Presently the applicant-appellant is working as a labourer. It is stated that during the winter in Kashmir valley, the labour work becomes scarce. Since he has a large family to sustain, comprising of old aged parents, three children and a widowed sister, the applicant- appellant, moves outside the State in search of livelihood. The applicant-appellant has further stated that he lives by hand to mouth and, therefore, has no means to pay the compensation in terms of the Award dated 12-07-2014, passed by the MACT, Pulwama. In the end he has prayed that the Court be pleased to condone the delay in filing the Appeal.

04/     Heard and considered.
05/     It cannot be disputed that the Law of Limitation has to be

applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant has to satisfy the Court that he/she has a sufficient cause in seeking the indulgence of the Court for not preferring the Application or Appeal within the stipulated time. The liability of satisfying the Court that the Application or Appeal was filed with due diligence rests on the shoulders of a person seeking such a relief. The Courts cannot come to the aid and rescue of the party/s, where the application for condonation 130 of delay does not spell out sufficient cause and the approach of the applicant, in making such application, is casual and cryptic. 06/ Testing the application of the Applicant on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim : "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."8.

In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:.................................................................................... 3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

07/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 537 days in filing the appeal and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the 131 applicant/s but in the instant case the applicant took his own time to come to the conclusion that an application for condonation of delay for filing the appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows:

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

08/ Resort can also be had to an elaborate and a lucid judgement of the Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................31.Neither leisure nor pleasure has any room while one 132 moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

10/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :

"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.3. Sufficient cause for the delay clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."

11/ Looking at the application of the applicant from another angel, the only exception that he has taken in the application in carving out a case in his favour is that his counsel did not inform him about the passing of the Award. The law is that a party has to be vigilant in the Court proceedings. It is the duty and responsibility of the party/s to contact his/her lawyer on every date. One cannot pass the buck on to the lawyer and state that he/she was remiss and negligent in not attending the Court on the appointed date. The applicant has been callous in prosecuting his case and he has knocked at the doors of the 133 Court after a great deal of time. The power of attorney by which the applicant authorized his counsel to represent him before the Court reads that "I/We hereby agree not to hold the Advocate or his substitute responsible for the result of the said cause in consequence of his absence from the Court when the said cause is called up for and I/We hereby agree that in the event of the whole or part the payment to be paid to the advocate remaining unpaid he shall be entitled to withdraw from the prosecution of the said cause until the same is paid". On the face of this clause, it was the duty and responsibility of the applicant to get himself acquainted with the dates fixed in the matter and apprise his counsel accordingly and the lawyer cannot be held accountable for the consequences that may arise. Even if assumed for the sake of arguments that the negligence of the counsel may give a cause to his client to project and advance an argument that his counsel was remiss and callous in discharging his obligation towards him, it cannot stretch till infinity. There is a delay of 537 days in filing the appeal and the applicant has filed the application after rising from a deep slumber. During this period, he did not, at all, take pains to enquire about the fate of his case.

12/ Viewed in the context of what has been said and done above, the Court is of the considered opinion that the applicant has failed to explain the delay of 537 days in filing the application for condonation of delay for filing of the appeal. Consequently, the application for Condonation of Delay, is dismissed as barred by time.

TARIQ Mota SRINAGAR.

09-05-2018                                         (M.K.HANJURA)
                                                             JUDGE
                          134




HIGH COURT OF JAMMU AND KASHMIR-
                                SRINAGAR
Case No: OWP 1163/2016                                    Dated : 07th of May, 2018
 WESTERN BUS SERVICE LTD. & ORS            VERSUS          UNION OF INDIA & ORS.
                       ORDER SHEET
CORAM:
 HON'BLE      MR. JUSTICE M.K.HANJURA- JUDGE
i.     Whether to be approved for
       reporting in NET :                     Yes/No
ii.    Whether to be approved for
       reporting in Digest/Journal :          Yes/No

FOR THE PETITIONER/s : MR. ZAFAR A. SHAH Sr. ADV WITH MR. A.HANAN, ADV FOR THE RESPONDENT/s: . M/S. IRFAN ANDLEEB, Dy.AG, T.M.SHAMSI, ASGI, S.A.MAKROO & MOOMIN KHAN, Advocates.

01/ Aggrieved by the Notification - SRO 50 dated 16th of February, 2016, issued by the Government of J&K, in terms of which, all the passenger vehicles, run, managed and operated by the petitioners under the Motor Transport Service Licenses, have been directed to equip their vehicles with 'Speed Governors' conforming to the Standard AIS : 018/2001, the petitioners have filed this petition on the grounds, inter alia, that the amendment carried out in the Central Motor Vehicles Rules, 1989 (for short Rules of 1989), vide Notification No. G.S.R. 290 (E) dated 15-04-2015 and in terms of sub rule (2) of the said Notification, the State Governments have been empowered to issue appropriate Notifications and it has been left at the discretion of the State Government to apply the requirement of Rule 118 of the Rules of 1989, which reads as under :

"118. Speed governor:- (1) Every transport vehicle notified by the Central Government under sub section (4) of the Motor Vehicles Act, 1988 (59 of 1988), save as provided herein, and manufactured on or after the 1st October 2015, shall be equipped or fitted by the vehicle manufacturer, either in the manufacturing state or at the dealership stage, with a speed governor (speed limiting device or speed limiting function) having maximum pre-set speed of 80 kilometer per hour 135 conforming to the Standard A IS 018/2011 as amended from to time. Provided further that the transport vehicles that are;

(i) Two Wheelers;

(ii) Three Wheelers;

(iii) Quadricycles;

(iv) Four wheeled and used for carriage of passengers and their luggage, with seating capacity not exceeding eight passengers in addition to driver seat (MI Category) and not exceeding 3500 kilogram gross vehicle weight);

(iv) Fire tenderer ;

(v) Ambulances;

(vii) Police vehicles;

(viii) Verified and certified by a testing agency specified in rule 126 to have maximum rated speed of not more than 80 kilometer per hour shall not be required to be equipped or fitted with speed governor (speed limiting device or speed limiting function);

Provided further that the transport vehicles manufactured on or after 1st October 2015, that are dumpers, tankers, school buses, those carrying hazardous goods or any other category of vehicles, as may be specified by the Central Government by notification in the Official Gazette from time to time, shall be equipped or fitted by the vehicle manufacture, either in the manufacturing stage or at the dealership stage, with a speed governor (speed limiting device or speed limiting function) having maximum speed of 60 kilometer per hour conforming to the Standard A IS 018/2001, as amended from time to time.

(2) The State Government shall, by notification in the Official Gazette, specify on or before 1st October 2015, the categories of transport vehicles registered prior to the 1st October 2015, which are not already fitted with a speed governor (speed limiting device or speed limiting function) and are not covered under the first proviso to sub-rule 1 above, that such transport vehicles shall be equipped or fitted by the operator of such vehicle (sic) April, 2016 with a speed limiting function) having maximum pre-set speed of 80 kilometer per hour or such lower speed limit as specified by the State Government from time to time, conforming to the Standard AIS: 018/2001, as amended from time to time.

Provided that the categories of transport vehicles carrying hazardous goods and those transport vehicles and are dumpers, tankers or school buses, registered prior to the 1st October, 2015 and not already fitted with a speed governor (speed limiting device or speed limiting function) shall be equipped or fitted by the operator of such vehicle, with a speed governor (speed limiting device or speed limiting function) having maximum pre-set speed of 60 kilometer per hour or such other lower speed limit as may be specified by the State Government, conforming to the Standard AIS:

018/2001, as amended from time to time."

02/ The petitioners have further stated that the amendment has given a liberty to the State Governments to identify 136 the vehicles that need to be fitted with the 'Speed Governors'. It is further stated that such a power delegated to the State Governments is patently arbitrary as there is nothing to state as to which kind of vehicles have to be equipped with the 'Speed Governors' in the rule 118 of the Rules of 1989. The petitioners have further stated that sub rule (2) of Rule 118 , conferring unbridled and unchannelized power to the State Governments, is violative of Article 14 of the Constitution of India as it suffers from the vice of arbitrariness. The petitioners have further stated that they have no grievance insofar as new vehicles are concerned, as the same are already fitted with such devices, which monitor and reduce the speed. However, they are peeved about the amendment made in the Rules of 1989, directing fitting of the 'Speed Governors' to the vehicles, which have been registered prior to 01-10-2015. The petitioners have further stated that as a policy decision, the Central Government empowered the State Governments to issue appropriate Notification, keeping in view the requirement of each State, with regard to the transport vehicles, which is not uniform and there are States where majority of the areas are hilly and the condition of the roads is such that it is impossible for the drivers of the vehicles to increase the speed and ply them at a speed of more than 30/40 kmh. In this view of the matter, installation of the Speed Controlling Devices, which costs between Rs.15000/- to Rs.

20,000/- would be a cumbersome burden on the owners of the vehicles besides being futile. The petitioners have further stated that in the State of J&K, particularly in the valley of Kashmir, hardly has any accident been caused by a speeding vehicle as the roads are not spacious and are not wide enough to allow the driver to drive the vehicle beyond the speed of 60 kmh. The petitioners have further stated that the authorities ought to have worked out a plan and obtained technical opinion on the over all effect, of the installation of 137 the 'Speed Governors' . The State Government, without considering the pros and cons and without applying its mind to all these aspects, has, in an arbitrary manner, issued the impugned Notification. The petitioners have further stated that this move of the State Government is impeding the transport industry from seeking Fitness Certificates from the concerned quarters, thus, there is every apprehension that the transport industry would come to a halt. The petitioners have further stated that having regard to the pathetic plight of the transport industry, which is in a very bad shape, given the state of affairs in the valley of Kashmir, they are not in a position to incur an extra expenditure to the tune of Rs. 20,000/- for installation of 'Speed Control Device' and that too from a retrospective date. The petitioners have further stated that in terms of the existing position of the vehicles, the vehicles completing 25 years of service are to be phased out, therefore, there is no logic in directing installation of the said device on the vehicles which are to be phased out within next few months. It is further stated that the impugned Notification has left the petitioners with no choice but to approach the Hon'ble Court by the medium of this writ petition seeking a restraint to be placed on the respondents from applying the Notification impugned to the vehicles registered prior to 01-10-2015.

03/ In the objections filed by the official respondents, in addition to challenging the maintainability of the writ petition, it is stated that in pursuance to the Notification bearing No. 290-(E) dated 15-04-2015, issued by the Government of India, with regard to the installation of 'Speed Governors' in all transport vehicles registered prior to 01-10- 2015, the State Government also issued a Notification vide SRO 50 dated 16-02-2016, indicating that the vehicles registered in the State of J&K prior to 01-10-2015 should be fitted with 'Speed Governors'. It is pleaded in the objections that the figures given by the petitioners 138 for phasing out of the condemned vehicles in the coming years, is exaggerated and totally wrong and baseless aimed at misleading the Hon'ble Court. It is further stated that the State Government is committed to provide best transport services to the people and they are in the process of formulating policy to provide the vehicles, which are modern, comfortable, eco-friendly and fuel efficient to the people to change the entire scenario of the public transport in the State and in this regard the recommendations of the stake holders are in active consideration of the Government. Respondents have further stated that the date of the compliance of the impugned Notification was extended by the Government by three months to provide a breathing time to the transport companies. The respondents have further stated that the issue of installation of 'Speed Governors' was discussed threadbare in a meeting held on 06-04-2016, attended by the MD, J&K SRTC, General Manager, J&K SRTC, Transport Commissioner and the Secretary to Government, Transport Department. The transport associations were also subsequently called and the issue of effective implementation of the 'Speed Governors' was discussed. It is also contended that the cost of each Speed Governor is in the range of Rs.3000 to Rs.12000 and the petitioners have projected an exaggerated account of events. The respondents have further stated that there being a genuine need for regulating the transport system in the State in order to minimize the intensity of the road accidents resulting in loss of precious lives due to over speeding, the impugned Notification was issued. It is further stated that there are guidelines issued by the Ministry of Road Transport & Highways as also by the Hon'ble Supreme Court for implementation of Notification for installation of 'Speed Governors', and the same have been circulated to the respondents, who are duty bound to effectively monitor and 139 ensure its strict compliance. In the end, the respondents have prayed for the dismissal of the writ petition.

04/     Heard and considered.
05/     The judicial review is a developing subject. Its scope varies

from case to case. It is considered to be a basic feature of the Constitution. The apex Court has, in a catena of judgments, defined the outline of the sovereign power, as vested in the three pillars of the Government, that are the Legislature, the Executive & the Judiciary. In Kesavananda Bharti's case, the apex Court explained the term 'basic feature'. The Court said that it is supposed to be the sum total of the core of our Constitution. The apex Court, wile interpreting the meaning of 'judicial review', said that the power of the 'judicial review' is, however, confined not merely to deciding whether, in making the impugned laws, the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them ; the Courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. It further said that as long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened............... Review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the Statute are found to be violative of any Article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. 06/ The law also provides that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other, is not a matter of concern in the judicial 140 review and the Court is not the appropriate forum for conducting such investigations. The scope of the judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State.

07/ In the case of Federation of Railway Officers Association and others versus Union of India, reported in AIR 2003 SC 1344, the apex Court said that the wholesome rule in regard to judicial interference in an administrative decision is that if the Government takes into consideration all the relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, Courts would keep off the same.

08/ In the case of BALCO Employees Union (Regd.) versus Union of India and others, reported in MANU/SC/0779/2001, the apex Court said that it is evident that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.

09/ The object of the policy evolved by the Government under and in terms of SRO 50 dated 16th of February, 2016, is laudable. Every now and then we see people dying on the roads due to over speeding of the vehicles. The mad rage and race in which the operators ply their vehicles scratch many a people to death on the roads leaving their kith and kin in a lurch. Speed Governors will at least carry checks and balances in maintaining the speed of the vehicles and will work as a remedy to minimize the intensity of the road accidents. By their installation the vehicles in which these have to be fitted on the face of 141 the SRO cited above cannot ply beyond a particular speed limit. Over speeding of vehicles resulting in a numberless loss to human lives has precipitated the worst cries. The promulgation of the SRO is aimed at saving precious human lives from reckless driving. The SRO taken under the safety value of the public interest cannot be tampered with. The Courts shall have to be loath in interfering in a policy decision taken by the Government unless it smacks of arbitrariness or to put it in other words that it is irrational and not circumspect or is wayward, aberrant, malicious and capricious offending the basic requirement of Article 14 of the Constitution. The Apex Court has in a chain of judgments repeated and reiterated this principle. It is replete with such platitudes that the Court cannot sit in judgment over the policy decisions of the Government. It is beyond the jurisdiction of the Court to advise the Government about the policy decisions it may take. The Courts cannot embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether the one better than that could be evolved.

10/ Looking at the instant petition from yet another angle, in the case of M.C.Mehta versus Union of India & others (1997) 8 SCC 770, the Supreme Court directed as under :

"(a) No heavy and medium transport vehicles, and light goods vehicles being four-wheelers, would be permitted to operate on the roads of the NCR and NCT, unless they are fitted with suitable speed-control devices to ensure that they do not exceed the speed limit of 40 kmph. This will not apply to transport vehicles operating on inter-state permits and national goods permits. Such exempted vehicles would, however, be confined to such routes and such timings during day and night as the police/transport authorities may publish. It is made clear that no vehicle would be permitted on roads other than the aforementioned exempted roads or during the times other than the aforesaid time without a speed control device."

11/ Subsequently, in the case of Suraksha Foundation versus Union of India & others, Writ Petition (Civil) No. 793 of 2015, in which the State of J&K has been impleaded as a party respondent and figures at S.No.18, the apex Court by an order dated 01-12-2015 142 directed the State Governments, Union Territories as also the Union of India to submit the report(s) with regard to the implementation of the judgement of the Court delivered in the case of M.C.Mehta versus Union of India and others.

12/ Again in the case of Dr. S.Rajaseekaran (II) versus Union of India and others, Writ Petition (Civil) No. 295 of 2012, the apex Court, by an order dated 30-11-2017, directed as under :

               "S.No.   Issue               Views by Ministry of       Orders prayed by
                        contained in        Road Transport &           the AC
                        Note of Amicus      Highways
                        Curie


               xvii.    Speed                                          Order proposed:
                        Governors:
                        It is prayed that   Ministry of Road           State Governments
                        State               Transport            &     be directed to take
                        Governments         Highways has already       steps to ensure that
                        be directed to      issued guidelines for      approved        speed
                        take steps to       fitment of approved        Governors          are
                        ensure       that   Speed Limited Device       fitted in the existing
                        approved Speed      (speed governors) on       transport vehicles
                        Governors are       transport vehicles. The    and given unique
                        fitted    in the    suggestion to upload       Identification
                        existing            the             Unique     Number.         These
                        transport           Identification Number      numbers should be
                        vehicles     and    of the Speed Governor      uploaded in the
                        given Unique        in      the    VAHAN       VAHAN Database
                        Identification      database              is   along with the
                        Number. These       acceptable.                details      of    the
                        numbers should                                 vehicle.          The
                        be uploaded in                                 instructions issued
                        the      VAHAN                                 by Committee on
                        Database along                                 Road Safety in this
                        with the details                               regard may kindly
                        of the vehicle.                                be directed to be
                        The                                            strictly followed."
                        instructions
                        issued by the
                        Committee on
                        Road Safety in
                        this regard may
                        kindly         be
                        directed to be
                        strictly
                        followed.



13/    The Court further directed that as far as the Speed Governors

are concerned, the guidelines in this regard have already been issued by the Ministry of Road Transport & Highways (MORTH). It has agreed 143 to upload the Unique Identification Number of the Speed Governors of the VAHAN Database. This should be followed up by the MORTH with expedition.

14/ The relevant excerpts of the procedure and the guidelines to be followed for the fitment of the Speed Limiting Devices, issued by the Government of India, Ministry of MORTH, on 02-08-2016, are detailed below :

"In continuation of the guidelines dated 16-06-2016 and in supersession of all earlier communications regarding installation of Speed Limiting Devices, it is clarified that vehicle owner should be at his liberty to choose the Speed Limiting Devices from any source/vendor as long as it is duly type approved by any of the test agencies under rule 126 of CMVR. It is strongly recommended that the State Governments do not restrict the freedom of the vehicle owners to choose the type approved Speed Limiting devices of any manufacturer. It will be the responsibility of the manufacturer to comply with the requirements of the AIS 018 along with the guidelines prescribed in the letter dated 16-06-2016. The State Government would have to ensure the effective implementation of the Notification for fitment of the Speed Limiting Device.

The State Government may, however, choose to impose eligibility and price criteria while selecting the Vendors for fitment of Speed Governors on the vehicles owned by it or any Transport Undertakings, Corporations or a local authority under its control."

15/ SRO 50 dated 16-02-2016 and sub rule (2) of rule 118, by which, the amendment was carried out in the Central Motor Vehicles Rules 1989, are in tune and in line with the directions extended by the apex Court from time to time and the guidelines detailed herein before. Therefore, these cannot be tinkered with. The orders, directions and the judgments delivered by the Supreme Court are binding on all the Courts and these are as sacred as a command for us for having been rendered by the highest Court of justice in the country.

16. In the backdrop of all that has been said and done above, this writ petition sans merit. It entails dismissal and is, accordingly, dismissed along with connected IAs. Interim direction, if any, shall stand vacated.

TARIQ Mota SRINAGAR.

07 -05-2018 (M.K.HANJURA) JUDGE 144 HIGH COURT OF JAMMU AND KASHMIR-

                                  SRINAGAR
 Case No: OWP 464/2012                                     Dated :    of May, 2018
  MERAJ-UD-DIN WANI                VERSUS                 JK STATE COOP. BANK LTD.
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 xix.    Whether to be approved for
         reporting in NET :                      Yes/No
 xx.     Whether to be approved for
         reporting in Digest/Journal :           Yes/No

FOR THE PETITIONER/s :                MR. G.A.LONE
FOR THE RESPONDENT/s: .               M/S. B.A.DAR, Sr.AAG & MOOMIN KHAN



01/      By the medium of this writ petition, the petitioner has sought

the indulgence of this Court in setting aside the judgement dated 31.03.2012, passed by the learned Addl. District Judge, Srinagar, dismissing the appeal Nos. 15 & 16 of 2012 and the order dated 17.11.2011, passed by the Court of the learned First Addl. Munsiff, Srinagar, in case titled Zahoor Ahmad and Another v. Mehra-ud-Din and the order dated 29.11.2011, passed by the Court of the learned First Subordinate Civil Judge, Srinagar in case titled Mehraj-ud-Din v. Zahoor Ahmad and Others.

02/ The facts culled out from the petition of the petitioner are that the petitioner is in possession of entire first and 2nd floors and a room, along with an open space measuring 2ft x 9.6ft in area located in the building situated at Amira Kadal, Lal Chowk, Srinagar. The parcels of the aforesaid building is in possession of the petitioner for more than 27 years.

145

03/ It is further stated by the petitioner that the plaintiffs/respondent Nos. 3 & 4 filed a suit for permanent injunction in the Court of the learned Principal District Judge, Srinagar, against him to resist him from interfering with the shop on the front side of the same building in the ground floor having the carpet area of 839 sqft, which shop was claimed to have been obtained by them on lease from J&K Central Bank Ltd. Srinagar. The said suit has been transferred from the Court of the learned Principal District Judge, Srinagar to the Court of learned First Addl. Munsiff Srinagar, who passed an interim injunction in the suit against the petitioner. The plaintiffs/respondent Nos. 3 & 4 herein, on the basis of that injunction, have started interference in the room, the bathroom and the latrine block and in the open space which has been in possession of the petitioner for more than 2 decades. The petitioner filed an application for vacation of the interim order passed in the suit in ex-parte on 07.06.2011 but the trial Court refused to vacate the interim order. The plaintiffs/respondent Nos. 3 & 4 herein have taken advantage of the order passed by the trial Court and demolished the wall which separated the shop claimed to have been obtained on lease by them and the room which was in possession of the petitioner in the ground floor. Thus the room was illegally annexed with shop. The plaintiffs/respondents also opened two doors of their shop towards the open space with a view to prefer a claim of user over the open space.

146

04/ It is further stated that the petitioner filed two appeals against the order of the learned Addl. Munsiff, Srinagar and Sub Judge, Munsiff Magistrate, Srinagar, in the appellate Court. However, the appellate Court surpassed his jurisdiction while dismissing the appeals filed by the petitioner by holding that user of the plaintiffs/respondent Nos. 3 & 4 over the open space cannot be excluded.

05/ In the objections, the plaintiffs/respondent Nos. 3 & 4 have resisted and controverted the petition of the petitioner on the grounds, inter alia, that the petitioner is a Rank Trespasser and illegally occupied some rooms/space in the 1st and 2nd floor of the suit building. That being so, a trespasser cannot, in law, have a right to file a suit or writ against a true owner or any one claiming for and on his behalf. The petitioner is laying claim to have occupation of some space in the 1st and 2nd floor on the strength of some Deed of Declaration purported to have been executed in his favour by some President, State Central Labour Union, in the year 1986, which Deed is just a scratch of paper having no legal sanctity attached to it for multiple legal reasons including that whether the President, State Central Labour Union was having any competence and power to draw the said document in any capacity, when he was not the owner of the building. Secondly what is the locus of the petitioner in holding the said premises as no rent and/or occupation charges are being paid by him to any person including the owners, i.e., the respondent Nos. 1 & 2. Nothing is discernible to that 147 effect from the pleadings contained in the writ petition. In pursuance of Lease Deed executed by respondent Nos. 1 & 2 in favour of the answering respondents as land lords/owners duly registered by the Court of law, they are lessees of the space, which includes the shop measuring 830 sqft. It is also submitted that the demise premise/shop measuring 830 Sqft. continued to have been in lawful occupation of the lessees/tenants constituting the firm M/s Diamond Motors Service, from more than seven decades, who used to pay rentals towards the respondent Nos. 1 & 2 in acknowledgement of lawful possession over the premises demise to them and/or under their tenancy over the said period. Therefore, it can safely be said that the petitioner is a rank trespasser having no legal right or otherwise to hold the premises in the 1st & 2nd floor of the building. The petitioner in fact has taken undue advantage of being in print media, thereby have exploited his position to the hilt and has tried to lay claim on the space in the ground floor of the building on the backside of the shop which is in exclusive and absolute possession of the answering respondents and/or predecessors in interest i.e., tenants since long. In fact the space in the ground floor, i.e., shop and the open space behind it is exclusively occupied by the answering respondents as its lawful tenants, recognized by the respondent Nos. 1 & 2, which space the petitioner has tried to lay claim over and thereby tried to forcibly and illegally occupy the same, constraining the answering defendants to approach the Court of Law 148 and file a suit against him. The Revenue excerpts referred to also does not clothe the petitioner with any right to lay claim on a property which does not belong to him in any manner or has no right to lay claim over it except the deed or declaration, which does not in any manner vest him with any right and the same has been simply reiterated in the revenue excepts by way of simple note which implies that the deed of declaration has been simply reflected in the note in the revenue excepts. 06/ It is further submitted in the objection that the petitioner had filed an application for vacation of ex-parte injunction order dated 07.06.2011, which was dismissed vide order dated 17.11.2011. The petitioner had also filed two appeal bearing Nos. 15 & 16 of 2012 before the Court of the learned Additional District Judge, Srinagar, against the orders of the Court below, who after applying his mind to the facts and circumstances of the case, came to the conclusion that the appeals are without any merit and, accordingly, dismissed the same by order dated 31.03.2012.

06/ It is further submitted that the Court below after taking into consideration the Deed of Declaration, revenue excerpts and other material available before the Court have come to the irresistible conclusion that the petitioner has no case much less a prima facie one. The documents referred to by the petitioner have absolutely no footing and all documents referred to are bereft of any legal sanctity. The petitioner cannot expect the Court to lean in his favour, when he 149 himself has no locus standi to call in question the status of answering respondents qua the premises legally held by them. The trespasser in law is not allowed to file a case against the true owner and/or any persons claiming for and on his behalf. The petition of the petitioner on the said score is not maintainable and is liable to be dismissed. 07/ In their objections, the respondent Nos. 1 & 2 have contended that the petition of the petitioner is liable to be dismissed on the ground that the whole building in question is the property of J&K State Cooperative Bank and he is a trespasser. The petitioner is a so called journalist and has occupied the premises/part of the building illegally during the period when there was law and order problem in the State of J&K, particularly in the Kashmir valley.

08/ In the compliance report filed by the SHO Police Station, Maisuma, it has been contended that the matter in question is a civil dispute between the petitioner and the respondent No. 3, as such, the police has no role to play. However, the Maisuma Police, on the directions of the Court of the learned Addl. Sessions Judge, Srinagar, implemented the status quo order issued by the said Court in the month of January, 2012. It is also submitted that a case bearing FIR No. 31 of the year 2012, came to be registered against the Mehraj-ud-Din and others for the commission of offences under Sections 457, 380, 427, 341 and 323, on a written complaint lodged by the father of the respondent No. 3, Mr Shafat Ahmad Qureshi S/o Abdul Aziz R/o Lal 150 Bazar 27.04.2012, alleging therein that the accused persons have demolished the wall of the shop in question and stole some items from the shop and manhandled his sons, resulting in injuries to them, i.e. the respondent No. 3 and his brother. On the same date, another case bearing FIR No. 32 of the year 2012, came to be registered at Police Station against J&K State Cooperative Bank and Others, i.e., respondent Nos. 1 to 4, for the commission of offence under Section 526 RPC by the petitioner, alleging therein that the accused persons have beaten them and threating them, with which the investigation ensued. In the end, the respondents have prayed that the instant writ petition be dismissed as not maintainable.

09/          Heard and considered.
TARIQ Mota
SRINAGAR.
  -05-2018                                       (M.K.HANJURA)
                                                               JUDGE
                            151

 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: SWP 1766/2017                                     Dated :      of May, 2018
 IMTIYAZ AHMAD MALLA                      VERSUS                      STATE AND ORS.
                         ORDER SHEET
 CORAM:
 HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
 xxi.    Whether to be approved for
         reporting in NET :                       Yes/No
 xxii.   Whether to be approved for
         reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s :                MR. M.A.QAYOOM
FOR THE RESPONDENT/s: .               MR. B.A.DAR, Sr.AAG



 01/     The petitioner, by medium of this writ petition, seeks a writ of

Certiorari for quashing the order bearing No. 2580 of 2017 dated 31-07-2017, by virtue of which the respondents have rejected his claim for appointment as Constable as non maintainable and bereft of genuine grounds. Writ of Mandamus is also sought to direct the respondents to reinstate the petitioner back in service and pay him all consequential benefits.

02/ The facts that are essential for arriving at a just conclusion in this matter are that the petitioner was initially appointed as a Constable in the J&K Police vide order dated 20-08-2009 and was posted in DPL Handwara. While the petitioner was undergoing training course in the Training School, Manigam, he was midway called back by the DPL Handwara, for facing an enquiry for not having disclosed pendency of an F.I.R against him. It is further stated that as a consequence, the order of appointment of the petitioner was 152 cancelled by the respondents vide order dated 01-03-2010 without holding a proper enquiry in the mater. The petitioner challenged the said order of cancellation of his appointment before the Court through SWP 2616/2011. While responding to the notice in the said petition, the respondents filed the counter, stating therein that an F.I.R u/s 379 RPC & section 6 of the Forest Act was registered against the petitioner in police Station, Kralgund, in which the Challan was also filed in the Court of learned CJM, Handwara. However, on account of contradictory evidence, which came to fore during the trial, the petitioner was acquitted on the basis of the benefit of doubt. Justifying the cancellation of the order of appointment, the respondents further stated in their counter that the order has been passed in a fair, just and transparent manner and after conducting a thorough enquiry into the misconduct of the petitioner.

03/ It is further stated by the petitioner that he filed a rejoinder affidavit in the matter stating therein that the contents of the reply affidavit are false. The petitioner further stated that at the time of the his selection, he had submitted all the required documents before the respondents, which were verified by them and it was only thereafter that a formal appointment order was issued in his favour. The petitioner further stated that no enquiry under rules was ever conducted in his case.

153

04/ The petitioner has further stated that he was acquitted of the charges mentioned in the aforesaid F.I.R by the Court of learned CJM, Handwara, and when the same was intimated to the respondents, the respondent No.3 addressed a communication dated 16-06-2011 to the respondent No.2, apprising him about the acquittal, and sought directions for further course of action. In the meantime writ petition (SWP 2616/2011) was allowed by the Court vide its order dated 18-05-2016, setting aside the order of cancellation of the appointment of the petitioner with direction to the respondent No.3 to take further action in the matter within two weeks from the date copy of the order is served on him. The petitioner has further stated that despite the receipt of the copy of the order of the Court, the respondents deliberately and intentionally did not pass any order, which resulted in the initiation of contempt proceedings against them. They were again directed by the Court, vide its order dated 23-03-2017, passed in the Contempt No. 156/2017, to comply with the order dated 18-05-2016. The petitioner has further stated that although the contempt petition is pending adjudication before the Court, yet the respondent No.2 passed the order dated 31-07-2017, impugned herein, rejecting the claim of the petitioner, to be appointed as Constable, as non maintainable and bereft of any genuine grounds.

05/ In the objections, filed by the respondents, the very maintainability of the writ petition has been questioned on the ground 154 that the same does not disclose any genuine cause of action. The writ petition raises disputed questions of fact, which cannot be adjudicated upon in the writ petition. It is further stated that the impugned order has been passed by the concerned authority with full application of mind and in pursuance of the order of the Court passed in the earlier writ petition of the petitioner. It is further stated that none of the rights, be it fundamental or constitutional, have been violated by passing of the impugned order. The petitioner has suppressed & misrepresented the material facts, rendering the writ petition liable to be dismissed. It is further stated that the order impugned was passed after conducting proper departmental enquiry in the matter under rules and it was held that the petitioner has concealed the information with respect to the registration and pendency of a criminal case against him and had also given a false residential address. It is further stated that the petitioner was given complete opportunity to participate in the enquiry proceedings where he was permitted to cross examine the witnesses and defend himself. However, he was not found fit for appointment in the Belt Force of the department and, consequently, the order of his appointment was cancelled. The respondents have prayed that in view of what has been mentioned in the objections, the writ petition be dismissed with costs.

05/    Heard and considered.
               155

 TARIQ Mota
SRINAGAR.
  -05-2018          (M.K.HANJURA)
                         JUDGE
                           156




 HIGH COURT OF JAMMU AND KASHMIR-
                                 SRINAGAR
 Case No: Review 20/2015 in SWP 727/2009                  Dated :    of April, 2018
  RIYAZ AHMAD THOKER                       VERSUS              STATE AND OTHERS
                        ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 i.      Whether to be approved for
         reporting in NET :                     Yes/No
 ii.    Whether to be approved for
        reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s :                MR. BHAKAT PERVAIZ
FOR THE RESPONDENT/s: .               M/S.J.A.KAWOOSA & BHAT FAYAZ




01/     The Review Petitioners - respondents 5, 10 & 12 in the writ

petition, (for short applicants), have sought review of the judgement and order dated 07-07-2015 of this Court, passed in SWP 727/2009, inter alia, on the grounds that the Hon'ble Court has inadvertently omitted to take notice of the material facts placed on the record of the writ petition while passing the order impugned. The applicants have stated that they, as also the writ petitioner, responded to the 157 Advertisement Notice, issued by the official respondents, inviting applications from eligible candidates for filing the posts of Lab. Attendants. The writ petitioner, however, did not make it to the final list of appointees. Feeling aggrieved, he filed the writ petition bearing No. SWP 727/2009, on the ground that the official respondents 1&2, did not follow the eligibility criteria while making selection/appointment. The writ petition was allowed and the selection/appointment, to the extent of applicants, was set aside with the direction to the respondents 1&2 to reframe the selection list after exclusion of the applicants with further direction to include the writ petitioner in the select list, provided he is able to make it to the redrawn select list. The applicants have stated that the Hon'ble Court has held that the applicants did not have the experience in the clinical laboratory from the recognized Hospitals. In this regard it submitted that the applicant - respondent No.5, has done his Diploma in Medical Technology from the Institute of Public Health & Hygiene, Mahipalpur, New Delhi, which is recognized/approved by the Central and several State Governments including the State of J&K. It is further stated that in the review petitioner by the said applicant that besides acquiring experience from various recognized hospitals, he has also gathered experience by working in Jaipur Golden Hospital from the year 2000 to 2003 and the said hospital is also a recognized under CS(MA) Rules, 1944 and finds its place at S.No. 15 in the Delhi (UT) 158 in the list of Private Hospitals in India. It is further stated that all the documents, which were part of the record, were got verified by the respondent - Institute.

02/ The applicant - respondent No.10 has also been held ineligible by the writ Court on the ground that he too has got experience from an unrecognized Institute i.e, Standard Diagnostic Centre, Srinagar. It is stated by the said applicant that the respondent Institute sought verification of the certificate issued to him by the Standard Diagnostic Centre and the said Centre in their reply submitted on 02-07-2012 have stated that the same is true & correct. They have further submitted that the said Centre is part of the Galaxy Lab, which stands registered by the Govt. of J&K. Similarly in the case of applicant - respondent No. 12, the Hon'ble Court has held that he has done his diploma from the Mid Night Diagnostic Lab, which too is not recognized. Again the respondent Institute sought verification from the said lab, who in turn reported that the certificate issued by them is valid. Besides the Diagnostic Centre is part of the Patients Care Point Clinical Laboratory, which has also been recognized by the Govt. of J&K. 03/ It is further stated in the review petition that in the reply, filed by the respondent No.2 - SKIMS, to the maintainability of the writ petition, all the private respondents, including the review petitioners, have been shown to be eligible. It is further stated in the reply that all the private respondents have been selected/appointed on the basis of 159 their merit and it is only after satisfying itself about the eligibility of the candidates that the selection/appointment list was issued. The credentials of all the candidates were got verified from the Issuing Authorities.

04/ The applicants have further stated that apart from what has been stated above, they have otherwise no role to play in the process of selection/appointment other than producing their degree/diploma/experience certificates before the respondent - Institute. In the end the applicants have prayed that in view of all that has been stated above, the judgement/order dated 07-07-2015 of this Court may be reviewed and set aside and the writ petition (SWP 727/2009) be dismissed.

05/ In the reply/response to the review petition, filed by the respondent No.2 - Director, SKIMS, it is stated that the writ petitioner and the review petitioners - respondents 5, 10 & 12 were found eligible to apply for the post of Lab. Attendant but after going through the selection process, the petitioner lagged behind in the over all merit. The marks were awarded on the basis of performance and the candidates were selected on their respective merit having secured 50 marks or above as per the assessment made by the Departmental Selection Committee. The candidates were interviewed and assessed keeping in view the qualification required for the advertised post. However, 04 marks were given to a candidate having one year Diploma and 08 160 marks for 02 years' diploma in Lab. Technology. It is further stated that the higher percentage of marks in matric was also given weightage and the review petitioners figured more superior than the petitioner. It is further stated that the certificates/credentials of the review petitioners were thoroughly verified and scrutinized from the respective Issuing Authorities and it was found that all of them had got their certificates/experience from the recognized Institutes/Centres and it was only after the said verification was complete that the review petitioners were appointed.

06/          Heard and considered.




07/      Review       petition is, accordingly, disposed of along with

connected IAs.

TARIQ Mota
SRINAGAR.
  -04-2018                                       (M.K.HANJURA)
                                                            JUDGE
                        161

HIGH        COURT      OF JAMMU AND KASHMIR- SRINAGAR

Case No: C.REV. 09/2017                      Dated :  of April, 2018
GH. NABI BHAT         VERSUS          MANZOOR AHMAD SHEIKH & ORS

CORAM: HON'BLE         MR. JUSTICE M.K.HANJURA- JUDGE

Whether to be approved for reporting in NET :                   Yes/No
Whether to be approved for reporting in Digest/Journal :        Yes/No____
FOR THE PETITIONER/s :              MR. N.H.SHAH
FOR THE RESPONDENT/s: .             MR. N.A.BEIGH        _________________

01/       Order dated 25th of March, 2017, of the Court of Learned

Munsiff, Boniyar, passed in a Civil Suit,       is assailed in this Civil

Revision petition. The facts, as these surface from the perusal of petition of the petitioner, are that the respondent Nos. 1 to 4 filed a suit for declaration, possession and permanent injunction against the petitioner and respondent Nos. 5 to 7 in the Court of the learned Munsiff, Boniyar. The petitioner appeared before the Court of the learned Munsiff, Boniyar, through his lawyer and also submitted his written statement. The petitioner raised an objections in his written statement to the effect that the land, which is the subject matter of the lis, is agricultural land and the suit essentially is for possession, partition and permanent injunction and is, therefore, not maintainable before the Civil Court as the Suits of such nature are to be tried by the Collector under the Agrarian Reforms Act, in view of section 19 of the said Act. The trial Court agreed to hear the arguments about the jurisdiction of the Court, however, the trial Court held that section 19 of the Agrarian Reforms Act does not apply to the case and, accordingly, 162 vide order dated 25-03-2017, rejected the submission made by the petitioner. It is further submitted that the Suit land is an agricultural land as defined under Agrarian Reforms Act and the Civil Court has no jurisdiction to adjudicate upon any question regarding the possession. The learned trial Court is not right in saying that the Agrarian Reforms Act, has no application to the present controversy. Section 19 of the Agrarian Reforms Act, 1976, clearly bars the jurisdiction of Civil Court to entertain such Suits but the trial Court has not properly appreciated this point. It is stated further that the trial Court, being a Court of limited jurisdiction, has not even considered the point regarding the valuation of the Suit property. Therefore, the order dated 25th March, 2017, passed by the learned Munsiff, Boniyar is contrary to the law and facts, and as such deserves to be set aside.

02/      Heard and considered.


TARIQ Mota
SRINAGAR.
  -04-2018                                       (M.K.HANJURA)
                                                           JUDGE
                             163

HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR

Case No:        OWP 1463/2016                              Dated :      of April, 2018
GHULAM AHMAD DAR & ORS                  VERSUS                 ABDUL RAHIM DAR & ORS
                                  ORDER SHEET
 CORAM:
HON'BLE         MR. JUSTICE M.K.HANJURA- JUDGE
Whether to be approved for reporting in NET :                        Yes/No
Whether to be approved for reporting in Digest/Journal :             Yes/No

FOR THE PETITIONER/s :               MR. MOHAMAMD SULTAN
FOR THE RESPONDENT/s: .              M/S. M.AMIN KHAN & I.A.PARRAY___________________

01/      By the       medium of this writ petition, the petitioners have

questioned the        orders dated 13-10-2016 & 19-11-2016, passed by

Learned Munsiff/JMIC, Srinagar, & learned 2nd Additional District Judge, Srinagar, respectively, and have craved for the exercise of the supervisory jurisdiction of the Court for quashing of the same for the reasons that the impugned orders have caused miscarriage of justice to them. The brief facts, vital for arriving at a just conclusion in this petition, are that the petitioners, are the owners in possession of land measuring 2 kanals 10 marlas under Survey No. 674 situated at Gangbugh Srinagar, which is reflected in the Record of Rights. It is stated in the writ petition that a Civil Suit for grant of permanent prohibitory injunction, for restraining the respondents from alienating the suit land, came to be filed by the petitioners against the respondents. The respondents objected the position on the ground that they are the owners of land measuring 01 kanal and 11 marlas under Survey No. 398 old. It is further stated that the Record of Rights, prepared in the 164 Settlement Operation of the year 2011-12, reflected incorrect position with respect to Survey No. 398 renumbered as 674 and got the same rectified by a Sehtikash mutation. It is stated that the trial Court while considering the application for grant of interim relief, filed by the plaintiffs-petitioners, observed that the documents of the respondents are well in time and dismissed the application of the petitioners vide order dated 13-10-2016.

02/ Feeling aggrieved, the order dated 13-10-2016 came to be challenged by the plaintiffs-petitioners in the Court of 2nd Additional District Judge, Srinagar, through a Civil 1st Misc. Appeal, which was dismissed vide order dated 19-11-2016. Both these orders are impugned in the petition on hand on the grounds, inter alia, that the Courts below failed to evaluate the important documents of Record of Rights in its right perspective, which resulted in miscarriage of justice. The petitioners have pleaded that in terms of section 31 of the Land Revenue Act, the Record of Rights holds its presumptive value and the trial Court, without evaluating the value and worth of the documents of the respondents, observed that the same are well in time and the plaintiffs-petitioners have failed to have a prima facie case. It is further stated that even the appellate Court failed to exercise its jurisdiction properly, thereby causing failure of justice. The petitioners have further stated that in order to hold a prima facie case, a finding of fact is to be returned. The Courts below, without defining any reason as to 165 how the Record of Rights, evidencing the characteristic of possession of a party, did not make out a prima facie case. The trial Judge also failed to assign reasons as to how it stood displaced by the records submitted by the respondents, which is a mutation of a Sehtikash, which are later in point of time, as observed by the trial Judge and, thus, has mentioned as 'well in time' without analyzing the competence of the officer, who passed the order, in the light of section 32 of the Land Revenue Act.

03/ The petitioners have stated further that the Settlement Operation of the village, Gangbugh, had taken place in the year 2011- 12 and the legislative mandate, conferred on the Deputy Commissioner, Collector, who is competent to rectify the error, could have been invoked by the respondents for redressal of their grievances. It is further stated that trial Court as also the appellate Court, did not notice the mandate of the Collector, thus, they failed to appreciate the correction order, which was ordered by an Authority other than the Collector, and which was not in accordance with the Statute. It is further stated that the order of correction is bereft of jurisdiction and does not enjoy the statutory backing. The record submitted by the respondents in defense of their claim is a perverse piece of evidence taken by the trial Court and the appellate Court as a sufficient proof to displace the Record of Rights, which is illegal. The Record of Rights is a piece of document, which holds presumptive value in favour of the 166 petitioners and cannot be displaced by any other record born later in point of time. It is further stated that even the mutation order cannot displace the rigor of the Record of Rights. The trial Court and the appellate Court, acting on a piece of illegal document, extended the benefit of section 31 of the Land Revenue Act, ignoring the Record of Rights and thus, they failed to evaluate this essential aspect of the matter, which has direct bearing on the evaluation of the prima facie case of the petitioners. On the strength of perverse record against the settled principles of law that revenue record does not create any title, the Courts below observed that the respondents are owners in possession. The petitioners have stated that the spurious mutation order and its fall of action in the annual record neither holds presumptive value nor any legitimacy to displace the Record of Rights. Therefore, the observation of the trial Judge and the appellate Judge are illegal and unfounded. In this view of the matter, the petitioners have prayed that the writ petition be allowed and the Court, in exercise of its supervisory jurisdiction, quash the aforesaid impugned orders with further direction to maintain status quo on the spot.

04/ In the reply affidavit, filed by the respondents, it is stated that the writ petition is not maintainable for the reasons that the facts mentioned therein are frivolous, concocted and false. It is pleaded in the objections that while making corrections in the revenue records, mutation order No. 1156 was attested whereby 13 marlas of land was 167 shown under new Khasra No. 673 and 18 marlas under Khasra No.

674. The respondents have stated that the petitioners taking undue advantage of wrong entries in the revenue records during the settlement, have knocked the doors of the trial Court, the appellate Court and now have reached the writ Court on the submissions, which are absolutely illegal, impermissible and incorrect, inasmuch as, the said entries have been removed and the revenue records have been set right since. It is further stated by the respondents that the petitioners have never been in possession of the land measuring 02 kanals & 10 marlas. The documents relied upon by them have been declared null and void ab initio by the statutory authorities. Respondents have further stated that the trial Court, after properly evaluating the facts, circumstances and the law, came to the conclusion to dismiss the interim application of the plaintiffs-petitioners and even the appellate Court did not intervene in the order of the learned Munsiff and dismissed the Civil 1st Misc. Appeal. The respondents have further stated that the plaintiffs-petitioners sought transfer of the appeal from the appellate Court, levelling baseless allegations against the Presiding Officers of the Court of learned City Munsiff, Srinagar, as well as against the Court of learned 2nd Additional District Judge, Srinagar. However, the learned Principal District Judge, Srinagar, dismissed the application of the plaintiffs-petitioners, seeking transfer of the C1MA. The respondents have further stated that the competent revenue 168 authority, conducted on spot inspection & investigation into the matter and it was only after doing so that they rectified the errors that were committed by the Field Agencies. The respondents have finally stated that the trial Court as well as the appellate Court having given befitting reasoning, in the Suit and in the C1MA, for rejecting the interim application of the plaintiffs - petitioners, the petitioners have no ground muchless cogent one to file this writ petition. The same may be dismissed with costs.

05/       Heard and considered.

TARIQ Mota
SRINAGAR.
   -04-2018                                       (M.K.HANJURA)
                                                             JUDGE
                                 169



HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: OWP 1290/2017 c/w OWP 2176/2017                                 Dated : 06th

of April, 2018                    ABDUL HAMEED BHAT                                 VERSUS

STATE AND ORSJAVED AHMAD BHAT                                                       VERSUS

STATE AND ORS                                 ORDER SHEET                        CORAM:

                                                              HON'BLE           MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. SHAFAQAT NAZIR FOR THE RESPONDENT/s:

.         M/S. ASIF BHAT, AAG & ATEEB KANTH

    01/       By the medium of these writ petitions, the petitioners have

sought the indulgence of this Court in quashing the Government order bearing No. 346-FCS& CA of 2017 dated 14-08-2017 (annexure-E) with a further prayer of directing the respondents to provide preferential treatment to the petitioner in OWP 1290/2017 or his son while allotting the Fair Price Shop for distribution of ration to the consumers/villagers for the reason that he has provided free accommodation to them for running of the Retail Sale Outlet with further prayer to accommodate him or his son for adjustment in the Department in lieu of providing free accommodation to them for running the said retail shop. The petitioner in OWP 2176/2017 has prayed for a direction commanding the respondents to consider the case for grant of license for running of a Fair Price Shop at C.D.Pora, Badgam, in his favour.

170

02/ The brief facts, necessary for determination of these petitions, are that the petitioner - Abdul Hameed Bhat, along with the residents of the village Chitroo, Dangerpora, Badgam, approached the respondents for opening of a Fair Price Shop or a Retail Sale Outlet for distribution of ration in the said village. The request of the villagers found favour with the respondents, who sanctioned opening of a Retail Sale Outlet. The said petitioner provided the required accommodation for the purpose without charging any rent. It is stated that the outlet is running in the said accommodation from the last 17 years in the space provided by the said petitioner. He has further stated that in order to compensate the loss, which he has incurred because of providing rent free accommodation to the respondents, assurances were given to him by the respondents that he will be either allotted a new Fair Price Shop or he will be considered for adjustment in the respondent Department on some available vacancy. He has stated further that instead of honoring their own commitment, the respondents have come up with an order, which has the effect of allotting the Fair Price Shop license to the private respondent, namely Javed Ahmad Wani, which is totally in violation of the Government order No. 127-FCS&CA of 2016 dated 24- 08-2016 and the guidelines made thereunder, by virtue of which, sanction has been accorded to the formulation of Revised Norms/Guidelines regarding opening of Fair Price Shops on commission basis and the first guideline whereof provides that the 171 existing Fair Price Shop holder shall retain more RTs if there is no feasibility of opening a second Fair Price Shop. The petitioner - Abdul Hameed Bhat, has stated further that the allotment order favouring the private respondent is not only illegal and arbitrary but also in violation of the his rights and legitimate interests. He has, therefore, sought intervention of this Court for the grant of the aforesaid reliefs.

03/ The petitioner in the clubbed writ petition (OWP 2176/2017) has stated that the Government order, in terms of which the Fair Price Shop has been allotted to the Private respondent No.4, is in violation of the Govt. Order No. 127-FCS & CA of 2016 dated 24-08-2016 and the guidelines laid thereunder. He has further stated that the allotment made in favour of the private respondent is illegal, arbitrary and in violation of his legitimate interests and rights, inasmuch as, he has filed the application form in the first instance and the private respondent has approached the respondents after him. The petitioner has, therefore, prayed that the writ petition be allowed and the reliefs sought therein be granted in his favour.

04/ Disputing the maintainability of the writ petitions, the respondents, in their objections, have stated that since none of the rights of the petitioners have been violated or infringed, therefore, no cause of action has accrued to them for maintaining the writ petitions. It is further stated in the objections that the action of the petitioners is aimed 172 at stalling the free flow of ration to the needy people of the village and there is no legal force in the contentions of the petitioners raised by them in their petitions. The respondents have proceeded to state that the Department of Food & Civil Supplies & Consumer Affairs is the best judge to take a final call on devising the ways and means of providing the ration supplies to the consumers and taking of any decision in relation to the policy matters is within the domain of the department itself. The respondents have further maintained in their objections that the order impugned, being in consonance with the earlier orders passed by the Government in this regard, does not suffer from any legal infirmity. No license or any permanent Distributorship was ever allotted to the petitioners and they have willfully concealed the fact that the Retail Sale Outlet in question was opened by the Department by making an internal adjustment in terms of order bearing No. DFSK/DLG/STS-6717-6721 dated 01-01-2000, wherein it was made clear that the respondent Department cannot be compelled in future to regularize the sale centre in favour of anyone. The respondents have further averred that at the best the petitioners could have competed in the process of allotment of license for the fair price shop. Merely running of a sale outlet does not, ipso facto, clothe the petitioners with an absolute right to claim the license on permanent basis from the Department for distribution of ration to the consumers. 173 Finally the respondents have prayed that the writ petitions, being devoid of any merit, be dismissed along with connected IAs.

05/       Heard and considered.

06/       Before looking into the merits of the controversy, it needs must

be said that the settled law is that unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness or perversity or that the authority has intended to favour someone, the constitutional Court will not interfere with the decision making process or the decision of the Administrative Authorities.

07/ Looking at the petitions of the petitioners from the above perspective, the Government of J&K, Directorate of Food & Supplies, Srinagar, by an office order dated 04-01-2000 (annexure-B), directed as follows : "A Retail Sale Out-let shall be opened by internal adjustment of staff at Chitroo, Dangerpora, Tehsil Badgam. The Assistant Director, Food, Badgam, will make necessary arrangements for sale and storage of food grains at the centre. The accommodation and watch and ward shall be provided by the inhabitants free of cost. They will not commit the department to regularize the sale centre on permanent basis." 08/ On the face of the order aforesaid, what is palpable is that a Retail Sale Outlet was directed to be opened by an internal adjustment of the staff at Chitroo, Dangerpora, District Badgam. The order made it abundantly clear that the respondent Department cannot be committed to regularize the sale center on permanent basis. Under the cover of the 174 said order, the petitioner, Abdul Hameed Bhat, cannot have the teeth to lay any claim for the grant of a license for running a Fair Price Shop in his favour for the simple reason that the terms and conditions evolved in the order aforesaid have been accepted by him on opening of a Retail Sale Outlet. The petitioner cannot now turnaround and change colors like a chameleon by stating that the said condition is not acceptable to him and, therefore, the impugned order bearing No. 346-FCS & CA of 2017 dated 14-08-2017 is bad and perverse. In the other petition bearing OWP No. 2176/2017, suffice to say that the respondents, in issuing the impugned order, might have taken into consideration a variety of factors like the factual report, feasibility and viability in the allotment of the Fair Price Shop to the private respondent. The Court cannot interfere in a policy decision of the Government when it is not wrapped in arbitrariness, mala fides or perversity. The respondents are the best judges to take a final call and devise ways and means for providing the ration supplies to the consumers and taking such a decision is well within their domain, jurisdiction and power. 09/ The contention of the petitioner in OWP 1290/2017 that he was assured by the official respondents that he will be provided a job is not borne out from any material placed on record. The writ Court cannot probe or delve on an issue which raises a disputed question of fact. 175 10/ In view of the preceding paragraphs, these writ petitions entail dismissal and are, accordingly, dismissed along with connected IAs. Interim directions, if any, shall stand vacated.

TARIQ Mota SRINAGAR.

06-04-2018                                           (M.K.HANJURA)
                                                               JUDGE
                        176

01/       By the medium of this writ petition, the petitioner has thrown

challenge to the orders dated 11-05-2017 and 02-11-2017 passed by the Principal District Judge, Baramulla. It is pleaded by the petitioner that he is the owner and in possession of a house along with the land appurtenant and underneath thereto, falling under Khasra No. 272/2 in the estate Tilagam, Pattan. The petitioner has further stated that in a recent development, he came to know that the said house, which is situated on 16 marlas of land, has been attached by the Court of Principal District Judge, Baramulla. When the matter was enquired into, it came to the knowledge of the petitioner that his son, respondent No. 2 herein, was having some financial dispute with the respondent No.1, who happens to be a Patwari. It is further stated that when the dispute between the respondents 1 & 2 could not be settled, the matter landed in the Court of law, where both the respondents entered into a compromise and the respondent No.2 was directed to pay an amount of Rs. 06/- lacs to the respondent No.1. It is further stated that the petitioner was not having any knowledge, whatsoever, about the transactions or about the pendency of the case of his son and respondent No.2 in the Court of Principal District Judge, Baramulla. As a matter of fact, the petitioner came to know about the same in October, 2017, when some Revenue officials came to his home and told the petitioner that they are under directions to attach his residential house. 02/ Learned counsel for the petitioner stated that no sooner did the petitioner acquired the knowledge of the attachment of his property, he approached the Court of the Principal District Judge, Baramulla with the plea that the property attached by the Court, actually belongs to him and not to the respondent No.1, therefore, the same can neither be attached nor can it be auctioned. In this regard, the petitioner has filed a formal application in terms of order 21 rule 58 CPC, which is pending adjudication. The learned trial Court, instead of taking the matter to the logical conclusion, passed yet another order, directing the Tehsildar, Pattan, to put the property in question to auction. 03/ The petitioner has challenged the aforesaid orders on the ground that the Executive court does not have the power to attach the property of a third person. It was incumbent upon the Court below to verify from the judgement debtor and the decree holder about the title of the property sought to be attached, which was not done in the case on hand, thus, an illegality has been perpetrated. The petitioner has further stated that the Court below has committed an error by not following the given procedure for attachment or auction of any property, as under

rule 64, 65, 66 & 67 of the order 21 CPC, the Court was required to make a proclamation before making any auction/sale of the property, which has not been done. The Court, instead of dealing with the matter in accordance with the law, has in a most mechanical, callous and arbitrary manner passed the impugned order dated 01-11-2017.04/ 177 Learned counsel for the petitioner stated that the respondent No.1, effected the revenue entries in the name of the respondent No.2 - son of the petitioner, without the consent or approval of the actual owner (the petitioner) and a wrong information, on affidavit, was deliberately and knowingly provided to the Executing Court, leading to the attachment of the property of the petitioner. The petitioner has further stated that the entire property, sought to be attached, belongs to him. He has further stated that the respondent No. 2, in league with the respondent No.1, Patwari, have tried to grab his property, which fact has also been brought to the knowledge of the respondent No.3 - Deputy Commissioner, Baramulla, by way of a representation. The petitioner has finally prayed that the Hon'ble High Court, by making use of its supervisory jurisdiction, may allow this writ petition and set aside the impugned orders passed by the Court of Principal District Judge, Baramulla, as no other alternate nor efficacious remedy is available to him.

04/      Heard                               and                considered.
                         178

HIGH COURT OF JAMMU AND KASHMIR-
                              SRINAGAR

Case No: HC(p) 357/2017                            Dated : 04th of April, 2018
MOHAMMAD SHAFI MIR                     VERSUS               STATE AND ORS.
                        ORDER SHEET

CORAM:            HON'BLE     MR. JUSTICE M.K.HANJURA- JUDGE

Whether to be approved for reporting in NET :            Yes/No

Whether to be approved for reporting in Digest/Journal : Yes/No______________ FOR THE PETITIONER/s : MR. SHAFAQAT NAZIR FOR THE RESPONDENT/s: MR. M.A.RATHORE, AAG_________________________ (M.K.HANJURA-J) 01/ On 12-09-2017, the detenue - Mohammad Shafi Mir, was arrested by the security forces in connection with a case bearing F.I.R No. 60/2017, registered at Police Station, Qalamabad, u/s 7/25 Arms Act. While the detenue was in the custody of the police, he was detained by the respondent No. 2 - District Magistrate, Kupwara, in terms of the order of detention bearing No. 15/DMK/PSA of 2017 dated 20-10-2017, impugned herein, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978) and the detenue was ordered to be lodged in Central Jail, Kotebhalwal, Jammu, where he continues to be at the moment. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue has been deprived of the right to file an effective representation before the Detaining Authority, i.e. the District Magistrate, Kupwara, against his order of detention. It is also pleaded that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive 179 offence under F.I.R No. 60/2017 registered in Police Station, Qalamabad, u/s 7/25 Arms Act and was in the custody of the respondents when the order of detention was passed. The detenue had not even applied for grant of bail at the time of his detention. It is further pleaded in the petition that the grounds of detention are vague and non existent. The detaining authority has not perused the relevant material before passing the order of detention and as such the same is liable to be quashed. 03/ The respondents have pleaded in the counter affidavit that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been furnished to the detenue and the same have been read over and explained to him. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 04/ Heard and considered. 05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offence in case bearing F.I.R No. 60/2017 u/s 7/25 Arms Act, registered at Police Station, Qalamabad, and the detenue was in the custody of the respondents when the impugned order dated 20-10-2017 was passed. 06/ Preventive 180 detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The 181 Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v.

B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. 08/ Looking at the instant case from the another perspective. The case FIR No. 60/2017 u/s 7/25 Arms Act 182 was registered against the detenue at Police Station, Qalamabad, and at the time of the passing of the impugned order of detention, he was in the custody of the respondents. This F.I.R forms the baseline of the order of the detention of the detenue. 09/ The question for consideration is, can an order of detention be passed on the face of what has been detailed above. The answer to this question is a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."10/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal 183 legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order"

cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."11/ The order bearing No. DMK/PSA/2017/282-86 dated 20-10-2017, addressed by the District Magistrate, Kupwara, respondent No.2, to the detenue, bears testimony to the fact that the detenue has been informed that he has a right to make a representation to the Government against the order of detention, if he so desires. He has not been informed that he has also a right to make a representation before the detaining authority. To substantiate his argument that the detenue has been deprived of his right to make an effective representation against the order of detention by not informing him that he can make a representation to the detaining authority, which has the effect of vitiating the order of detention, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir vide order dated 09th June, 2017 passed in the case of Tariq Ahmad Dar versus State of 184 J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. 7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been 185 complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant. 9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and,in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub- section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:-

"19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, 186 notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, 187 orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, 188 as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no 189 consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."12/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 13/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 15/DMK/PSA of 2017 dated 20-10-2017 passed by the respondent No.2 - District Magistrate, Kupwara, is quashed with a 190 further direction to the respondents to release the person of Mohammad Shafi Mir S/O Abdul Gaffar Mir R/O Supernaghama, District Kupwara, Kashmir, forthwith from the preventive custody, unless required in any other case. 14/ The petition is, accordingly, disposed of along with connected IAs.

TARIQ Mota SRINAGAR. 04-04-2018 (M.K.HANJURA) JUDGE 191 HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: OWP 198/2018                                             Dated : 04th

of April, 2018               FAYAZ AHMAD BHAT                                 VERSUS

STATE AND ORS                          ORDER SHEET                         CORAM:

                                                       HON'BLE            MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET : Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. F.A.BHAT FOR THE RESPONDENT/s: . MR. MERAJ-U-DIN, Dy.AG 1/ By the medium of this writ petition, the petitioner has questioned the Auction Notice bearing No. MCP/Pul/2018/1806-10 dated 08-02-2018, issued by the respondent No.3 - Executive Officer, Municipal Committee, Pulwama. The brief facts, vital for determination of this petition are that the petitioner, being the highest bidder, was allotted a contract for the collection of Adda/Entry fee for the financial year 2016-17 by the Municipal Committee, Pulwama vide order bearing No. MC/Pul/2016/1984-89 dated 31-03-2016. However, the petitioner has pleaded that due to the turmoil that erupted in the valley of Kashmir in the month of July, 2016, the business activities came to a grinding halt and the business community including the petitioner faced huge financial losses. It is further pleaded by the petitioner that in view of such losses, he approached the respondents for extension of contract but they did not pay any attention to this request of the petitioner. They went ahead and 192 issued another auction Notice dated 27-02-2017. Being aggrieved, the petitioner took up the matter with the Contractors Associations, who were also involved in the collection of the entry fee at various places under different Municipal Committees and who had approached the Government for compensating the losses incurred by them during the same period of turmoil. The petitioner states further that in terms of order dated 31-03-2017 (annexure-C), the respondent No.1 conveyed approval of the Administrative Department for extension of 03 months of entry fee contract for the year 2016-17 in favour of the contractors of the different Municipal Committees of Kashmir Division, including the petitioner, and as such the auction notice dated 27-02-2017 was not acted upon. It is further stated by the petitioner that in the order of extension, a condition was incorporated that the entry fee contract for the next financial year 2017-18 shall be continued with the same contractor on the increase of 0.25% in case of contract of Rs.50/- lacs and above and 0.5% in respect of contractors below Rs.50/- lacs with further stipulation that the contractor has to deposit the full amount of next years contract in one go. It is further stated by the petitioner that in view of this development, he was advised to deposit Rs. 38,94,712/- in the Committee Chest in one go, which was deposited by him. The petitioner has further stated that to his utter dismay, the respondents, in spite of collecting that amount from the petitioner, are going to put the contract to tenders again and they are reviewing the order for the 193 continuation of the contract to the previous contractors. 02/ Aggrieved of the action of the respondents, the petitioner approached the Court by medium of OWP 855/2017 and the Court was pleased to pass an order. However, during the pendency of the said petition, the respondents allotted the contract of collecting entry fee, canteen and weighing bridge for a period of one year to another contractor. It is further stated by the petitioner that he filed another writ petition (OWP 998/2017) seeking implementation of order bearing No. 190 DHPM of 2017 dated 08-06-2017 (annexure-J), by virtue of which, the contract period of the petitioner was extended. The Court, vide order dated 19-07-2017, directed the respondents to accord consideration to the claim of the petitioner having regard to the aforesaid order. The respondents did not choose to implement the Court order. The petitioner has stated further that during the pendency of the writ petitions, the respondents assured him verbally that he will be compensated for the losses suffered by him due to the unrest of 2016 and he will be allowed to continue with the contract with fresh terms. The petitioner has further stated that the respondents kept him in dark and at his back issued the impugned auction notice and are trying to allot the contract to some other party. The petitioner has finally prayed for allowing the writ petition and has sought quashing of the impugned auction notice.03/ In the objections, filed by the respondents, they have stated that in terms of the direction dated 19-07-2017, passed in OWP 998/2017, filed by the petitioner 194 earlier in point of time, claim of the petitioner has been considered, vide order bearing No. DULB/CC/859/2017/PS/194 of 2018 dated 15- 02-2018 and the same, being without merit, has been rejected. Respondents have further stated that they are otherwise duty bound to issue fresh auction notices at the appropriate time, which if not done, will cause a huge loss to the public exchequer. They have further stated that the alleged loss, that has incurred to the petitioner, has been assessed and the measures, to mitigate the same, have already been extended to him. It is also stated by the respondents that only those contractors were given the benefit of relaxation, who had deposited 80% and above of the contract amount with a further stipulation that they shall deposit the remaining 20% within 15 days from the date of extension and those contractors, who are defaulters as on date, shall be provided with an opportunity to deposit the outstanding amount in one go before they are extended the relief. Respondents have further stated that the petitioner was conveyed the approval of extension in his favour for a period of three months subject to certain conditions. Respondents have further stated that the relief claimed by the petitioner cannot be granted at this point of time as it will cause irreparable loss to the public exchequer which cannot be compensated. At the end the respondents have prayed for dismissal of the writ petition. 04/ Heard and considered. 05/ Before recapitulating the main points of the controversy involved in this petition, the allotment order bearing 195 No. MC/Pul/2016/984-89 dated 31-03-2016 (annexure-A), was issued by the Executive Officer, Municipal Committee, Pulwama, in favour of the petitioner regarding collection of Adda/Entry fee at the Municipal Committee, Pulwama, for the year 2016-17 and to be more precise, w.e.f. 01-04-2016 to the midnight of 31-03-2017 against the total highest bid amount of Rs. 51.80/- (Rupees Fifty one lacs & eighty thousand only), out of which, the petitioner deposited Rs. 41.60 Lacs @ 80% in the Chest of the Municipal Committee, Pulwama, vide A/C No. 1346 JRY, Pulwama, and the remaining amount, reckoned and calculated at Rs. 10.20/- lacs had to be paid by the petitioner through Payees Account cheque favouring the Executive Officer, Municipal Committee, Pulwama, on 01-07-2016.06/ The petitioner in this petition seeks threefold reliefs. One that the impugned fresh Auction Notice, issued vide No. MC/Pul/2018/1806-10 dated 08-02-2018 be quashed ; second, that the respondents be directed to pay the compensation for the loss suffered by him due to the turmoil, in which the valley of Kashmir was engulfed in the year 2016, which may either be in the shape of compensating the petitioner in terms of money or extending the contract as allotted to him vide order No. 190-DHPM of 2017 dated 08-06-2017 (annexure-J); and third that the respondents be commanded to allow the petitioner to continue on extension in view of the pendency of the earlier writ petition. 07/ In case titled Municipal Corporation, Ujjain and others versus BVG India Limited and others, 196 reported in MANU/SC/0293/2018, Hon'ble the Supreme Court reiterated that unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness or perversity or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision making process or the decision of the administrative authorities, especially those relating to acceptance of the tender and award of the contract. 08/ Testing the case of the petitioner from the perspective of the law laid down above, clauses 4&6 of the order of allotment dated 31-03-2016 made in favour of the petitioner require to be detailed herein below and these read as under :".......................4/ That the contractor shall be bound to handover the possession of all Tollposts back to Municipal Committee, Pulwama, at the close of financial year i.e, 31-03-2017 upto the midnight without any delay and hesitation and has to obtain no objection certificate from this Institution in his behalf, failing which action as warranted under law will be initiated against the contractor on his risk, cost and responsibility........................6/ The Municipal Committee, Pulwama, shall not be responsible and bound to provide any kind relief/relaxation/compensation in the event of any adversity or unavoidable circumstances like Bandhs and Hartals which may lead the contractor to sustain financial losses."09/ Clause (4) of the order supra, makes it mandatory for the petitioner to handover the possession of the Tollposts to the Municipal Committee, Pulwama, at the close of the financial year i.e. on the midnight of 31-03-2017, which date has already expired. Clause (6) aforementioned provides that the Municipal Committee, Pulwama, shall not be responsible and bound to pay any kind of relief/relaxation/compensation, in the event of any adversity or 197 unavoidable circumstance like Bandhs & Hartals, which may lead the contractor to sustain any financial loss. The petitioner has accepted the terms and conditions incorporated in the said allotment order with open eyes and is, thus, precluded from taking shelter under the plea that due to the unrest which the valley of Kashmir went through in the year 2016-17, he is entitled to any compensation or continuance of the contract of allotment and even if he be entitled to it, it is for the Government to take a call on that because the measure of compensation to be paid to a person, who has suffered any loss, has to be considered and calculated by the Government that has the liberty to take a decision on it. It is not within the domain and power of this Court to do so, particularly on the face of the clause (6) of the order of allotment. On the premise of the said condition, the petitioner cannot seek and claim the compensation or the extension of the period of contract. The respondents were correct in issuing the fresh tender notice at the appropriate time and if such tender notices are not issued in time, it will cause a huge loss to the public exchequer. It will have a cascading effect and in the ultimate analysis, it will reflect adversely on the functioning of the Municipal Committee that is dependent on the revenue. It goes without saying that the petitioner can also participate and compete in the fresh tender notice/s. 10/ In view of the preceding analysis, the petition of the petitioner does not merit any consideration and is liable to be dismissed. Since the term of the contract, allotted to 198 the petitioner, has already expired, therefore, the respondents cannot be ordained not to proceed further with the impugned fresh Auction Notice. However, before parting, it needs must be said that the Government may, in its wisdom, deem it appropriate to consider the claim of compensation of the petitioner and take measures to mitigate the loss that the petitioner is, alleged, to have incurred. 11/ Writ petition is, accordingly, disposed of along with connected IAs. TARIQ Mota SRINAGAR. 04-04-2018 (M.K.HANJURA) JUDGE 199 200 201 HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: HC(p) 274/2017                                               Dated :

of March, 2018                RIYAZ AHMAD MIR                                VERSUS

STATE AND ORS.                        ORDER SHEET                         CORAM:

                                                       HON'BLE           MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. MIR MAJID BASHIRFOR THE RESPONDENT/s: . MR. R.A.KHAN, AAG(M.K.HANJURA-J) 01/ In exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978), the respondent No.2, District Magistrate, Anantnag, passed an order of detention bearing No. 04/DMA/PSA/DET/2017 dated 29-05- 2017, vide which one Shri Reyaz Ahmad Mir was detained and lodged in District Jail Kathua. He continues to be there at the moment. The order of detention was executed on 01st of June, 2017. The grounds of detention, along with the allied documents and the detention warrant are said to have been served on the detenue and the contents thereof, as contended, have been read over to him in English language and explained in the Urdu & Kashmiri languages which he understood fully well. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue has been deprived of the right to file an effective representation before the Detaining Authority, i.e. the 202 District Magistrate, Anantnag , against his order of detention. It is also pleaded that the detenue could not have been detained under the provisions of PSA when he was already booked in various F.I.Rs bearing Nos. 66/2016, 92/2016 & 95/2016, registered in Police Station, Mattan, in which he was bailed out by the Hon'ble Court. However, the detenue was also booked in cases bearing F.I.Rs Nos. 70/2016 & 74/2016, registered in Police Station, Aishmuqam. 03/ The respondents have pleaded that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. District Jail, Kathua, Jammu. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 04/ Heard and considered. The detention record has also been perused.05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences in the cases bearing F.I.R NOs. 66/2016, u/s. 13 ULA(P) Act, 92/2016, u/s. 13 ULA(P) Act, registered at Police Station, Mattan 203 besides being involved in the cases bearing F.I.R Nos. 70/2016 & 74/2016, registered in Police Station, Aishmuqam. The detenue was on police remand in Police Station, Mattan, in connection with the another F.I.R bearing No. 62/2016., u/s 13 ULA(P) Act and was in the custody of the respondents when the impugned order of detention was passed. 06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that Article 22 (3)

(b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under Article 21. The Supreme Court further observed that since Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is 204 proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue.

The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the 205 Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. 08/ Looking at the instant case from the above perspective, the detenue was booked under various F.I.Rs registered at Police Stations, Mattan & Aishmuqam. He was in the custody of the respondents in connection with the F.I.R No. 62/2016, registered at P/S Mattan, u/s 13 ULA(P) Act, when the impugned order of detention was issued. This F.I.R forms the baseline of the order of the detention of the detenue. 09/ The question for consideration is, can an order of detention be passed on the face of what has been detailed above. The answer to this question is a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National 206 Security Act should not ordinarily be passed."10/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment rendered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."11/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences. He was on police remand in the case bearing F.I.R No. 62/2016 when the order of detention was passed and he was not enlarged on bail in the said F.I.R. The proper course would have been to challenge the order of 207 bail, if granted to him. He could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside. 12/ The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the District Jail, Kathua, Jammu, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the Execution Report, what gets revealed is that the detention warrant has been executed on 01-06-2017 at District Jail, Kathua, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully well and in token thereof, his signature was attained on the Execution Report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, SI, Majid Nadeem No. 432/PAU EXK-109284, P/S Anantnag, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is 208 no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 13/ The Execution Report, which forms a part of the record, produced before this Court by the learned counsel representing the respondents, bears testimony to the fact that the detenue has been informed that he has a right to make a representation to the Government against the order of detention, if he so desires. He has not been informed that he has also a right to make a representation before the detaining authority. To substantiate his argument that the detenue has been deprived of his right to make an effective representation against the order of detention by not informing him that he can make a representation to the detaining authority, which has the effect of vitiating the order of detention, the learned counsel for the 209 petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir vide order dated 09 th June, 2017 passed in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. 7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact 210 that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant. 9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and,in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub- section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:-

"19. Revocation of detention orders.-(1) Without prejudice to the provisions 211 of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, 212 exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the 213 Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the 214 respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."14/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 15/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention 215 bearing No. 04/DMA/PSA/DET/2017 dated 29-05-2017 passed by the respondent No.2 - District Magistrate, Anantnag, is quashed with a further direction to the respondents to release the person of Riyaz Ahmad Mir S/O Late Ghulam Rasool Mir R/O Fohar Siligam, Aishmuqam, District Anantnag, Kashmir, forthwith from the preventive custody, unless required in any other case. 16/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota SRINAGAR.      -03-2018


(M.K.HANJURA)
                JUDGE
                              216

      HIGH             COURT                OF          JAMMU                 AND

KASHMIR-                                                      SRINAGARCase No:

HC(p) 334/2017                                         Dated :      of March, 2018

MOHAMAD LATEEF SHEIKH                        VERSUS                STATE AND ORS.

                  ORDER SHEET                      CORAM:

                                   HON'BLE             MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                  Yes/No

Whether to be approved for         reporting in Digest/Journal :     Yes/No    FOR

THE PETITIONER/s :            MR. SHAH ASHIQ FOR        THE RESPONDENT/s: . MR.

ASIF MAQBOOL, GA(M.K.HANJURA-J)       01/         On 04-04-2017, the detenue -

Mohammad Lateef Sheikh, was arrested by the security forces                     in

connection with a case bearing F.I.R No. 15/2017, registered at Police Station, Uri, u/s 7/25 Arms Act. While the detenue was in the District Jail Baramulla under the judicial remand, he was detained by the respondent No. 2 - District Magistrate, Baramulla, in terms of the order of detention bearing No. 33/DMB/PSA/2017 dated 19-05-2017, impugned herein, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978) and the detenue was ordered to be lodged in Central Jail, Kotebhalwal, Jammu, where he continues to be at the moment. 02/ The impugned order of detention was executed by the respondents on 21st of May, 2017. The grounds of detention along with the contents of the detention warrant are said to have been read over 217 to the detenue in English language and explained to him in the Pahari & urdu languages, the languages which he understood fully well. 03/ The order of detention has been challenged on the grounds, inter alia, that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offence under F.I.R No. 15/2017 registered in Police Station, Uri, u/s 7/25 Arms Act and was in the custody of the respondents when the order of detention was passed and no bail was granted to the detenue, although he had applied for it. The grounds of detention are vague and non existent. The detaining authority has not perused the relevant material before passing the order of detention and as such the same is liable to be quashed. 04/ The respondents have pleaded in the counter affidavit that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. Central Jail, Kotbhalwal, Jammu. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 05/ Heard and considered. The detention record has also been perused.06/ As already stated, the impugned order of 218 detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offence in case bearing F.I.R No. 15/2017 u/s 7/25 Arms Act, registered at Police Station, Uri. and the detenue was on judicial remand, when the impugned order dated 19- 05-2017 was passed. 07/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is 219 proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.08/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the 220 Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. 09/ The learned counsel for the petitioner has further argued that the officer, who handed over the detenue to the jail authorities of the Central Jail, Kotebalwal, Jammu, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the Execution Report, what gets revealed is that the detention warrant has been executed on 21-05-2017 at Central Jail, Kotbhalwal, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue and explained to him in Pahari/urdu languages, which languages he understood fully well and in token thereof, his signature was attained on the Execution Report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, ASI Altaf Hussain, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under : "1/ Though several questions have been 221 raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 10/ Looking at the instant case from the another perspective. The case FIR No. 15/2017 u/s 7/25 Arms Act was registered against the detenue at Police Station, Uri, and at the time of the passing of the impugned order of detention, he was in the custody of the respondents. This F.I.R forms the baseline of the order of the detention of the detenue. The question for consideration, therefore, is that can an order of detention be passed on the face of what has been detailed above ? The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, 222 particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."11/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order"

SRINAGARCase No: HC(p) 390/2017                                                 Dated : 28th of

March, 2018                SHABIR AHMAD MALIK                                        VERSUS

STATE AND ORS.                            ORDER SHEET                            CORAM:

                                                            HON'BLE             MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. M.Y.LONE FOR THE RESPONDENT/s: . MR. M.A.WANI, Sr.AAG(M.K.HANJURA-J) 01/ The detenue - Shabir Ahmad Malik, has been detained by the respondent No.3, District Magistrate, Baramulla, in terms of the detention order bearing No. 150/DMB/PSA/2017 dated 30-11-2017, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978) and has been lodged in District Jail, Kathua, Jammu. The detenue continues to be there at the moment. The order of detention was executed on 04th of December, 2017. The grounds of detention, along with the allied documents and the detention warrant are said to have been served on the detenue and the contents whereof, as contended, have been read over to him in English and explained to him in the Urdu & Kashmiri languages which he understood fully well. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue has been deprived of the right to file an effective representation before the 225 Detaining Authority, i.e. the District Magistrate, Baramulla, against his order of detention. It is also pleaded that the detenue could not have been detained under the provisions of PSA when he was already in the custody of the respondents and lodged in Police Station Tarzoo, in connection with the F.I.R bearing No. 119/2017 u/s 113 ULA Act. 03/ The respondents have argued that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. District Jail, Kathua, Jammu. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 04/ Heard and considered. The detention record has also been perused.05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences in case bearing F.I.R No.119/2017 u/s 113 ULA Act, registered at Police Station Tarzoo. The detenue was arrested on 15- 11-2017 and was in the custody of the respondents when the impugned order dated 30-11-2017 was passed. 06/ Preventive detention, as has 226 been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that Article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under Article

21. The Supreme Court further observed that since Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, 227 after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue.

cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."11/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offence in which he was arrested and had not applied for bail. The proper course would have been to challenge the order of bail, if granted to him. The detenue could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside. 12/ The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the District Jail, Kathua, Jammu, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the execution report, what gets revealed is that 230 the detention warrant has been executed on 04-12-2017 at District Jail, Kathua, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully well and in token thereof, his signature was attained on the execution report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, SI Ghulam Nabi, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the 231 documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 13/ The Execution Report, which forms a part of the record, produced before this Court by the learned counsel representing the respondents, bears testimony to the fact that the detenue has been informed that he has a right to make a representation to the Government against the order of detention, if he so desires. He has not been informed that he has also a right to make a representation before the detaining authority. To substantiate his argument that the detenue has been deprived of his right to make an effective representation against the order of detention by not informing him that he can make a representation to the detaining authority, which has the effect of vitiating the order of detention, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir vide order dated 09 th June, 2017 passed in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's 232 approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. 7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) 233 thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant. 9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and,in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub- section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:-

"19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its 234 continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions 235 of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply 236 notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the 237 appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."14/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 15/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 150/DMB/PSA/2017 dated 30-11-2017 passed by the respondent No.3 - District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Shabir Ahmad Malik S/O Abdul Jabar Malik R/O Sangrama, District Baramulla, Kashmir, forthwith from the preventive custody, unless required in any other case. 16/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents. TARIQ 238 Mota SRINAGAR. 28-03-2018 (M.K.HANJURA) JUDGE 239 240 HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: OWP 802/2017                                                 Dated : 26th of

March , 2018            Chief Engineer (PWD) R&B & ORS               VERSUS              Gh.

Ahmad Sheikh & Ors                       ORDER SHEET                            CORAM:

                                                            HON'BLE            MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET : Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. Q.R.SHAMAS FOR THE RESPONDENT/s: . MR. MIR MAJID BASHIR(M.K.HANJURA-J) 01/ By the medium of this writ petition, the petitioners have assailed the orders dated 29-03-2017 & 25-05-2017 passed by the Chairman Tehsil Legal Services Committee, Handwara, (respondent No.1), inter alia, on the grounds that although the parties did not arrive at any settlement, yet the Chairman Legal Services Authority, without any jurisdiction, determined the issue by assuming unto himself the powers of a Civil Court. It is stated that in terms of the section 18(4) of the J&K Legal Services Authorities Act 1997 (for short Act of 1997), the jurisdiction of the Lok Adalat is limited to the extent of seeking a settlement or compromise between the parties and not to determine the issue on evidence or merit. The petitioners, while referring to a full bench decision of the apex Court delivered in case titled State of Punjab and another versus Jalore Singh & another, reported in 2008 ACJ 2874, have stated that the settled law 241 is that the functions of the Lok Adalat are conciliatory and Lok Adalats do not enjoy adjudicatory powers. The petitioners have proceeded to state that the award of the Lok Adalat is amenable to the writ jurisdiction of the Hon'ble High Court. It is well settled position of law that if the case does not involve settlement or compromise, the Lok Adalat cannot dispose of the same. To substantiate so, the petitioners have referred to and relied on the law laid down in the case titled State of Punjab versus Pholan Rani & others, reported in AIR 2007 SCC

555. 02/ The petitioners have further pleaded in the petition that the respondent No.1 had to restrict himself to the mandate of the Act of 1997 but he considered and concluded the case on the basis of the documents, which, allegedly, indicate that the amount is due to the applicants and directed the petitioner No.3 herein to release the amount of Rs. 33/- lacs. Thus, what is manifest is that no compromise or settlement was arrived at between the parties. 03/ The petitioners have averred further that the procedure adopted by the respondent No.1, in passing the impugned orders, is novel, inasmuch as, he was supposed to pass an award in terms of section 20 of the Act of 1997, which has not been done by the Authority. The impugned orders are beyond jurisdiction and these cannot sustain in the eyes of law. In the end, the petitioners have stated and submitted that the orders, impugned herein, being bad in law and the Lok Adalat having no jurisdiction to entertain the case and pass such orders, therefore, this 242 Court may set aside the impugned orders by allowing the writ petition and the application, filed by the respondents, at the pre-litigation stage, seeking settlement, be dismissed. 04/ Respondents 2 to 4 have filed their response, wherein they have categorically denied any illegality or any jurisdictional error in the orders impugned and, therefore, they have stated that the same do not warrant any interference by this Court. They have further stated that the petitioners have filed the writ petition in the official capacity and they have not sought leave from the Government of J&K, in particular Department of Law, Justice & Parliamentary Affairs, which is a pre-requisite. Respondents have further stated that while exercising the power u/s 18 & 19 of the Act of 1997, the Authority, which was seized of the subject matter of the lis, neither passed any award nor rejected the pre-trial application. However, on the basis of the candid statement of the Executive Engineer, R&B Division, Handwara - petitioner No.3 herein, who after receiving the information from the concerned office, stated that he will settle the claim, the direction for the release of the amount of Rs.33/- lacs was passed by the Authority. Respondents have further stated that when the direction for the release of the aforesaid amount was passed, the matter was ordered to be listed for a future date. However, the petitioners, thereafter, chose not to appear. Show Cause notices were issued to the petitioners, but instead of appearing before the Authority, they decided to approach this Court on fallacious 243 grounds, questioning the jurisdiction of the Authority. The respondents have further contended that no award was passed but efforts were made to facilitate settlement for the undisputed liability. The respondents have also averred that the petitioners being guilty of suppression of facts, cannot be allowed to contradict their own official record and admissions made before the Authority, which culminated in the passing of the impugned orders. The respondents have finally submitted that the writ petition being bereft of any substance, be dismissed.05/ Heard & considered.06/ Sections 18 & 19 of the Act of 1997, to which reference has been made in the pleadings of the parties, require to be delineated and enumerated below and these read as under : "18. Organization of Lok Adalat:- (1) The State Authority or District Authority or the High Court Legal Services Committee or, as the case may be, Tehsil Legal Services Committee may organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. (2) Every Lok Adalat organized for an area shall consist of such number of-- (a) serving or retired judicial officers; and (b) other persons, of the area as may be specified by the State Authority or the District Authority or the High Court Legal Services Committee, or as the case may be, the Tehsil Legal Services Committee, organizing such Lok Adalats. (3) the experience and qualification of persons referred to in clause (b) of sub-Section (2) for Lok Adalats shall be such as may be prescribed by the Government in consultation with the Chief Justice of the High Court. (4) Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of -(i) any case pending before; or(ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized; Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under 244 any law.19. Cognizance of cases by Lok Adalats.--(1) Wherein any case referred to in clause (1) of sub-section (4) of section 18,--(i) (a) the parties thereof agree ; or (b) one of the parties thereof makes an application to the Court for referring the case to the Lok Adalat for settlement and if such court prima facie satisfied that there are chances of such settlement ; or(ii) the court is satisfied that the matter as an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat : Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties.(2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (I) of section 18 may, on receipt of an application from anyone of the parties to any matter referred to in clause (ii) of sub-section (4) of section 18 that such matter needs to be determined by a Lok Adalat refer such matter to the Lok Adalat, for determination :Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party.(3) Where any case is referred to the Lok Adalat under sub-

section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties.(4) Every Lok Adalat shall, while determining any reference before it under this Act, with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles.(5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it, to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law.(6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advise the parties to seek remedy in a court.(7) Where the record of the case is returned under sub-section (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1)." 07/ The order dated 29-03-2017 of CJM Handwara (Chairman Tehsil Legal Service Authority), impugned herein, is relevant for the determination of this petition and it reads as under : "The application for pre litigation has been put up before this court in which notice was issued to the respondent first through Advocate Nadeem and then defendant No.5 appeared on behalf of non-applicants. On the 245 appearance of the non-applicant No5, he apprised court that the work done has been applicant prior to his joining to the present post and that he will take up the matter with the then concerned Executive Engineer who allotted the work of the applicant. The Ld. counsel for the applicant has put on record photo copy of the communication of letter No. 6145 dated 20.03.2017 which was sent by the Executive Engineer Handwara to Superintendent Engineer, Baramulla wherein, it was written that the work was completed in the year 2014 and that the Executive Engineer is competent to dispose of the claim of the petitioner. It is the claim of the applicants that they have constructed a Steel decked bridge measuring 1x30 meter Span over the Nallah Talari at Turkhapora - Khahipora village and submitted bill No. 129 dated 07.09.2015 after duly verified from different authorities and that since he has done work for an amount of Rupees Eight Six Lakh however the amount of rupees fifty three lakh released in favour of the applicants after the deductions and that the rest of amount of rupees 33 lakh is pending with the respondent No.5.The Ld. counsel further apprised the court that an amount of rupees fifty three lakhs has been verified by the same office headed by Executive Engineer after perusing the same bills which were pending in his office that they are making excuses for making payment of rupees thirty three lakhs on one or the other pretext.Since, the Executive Engineer non applicant No.5 has apprised the court on his appearance that he will see and verified the claim of the applicants from his predecessor and will pay the claim after receiving the information from the concerned office. Since photocopies put on record by the ld. counsel submitted in reply to letter No. 6145 dated 20.03.2017 issued by Superintendent Engineer, PWD (R&B) Circle Baramulla/Kupwara clearly notified in which he has submitted that Divisional level itself will take appropriate orders to pass the remaining bills of the applicant. Accordingly, in view of the submissions and intimation, the Executive Engineer is directed to release the amount of rupees thirty three lakhs by or before fifteen days from the date of order. Let the file shall be listed before the Lok Adalat on 08.04.2018." 08/ Another order dated 25.05.2017 of Chief Judicial Magistrate (CJM),Handwara (Chairman Tehsil Legal Service Authority), which has also been assailed in the petition and is germane in the context of the decision of this petition, states as follows : "In the above titled application, an order was passed on 29.03.2017 against the non-applicant to release an amount of rupees thirty three lakhs by or before fifteen days and when the said order was not complied by the non-applicant two show cause notices were issued against 246 them but of no avail. The casual approach on behalf of the non applicant i.e. Executive Engineer R&B Division, Handwara is sufficient to hold that he has no regards for court order.It is out of place to mention here that application is pending since 14.02.2017 till date applicant i.e. Executive Engineer, R&B Division Handwara has not released an amount and has not adhere the orders of court direction. This court is constrained to take action against the Executive Engineer R&B Division, Handwara and by this order the Treasury Officer Handwara is directed to seize the Major Head Account of the Executive Engineer R&B Division Handwara till further orders. Put up on 06.06.2017." 09/ The question that arises for consideration is whether the orders aforesaid passed by the CJM, Handwara (Chairman Tehsil Legal Service Authority) are in inconsonance with the law and the rules governing the subject. The Apex Court of the country in the case of "State of Punjab Vs Jalour Singh", reported in AIR 2008 SC 1209, directed the High Court to decide the appeal of State against the order of tribunal on merits while determining the import and scope of sub-sections 3, 4 , 5 and 7 of Section 19 of the Legal Services Authorities Act, 1987 as applicable to the State of Punjab and it held as follows : "8. It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance and puts its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject-matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by 247 principles of justice, equity, fair play. When the L.S.A Act refers to "determination' by the Lok Adalat and 'award' by the Lok Adalat, the said Act does not contemplate nor require a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision-making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat."9. But we find that many sitting or retired Judges, while participating in Lok Adalats as members, tend to conduct Lok Adalats like Courts, by hearing parties, and imposing their views as to what is just and equitable, on the parties. Sometimes they get carried away and proceed to pass orders on merits, as in this case, even though there is no consensus or settlement. Such acts, instead of fostering alternative dispute resolution through Lok Adalats, will drive the litigants away from Lok Adalats. Lok Adalats should resist their temptation to play the part of Judges and constantly strive to function as conciliators. The endeavor and effort of the Lok Adalats should be to guide and persuade the parties, with reference to principles of justice, equity and fair play to compromise and settle the dispute by explaining the pros and cons, strengths and weaknesses, advantages and disadvantages of their respective claims." 10/ Sub-Section 3, 4 ,5 and 7 of Section 20 cited above are in complete harmony and correspond to the provisions of Sub-Sections 3, 4, 5 and 7 of Section 19 of J&K Legal Services Authorities Act, 1997. Section 19 (5) (1) of the Legal Services Authority Act, as it applies to Punjab, is a replica of Section 18 Sub- Section 4, as it applies to the State of J&K.11/ Taking into consideration the ratio of the judicial precedent cited above, the function of the Lok Adalat relates to conciliation. The Lok Adalats 248 determine a reference on the basis of the settlement and compromise between the parties and puts its seal of confirmation by making an award in terms of the settlement and the compromise. In the instant case no reference has been made for placing the matter before the Lok Adalat nor has any Award been passed. The orders impugned have been passed after hearing the parties for the adjudication of the case and the Act does not contemplate or require any adjudicatory judicial determination but non adjudicatory determination based on compromise and settlement arrived by the parties. 12/ The application for the settlement of the case at pre- litigation stage here in this petition was filed by the respondents before the Chairman Legal Services Authority. The Chairman Legal Services Authority in terms of the provisions of the law detailed above was required to seek the consent of both the parties for referring the matter to the Lok Adalat and the matter could only be referred to the Lok Adalat thereafter. No attempt has been made in that direction. The Chairman of the Lok Adalat has not recorded any order to state that the matter requires to be referred to the Lok Adalat and no opportunity, as envisaged under Section 19 of the Act, has been given to the petitioners. The learned CJM, has imposed his views in the order without there being any settlement or compromise, which is against the tenets of law. He has recorded the order in such a fashion and manner as if he had to pass a final judgement in a case. In framing the first order, he has taken refuge 249 under the documents that were produced before him by the respondents without recording any settlement or compromise. 13/ It was on the notice issued in the application, seeking pre litigation settlement, that the respondent No.5 appeared before the trial Court. The Chairman, as is reiterated here, exercised his jurisdiction in the absence of any legal reference in terms of section 19 of the Act. The Chairman cannot make a reference on his own when the parties do not extend any request to the effect. It is only when an Award is made by the Lok Adalat in terms of a settlement/compromise which the parties acknowledge and in token thereof they put their signatures to it that it can be executed. 14/ In view of the preceding analysis, this petition succeeds and is, accordingly, allowed. The orders impugned in this petition are set aside. The respondents' claim shall revive for its consideration in accordance with the law. The trial Court record shall be returned forthwith. 15/ Disposed of along with connected IAs.


TARIQ Mota SRINAGAR.   -03-2018


(M.K.HANJURA)

              JUDGE                                HIGH COURT

OF            JAMMU                    AND              KASHMIR-

SRINAGARCase No: HC(p) 218/2017                            Dated : 23rd of

March, 2018            FAROOQ AHMAD BHAT                         VERSUS

STATE AND ORS.                       ORDER SHEET              CORAM:
                             250

                                                          HON'BLE           MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. NASIR QADIRIFOR THE RESPONDENT/s:

. MR. ASIF MAQBOOL, GA(M.K.HANJURA-J) 1/ One Mr. Farooq Ahmad Bhat, has been detained by dint of order bearing No. 41/DMB/PSA/2017 dated 30th of May, 2017, passed by the respondent No.2 - District Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). The detenue was lodged at District Jail, Kathua, Jammu, and continues to be there at the moment. The order of detention was executed on 01-06-2017 and the grounds of detention, along with the allied documents, are said to have been served on the detenue. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue has been deprived of the right to file an effective representation before the Detaining Authority, i.e. the District Magistrate, Baramulla, against his order of detention. It is also stated that the material, on the bulwark of which, the order of detention has been formed, has not been provided to the detenue and so on and so forth. 03/ The respondents have pleaded that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with 251 which he is conversant and these have been read over and explained to him at the place of his detention, i.e. District Jail, Kathua, Jammu. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 04/ Heard and considered. The detention record has also been perused. 05/ The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the District Jail, Kathua, Jammu, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the Execution Report, what gets revealed is that the detention warrant has been executed on 01-06-2017 at District Jail, Kathua, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully well and in token thereof, his signature was attained on the Execution Report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, ASI Abdul Majid, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex 252 Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 06/ The Execution Report, which forms a part of the record, produced before this Court by the learned counsel representing the respondents, bears testimony to the fact that the detenue has been informed that he has a right to make a representation to the Government against the order of detention, if he so desires. He has not been informed that he has also a right to make a representation before the detaining authority. To substantiate his argument that the detenue has been deprived of his right to make an effective 253 representation against the order of detention by not informing him that he can make a representation to the detaining authority, which has the effect of vitiating the order of detention, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir vide order dated 09 th June, 2017 passed in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the 254 detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. 7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant. 9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and,in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-

section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District 255 Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:-

"19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, 256 Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining 257 Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the 258 Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."07/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being 259 taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 08/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 41/DMB/PSA/2017 dated 30-05-2017 passed by the respondent No.2 - District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Farooq Ahmad Bhat S/O Abdul Aziz Bhat R/O Tawheed Bagh, Sopore, District Baramulla, Kashmir, forthwith from the preventive custody, unless required in any other case. 09/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota SRINAGAR.    -03-2018


(M.K.HANJURA)
             JUDGE
 260
 261
                              262

HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: OWP 807/2015                                                   Dated :

of March , 2018             AB. RASHID WAGAY & ORS           VERSUS                  GH.

RASOOL LONE & ANR.                                 ORDER                        SHEET

CORAM:                                                                   HON'BLE

MR. JUSTICE M.K.HANJURA-           JUDGE Whether to be approved for   reporting in NET :

                  Yes/No    Whether to be approved for       reporting in Digest/Journal :

         Yes/No FOR THE PETITIONER/s :                        MR. G.A.LONEFOR       THE

RESPONDENT/s: .            M/S. M.A.QAYOOM & M.ASHRAF BHAT(M.K.HANJURA-J)     1/ The

petitioners have challenged the order dated 18-04-2015 of the Munsiff, Kulgam, and the order dated 29-06-2013 of the Principal District Judge, Kulgam, passed in File No. 34/Appeal, by medium of this writ petition. The brief facts, vital for determination of this petition are that the respondents filed a Civil Suit in the Court of Sub Judge, Kulgam, for declaring them as owners of the land measuring 09 kanals and 01 marla, comprising Survey No. 97, situated at village Udoora, Kulgam, with further prayer to direct the defendants - petitioners herein, by way of grant of a decree of injunction, not to change the nature of the suit land, besides recovery of possession and mense profits. 02/ It is pleaded in the petition that the plaintiffs - respondents herein, based their claim on the premise that their great grand father, namely, Rasool Buhroo, had left behind the above mentioned property after his demise. He was survived by a Khana Nisheen daughter -Mst. Mali, who, being 263 the only legal heir of Rasool Buhroo, inherited the land in question. Thereafter, when Mst. Mali passed away, the entire estate was inherited by her two sons - Gaffar Lone & Mohammad Lone.

Mohammad Lone died issueless, while as Gaffar Lone had two sons, namely, Ahmad Lone & Qadir Lone. It is further stated that Ahmad Lone did not marry and, therefore, had no children. However, when Qadir Lone passed away, his estate devolved in equal shares upon his two sons, namely Ghulam Rasool Lone and Abdul Ahad Lone -

plaintiffs -respondents herein. 03/ The petitioner have further stated that the land has been in possession of their ancestors initially as an "Asami", which later on became their proprietary land. The land was mutated under Mutation No. 168 on 20th of Asooch 2001 (BK), which was challenged before the Deputy Commissioner, Anantnag, by way of an Appeal, by one Sona Mir R/O Udroo, in which the father of the respondents was a party. After enquiry in the matter, Khaliq Wagay, husband of the Khana Nisheen daughter of Rajab Wagay - Mst. Rehmati, was held entitled to the property and Mutation No. 168 was, accordingly, confirmed. In 1964, the Sona Mir challenged the said mutation before the Deputy Commissioner. However, the Appeal was later on withdrawn in 1969. It is further stated by the petitioners that they filed an application under Order 7 Rule 11 for dismissal of the Suit, stating therein that the respondents - plaintiffs have based their suit on custom. The custom and other usages having been abrogated 264 because of coming into being of the J&K Muslim Personal Law (Shariat) Application Act, 2007, the Suit is liable to be dismissed. 04/ Petitioners have further stated that the application filed by them was accepted by the learned trial Court on 26-11-2012 and the plaint was rejected, which was appealed against by the respondents - plaintiffs before the Court of the learned Principal District Judge, Kulgam. The appeal was accepted and the order of the learned Sub Judge, Kulgam, was set aside. The case was remanded to the trial Court. The petitioners have further stated that the respondents - plaintiffs filed an application before the trial Court seeking amendment of the plaint for withdrawing the admissions made by them in paragraphs 4&5 therein with regard to the custom through which they had claimed the title of the disputed land and had sought disentitlement of the defendants - petitioners. The petitioners have further stated that although the application for amendment was resisted by them tooth and nail urging that the amendment sought will change the nature of the case and, if allowed, it will result in great prejudice to the cause of the defendants - petitioners. However, the trial Court, by order dated 18-04-2015, allowed the application of the respondents - plaintiffs and it is this order of the trial Court dated 18-04-2015 and the order of the Principal District Judge, Kulgam, dated 29-06-2013, which are impugned by medium of this petition and are sought to be set aside by exercise of supervisory jurisdiction of the Court on the ground that since the J&K Muslim 265 Personal Law (Shariat) Application Act, 2007, came into force during the pendency of the suit, the customary laws and all other usages, that are contrary to the principles of the Shariat law, with regard to the inheritance and succession, have become redundant. 05/ The petitioners have further stated that the learned District Judge has travelled beyond the limits of his jurisdiction and has, thereby, committed a serious jurisdictional error by holding that Shariat Act of 2007 does not bar the suit which is filed on the basis of custom. Petitioners have further stated that the trial Court, while allowing the application seeking amendment, has also committed jurisdictional error as the displacement of the admission cannot be permitted by seeking amendment. They have stated further that law is no more res-integra and an admission made in the plaint cannot be allowed to be withdrawn as it results in great prejudice to the other party and changes the total complexion of the suit and the cause of action as well gets altered. 06/ Respondents have filed the objections. They have questioned the maintainability of the writ petition on the ground that the petitioners have challenged the appellate order, passed by the appellate Court against the rejection of the plaint, therefore, writ petition is not the remedy available to them. They ought to have filed 2nd appeal. Respondents have further stated that the case in the Court below is at the evidence stage and the respondents- plaintiffs have completed their evidence and in order to prolong the proceedings, 266 instead of leading the evidence, the petitioners have filed the writ petition. Respondents have further stated that the petitioners have no right to claim the property of Rasool Bohru or mutate the same on their name as they were not related to him (Rasool Bohru). It is submitted that Rajab Wagay - predecessor-in-interest of the petitioners, had adopted one Mst. Rehmati as his daughter and married her with Khaliq Wagay. When Rehmati expired, her husband mutated the property of Rasool Bohru on his name. Thereafter the petitioners, who were born to the Khaliq Wagay after his remarriage, mutated the disputed property on their names and are claiming the property of Rasool Bohru, when they were not, at all, related to him. Respondents have further stated that the application for amendment, which was allowed by the trial Court, was in no way prejudicial to the rights of the petitioners, as the same was filed only to remove the ambiguity in the pleadings. Respondents have, therefore, prayed that the writ petition be dismissed and the reliefs prayed for by the petitioners be rejected. 07/ Heard and considered.

                             267

                                                                       HIGH

COURT              OF         JAMMU                   AND              KASHMIR-

SRINAGARCase No: OWP 1928/2017                                                    Dated :

of March , 2018                   AGA SYED MUHAMMAD SIBTAIN                       VERSUS

STATE AND ORS.                          ORDER SHEET                            CORAM:

                                                            HON'BLE           MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MS. REEHANA FAYAZFOR THE RESPONDENT/s: . MR. R.A.KHAN, AAG (M.K.HANJURA-J) 1/ The short controversy fostered in this writ petition is that the single storey structure, belonging to the petitioner, came under the corridor of 220 KV double circuit Wagoora Zainakote Transmission Line, for which the respondents acquired the land and the structure of the petitioner among others. It is pleaded by the petitioner that although the assessment was made on 01-10-2012 by the Executive Engineer, (R&B) Division Badgam, yet no proceedings, in terms of the provisions of the Land Acquisition Act, were initiated. The petitioner has proceeded to state that he was told by the Executive Engineer, Grid Construction Division, Srinagar, not to change the nature of the structure after the assessment was made. The petitioner has been living in the said structure since 01-10-2012 and has not made any change thereto. The respondents have slept over the matter and no further action has been initiated by them except for the 268 assessment of the property in the year 2012. The petitioner, in order to extend and enlarge his accommodation, intended to raise the second storey on the existing structure, which he is unable to do. 02/ The petitioner has further submitted that the respondents have neither passed any award nor have any proceedings been initiated by them for the acquisition of the property of the petitioner. He has further stated that the value of the structure of the petitioner, assessed in the year 2012, is far more less than the present one. It is further stated in the petition by the petitioner that he submitted a representation before the Deputy Commissioner, Badgam, but till date no action has been taken on it. The petitioner has further stated that because of this inaction on the part of the respondents, he is not in a position to make improvements in his property, inasmuch as, he has been deprived of raising the second storey for the extension of his accommodation. The petitioner has further stated that as per Rule 11(d) of the Land Acquisition Act, the respondents, having failed to acquire the assessed property for the last more than 05 years by now, are debarred to acquire the same on the same cost, which was assessed by the Executive Engineer, Grid Construction Division, Srinagar, on 01-10- 2012. At the end it is prayed that by the issuance of a writ of mandamus the respondents be directed to allow the petitioner to raise the construction of second storey of his house situated at Ichhgam, Badgam, with a further direction that in case the property of the 269 petitioner is still required by the respondents, the same be acquired strictly in accordance with the provisions of the Land Acquisition Act.03/ Objections have been filed by the respondents. It is stated therein that the respondent - department is constructing 220 KV High Voltage Transmission Line. It is further stated therein that in order to save the lives and property of the people, the structures coming under the said transmission line in village Ichhgam, Badgam, are necessarily to be dismantled and in this behalf, it is contended, that among others, the assessment of the structure of the petitioner was also made by the Executive Engineer, R&B Division Badgam. It is further contended that the petitioner willfully deposited the assessment fee of Rs. 2000/- before the authorities and it will not be inapt to mention here that the amount, assessed by the competent authority, has already been deposited with the Collectorate Office and the same shall be disbursed in favour of the petitioner only after he dismantles his single storey structure and deposits a certificate to that effect before the respondents. The respondents further stated that the owners of the structures, coming under the corridor of 220 KV Line, were aware of the fact that the structures have to be dismantled by the owners on their own and, therefore, the question of raising the construction over the existing structure is out of place and not permissible. The respondents have further pleaded that although the petitioner submitted an affidavit in the year 2012, in which he undertook to dismantle his structure, which 270 was already assessed for the payment of compensation, yet he has not done so and has willfully created an impediment in the execution of the laying of the Transmission Line, which is a scheme devised for the benefit of the public at large. Finally it has been prayed by the respondents that the writ petition be dismissed in limine. 04/ Heard and considered. 05/ The respondents have admitted, in their objections, that the amount assessed by the competent authority in lieu of the occupation of the structure of the petitioner, has already been deposited by them with the Collectorate Office. However, they have stated that the petitioner was obliged on his part to dismantle the single storey structure and deposit a certificate to that effect before the respondents. They have further stated that the petitioner has filed an affidavit before them in the year 2012, in which he undertook to demolish the structure, which was already assessed for the payment of compensation. In the affidavit, the petitioner has stated that he is the owner of the building, which is coming under the corridor of 220 KV Double Circuit Wagoora, Zainakote Transmission Line near Spot Tower NOs. 55 to 56 at village Ichhgam, Tehsil Badgam. He has further stated in the affidavit that he has not received any compensation and whatever compensation will be determined by the Assessing Authority, that will be acceptable to him. 06/ Learned counsel for the respondents has invited the attention of the Court to the communication of the Executive Engineer, Grid Construction Division, 271 Srinagar, dated 13-08-2013, addressed to the Collector, Land Acquisition, PDD/MHP, Bemina, Srinagar, attached as annexure (R3) to the objections, a copy whereof has also been endorsed to the petitioner. What gets revealed from the perusal of this communication is that the petitioner has not only been intimated that the compensation of the structure will be paid after the dismantling certificate is verified by the concerned Assistant Engineer and the mandatory Salvage Value, in conformity with the Government instructions, is deducted from the amount of compensation to be paid to the persons entitled to the same but also that he shall dismantle the structure immediately. The said communication is a sequel to the fact that the petitioner was earlier also requested by the Assistant Executive Engineer, to dismantle the structure, vide his communications bearing NOs. GCD/SDII/96-97 dated 20-10-2012 & GCD/SDII/29-33 dated 11-06-2013. Therefore, the contention of the petitioner, as projected by him in the writ petition, is uncalled for and unfounded. 07/ In the backdrop of what has been discussed above, since the petitioner has been intimated, time and again, to dismantle the structure and to produce a certificate to that effect, whereafter compensation, as assessed by the Assessing Authority, shall be paid to him, the petition of the petitioner appears to be devoid of any merit and substance and is, accordingly, dismissed along with connected IAs. TARIQ Mota SRINAGAR. -03-2018 272 (M.K.HANJURA) JUDGE 273 HIGH COURT OF JAMMU AND KASHMIR- SRINAGARCase No: HC(p) 286/2017 Dated : of Nov., 2017 GHULAM AHMAD PARRAY VERSUS STATE AND ORS.

                  ORDER SHEET                       CORAM:

                                   HON'BLE              MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                       Yes/No

Whether to be approved for          reporting in Digest/Journal :         Yes/No   FOR

THE PETITIONER/s :                 MR. M.A.QAYOOMFOR         THE RESPONDENT/s: .

MR. Q.R.SHAMAS, Dy.AG(M.K.HANJURA-J) 01/           The detenue - Ghulam Ahmad

Parray, was earlier on detained by the respondent No.2 in terms of detention order bearing No. 53/DMB/PSA/2016 dated 25-11-2016. The said order was challenged before this Court by the medium of HC(P) 677/2016 and after allowing the writ petition on 10-03-2017, the order of detention was quashed by this Court and the respondents were directed to release the person of the detenue forthwith. Learned counsel has stated that when the said order was served on the respondents, the detenue was released from detention. However, he was re-arrested immediately in the jail premises itself and kept confined in the lockup of police station Hajin. Learned counsel submits that the detenue was not produced before any Court of law till such time that he was shifted to Kotebalwal Jail, Jammu, in terms of another order of detention, passed by the respondent No.2 - District Magistrate, 274 Bandipora, bearing No. 13/DMB/PSA of 2017 dated 18-07-2017, impugned herein. in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). The detenue continues to be in Central Jail Kotebalwal, Jammu, at the moment. The order of detention was executed on 23rd of July, 2017. The grounds of detention, along with the allied documents, are said to have been served on the detenue and the contents whereof, as contended, have been read over and explained to him in the language which he understood fully well. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue has been deprived of the right to file an effective representation before the Detaining Authority, i.e. the District Magistrate, Bandipora, against his order of detention. It is also argued that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 23-07-2017 by one SI Ghulam Nabi No.1862/S 781577/EXK of police station, Hajin, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said ASI ought to have filed an affidavit to substantiate so, which has not been done in the case on hand. The petition, on this ground alone, deserves to be allowed and, as a 275 consequence thereof, the order of detention is liable to be quashed. 03/ Learned counsel for the respondents has argued that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. Central Jail, Kot Bhalwal. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents. 04/ Heard and considered. The detention record has also been perused.05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences in case bearing F.I.R No. 63/2016 u/s 148, 149, 353, 336, 307, 332 & 152 RPC registered at Police Station Hajin. The detenue was arrested on 11-06-2017 in case bearing F.I.R No. 49/2016 u/s 13 ULA(P) Act, of police station Hajin, and was on judicial remand at Sub Jail, Baramulla, when the impugned order dated 18-07-2017 was passed. 06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant 276 to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of 277 procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v.

"............You have been arrested by police station Hajin on 11-06-2017 in case FIR No. 49/2016 u/s 13 ULA and are presently on judicial remand at Sub Jail Baramulla. There is every likelihood and possibility that you may seek bail in the instant case and in case you are released on bail your activities will prove detrimental to the peace and tranquility in the area. Besides your remaining at large will have adverse effect on the peaceful atmosphere as well as law and order situation in Hajin area......." 09/ The question for consideration is, can an order of detention be passed on the face of what has been detailed above. The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National 279 Security Act should not ordinarily be passed."10/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."11/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences in which he was arrested and had not applied for bail. The proper course would have been to challenge the order of bail, if granted to him. The detenue could not have been detained preventatively. This single infraction 280 renders the order of detention liable to be set aside. Moreso, the order of detention appears to have been passed on surmises, conjectures and repetition of the earlier grounds, questioned in the earlier writ petition, which is bad in law. 12/ The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the Central Jail, Kotebalwal, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the execution report, what gets revealed is that the detention warrant has been executed on 23-07-2017 at Central Jail, Kot Bhalwal, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully well and in token thereof, his signature was attained on the execution report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, SI Ghulam Nabi, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that 281 there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 13/ Vide letter No. DMB/PSA/2017/150-52 dated 18-07-2017, of the District Magistrate, Bandipora, addressed to the detenue, the detenue has been informed that he may make a representation to the Government against the said detention order, if he so desires. In the grounds of detention, alleged to have been served on the detenue, has been told that he has a right of making the representation against the order of detention, if he chooses so. There is no material from which it can be discerned that the detenue was ever apprised that he has a right to make a representation to the Detaining Authority. This vitiates the detention order. A cue can be had in this behalf from the law laid down by the High Court of 282 Jammu & Kashmir vide order dated 09th June, 2017 passed in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government 283 had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or 284 modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, 285 orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, 286 as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no 287 consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."14/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 15/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 13/DMB/PSA/2017 dated 18-07-2017 passed by the respondent No.2 - District Magistrate, Bandipora, is quashed with a 288 further direction to the respondents to release the person of Ghulam Ahmad Parray S/O late Abdul Satar Parray R/O Parray Mohalla, Hajin, District Bandipora, Kashmir, forthwith from the preventive custody, unless required in any other case. 16/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota SRINAGAR.          -11-2017


(M.K.HANJURA)

                 JUDGE   HIGH COURT OF JAMMU                                     AND

KASHMIR-                                               SRINAGARCase No: HCP

310/2017                                     Dated :   of Jan., 2018         ABDUL GANI

RATHER                       VERSUS                    STATE AND ORS.

          ORDER SHEET                        CORAM:

                            HON'BLE              MR. JUSTICE M.K.HANJURA-           JUDGE


Whether to be approved for reporting in NET :                      Yes/No    Whether to be

approved for          reporting in Digest/Journal :       Yes/No         FOR        THE

PETITIONER/s :           MR. WAJID HASEEB         FOR THE RESPONDENT/s: .MR.

R.A.KHAN, AAG(M.K.HANJURA-J)       1/      The detenue - Abdul Gani Rather,

has been detained vide order No. 15/DMA/PSA/DET/2017 dated 13- 09-2017, passed by District Magistrate, Anantnag, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978), and was ordered to be lodged in District Jail Kathua, Jammu. 2/ It is pleaded 289 in the petition that the detenue was earlier arrested by the security forces in the month of August, 2017 and was taken to police station Bijbehara, where he was illegally kept for several days and implicated in case bearing F.I.R No. 202/2016, u/s 307, 147, 148, 149, 152 RPC. It is pleaded in the petition that the detenue was granted bail in the said FIR by the competent Court of jurisdiction. However, he was not released by the authorities but kept in the illegal confinement in police station, Bijbehara. Learned counsel for the petitioner further stated that it was from here - the police station, Bijbehara, that the detenue was shifted to District Jail Kathua, Jammu, and detained under the provisions of J&K PSA, 1978 in terms of the order of detention impugned herein. Learned counsel for the petitioner has submitted that the detenue continues to be in District jail, Kathua, at the moment. 03/ The learned counsel for the respondents stated that the grounds of detention were read over, explained and served to the detenue and he was told that he has a right to make a representation to the Government against the order of detention. The arguments have also been advanced on similar lines. 04/ The impugned order of detention has been challenged on the grounds, inter alia, that the detenue could not have been detained under the PSA when he was already in custody in substantive offences in case bearing F.I.R No. 202/2016, u/s 307, 147, 148, 149, 152 RPC, in which he was even admitted to bail, though not released by the jail authorities. 05/ 290 Heard and considered. 06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, 291 technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.08/ looking at the instant case from the above 292 perspective, case bearing F.I.R No. 202/2016, u/s 307, 147, 148, 149, 152 RPC, was registered against the detenue at Police Station Bijbehara, and at the time of the passing of the impugned order of detention, the detenue was in the custody of the respondents. This F.I.R forms the baseline of the order of the detention. The question for consideration, therefore, is can an order of detention be passed on the face of such an eventuality? The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."09/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor 293 and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order"

cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."10/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences and in which he had been released on bail. The proper course would have been to challenge the order of bail granted to him. The detenue could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside. 11/ The other aspect of the case, that cannot be lost sight of, is that the detenue has not been informed that he has a right to make a representation to the detaining authority also. Negation of this inalienable right renders the order of detention liable to be quashed. A cue can be had , in this behalf, from the law laid down in the case of Tariq Ahmad Dar versus 294 State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel 295 for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public 296 Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, 297 rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in 298 Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the 299 Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenue could make a representation to the Detaining Authority. The detention order having become invalid, the detenue is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."12/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order 300 of detention. 13/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 15/DMA/PSA/DET/2017 dated 13th September, 2017, passed by the respondent No.2 - District Magistrate, Anantnag, is quashed with a further direction to the respondents to release the person of Abdul Gani Rather, S/O Mohammad Ramzan Rather R/O Waghama, Tehsil Bijbehara, Anantnag, forthwith from the preventive custody, unless required in any other case. 14/ The petition is, accordingly, disposed of along with connected IAs. The record is returned to the learned counsel for the respondents in the open Court.Tariq MOTA SRINAGAR. -01-2018 (M.K. HANJURA) JUDGE 301 HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: HC(P) 163/2017                                                Dated :

of   JAN. 2018              ASHIQ HUSSAIN BHAT                                 VERSUS

STATE & ORS                       ORDER SHEET                    CORAM:

                                               HON'BLE                   MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. MIR SHAFQAT HUSSAINFOR THE RESPONDENT/s: . MR. M.A.BEIGH, AAG (M.K.HANJURA-J) 1/ One Shri Ashiq Hussain Bhat, appears to have been detained by dint of order bearing No. DMB/PSA/11 of 2017 dated 19-05-2017, passed by the respondent No.2 - District Magistrate, Badgam, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). The detenue was ordered to be lodged in Central Jail Kotbhalwal, Jammu.2/ It is pleaded in the petition that the detenue was earlier arrested by the security forces on 25-12-2013 in case bearing F.I.R No. 216/2013 u/s 302, 307 & 120-B RPC, registered in Police Station Chadoora. It is further stated that after facing full dressed trial, he was acquitted by the Court of competent jurisdiction of the charges levelled against him, and the jail authorities of Central Jail, Srinagar, were directed to release the detenue from custody. However, instead of releasing the detenue, he was taken to CIK, Humhama, and thereafter shifted to police station, 302 Badgam, where he was implicated in case bearing F.I.R No. 448/2013. Learned counsel for the petitioner further stated that it was from here - the police station, Badgam, that the detenue was taken to Central Jail Kotbhalwal and detained under the provisions of J&K PSA, 1978 in terms of the order of detention impugned herein. Learned counsel for the petitioner has submitted that the detenue continues to be in jail at the moment. 03/ The respondents have pleaded in their Counter affidavit that the grounds of detention were read over, explained and served to the detenue and he was told that he has a right to make a representation to the Government against the order of his detention, which, it appears, has not been filed by him. The arguments have also been advanced on similar lines.04/ The order of detention bearing No. DMB/PSA/11 of 2017 dated 19-05-2017, has been challenged, inter alia, on the grounds that the respondent No.2, while informing the detenue of his detention under the provisions of the Act of 1978, also informed him that he can make a representation to the Government against the said detention order, if he so desires. The respondent No.2 has not, however, informed the detenue that he can make a representation to the Detaining Authority and this infraction renders the order of detention liable to be set aside. The other ground urged by the learned counsel for the petitioner is that the detenue could not have been detained under the PSA when he was already involved in substantive offences and was in the custody of the respondents in 303 the case bearing F.I.R No. 448/2013, u/s 307 & 7/27 Arms Act, registered in Police Station, Badgam, as gets revealed from the grounds of detention. 05/ Heard and considered. 06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) while emphasizing that article 22 (3) (b) Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially 304 dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the 305 subject and the constitutional rights guaranteed to him in that regard.08/ looking at the instant case from the above perspective, case bearing F.I.R No. 448/2013, for the offence u/s 307 & 7/27 Arms Act, was registered against the detenue in Police Station, Badgam, which was under investigation at the time of the passing of the order of detention and the detenue was in custody in the said F.I.R.

This F.I.R forms the baseline of the order of the detention of the detenue. The question for consideration, therefore, is can an order of detention be passed on the face of such an eventuality? The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."09/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment pronounced in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 306 2017 SC 2625, that reads as under: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order"

cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."10/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was in custody. Had he applied for bail, the proper course would have been to challenge the order of bail if granted to him. The detenue could not have been detained preventatively when he was already involved in the commission of substantive offences. This single infraction renders the order of detention liable to be set aside. 11/The other aspect of the case, that cannot be lost sight of, is that the detenue has not been informed that he has a right to make a representation to the detaining authority also. Negation of this inalienable right renders the 307 order of detention liable to be quashed. A cue can be had , in this behalf, from the law laid down in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) 308 of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, 309 such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to 310 include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) 311 of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, 312 would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenue could make a representation to the Detaining Authority. The detention order having become invalid, the detenue is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."12/ The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 313 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 13/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. DMB/ PSA/11 of 2017 dated 19 th of May, 2017, passed by the respondent No.2 - District Magistrate, Badgam, is quashed with a further direction to the respondents to release the person of Ashiq Hussain Bhat, S/O Ghulam Rasool Bhat R/O Ichhgam, Badgam, Kashmir, forthwith from the preventive custody, unless required in any other case. 14/ The petition is, accordingly, disposed of along with connected IAs. The record is returned to the learned counsel for the respondents in the open Court.Tariq MOTA SRINAGAR. -01-2018 (M.K. HANJURA) JUDGE 314 Effective representation citation The other aspect of the case, that cannot be lost sight of, is that the detenue has not been informed that he has a right to make a representation to the detaining authority also. Negation of this inalienable right renders the order of detention liable to be quashed. A cue can be had , in this behalf, from the law laid down in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, 315 wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made 316 under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is 317 that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu 318 that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution 319 and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."7/ The judgement cited above has a pellucid simplicity and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he 320 has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 8/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. ________ dated _____ 2017, passed by the respondent No.2 - District Magistrate, _____, is quashed with a further direction to the respondents to release the person of ______ forthwith from the preventive custody.9/ The petition is, accordingly, disposed of along with connected IAs. Registry to return the record to the learned counsel for the respondents. HIGH COURT OF JAMMU AND KASHMIR-

SRINAGARCase No: COD 161/2016                                                  Dated :

DEC. 2017                STATE OF J&K                                         VERSUS

HUSSAIN BROTHERS                        ORDER SHEET                        CORAM:

                                                        HON'BLE           MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET :

Yes/No Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE APPLICANT/s : MR. MOHAMMAD IQBAL DAR, AAGFOR THE RESPONDENT/s: . MR. MANZOOR A.DAR(M.K.HANJURA-J) 01/ The State of 321 J&K, through Commissioner Secretary to Government, Health & Medical Education Department, Srinagar has filed an application seeking the indulgence of this Court in condoning the delay of 234 days in filing the Arbitration Application, inter alia, on the grounds that the Award dated 15-09-2015, passed by the Arbitrator, was filed before the High Court and vide order dated 28-09-2015 of this Court, the parties were given liberty to take recourse to the appropriate remedial measures, if they so choose. 02/ It is stated further that immediately after attaining the knowledge of passing of the Award, steps to implement the same were taken. However, on perusal of the record and examination of the Award, the authorities thought it expedient to file an application u/s 34 of the Jammu & Kashmir State Arbitration & Conciliation Act, 1987. This process consumed some time, which, was beyond the control of the applicant - State and the delay caused is neither intentional nor deliberate. It is further stated that the State never showed any laxity in pursuing the matter. Learned counsel for the applicant - State states further that since the impugned Award is patently illegal and contrary to the facts, therefore, the State has a strong case on merits and the it is sure to succeed in it. In the end it has been prayed that the ends of justice would be met if the delay, caused in filing the Arbitration Application, is condoned by allowing the application for condonation of delay. 03/ The respondent - non applicant has filed the objections in opposition to the application for 322 condonation of delay, wherein he has urged that the parties were given liberty by the Hon'ble High Court to take recourse to the remedial measures vide order dated 28-09-2015. It is stated in the objections that the copy of the Award dated 15-09-2015 was received by the applicant

- State when the same was filed before the Hon'ble High Court by the Arbitrator. It is further stated that the applicant - State has asserted that it took steps to implement the Award. However, during the course of perusal and examination of the record, the State deemed it appropriate to question the validity of the Award in terms of section 34 of the Arbitration and Conciliation Act. Section 34 of the Act provides that an aggrieved party can challenge the validity of the Award within a period three months with a grace period of one month and there is no scope for extension of time beyond the period of four months. The respondent - non applicant has stated that in terms of the statutory provision, the Award has to be challenged within the period of three months, which period ended on 27-12-2015. It is averred that even if this period is stretched further by a month, still the application had to be filed on or before 27-01-2016. The application for the condonation of delay in filing the Arbitration Application has been filed in the month of July, 2016. It does not deserve any consideration and is liable to be rejected. There is no provision in the Arbitration and Conciliation Act, as would permit the Court to condone the delay or extend the period for filing such an application beyond four months 323 and as a sequel thereto, the application deserves to be dismissed. 04/ Heard and considered.

324

xxxxxxxxxxxxxxxxxx 5applicant - State ellant No.2 came to know about the judgement dated 07 th of April, 2016 of this Court, passed in Contempt No. 51/2014 only on 17 th of September, 2016. Learned counsel for the applicant submits that after receipt of the copy of the order/judgement, immediate steps were taken to take further action in the matter and in the process, appellants were required to collect the records from the subordinate offices. The material was scanned at various levels to derive satisfaction on the count whether, or not, the appeal is to be filed. After going through the entire record of the case, the matter was referred to the General Administration Department, for its views. Thereafter opinion from the Department of Law, Justice & Parliamentary Affairs, was sought. Obviously the examination of the matter and consideration of the question of filing of Appeal at various levels led to consumption of time. 02/ The applicant has proceeded to state further that there was a delay of some months caused due to the administrative exigencies. It has further been stated that the Department of Law, Justice & Parliamentary Affairs, accorded sanction for filing of LPA vide its letter No. LD(Lit)2012/95- GAD dated 10th March, 2017. After the receipt of the sanction from the Department of Law, Justice & Parliamentary Affairs, learned AAG, swung into action and immediately called the record of the case and other documents from the Appellant, i.e. State of J&K. It has further 325 been pleaded that the Appeal has an important bearing as far as the interests of the Appellant are concerned and in case the delay in filing the Appeal is not condoned, it will cause great prejudice to the State. It has further been averred that the settled position of law is that since the decisions at the Government level are taken at a slow pace, therefore, some amount of latitude has to be given to it and the Government cannot be equated and treated on par with the private parties in the matter of condonation of delay. The application is buttressed with an affidavit. 03/ Learned counsel for the respondent has resisted and controverted the application of the Appellant, chiefly on the ground that although the appellant has stated that the judgement was perused at different levels and the same was referred to the Law Department that directed the filing of appeal, yet there is nothing to state as to when the appellant was advised to file the Appeal. The application being cryptic and there being no ground, much less a sufficient one, for the Condonation of Delay, the application is liable to be dismissed.

326

04/ Heard and considered. 05/ It cannot be disputed that the Law of Limitation has to be applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant or the appellant has to satisfy the Court that he/she has carved out a sufficient cause in seeking the indulgence of the Court for not preferring the Appeal or Application within the stipulated time. The State cannot, as a matter of rule, take umbrage under the plea that it has to be treated on a different pedestal in the matter of the extension of time for filing the Appeal/Application. No doubt, some latitude may be warranted to be given to the State promoting social justice but it cannot escape the liability of satisfying the Court that the Appeal was filed with due diligence. The Courts cannot come to the aid and rescue of the State where the application for condonation of delay does not spell out sufficient cause and the approach of the State, in making such application, is casual and cryptic. 06/ In order to find out whether or not the appellant - State has been remiss and callous in seeking the condonation of delay in filing the LPA, it is reiterated here that the appellant has stated in the Application that the copy of the order/judgement was perused at various levels to satisfy itself whether the Appeal has or has not to be filed. It has also been stated that the entire record was sent to the 327 Department of Law, Justice and Parliamentary Affairs, and the said Department accorded sanction to the filing of such Appeal.07/ Testing the application of the Applicant on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim : "7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."8. In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:.................................................................................... 3. This 328 explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."08/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 325 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to formulate an opinion that the Appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows : "........3/ This appeal emanates from the judgement of 329 the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under : "We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition." 4/ We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.....................6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."09/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under : "...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and 330 attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice." 10/ Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the explanation offered for the delay in filing the Appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving a proper account of the dates and details of the grounds agitated in it and to cap it all, recourse has been had to the leisure and pleasure in moving the application and to cap it all, the State has not knocked the doors of the Court with clean hands. It is so because it has 331 been pleaded in the application for the condonation of delay that the State came to know about the judgement of this Court dated 07 th of April, 2016 on the 17th day of September, 2016. This assertion of the State is belied from a bare perusal of the judgement dated 07 th of April, 2016 of this Court in which, Ms. Mokshah Kazmi, learned AAG, is found to have appeared before the Court to represent the State.

Therefore, fair play has become a casualty at the hands of the State for the simple reason that what has been pleaded, to work as the bedrock of the case, does not hold true. 11/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.3. Sufficient cause for the delay 332 clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."12/ Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 325 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time. TARIQ MotaSRINAGAR. 30-11-2017 (M.K.HANJURA) JUDGE07/ In order to find an answer to the questions raised by the learned counsel for the appellants in his arguments, buttressed with the pleadings, the impugned judgement/order requires appraisal and the relevant excerpts thereof are reproduced below : "4/ Jammu and Kashmir Law Officers (Subordinate) Service Recruitment Rules, 1990, has been notified vide Notification/SRO 250 dated 1 st August 1990. Schedule-II thereto envisage method of recruitment for various posts, including Senior Scale Stenographer. It prescribes filling up of the post of Senior Scale Stenographer by promotion from class II category C, viz. Junior Scale Stenographers, on the basis of test in shorthand and typewriting having minimum speed of 80 and 40 words per minute respectively.5/ The contention of learned counsel for the petitioner that the condition in the Rules (SRO 250) to conduct test in shorthand and typewriting has violated equality as provided in article 14(1) read 333 with article 16(1) of the Constitution and that shorthand is permissible only at the time of initial recruitment, i.e. Junior Scale Stenographer, is specious. The service rules notified vide SRO 250, has come into being in the year 1990. Petitioners right from their appointment in respondent department have remained contented with the said rules and prescribed mode of recruitment or for that matter impugned condition contained therein. Had they been aggrieved thereof, they should have immediately after their appointment in the organization and/or say little time thereafter, agitate their gravamen. It is after 27 years of coming into being of the said rules, that petitioners have knocked at portals of this Court. 6/ It is pertinent to mention here that the criterion for promotion to the post of Senior Scale Stenographer, that too in the office of Advocate General, should be on merit basis only and not seniority. The instances and examples as given by the counsel for petitioner or as made mention of in writ petition are incomparable to the organization and type of work in Advocate General's office. If an incompetent stenographer is appointed or say promoted to the post of Senor Scale Stenographer, the result will be that the correct pleadings/return, that the Law Officer, representing the department(s), is required to submit before the Court, will not be recorded as was given to such stenographer, this will create innumerable problems. Much of the time of the Law Officers will be spent on making corrections in the returns and other pleadings that 334 they have to brought before the Court. Hence great care is to be taken in promotion of persons, holding the post of Junior Stenographers, to the posts of Senior Scale Stenographers as the said posts require special skill and therefore promotion to the post of Senior Scale Stenographer should be purely on merit basis disregarding any seniority, howsoever high.............."08/ The judgement/order of the writ Court is based on law, logic and reason, it does not call for any interference. The writ Court has touched the entire gamut of controversy raised in this petition. The judgment of the writ Court is loud and luminous. The writ Court has held that the Jammu and Kashmir Law Officer (Subordinate Recruitment Rules 1990) were framed before a period of 27 years. The appellants have made entry into their services under the cover of these rules, they cannot now change colors and say that these should not be applied to them. In the mater of promotions to the next cadre, the appellants cannot enable themselves with their counterparts in their department. They cannot say that they may be treated at par with them. The criteria of the promotion to the Senior Scale Stenographer in the Office of the Advocate General, where they are working at the moment, has to be on the basis of merit only and seniority cannot held the roost. The work in the Office of the Advocate General is sensitive in nature and Senior Scale Stenographer should be skilled in his job and in case he is not so, the Law Officers will face a great deal of problems. In case the Senior Scale 335 Stenographer is not able to compete on the standards laid down in the rules, much of the time of the Law Officer will be wasted in correcting the pleadings to be filed before the Courts and that will tantamount to the wastage of their time, energy and breath. 09/ In this view of the matter, the object of framing the rules appears to be based on what has been stated herein before that merit cannot be converted into demerit and demerit into merit. Therefore, in view of what has been stated above, there appears to be no merit in this appeal which entails dismissal, as a consequence, same is dismissed and the order/judgment of the Writ Court is upheld. same is not in consonance with the law. Therefore, what comes to surface by a blush is that the appeal of the appellant is misconceived and misdirected and, as such, liable to be dismissed.07/ The cumulative effect of all that has been said and done above is that the LPA is devoid of any merit, as a consequence of which, the same is dismissed and the order of the writ Court is upheld.


08/      Registry to return the record to learned counsel for the

respondents. 09/      The file shall be consigned to records after its due

completion.TARIQ   MotaSRINAGAR.    -12--2017            (M.K.HANJURA)

(RAMALINGAM                                                 SUDHAKAR)

JUDGE                                                               JUDGE
                            336

 HIGH               COURT                OF            JAMMU                   AND

KASHMIR-                                                  SRINAGARCase No:

SWP 2786/2011                                   Dated :       of Nov. 2017          GH.

MOHAMMAD MIR & ORS.                      VERSUS                       STATE AND ORS

                  ORDER SHEET                      CORAM:

                                                               HON'BLE              MR.

JUSTICE M. K. HANJURA-           JUDGE Whether to be approved for    reporting in NET :

                  Yes/No. Whether to be approved for        reporting in Digest/Journal :

         Yes/No   FOR THE PETITIONER/s :                      M/s. .M.A.QAYOOM &

L.A.LATIFFOR      THE RESPONDENT/s:              MR. MUZAFFAR NABI LONE, GA(M.K.


HANJURA-J)              Half done here and half in Jammu01/

In this writ petition, filed in the year 2011, the petitioners seek the issuance of a writ of Certiorari for quashing the communication bearing No. FST/SFC/97 dated 27-09-2011 (Annexure P6), having the effect of denying the pensionary benefits to them. It is prayed that the respondents be directed to treat the petitioners on par with the employees of the Government Lumbering Undertaking (GLU), who have already been granted pensionary benefits in terms of the provisions of the Civil Service Regulations (CSR). 02/ The petitioners have pleaded in the writ petition that in terms of the impugned communication aforementioned, the Deputy Secretary to Government , Forest Department, informed the Managing Director (MD), State Forest Corporation (SFC) that the case of the petitioners 337 has been examined in the Finance Department and its reopening after a considerable period of 26 years and that too for extending the pensionary benefits has not been found justified, and as such is not granted. Aggrieved of this order, the petitioners have been constrained to file this writ petition. It is contended that the writ Court, while hearing the matter, was pleased to observe that the petitioners, are the employees of the State Forest Corporation and are seeking pensionary benefits on the same analogy as has been extended to the erstwhile employees of the Government Lumbering Undertaking, who opted to serve in the corporation but had not five years quasi permanent service to their credit. However, the requirement was relaxed by the Government and in terms of order dated 20-05-2015, the respondents were given time to apprise the Court regarding the decision taken by the Forest Department with reference to the recommendations made by the MD, SFC, in terms of his communication dated 23-06-2008 and the letter dated 21-04-2011 issued by the Additional Principal Chief Conservator of Forests.03/ The petitioners proceed to state that in the meantime by an order dated 20-05-2015, the Government, in partial modification of order No. 507-FST of 2003 dated 22-10-2003, issued order No. 300-FST of 2015 dated 18-11-2015, vide which, the cut off date was extended upto 30-06-1984 instead of 30-03-1983, paving way for the eligibility of thirty left over employees of the erstwhile GLU to serve in the SFC, which entitled them to the grant of the 338 pensionary benefits as laid down in the Government order NO. 158- FST of 1980 dated 30-10-1980. Learned counsel for the petitioners submitted that once the cut off date was extended upto 30-06-1984 for thirty left over employees of the GLU, thereby making them eligible to claim pensionary benefits in contradiction to the contents of Government order No. 158-FST of 1980 dated 30-10-1980, the petitioners, who are also working in the SFC and are similarly circumstanced, are entitled to get the pensionary benefits on the same analogy as has been evolved in the case of the left over employees of the GLU. Learned counsel submitted that the writ petition, on this short ground alone, can be allowed. 04/ It is contended in the writ petition that in 1981, the State Forest Corporation framed its own Service Regulations and the employees of the GLU, who were appointed before the year 1979, were treated as employees of the Government and vide Govt. order dated 30-10-1980, in consequence to Cabinet decision No. 461, they were asked to give option as to whether they will like to serve in the J&K SFC or be terminated as the posts of GLU were converted as posts of J&K SFC. It was further provided in the order aforesaid that for the service which they have rendered in GLU, they will be given certain benefits including the pensionary benefits, if they are having 10 years service. It is further contended in the petition that the employees of the GLU, who were appointed before June, 1979, opted to serve the SFC and after 339 enforcement of the J&K SFC Rules & Regulations, they were given all benefits as were applicable to the employees of the SFC like Pay Revision, Cola, Promotion, CP fund Contribution Rules etc.05/ Learned counsel for the petitioners proceeds to state that in terms of Govt. order No. 57 of 1994, dated 28-04-1994, the services of those temporary employees, who had completed three years as on 01-07- 1979, were declared quasi permanent and by virtue of a subsequent order No. 17 of 2005 dated 10-02-2005, it was declared that all those employees, who have completed five years service as on 31-03-1980, are declared quasi permanent in terms of rule 3(a) read with rule 2(b) of Temporary Service Rules, 1961. It is further pleaded in the petition that the petitioners and some other employees represented against the aforesaid order because they also come within the purview of the said Government order, as instead of five years' service, three years' service has been prescribed. It is further pleaded that some 31 employees, who were appointed w.e.f 01-04-1978 to 30-06-1979 were also denied pensionary benefits and they also represented against the said order and their claim, to the exclusion of the petitioners, was accepted by the Government. 06/ Learned counsel for the petitioner proceeds to state that the petitioners were appointed prior to March, 1980 as per GLU Rules and it was nowhere provided that their services will be governed in terms of the SFC Regulations, framed in 1981 in the light of recommendations made in the Rajan Committee Report, 340 whereunder Public Sector Undertaking pay scales were provided and enforced. Under these recommendations, the G.P Fund, which the petitioners were contributing upto 1981, was converted into the C.P Fund and the G.P Fund is applicable to those employees only who are governed by the provisions of CSR. Learned counsel for the petitioners states that in this view of the matter the petitioners are entitled to be treated similarly with those employees of the SFC, who are given pensionary benefits at the time of their superannuation. 07/ It is also argued by the learned counsel for the petitioners that the respondent Corporation has framed the J&K State Forest Corporation Service Regulations, 1981, in terms of section 34 of the J&K State Forest Corporation Act. The same have come into force from 01-07- 1979. Rule 22 of these regulations provides that except otherwise provided in any case, every employee shall retire at the age of 55 years. However, the regulations of 1981 have been amended in the year 2010 and immediately after clause 22, clauses 22 (a) and 22 (b) have been inserted. Learned counsel for the petitioners states that clause 22(b) regulates the pensionary claims of the erstwhile GLU employees who had exercised their option to serve in the corporation under its rules and regulations and had put in five or more than five years of service as on 31-03-1983, which date stands changed in terms of order dated 18-11-2015 and they are entitled to get pension as per the decision of the Government and such of the employees of the erstwhile 341 GLU, who had exercised their option but had not completed five or more than five years of service as on 31-03-1983 have now been held entitled to pension. 08/ It is further contended in the writ petition that the Hon'ble Court, vide its order dated 12-03-2009, passed in a batch of writ petitions, upheld by the Division Bench of this Court as also by the apex Court, has held that all those employees, in respect of whose pensionary & retiral benefits, the rule position is silent, shall have to be dealt with under the provisions of Jammu & Kashmir Civil Service Regulations. The petitioners have stated further that, admittedly, the Regulations of 1981 is silent with regard to the grant of pensionary benefits to the petitioners, and therefore, in view of the regulation 7 of the Regulations of 1981 read with the judgement supra, the petitioners are entitled to the pension and have to be paid the pensionary benefits accordingly.09/ The answering respondents 3&4 have, in their objections, categorically, denied the averments set up by the petitioners in the writ petition. The respondents have stated that the petitioners have been engaged by the SFC much after the 01 st July,1979, and, admittedly, the GLU ceased to exist after 30 th June, 1979. It is further stated that the petitioners having been engaged after July, 1979, and therefore, they cannot claim parity with the other employees, who have been placed on the establishment of GLU before June, 1979. They form a separate class, inasmuch as, they were Government employees right from the date of their basic engagement 342 as against the petitioners, borne on the establishment of SFC after 1979. The petitioners are the employees of SFC and, therefore, need to be treated on par with the other employees of the SFC, where the scheme of the grant of pension is non existent. The respondents have proceeded to state further that the writ petition suffers from latches as the petitioners have launched this claim after a period of 32 years. The petitioners, who seek parity with the employees of GLU, insofar as the grant of pensionary benefits are concerned, cannot be permitted to do so as the SFC came into existence and started functioning with effect from 01st July, 1979 when the GLU was non existent. In this view of the matter, all those employees who have been appointed after the said date can, by no stretch of imagination, be treated as the employees of GLU because it ceased to exist on 01-07-1979 in terms of Govt. order No. 107-FST of 1979 dated 30-06-1979. The plea of the petitioners that they have initially been appointed by the erstwhile GLU is factually incorrect as their inception in the SFC is after 1979 and have received all service benefits from the Corporation. Therefore, the claim of treating them on par with the erstwhile GLU employees is legally not tenable. In this backdrop, the writ petition entails dismissal and may be dismissed. 10/ Heard and considered. 11/ Clause 22 (b) of the regulations of 1981 provides that the claim of the pensionary benefits of an employee of the State Forest Corporation have to be settled as under

: " i/ The erstwhile GLU employees who had exercised their option 343 to serve the Corporation under its rules and regulations and have put in 5 years' or more services as on 30-06-1984 (cut off date fixed by the Government) shall get pension as per decision of the Government. ii/ Such of the erstwhile GLU borne who had exercised their option but have not completed five years or more services as on 30-06-1984, i.e. the cut off date, shall be paid service benefits for the spell of services rendered by them in the erstwhile GLU upto 30-06-1979 as per the decision of the Government and the period of service rendered in J&K SFC after 30-06-1979 shall be paid as per the provisions laid down in the J&K SFC Service Regulations of 1981. iii/ The employees appointed in the Corporation after 30-06-1979 and borne on the establishment of the Corporation shall be paid service benefits as laid down in the J&K SFC Service Regulations 1981." 12/ The employees, who are appointed in the Corporation after 30-06-1979 have been held entitled to the service benefits in terms of the provisions of the J&K State Forest Corporation Service Regulations, 1981, by virtue of which the employees, who are appointed in the Corporation after 30-06-1979, are entitled to the grant of pension. These employees have the right to the payment of pension as per Regulation 7 of the Regulations of 1981 in the same mode and manner as has been adopted in the case of the State Government employees under the provisions of J&K CSR. Regulation (7) of the Regulations of 1981 read as under : 7. "RESIDUARY MATTERS : In respect of matters of procedure or any other issue not expressly provided herein, the provisions of these rules and the procedure applicable generally to the State 344 Government employees in such matters shall always be deemed applicable to the employees of the Corporation. Provided that where application of any such rule(s) confer a benefit on the employee of the Corporation involving financial and/or administrative implications the extension of the same shall be decided by the Corporation with the prior approval of the Government."Tariq MOTA SRINAGAR.

-11-2017                                              (M.K. HANJURA)
JUDGE
                              345

                     HIGH COURT OF JAMMU                                              AND

KASHMIR-                                                      SRINAGARCase No:

HC(p) 134/2017                                    Dated :          of Sept. 2017            ALI

MOHAMMAD DAR                              VERSUS                          STATE AND ORS.

                  ORDER SHEET                      CORAM:

                                   HON'BLE             MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                          Yes/No

Whether to be approved for         reporting in Digest/Journal :             Yes/No        FOR

THE PETITIONER/s :             MR. NAASIR QADIRI      FOR THE RESPONDENT/s: .

MR. Q.R.SHAMAS, Dy.AG(M.K.HANJURA-J) 1/           One Shri Ali Mohammad Dar,

appears to have been detained                 by dint of            order bearing No.

62/DMB/PSA/2016-17 dated                                23-03-2017, passed by the

respondent No.2 - District Magistrate, Bandipora,                         in exercise of

powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). 2/ It is pleaded in the petition that the detenue was earlier also detained under the provisions of the Public Safety Act and kept in preventive custody, but the same was revoked by the Government. However, instead of releasing the detenue, he was booked in terms of the subsequent order of detention, impugned herein, and lodged at Central Jail Kotebalwal. Learned counsel for the petitioner has submitted that the detenue continues to be in jail at the moment. 03/ The respondents have pleaded in their Counter affidavit that the grounds of detention were 346 read over, explained and served to the detenue and he was told that he has a right to make a representation to the Government against the order of his detention. The arguments have also been advanced on similar lines.04/ The order of detention bearing No. 62/DMB/PSA/2016-17 dated 23-03-2017 has been challenged, inter alia, on the grounds that the respondent No.2, while informing the detenue of his detention under the provisions of the Act of 1978, also informed him that he can make a representation to the Government against the said detention order, if he so desires. The respondent No.2 has not, however, informed the detenue that he can make a representation to the Detaining Authority and this infraction renders the order of detention liable to be set aside. The other ground urged by the learned counsel for the petitioner is that the detenue could not have been detained under the PSA when he was already involved in substantive offences and was arrested on 20-02-2017 in the case bearing F.I.R No. 49/2016 of Police Station, Hajin, and was on remand, as gets revealed from the grounds of detention. 05/ Heard and considered. 06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) while emphasizing that article 22 (3) (b) Constitution of India is to be read an 347 exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting explicit reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be 348 allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.08/ looking at the instant case from the above perspective, case FIR No. 49/2016 for offences u/s 13 ULA(P) Act was registered against the detenue in Police Station, Hajin, which is said to be under investigation and at the time of the passing of the order of detention, the detenue was in custody in the said F.I.R and was on remand as detailed in the grounds of detention. This F.I.R forms the baseline of the order of the detention of the detenue. The question for 349 consideration, therefore, is can an order of detention be passed on the face of such an eventuality ? The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."09/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment pronounced in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, which reads as under: "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical 350 incantation of the words "goonda" or "prejudicial to maintenance of public order"

cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."10/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was in custody. Had he applied for bail, the proper course would have been to challenge the order of bail if granted to him. The detenue could not have been detained preventatively when he was already involved in the commission of substantive offences. This single infraction renders the order of detention liable to be set aside. 11/The other aspect of the case, that cannot be lost sight of, is that the detenue has not been informed that he has a right to make a representation to the detaining authority also. Negation of this inalienable right renders the order of detention liable to be quashed. A cue can be had , in this behalf, from the law laid down in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the 351 General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication 352 dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same 353 facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, 354 amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of 355 detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 356 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.The appeal is allowed. The impugned order is set aside."12/ The judgement cited above has a pellucid simplicity and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 13/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 62/DMB/ PSA/2016-17 dated 23rd of March, 2017, passed by the respondent No.2 - District Magistrate, Bandipora, is quashed with a further direction to the respondents to release the person of Ali Mohammad Dar S/O 357 Mohammad Maqbool R/O Danger Mohalla, Hajin, Tehsil Hajin District Bandipora, forthwith from the preventive custody, unless required in any other case. 14/ The petition is, accordingly, disposed of along with connected IAs. The record is returned to the learned counsel for the respondents in the open Court.TARIQ MotaSRINAGAR.

-09 -2017                                (M.K.HANJURA)
                                           JUDGE
                            358

                              HIGH        COURT                OF       JAMMU

AND KASHMIR-                                                     SRINAGARCase

No: LPA(sw) 85/2017                                     Dated :          of Sept.. 2017

PRAKASH KOUR                           VERSUS                         SKIMS AND ORS

                 ORDER SHEET                    CORAM:

                                  HON'BLE           MR. JUSTICE RAMALINGAM

SUDHAKAR- JUDGE                                HON'BLE                 MR. JUSTICE

M.K.HANJURA- JUDGE Whether to be approved for reporting in NET : Yes. Whether to be approved for reporting in Digest/Journal : Yes FOR THE APPELLANT/s : MR. R.A.JAN, Sr. ADV. with MS.AMINA SYED FOR THE RESPONDENT/s: .MR. BHAT FAYAZ(PER HANJURA-J) 01/ By the medium of this LPA, the appellant has assailed the order dated 09 th of May, 2017 of the writ Court, passed in SWP No. 1810/2013 on the premise that the learned writ Court, while rendering the impugned order, has erred in law, inasmuch as, it has not appreciated the well settled proposition of law that a vacancy is required to be filled in accordance with the rules in force on the date it becomes available. 02/ It has further been pleaded in the appeal that, admittedly, the vacancy of the Lecturer Nursing, in the present case, became available in the year 2011 and the selection process was initiated in terms of the Recruitment Rules of the year 1998. Therefore, it was not legally permissible in law for the respondent - SKIMS to abort the process of selection, which had already been initiated and begin a process to fill up 359 the post in pursuance of the amended Rules of 2013, although the amended rules clearly stipulated that the amendment shall have a prospective effect. Learned counsel for the appellant submitted that in view of the above, the impugned judgement suffers from an error. It cannot sustain in the eyes of law and is liable to be set aside.03/ It is further stated in the appeal that the petitioner-appellant has the right of consideration, vested in her by law, for being promoted by way of selection from amongst the eligible Senior Clinical Instructors. Learned counsel submitted that although the process for considering the selection of all eligible candidates was initiated, yet the action of the respondent - SKIMS in abandoning such process in the middle of things and manning the available vacancy by taking recourse to the amended Rules, was not only violative of the fundamental right of consideration guaranteed to the petitioner - appellant under article 16 (1) of the Constitution of India but is also against the mandate of law declared by the apex Court on the subject. Learned counsel for the appellant further submitted that impugned order dated 09-05-2017, in the given legal and factual scenario, is invalid and in sequel thereto, it is bad and unsustainable in law. Learned counsel, accordingly, prayed that the appeal be accepted and the impugned judgement dated 09-05-2017, of the learned writ Court, passed in SWP 1810/2013, be set aside and the writ petition be allowed in terms of the reliefs prayed therein. 04/ Before adverting to the merits of the appeal, it will be profitable to 360 quote the relevant paragraphs of the impugned order dated 09-

05-2017, of the writ Court, that have a bearing on the questions/issues raised in the appeal. These are as under:- "15/ Mr.Z.A.Qureshi, learned Senior counsel while reiterating the pleadings has strengthened his argument by submitting that the policy of the respondent - SKIMS with reference of change of method of recruitment against the post of Lecturer Nursing by making it 100% direct recruitment notified vide Government order No. 76-SKIMS of 2013 dated 16-09-2013 has prospective effect and cannot be applied to the case of the petitioner who was already considered for such promotion by initiating the process and inviting her for interview in terms of notice dated 25th July, 2011 read with notification dated 26th July, 2011. In other words, it is stated, that the process initiated by the respondents for promotion of the petitioner in terms of Recruitment Rules of 1998, is required to be taken to the logical conclusion and cannot be defeated by amending the rule midway to the disadvantage/position of the petitioner. Mr. Qureshi learned senior counsel has referred to and relied upon judgement of Supreme Court delivered in case titled State of Utter Pradesh and ors v. Mahesh Narain and ors, reported in (2013) 4 Supreme Court Cases 169. 16/ Mr. M.A.Rathore, learned AAG, appearing counsel for SKIMS submits that while selection committee was considering the eligible candidates for promotion in the year 2011 and on consideration of the filling up of the post of Lecturer it was noticed that the post of Lecturer was re-designated as Lecturer-cum-Jr. Reader vide Government order No. 29- SKIMS of 2008 dated 10-03-2008 and the Recruitment Rules were not notified for the said post in tune with the re-designated post. It was, therefore, decided to defer the case till finalization of recruitment rules of the post. 17/ It is submitted that the matter was processed and the competent authority decided to amend the rules by making the post 100% to be filled up by Direct Recruitment in terms of notification dated 18-09-2013. 20/ It is submitted that the petitioner has neither challenged the amended method of recruitment nor the selection process initiated for direct recruitment. 21/ It is also submitted that the selection process initiated for filling up of post of Lecturer Nursing 361 stands concluded and the eligible candidates were appointed along with the respondent No.4, Zareefa Bano. 22/ It is submitted that the petitioner has not challenged the selection/appointment of those candidates, therefore, in absence of challenge to the recruitment rules of 2013 and selection/appointment of the candidates, no relief can be granted. Mr. Rathore, ld. AAG in support of his argument has referred to and relied upon Supreme Court judgement in case titled High Court of Delhi and anr. V. A.K.Mahajan and ors., reported in (2009 12 Supreme Court cases) 62. 23/ Submission of Mr. Rathore, AAG has substance, as the process was initiated for filling up of the post only after notifying the criteria in terms of Government order no 76-SKIMS of 2013 dated 18-09-2013 neither the said Government order nor selection/appointment of selected candidates are under challenge. Submission has further strengthen with reference to effect of the amended rule as the same has not caused any prejudice to the interest of petitioner. 24/ Unless the amended rule providing method of recruitment as also the selection process which culminated into selection/appointment, of the eligible candidates is challenged no relief can be granted to the petitioner."05/ Heard and considered. The respondent Institute on or around 25th of July, 2011 initiated selection process for promotion by selection to the post of lecturer Nursing borne on the cadre of the Institute of Medical Sciences Gazetted Service in terms of Recruitment Rules in vogue, known as Sheri Kashmir Institute of Medical Sciences Gazetted Recruitment rules, 1998 (for short Rules of 1998), which provide :Class_Category_Grade_Minimum qualification for direct recruitment_Method of recruitment (method)/proportion)__..._..._..._..._...__III_Senior Lecturer_3000-5000(pre-revised)_....._100% by selection from class IV from amongst persons having at least 3 years service in that class __IV_Lecturer_10000-15200_M.Sc. Nursing with 3 years teaching experience after M.Sc. Nursing_50% by direct recruitment. 50% by selection from class V from amongst persons having M.Sc. in Nursing and 3 years service in that class.__V_Sr. Clinical Instructor_9000- 14100_...._....__ The appellant not only possessed the requisite qualification prescribed by the Rules of 1998 for promotion by selection to the post of Lecturer 362 Nursing but she also figured in the order or merit at S.No.1. The process for promotion by selection from amongst the eligible Senior Clinical Instructors to the post of Lecturer Nursing was in fact initiated and process of interview was initiated by issue of Call Letter bearing No. SIMS-302-08-71-2011-1921-24 dated 25-07- 2011 issued by the respondent Institute calling upon the eligible Senior Clinical Instructors to appear for interview before the Selection Committee on 27-07-2011 at 11.00 AM along with supporting documents. The interview Call Letter was followed by communication bearing No. SIMS-302-08-72-2011-1961-64 dated 26-07-2011 intimating that the selection Committee is scheduled to meet on July 27th, 2011 to consider the promotion by selection for the post of Lecturer Nursing is postponed and shall now be held on 30-07-2011 at 11.00 AM. Another communication bearing No. SIMS-302-08-71-2011-2005-08 dated 27-07-2011 intimated that the date of interview for the post of Lecturer Nursing is pre-poned to July, 29th, 2011 at 11.AM. What gets revealed from the record is that on the date appointed for interview of eligible Senior Clinical Instructors for promotion by selection to the post of Lecturer Nursing, the Selection Committee did assemble in the Board Room of SKIMS but called off the process of selection under the garb of the re-organization of Nursing College SKIMS. 07/ The respondent Institute submitted the memo of objections/reply in opposition to the writ petition, inter alia, urging therein that while deliberating on the agenda regarding re-organization of the cadre strength of the College of Nursing, SKIMS as per norms laid down by the Indian Nursing Council for intake capacity of 50 seats recommended adoption of Indian Nursing Council norms for Nursing College, SKIMS. The recommendations of Standing Finance Committee stands approved by 363 the Government body of SKIMS in its (XXXVII) meeting held on October 28,2011 and necessary orders issued vide government order No. 07-SKIMS of 2012 with the mention that the recruitment criteria/method of recruitment shall be notified separately. Subsequently, four member Committee under the convenorship of Dean, Medical Faculty, SKIMS was constituted to lay down the guidelines pertaining to the recruitment/promotion and strength of Faculty of /College of Nursing having intake capacity of 50 students for B.Sc. Nursing and 25 students for M.Sc. Nursing. The Committee offered its recommendations, which were administratively examined and accordingly the Agenda Note with regard to eligibility criteria/method of recruitment to be adopted for selection/promotion of Faculty for the Nursing College was placed before the Standing Academic Committee, SKIMS for consideration and recommendation again. The Standing Academic Committee, which met under the Chairmanship of Chief Secretary, J&K State in Civil Secretariat, Srinagar, on October, 10, 2012 while deliberating on the Agenda Note, recommended the following method of recruitment/essential qualification for entry level Faculty posts viz., Lecturer as under :

S.No._Name of the post_Proposed method of recruitment essential qualification__01_Lecturer(15600-39100+6600)_100% by direct recruitment from amongst persons possessing M.Sc. Nursing from a recognized Institute having 03 years experience after M.Sc. Nursing.Note : There will be no age bar for SKIMS 364 in-service candidates.__The above criteria with method of recruitment stands notified vide Government order No. 76-SKIMS of 2013 dated 16-09-2013. TARIQ MotaSRINAGAR. -09-2017 ( M.K.HANJURA ) (RAMALINGAM SUDHAKAR) JUDGE JUDGE 365 366 367 HIGH COURT OF JAMMU AND KASHMIR- SRINAGARCase No: SWP 516/2008 Dated : 13th of Sept, 2017 FAYAZ AHMAD DAR VERSUS STATE AND ORS.

                  ORDER SHEET                      CORAM:

                                   HON'BLE             MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                      Yes/No

Whether to be approved for         reporting in Digest/Journal :             Yes/No    FOR

THE PETITIONER/s :             MR. R.A.JAN, Sr.ADV.   FOR THE RESPONDENT/s: .

MR. MUZAFFAR BHAT, Dy.AG(M.K.HANJURA-J) 01/                This       case       has     a

chequered history. It is the second round of litigation. The earlier writ petition, (SWP 3348/1996), filed by the petitioner, was disposed of by order dated 14-02-2007 of this Court with the direction to the respondents therein to consider the case of the petitioner for regularization of his services in terms of SRO 64 of 1994. In compliance with the said order, the respondent No.3, vide order dated 26-07-2007, turned down the claim of the petitioner for regularization of his services, which constrained him to file this writ petition, seeking a writ of Certiorari to quash the order No. CAOB/1642-45 dated 26- 07-2007 with further prayer to command the respondents to consider, de-novo, the case of the petitioner for regularization of his services in terms of SRO 64 of 1994 with effect from the date the petitioner has acquired eligibility for the same.02/ Learned counsel for the 368 petitioner submitted that the petitioner was initially engaged as a daily rated worker by the respondent Department vide order dated 24-08- 1992 at Zanigam Store @ Rs.25/- per day, with effect from 01-08-1992 and he continues to be so till date. Learned counsel states further that when the parliamentary elections of 1996 were to be conducted in the State of J&K, the Government formulated a policy, in pursuance of which, the daily wagers were assured that in case they perform election duties, their service will be regularized even if they are yet to complete the statutory length of service required to become eligible for regularization. Learned counsel has proceeded to state that the petitioner, along with other similarly situated persons, banking on such assurance, performed the election duty at the risk of his life. It is further pleaded in the writ petition that to the exclusion of the petitioner, 46 other similarly circumstanced daily wagers were regularized. The petitioner was discriminated against by denying him the benefit of regularization. Learned counsel has further submitted that the petitioner has already put in 16 long years of service as a daily wager. He performed the election duty as well during the 1996 parliamentary elections and, therefore, the petitioner is entitled to be regularized in law. 03/ In their objections, the respondents have pleaded that the case of the petitioner for regularization of his services has been rejected. The petitioner has concocted the facts and has succeeded in misleading the Court. It is further pleaded that the writ 369 petition, being second in the row, is filed by the petitioner on the same subject matter and for the same reliefs. His case for regularization was considered and it was found that he had never been engaged by the respondent - Department in any capacity whatsoever, let alone as a daily wager. The documents attached to the writ petition by the petitioner are fake and forged. The petitioner, in order to claim an undue benefit, connived with some unscrupulous officers of the Department and managed to manipulate and fabricate the records by making insertions in the attendance register. The Department proposes to take a punitive action against the erring officers, who helped the petitioner in misleading the Court by producing forged and fabricated documents. The petitioner deserves to be dealt with sternly for filing a false affidavit before the Court. The petitioner has never been paid any wages by the respondents as he has never been engaged and he never worked in any of the offices of the respondent. At the end it has been urged that the writ petition be dismissed. 04/ Heard and considered.05/ The respondent - Chief Agricultural Officer has, in his counter affidavit/objections, taken different stands. At one point of time, he has pleaded that the petitioner has never been engaged in the Department of Agriculture and, as such, there is no question of he having been deputed for election duty in his capacity as daily rated worker. In the same breath, he has stated that from the scrutiny of relevant records, particularly, the annexures placed by the petitioner in 370 his writ petition filed by him earlier in point of time, it was found that some officers of the Department had helped the petitioner in furnishing fake and fabricated records and making insertions in the attendance register. It is also stated that an administrative action is proposed against the officers found to have connived with the petitioner. 06/ The first contention of the respondent - Chief Agricultural Officer, that there is no question of the petitioner having been engaged in the respondent Department, is qualified by the statement that he (the petitioner) has, with the help of some employees in the Department, fabricated the records. From the assessment and evaluation of the documents, placed on record by the petitioner, the only conclusion that can be drawn is that he was appointed as a daily wager in the year 1992. He performed the election duties and he has been discharging his duties in his capacity as daily rated worker. However, to his dismay, his case for regularization of his services, in terms of SRO 64 of 1994, read with Government order No. 355 of 1996 dated 302-1996, has not been considered. 07/ Annexure (A) to the writ petition is a communication dated 23-10-2006, addressed to the Sub Divisional Agricultural Officer, Beerwah, by the Agricultural Extension Officer, Zone Zanigam, Sub. Div. Beerwah. It is a sequel to the fact that the petitioner worked continuously from 01-08-1992 to 25-08-2005 as a daily rated worker. What gets revealed from its perusal further is that the petitioner was initially engaged as a daily wager in Sub Division 371 Beerwah, and ever since then he has been serving, as such, in the zonal office. The communication further states that since the date of his engagement, various Agricultural Extension Officers, either submitted his attendance to Sub Divisional Agricultural Officers or furnished the same to the petitioner at request and, accordingly, the Sub Divisional Agricultural Officers, after the authentication of the attendance certificates under their seal and signatures, forwarded these to the higher ups. It is also stated in the said communication by the Agriculture Extension Officer, Zone Zanigam, that while taking over the charge on 01-09-2005, his predecessor handed over two attendance registers of daily rated workers to him, reflecting the factual position regarding the existence of daily rated workers in zone Zanigam from January, 1997 to 25-08-2005 including that of the petitioner - Fayaz Ahmad Dar. Annexure (D) to the writ petition is a communication of District Election Officer, Badgam. From a bare look of this communication, it is manifestly clear that the petitioner, who figures at S.No.35, has, on 30-05-1996, performed Lok Sabha election duty as Polling Assistant in Miripora Polling Station. In annexure (F), which is an order dated 11-06-2007, (comprising of 15 pages), of the Sub Divisional Agriculture Officer, Beerwah, the petitioner figures at S.No.28 and is shown to be working as Helper and posted as such at Aripanthan, Beerwah. On the 10th page of the said annexure (running page 46), which is a statement showing the list of daily wagers, 372 working in zone Witligam, Sub Division Beerwah, the petitioner is shown to be a matriculate. He figures at S.No.4 in this statement and is also shown to have been engaged as a daily wager in terms of order No. DAO/763-64 dated 24-08-1992, of the District Agriculture Officer, Badgam, and posted as such at P-P Store Zanigam, Beerwah. 08/ From a close scrutiny of the aforesaid documents, the factum of the engagement of the petitioner as a daily rated worker in the Department of Agriculture in the year 1992, and the fact that he performed the election duties in the year 1996 in his capacity as a daily rated worker, is established to its hilt. It is not one or two officers, who the respondents plead to have played fraud in manipulating the records, but a number of officers, at least a dozen of them, who have authenticated the fact that the petitioner performed his duty as a daily rated worker. The impugned order appears to have been passed without looking into the annexures and the documents attached to the petition of the petitioner. These have been lost sight of completely. The petitioner has been made to run from the pillar to the post and the sword of Damocles has been kept hanging high on his head. The implementation of the order dated 14-02-2007 of this Court, passed in the earlier writ petition of the petitioner, has been scuttled, that too, in a cursory manner and without application of mind to the facts and circumstances of the case. The overwhelming evidence on record to support the contention of the petitioner has been given a 373 complete go bye. The case of the petitioner has been treated as a sui generis case. He has been discriminated invidiously in the matter of the consideration of his case for regularization of services under and in terms of SRO 64 of 1994 read with Government order No. 355 of 1996 dated 30-04-1996. The services of a number of daily rated workers, similarly circumstanced with the petitioner, have been regularized, which is manifest from the list of daily rated workers of Sub Division Beerwah, attached to the communication dated 22-02- 1997, of the Sub Divisional Agricultural Officer, Beerwah, sent to the respondent No.5. The petitioner has been denied equality in terms of treatment and opportunity in the matter of service, which clearly offends the mandate of Articles 14 & 16 of the Constitution of India. 09/ In the backdrop of what has been discussed above, the impugned order No. CAOB/1642-45 dated 26-07-2006, is illegal, unconstitutional and unsustainable in the eyes of law and is quashed. The writ petition is, accordingly, allowed. The respondents are directed to consider the case of the petitioner for regularization in terms of SRO 64 of 1994 read with Government order No. 355 of 1996 dated 302-

1996, keeping in view the annexures referred to hereinabove. The consideration order be passed within a period of two months to be reckoned and calculated from the date a copy of this order along with the copy of the writ petition with annexures, are served upon the respondents by the petitioner.10/ Writ petition is, accordingly, 374 disposed of along with connected IAs.TARIQ MotaSRINAGAR. -09-

2017                                   (M.K.HANJURA)
                                                         JUDGE
                                 375

     HIGH                 COURT               OF             JAMMU                AND

KASHMIR-                                               SRINAGARCase No: SWP

569/2015                                  Dated :      of Sept, 2017        MOHAMMAD

ABDULLAH LONE                    VERSUS               STATE AND ORS.

  ORDER SHEET                         CORAM:

                   HON'BLE            MR. JUSTICE M.K.HANJURA-         JUDGE Whether to be


approved for reporting in NET :                     Yes/No     Whether   to be approved for

reporting in Digest/Journal :              Yes/No    FOR THE           PETITIONER/s       :

MR. MIAN TUFAIL VICE MR. M.A.QAYOOMFOR                       THE RESPONDENT/s:            .

MR.RAYEES AHMAD, GA.(M.K.HANJURA-J) 01/             By issuance of           a writ of

Certiorari, the petitioner seeks quashment of order No. DCK/LS/649-53 dated 28-08-2012, passed by respondent No.3 - Deputy Commissioner, Kupwara, who has rejected the claim of the petitioner for the grant of ex gratia relief in terms of SRO 43 of 1994 as also employment in any Government Department to his son. The petitioner has submitted that his daughter, Mst. Mehmooda Bano, fell unconscious due to neurogenic shock and fear phychosis, because of the exchange of fire between the militants and the security forces near her home, during the intervening night of 20-11-2001, as a consequence of which she gave up to the ghost on 04-04-2002. It is further stated in the writ petition that immediately after the incident of firing, as a result of which the daughter of the petitioner fell unconscious, she was evacuated to Primary Health Centre Magam, wherefrom, she was referred to the 376 District Hospital, Handwara. However, due to her critical condition, it was decided to take her to Sheri Kashmir Institute of Medical Sciences (SKIMS), Soura, Srinagar, but fate had it for her that she died on her way to the said Institute. To substantiate this contention of his, the petitioner has attached the certificates issued by Medical Officer, SDH Magam, Block Medical Officer, Kupwara and Medical Superintendent District Hospital, Handwara, to the writ petition. It is further pleaded in the writ petition that after the death of his daughter, the petitioner approached the respondents for grant of ex gratia relief in his favour. The Incharge Police Post, Magam, supported the case of the petitioner and informed the concerned authorities that during the intervening night of 20-11-2001, the daughter of the petitioner fell unconscious because of the firing in the area and thereafter she died. 02/ The petitioner has proceeded to state that the respondent No.5 - SHO, P/S Handwara, vide his communication dated 19- 01-2012, informed the SDPO, Handwara, about the death of his daughter, which took place due to firing of gun shots in the area on 20-11-2001. However, the SDPO, Handwara, in an erroneous manner, informed the respondent No.4 - Superintendent of police, Handwara, that as per the records of the police station, Handwara, no firing incident report/FIR or any injury report has been entered on 20-11- 2001. Besides this, he also informed the respondent No.4 that the death of the daughter of the petitioner occurred after a gap of more than four 377 months from the alleged date of the exchange of firing, i.e. 20-11- 2001. The petitioner has further submitted that the information given by the village Lumberdar/Sarpanch/Guard, that the firing incident took place during the intervening night of 20-11-2001, was ignored by the respondents and no ex gratia relief was granted in his favour. It is also pleaded in the writ petition that the victim of the unfortunate incident, who was reading in the 12th class, breathed her last because she got frightened due to the exchange of fire between the militants and the security forces just near her home. 03/ The petitioner has further pleaded that when the repeated requests of the petitioner, for grant of ex gratia relief, were rejected, he was constrained to file the writ petition bearing No. SWP 2428/2011, which was disposed of vide order dated 24-04-2012 of this Court with the direction to the respondent therein to accord consideration to the release of ex gratia relief in favour of the petitioner. However, the order of the Court was not complied with and the petitioner filed a contempt petition No. 587/2012. The respondent were put on notice. They filed the Statement of Facts in which they pleaded that as per records of the police station, Handwara, no firing incident report or injury report was entered on 20- 11-2001. The Court, while giving liberty to the petitioner to work out available remedy against the order of rejection, dismissed the contempt petition.

378

379

       HIGH COURT                          OF           JAMMU                     AND

KASHMIR-                                                       SRINAGARCase No:

OWP 2289/2015                                                Dated : 08th of Sept, 2017

MASHOOQ ALI SOFI                            VERSUS                     STATE AND ORS.

                  ORDER SHEET                       CORAM:

                                   HON'BLE              MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                      Yes/No

Whether to be approved for          reporting in Digest/Journal :        Yes/No    FOR

THE PETITIONER/s :                 MR. J.IQBALFOR      THE RESPONDENT/s: . MS.

MOKSHA KAZMI, AAG(M.K.HANJURA-J)          01/      By the       medium of this writ

petition, the petitioner has craved the indulgence of this Court                    in

quashing the communication No. MCI-203(gen)2015-Regn/129352 dated 25-08-2015 issued by respondent No.3 - Medical Council of India (MCI), holding that no registration can be granted in favour of the petitioner and no recommendation can be made in this behalf as, on verification by the J&K State Board of School Education, the 10+2 marks card of the petitioner has been found to be fake and forged. 02/ Learned counsel for the petitioner has submitted that the petitioner got admitted in Dagestan State Medical Academy (Russian Federation) and completed the degree of MBBS in the year 2000. It is further submitted that after the completion of the said degree, the petitioner applied for the requisite registration before the respondent No.3 - Medical Council of India, who, on screening the degree, marks card 380 and other allied documents, accorded a provisional registration in his favour on 12-2-2001 for a period of 12 months. Learned counsel has proceeded to state that after successfully completing his Internship training of one year from Govt. Medical College, Srinagar, the petitioner became eligible for the grant of permanent registration by the respondent - MCI in terms of Section 23 of the Indian Medical Council Act, 1956. It is contended that when the petitioner approached the said respondent for the grant of the permanent registration, he was informed, much to his dismay, that the provisional registration certificate, issued in his favour earlier, has been cancelled on account of his (petitioner's) having allegedly furnished a forged marks card of 10+2 examination. Learned counsel has further submitted that the petitioner was also informed that an FIR bearing No. 173 for offences u/s 420,468, 471 IPC, has been registered against him at police Station IP Estates Delhi. It has been pleaded further that the petitioner had no actual role in securing the admission in the aforesaid College of Dagestan, Russia, which was arranged and offered by the Consultant Agency, run and operated at Chadura, Badgam. Learned counsel has contended that after facing the trial, although the petitioner was discharged of the allegation by the Ld. Metropolitan Magistrate, Tees Hazari, Delhi vide order dated 03-10-2007, yet the said Court referred the matter back to the Investigating Officer for further investigation. After his discharge in the aforesaid case, the petitioner, on 4-03-2008, 381 applied to the respondent - MCI, for the grant of permanent registration but he was informed that it is still pending for the reason that the criminal case filed against him has not attained finality as yet. He was further informed that under the circumstances, he has no option but to wait till such time that the investigation of the case is complete. Learned counsel has further submitted that finally on 31-01-2014 the Court of learned Metropolitan Magistrate, Delhi, held that since there is no breakthrough in the case, therefore, the same is closed as "untraced". Learned counsel has proceeded to state that by dint of communication dated 25-08-2015, the claim of the petitioner for the grant of permanent registration was again turned down by the respondent - MCI , on the ground that the J&K State Board of School Education has reported, on verification, that the 10+2 marks sheet furnished by him has been found to be fake and forged. Learned counsel further submitted that the petitioner, besides applying for the issuance of permanent registration before the respondent MCI, also applied to respondent No.2 - the State Medical Council, as the power of granting the registration vests with the State Medical Council. In this behalf, the representation filed by the petitioner before the said respondent was acknowledged but the same was not decided and instead it was verbally conveyed to him that the registration is to be accorded by the MCI, after proper verification. 03/ At the end, the learned counsel has stated that the petitioner, having been declined 382 permanent registration in terms of the impugned communication dated 25-08-2015 on the premise that the provisional registration was granted to him by the respondent - MCI, after submitting a fake and forged 10+2 marks card, which allegation has been found to be baseless by the competent Court of jurisdiction, after the petitioner was subjected to trial, the impugned communication is misconceived and is, therefore, liable to be quashed. 04/ Learned counsel for the respondents has submitted that the State Board of School Education has declared the 10+2 marks certificate of the petitioner as fake/forged. The petitioner has played fraud with the respondents at the very threshold of his career by trying to mislead the authorities in obtaining the registration. Learned counsel has further stated that the complete structure of the career of the petitioner as a medical practitioner is based on a forged document and this, by itself, clearly disentitles him from getting a permanent registration of the MBBS degree. Learned counsel has further submitted that an aspirant, who is trying to enter into the noble profession of scientific medicine on the basis of fake/forged credentials, should be subjected to exemplary punishment by the concerned authorities.05/ Heard and considered.06/ The main plank of the argument of the learned counsel for the respondents revolves on the plea that the petitioner submitted an application seeking the provisional registration on the basis of a fake and forged 10+2 marks card, declared as such, by the concerned State Board of 383 School Education. The petitioner has, therefore, at the very inception of his career employed deceit and played fraud with the respondent - MCI, which disqualifies him from claiming registration to function as a registered medical practitioner and that the respondent - MCI, was within its jurisdiction to refuse the registration. A case, as stated herein before, was also registered against the petitioner by the respondent - MCI. It was investigated into by the police authorities. They laid a report before the Metropolitan Magistrate, Delhi, who, vide his order dated 31-10-2007, passed in it, held as follows : "From all these case laws, it is very much clear that the court has to find sufficient material/evidence to proceed with the trial. In the present case prosecution has not produced any evidence to connect the accused with the act of filing application before MCI with forged mark sheet. It has not bothered to collect other evidence after receipt of CFSL report to see whether the application was actually filled up by the accused or was submitted by the accused in MCI. Mere on the ground of presumptions that accused was the only beneficiary, criminal 384 liability cannot be imputed upon the accused. Therefore, I am of the considered opinion that accused is entitled for discharge. Matter is referred back to SHO for further investigation. File be consigned to record room."07/ By a subsequent order dated 31-01-2014, the MM/06/C/Delhi, directed as under :"Vide order dated 3-10-2007, passed by Ld. Predecessor of this Court, Mashooq Ali Safi has been discharged. Further investigation conducted does not reveal any material against him. The two suspects Ashwini and Raj Kumar have been subjected to polygraph test and their handwritings were sent for examination with questioned one but nothing incriminating is opined by expert. Hence, the material is insufficient to summon any of two suspects. Information of offence was received in PS in 2002. Till time there is no breakthrough in the case. Accordingly, the report is accepted as untraced with the direction to SHO/IQ concerned to further investigate in the case as soon as any clue as to the offender is found.File be sent back to the PS against the acknowledgement. Ahlmad is directed to retain order sheets and the copy of chargesheet along with statements of witnesses recorded u/s 161 Cr.PC for Court record. Thereafter file be consigned to record room. Copy of this order be sent to SHO."08/ What comes to the fore from perusal of the above two orders is that the case was closed as untraced because the material, gathered during the investigation of the case, did not, prima facie, convince the Court that the accused/petitioner should be put to trial and, accordingly, ordered his discharge. The two orders above are also a sequel to the fact that the case was finally closed as untraced. The respondent - MCI, has built its case on the edifice that it was the petitioner, who forged the certificate, which, in turn, is belied by the orders cited above. 09/ The respondent - MCI, has stated that the 385 10+2 marks card, submitted by the petitioner revealed that he had secured 307 marks out of 600 marks, although, as a matter of fact, he had obtained only 298 marks. It has been stated further that a candidate, aspiring for getting admission to a primary medical course, is obliged not only to qualify his/her Senior Secondary (10+2) examination with Physics, Chemistry, Biology & English subjects but he/she should also obtain a minimum of 50% marks in Physics, Chemistry & Biology subjects taken together and having passed the English as one of the compulsory subjects as per the provisions of the Regulations on the Graduate Medical Education 1997. It is also stated that the petitioner forged the 10+2 marks card so that the respondent - MCI, labors under the belief that he has obtained 50% marks in the aforesaid subjects, although, he had secured only 298 marks in 10+2 examination. This argument of the learned counsel for the respondents appears to be a spurious one when tested on the touchstone of Regulation (5), running under the Head - Procedure for Selection to MBBS Course, buttressed with the fact that the petitioner is a resident of the backward area as is evident from the perusal of annexure-J attached to his petition. The Regulation (5) supra reads as under : "i/ In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the 386 qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in physics, Chemistry and biology taken together in qualifying examination be 40% instead of 50% as above.ii/ In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry & Biology at the qualifying examination as mentioned in clause (2) of Regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry & Biology taken together in the competitive examination in respect of candidates belonging to Schedule Castes, Schedule Tribes or Other Backward Classes the marks obtained in Physics, Chemistry &Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above. Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course he shall not be admitted to that course until he fulfills the eligibility criteria under regulation 4." 10/ On the analogy of the Regulation cited above, the petitioner was not to be scaled in the category of the persons, who were obliged to secure 50% marks in the qualifying examination but his case had to be tested on other parameters. He was obliged to secure 40% marks only instead of 50% for being a resident of the Backward Area. Therefore, the argument that the petitioner forged the document in 387 order to make the respondent - MCI, believe that he secured 50% marks in the 10+2 examination, pales into insignificance. He would, in no way, get benefited by the act of forgery. Therefore, there is an innate defect in the hypothesis that the petitioner committed forgery for securing undue gains and to cap it all, there is no evidence to suggest that he was the one who had forged the marks card, as the Court of Metropolitan Magistrate, Delhi, has given him a clean chit. 11/ Another aspect of the case, which cannot be lost sight of is whether the 10+2 marks card had any bearing or nexus in the matter of the registration of the petitioner as a medical practitioner. The answer to this question is provided in the law laid down in AIR 1996 SC 2073, paragraph (4) of which assumes significance in the context of the decision of this petition. It is reproduced below verbatim et literatim :"4. It would thus be clear that the basis qualification of M.B.B.S as primary qualification is pre-condition for a candidate for being registered in the State Medical Register maintained by the State Board. The second respondent does not have the basic qualification, his M.Sc (Bio-Chemistry) cannot be considered to be basic qualification for practicing as a Medical Practitioner. The High Court has thus committed obvious error in allowing the writ petition and directing the appellant to register him as a Medical Practitioner."12/ Applying the ration of the law laid down above to the facts of the instant, the condition precedent for the registration of a medical practitioner is that he/she should be holding the basic qualification of MBBS, which is a 388 prime requisite. The case set up by the respondent - MCI, is that the petitioner produced a fake/forged 10+2 marks card before it and it is nowhere stated that he was not holding the basic qualification of MBBS, which is a primary qualification for the registration of a medical practitioner.13/ Looking at the case of the petitioner from another perspective, the authorities of the J&K Board of School Education did not issue any notice to the petitioner before sending the Verification Report to the respondent - MCI. The respondent No.3 - MCI, also followed the suit and did not issue any Show Cause Notice to the petitioner before putting explicit reliance on the verification report of the J&K Board of School Education before cancelling the provisional registration certificate of the petitioner. The respondent - MCI, has thus, violated the principles of natural justice with impunity. 14/ The work of the Courts is, primarily, to administer law and dispense justice. We must, however, not forget that justice is above law and any law, which is to be administered, has to be administered on the basic principles of natural justice. Says Voltaire "The sentiment of justice is so natural and so universally acquired by all mankind, that it seems to be independent of all law, all party, all religion." What Jeremy Taylor added to that is that "No obligation to justice does coerce a man to be cruel or to use the sharpest sentence. A just man does justice to every man and to everything and he also knows that there is a debt of mercy and compassion that has to be paid. Justice 389 should be manifest in conduct and justice is fairness in the way that people are treated." 15/ The principles of natural justice is embedded in Article 14 of the Constitution of India. It is quite opposite to arbitrariness. In violating the principles of natural justice, the respondents have observed the constitutional rights guaranteed to a citizen, under Article 14 of the Constitution of India, in breach. The law is that the requirement of natural justice is applicable not only to the judicial or quasi judicial orders but also to the administrative orders, affecting, prejudicially, the party in question, unless it is expressly excluded by a law, which is otherwise valid. Had the respondent - MCI, followed the principles of natural justice and asked the petitioner to file his reply, may be that he (respondent - MCI), a statutory authority, after applying its mind to the facts and circumstances of the case, might have arrived at a different conclusion. The impugned action of the respondent No.3 - MCI, under the facts and circumstance of the case is not in tranquility with law but is an arbitrary one. The fate of a budding youth, made to run from the pillar to the post, has been kept hanging like that of a 'Trishunka'. Failure to observe the principles of natural justice goes to the root of the case. A semblance of fairness cannot, therefore, be attached to the impugned action of the respondent No.3 - Medical Council of India, which is, accordingly, declared to be illegal and arbitrary.16/ Viewed in the context of what has been said and done above, the communication/order, bearing No. MCI- 390 203(Gen)2015-Regn/129352 dated 25-08-2015, issued by respondent No.3 - Medical Council of India, (annexure-H), impugned in this petition, is quashed. The respondent No.3 is directed to consider the claim of the petitioner for grant of Permanent Registration Certificate in terms of Section 23 of the Indian Medical council Act, 1956. Before passing any order, the respondents No.3 shall afford an opportunity of being heard to the petitioner. It is made clear that the issuance of the direction for the consideration of the case of the petitioner should not be construed to be that the respondent No. 3 is obliged to issue the Permanent Registration Certificate to the petitioner. The respondent No.3 shall satisfy itself about the statutory requirements and the eligibility of the petitioner, whereafter it shall pass appropriate orders in accordance with the law. 17/ Writ petition is, accordingly, disposed of along with connected IAs. TARIQ MotaSRINAGAR. -09-2017 (M.K.HANJURA) JUDGE 391 HIGH COURT OF JAMMU AND KASHMIR- SRINAGARCase No:

SWP 654/2008                                    Dated : 08th of Sept, 2017         YOUSUF

JAVAID MOON                       VERSUS                    STATE AND ORS.

          ORDER SHEET                        CORAM:

                           HON'BLE                MR. JUSTICE M.K.HANJURA-            JUDGE


Whether to be approved for reporting in NET :                         Yes/No   Whether to be

approved for          reporting in Digest/Journal :          Yes/No          FOR      THE

PETITIONER/s :          MR. M.A.QAYOOMFOR             THE RESPONDENT/s: . MR.ASIF

BHAT, AAG(M.K.HANJURA-J)      01/ The petitioner, a Store Keeper in the

Department of J&K Consumer Affairs & Public Distribution (for short CA&PD), was, on 08-10-2005, posted as such, in Tehsil Uri, Salam Abad. On this fateful day, the entire belt, housing the town of Uri, was rocked by an earthquake, as a consequence of which, a good number of houses got damaged and a number of people were killed under the debris. The petitioner was holding some food stock under his charge. The building that housed the CA&PD Department also collapsed in this upheaval and the stocks dumped therein were either damaged or stolen by the people to fend for themselves. Since at the moment, the petitioner, dwelt in the area, therefore, he made an endeavor to save his life and the lives of the members of his family, who too were affected by the earthquake. On 10-10-2005, the petitioner lodged a report in this behalf before the Officer of Chowki Urma, Uri. 02/ The respondent 392 No.4 - the Assistant Director, CA&PD Department, Baramulla, addressed a letter to the SHO P/S Uri, to conduct an investigation into the matter and to submit a report regarding the damage/stolen food so that further action could be taken in the matter. The said respondent addressed a letter to the SSP, Baramulla, as well, requesting him to favour, with the necessary instructions, the concerned police station for submission of report. On 17-12-2005, the authorities of police, Chowki Uroosa, informed the SSP that two sale centres of Cohallan & Uroosa were raised to ground on 08-10-2005 and the ration stores were looted by the locals residing in the area. It was also reported that some stocks got destroyed under the debris. The Assistant Accounts Officer, CA&PD, addressed a letter bearing No. CA & PD/Balla/Acctts/2159- 61dated 16.01.2006 to the respondent No.4, informing him that a huge quantity of food grains E/Bags were damaged in Uri Circle-A during the earth quake and, as such, he should furnish a detailed report, centre- wise, of the whole District so that figures will be communicated to the higher authorities. He also told him that till the date of the finalization of the case, provisional debits be raised against each store keeper and their full bio-date be also provided to his office. The SSP, Baramulla, informed the respondent No.4 that he got the matter verified and the report obtained from Sub Divisional Officer, Uri, reveals that almost all food grains in the sale centres have either been damaged or looted by the miscreants. 03/ The petitioner is aggrieved of the impugned letters 393 dated 16-01-2006 and 20-02-2006, which provide that the provisional debit be raised against each store keeper and in this behalf full bio-data of each store keeper be furnished at an early date. He has prayed for the grant of the following reliefs in his favour : "I/ By issuance of a writ of certiorari or any other appropriate writ, order or direction, the impugned letters bearing No. CA & PD/Bla/Acctts/2159-61 dated 16.01.2006 and No. CA & PD/Acctts/Balla/2404-05 dated 20.02.2006 addressed by A.A. O. and Chief Accounts Officer, CA & PD Department, Kashmir, be quashed; andII/ By issuance of a writ of Mandamus or any other appropriate writ, order of direction, the respondents be directed to writ off the loss caused during the earthquake on 8the October, 2005 at various sale centers (Sale Centre Mothal) in Tehsil Uri, were the petitioner was posted and not to raise any kind of provisional debit against the petitioner in relation to the said loss in any manner whatsoever.OR IN THE ALTERNATIVEIII/ The Respondents be directed to hold an in-depth enquiry in the matter, to determine the extent of loss and also the complicity of the petitioner in causing the said loss, forthwith and also give an opportunity to the petitioner to participate in that enquiry and till that is done, not to make any kind of recovery from him, regarding the said loss any manner whatsoever. 04/ It has been admitted by the respondents in their reply that as per report of the Field Officers, the quantity of food grains in various sale Centres, including that of the Salam Abad, were either damaged or looted by the unscrupulous inhabitants of the area. It has also been stated that the report of Field Officer was made available to the police authorities for necessary investigation and report. It is also stated in the reply that the 394 investigation report of the Superintendent of Police, Baramulla, reveals that almost all the sale Centres detailed in the reply, including that of Salam Abad, have collapsed to the ground due to the earthquake and the food grains stored therein have been damaged or looted but the quantity thereof could not be ascertained and efforts are being made to assess the exact quantity of the loss and the information, if any prepared in this regard, will be consolidated and communicated. It has also been stated by the respondents that in the earthquake dated 08-10-2005, everyone tried to save his life and the information in respect of the damages caused to the food grains has been submitted to the Deputy Director, Administration/Chief Accounts Officer, CA&PD, Srinagar. It is also stated that the fact of the matter is that the damage to the food grains was caused due to the earthquake and the then Supervisor, HQ/Incharge Chief Inspector, has conducted a spot verification/enquiry, in which he has reported that the food grains have been damaged or looted by the unscrupulous people of the area at the time of the earthquake. It has been stated further that the Department has already determined the counter-wise loss caused by the earthquake. 05/ On the face of what has been stated by the respondents in their reply, the loss to the food grains was caused due to an Act of God, known in the popular terms as vis major. It was an act which was beyond the control of the petitioner. It was unavoidable and could not be prevented by any human conduct. This proposition has not been 395 rebutted or refuted by the respondents. To the contrary they have admitted that the building, housing the Store, was raised to the ground. It has also been admitted that the food grains were either damaged or looted and scooted. Therefore, the impugned letters bearing NOs. CA & PD/Bla/Acctts/2159-61 dated 16.01.2006 and CA & PD/Acctts/Balla/2404-05 dated 20.02.2006, directing the recovery from the petitioner, regarding the loss caused to the stocks during the earthquake, are completely misplaced. These cannot sustain in the eyes of law. 06/ Viewed in the above context, the impugned letters bearing NOs. CA & PD/Bla/Acctts/2159-61 dated 16.01.2006 and CA & PD/Acctts/Balla/2404-05 dated 20.02.2006 addressed by A.A.O. CA & PD Department, Kashmir, and Chief Accounts Officer, CA&PD Department, respectively, are quashed and the respondents are directed to hold an in depth enquiry into the matter to determine the extent of loss and the complicity of the petitioner in causing such loss. The petitioner shall be given an opportunity to participate in the enquiry and till such time the needful is done, no recovery regarding the said loss shall, in any manner whatsoever, be made from the petitioner. The respondents shall conduct the enquiry with utmost dispatch, preferably within a period of six weeks from the date the copy of this order is made available to them.07/ Writ petition is, accordingly, disposed of along with connected MPs.TARIQ MotaSRINAGAR. -09-2017 (M.K.HANJURA) 396 JUDGE 397 HIGH COURT OF JAMMU AND KASHMIR- SRINAGARCase No:

HC(p) 173/2017                                 Dated : 30th of AUG., 2017        SYED

ASIYA ANDRABI                            VERSUS                       STATE AND ORS.

                  ORDER SHEET                       CORAM:

                                   HON'BLE              MR. JUSTICE M.K.HANJURA-

JUDGE Whether to be approved for reporting in NET :                     Yes/No

Whether to be approved for          reporting in Digest/Journal :       Yes/No    FOR

THE PETITIONER/s :                 MR. M.A.QAYOOMFOR         THE RESPONDENT/s: .

MR. B.A.DAR, Sr.AAG (M.K.HANJURA-J)     01/        In      exercise of the powers

vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short JKPSA), the respondent No.2 - District Magistrate, Srinagar, passed an order of detention bearing No. DMS/ PSA/01/2017 dated 09th of May, 2017, having the effect of detaining the detenue (Syed Asiya Andrabi) and lodging her at District Jail, Baramulla. However, this lodgement was subsequently changed to the Central Jail, Kotbalwal, Jammu, and thereafter to District Jail, Amphalla, Jammu. The petitioner has assailed this order before this Court, on the grounds, inter alia, that the material referred to in the grounds of detention, to enable the detenue to make a representation, has not been provided to her, which is mandatory in view of the law laid down by the Hon'ble Supreme Court. The grounds of detention are vague, uncertain, indefinite, untrue and unreal. These 398 lack in material particulars, viz. place, time, day, month, year etc. and as such the detention order is liable to be set aside. The earlier order of detention dated 05-10-2016, having been quashed by the Court on 15- 12-2016, no fresh order of detention could be passed against the detenue, unless there were fresh grounds, which came into existence after the passing of the order dated 15-12-2016 and her release from the detention. The grounds of detention are a replica of the police dossier and only the word "subject" has been changed into the word "you" by the District Magistrate, Srinagar, which smacks of non application of mind. The grounds of detention do not show that the detenue was arrested on 26-04-2017 and was booked by the police station, Soura, Srinagar, in a case registered against her u/s 107/151 Cr.PC, in which the Executive Magistrate, 1st Class, Idgah, Srinagar, granted her bail on 09-05-2017. The order of detention has been passed without application of mind, rendering the same liable to be set aside. It has further been stated that since the detenue was in custody at the time of passing of the order of detention, therefore, there was no justification to detain her under the preventive detention. Her bail application could have been opposed or the order could have been challenged before the superior Court and in no case could she be detained under the JKPSA. 02/ The respondent No.2 has resisted and controverted the petition of the petitioner, primarily, on the ground that the order of detention has been passed after taking into consideration the relevant provisions 399 of the JKPSA. The grounds of detention have been conveyed to the detenue in the language with which she is conversant. These have been read over and explained to her. The material, that formed the base line of the detention of the detenue, has also been provided to her and she has also been told that she has a right to make a representation to the Government as also to the authority that passed the order of detention. It has been passed with due diligence. It will survive in the eyes of law. It is neither perverse nor bad and, therefore, the petition of the petitioner merits dismissal.03/ Heard and considered.04/ The argument of the learned counsel for the petitioner is that although in the order of detention passed by the respondent No.2, the detenue has been informed that she has a right to make a representation against her detention before the detaining authority and the Government, yet the detention order is invalid under law. He has stated that the order of detention was passed on 09-05-2017. It was served on the detenue on 18-05-2017, on which date she could not make a representation to the detaining authority, inasmuch, as the order of her detention had already, on 15-05-2017, been approved by the Government. 05/ Appreciating this argument of the learned counsel for the petitioner, what gets revealed from the perusal of the record relating to the detention of the detenue is that in the execution report dated 18-05- 2017, by which the warrant of detention has been executed by Inspector Gulshan Akhter No. 4463/NGO, SHO, Police Station Women 400 Cell, Rambagh Srinagar, at District Jail Jammu, it is stated that the contents of the warrant of detention and the grounds of detention have been read over and explained to the detenue in urdu/kashmiri languages, which she understands fully and in token thereof, her signature has been attained on the report. It is further stated in this report that the detenue has been informed that she can make a representation to the Government against the order of detention. In the receipt of the grounds of detention, also attached to the detention record, the detenue has been informed that she can make a representation to the Government against the detention order, if she so desires. The detention order has been approved by the Government vide No. Home/PB-V/1014 of 2017 dated 15-05-2017. Since the detention order has been approved on 15-05-2017 and the material in the shape of grounds of detention, consisting of (05) leaves, supplied by the District Magistrate, Srinagar, have been served on the detenue on 18-05-2017, on which date, the order of detention issued by the District Magistrate had already been approved by the Government, therefore, the detenue could not make a representation to the detaining authority but to the Government only. In doing so, the detenue has been deprived of her right to make a representation before the detaining authority. This, according to the learned counsel for the petitioner, renders the detention order invalid under law. To substantiate his argument, the learned counsel for the petitioner has placed explicit reliance on the law 401 laid down by the High Court of Jammu & Kashmir vide order dated 09th June, 2017, passed in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) 402 of the Constitution of India and such failure would make the order of detention invalid. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, 403 such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub- section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-" 21. Power to make, to 404 include power to add to, amend, vary or rescind, orders, rules or bye- laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) 405 of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu und of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, 406 would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as his detention order is concerned.The appeal is allowed. The impugned order is set aside."06/ The judgement cited above is lucid and clear. Applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, she has not been informed that she can make a representation to the Detaining Authority, against the order of detention, till such time that the same was approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India 407 and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 07/ From the perusal of the execution report, what is brought to the fruition is that the detenue, along with the documents in the shape of the detention warrant and the grounds of detention, was handed over to the authorities of District Jail, Jammu, and these were read over and explained to her. The record bears a testimony to the fact that only 05 leaves were provided to the detenue. The grounds of detention and the detention warrant comprise 06 and not 05 leaves. Therefore, everything does not augur well in the instance case. Which 05 pages were handed over to the jail authorities, shrouds in a mystery and which 05 pages were read over to the detenue, sinks in suspicion ? 08/ Looking at the said ground from yet another angle, in order to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in this regard. In the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order 408 of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act." 09/ In the grounds of detention, it is stated that whenever she (the detenue) is released, she again recycles her secessionist activities and indulges in highly objectionable activities aimed at seceding the State of J&K from the Union of India and destabilize the administrative machinery. This is said to have surfaced during the course of the investigation in cases bearing F.I.R NOs. 84/2015 u/s 13 ULA Act, 86/2015 u/s 13 ULA Act & 93/2016 u/s 153- B RPC, 13 ULA Act, registered police station, Soura, Srinagar. Since the detaining authority derived satisfaction on the basis of material collected in the three cases registered against the detenue in the years 2015 & 2016, therefore, it was incumbent on his part to provide this material to the detenue. This has hampered the detenue to make an effective representation to the Government as provided under the law. 409 Therefore, the argument, that the entire material was provided to the detenue, is a spurious one and does not hold true. It was also of essence to see whether the fact situation had undergone any change from the date of the earlier order of detention made on 05-10-2016, which order was quashed by this Court on 15-12-2016. Nothing, on that count, has been done by the detaining authority. Doing so was necessary to find out whether the same grounds have been repeated and reiterated in the present order or that it was based and considered on some fresh material.10/ Looking at the petition of the petitioner from another perspective, the District Magistrate, Srinagar, invoked the aid of all the three F.I.Rs supra in ordering the detention of the detenue. Two of them relate to the year 2015 and the third one pertains to the year 2016. The order of detention has been passed on 09-05- 2017. The stale incidents, that took place much before the passing of the order of detention, have been invoked by the District Magistrate, Srinagar, in carving out a case of detention against the detenue. These do not appear to have any immediate or proximate connection with the detention order and could not form the basis for the detention of the detenue. 11/ In the grounds of detention, which are said to have been provided to the detenue, it has been stated that you (the detenue) voluntarily developed contacts with various secessionist elements and since then you are a believer in the secessionist ideology. You were being aided by various secessionist elements to launch the organization. 410 You are figuring adversely in police reports for your activities which are prejudicial to the maintenance of security of the State. You are a diehard secessionist, whose endeavour is to secede the State of J&K from the Union and in order to achieve this objective you have indulged in anti national activities and have played an important role in 2008 agitation as well as during 2010 summer unrest and 2016 unrest during which you were devising programmes, rallies with the secessionist elements. During these rallies, you have repeatedly been glorifying the death of the militants and asking the general public to adopt the path of terrorism and secessionism. Since you wield a considerable clout in secessionist circles, large number of disgruntled elements are getting motivated by your sermons and are indulging in activities prejudicial to maintenance of public order. It is further stated in the grounds of detention that during the present situation you ( the detenue) have not only taken an active role in devising the programmes with secessionist elements in order to create large scale violence but have also been found to instigate the disgruntled elements for implementing such programmes by giving highly proactive speeches and motivating them for indulging in illegal activities which are aimed at creating large scale disturbances in the valley which in turn affect the maintenance of public order. During the investigation conducted in FIR NOs. 84/2015, 86/2015 & 93/2016, it has surfaced that you have been one of the source of instigation for the protesters as well as to the disgruntled 411 elements who, on your instigation, have resorted to arson and other illegal activities. The investigations conducted have revealed that during your statements and sermons delivered to the disgruntled elements, you have been justifying stone pelting and other illegal activities including arson of schools and other institutions, Govt. buildings, public and Govt. transport, thereby giving a moral support to the disgruntled elements. It has also been found that whenever you (the detenue) are released, you again recycle your secessionist activities and thereafter indulge in highly objectionable activities aimed at seceding the State of J&K from the Union of India and destabilizing the administrative machinery. It is also stated in the grounds of detention that you (the detenue) have been detained on several occasions and lastly you were detained under JKPSA in terms of detention order issued by this office vide order NO. DMS/PSA/55/2016 dated 05-10- 2016. The said detention order has been quashed by Hon'ble High Court of Srinagar. After release from jail you again recycled your illegal activities which are prejudicial to the maintenance of public order. You have again started a campaign to create an atmosphere which is sure to affect maintenance of the public order. There is a credible information that you have devised a programme with secessionist circles for creating large scale law and order problem and destabilizing the administrative machinery. It is further stated in the grounds of detention that if you are allowed to remain at large at this 412 juncture, you will again indulge in illegal activities which have a direct bearing on the maintenance of public order as the separatist elements are desperately trying to disrupt the public order and you are one of the forefront secessionist elements to take an active part in such activities. It is further mentioned in the grounds of detention that in order to stop you (the detenue) from indulging in above activities, your detention under the provisions of JKPSA at this stage has become imperative as the normal law has not been found sufficient to stop you from indulging in above activities.12/ The grounds of detention appear to be vague, incomplete, uncertain and indefinite. These lack in details and are based on insinuations and allegations. These do not state the places, time, days, months and the years, in which such activities were carried out by the detenue. Where she developed the contacts and with which secessionist elements, is not given. Whom she aided, what endeavour did she make to secede the State of J&K from the Union of India, in which anti national activities did she indulge, what role did she play in the 2008 agitation as well as during the 2010 & 2016 summer unrest, has not been detailed. In which programmes and rallies did she participate, is not stated. Which of the militants she glorified, when she asked the general public to adopt the path of secessionism and what clout does she wield in the secessionist cycles, has not been declared. Whom did she motivate, what material was collected during the investigation of the three cases, the particulars of which have been 413 given hereinbefore, where did it surface that she instigated the protestors and others to resort to arson and other illegalities, has been completely ignored. This cuts at the very root of the detention order. A cue can be had, in this behalf, from the law laid down in paragraphs 5,7,8 & 17 of the judgement passed by the apex Court of the country in the case of Mohammad Yousuf Rather Versus State of J&K and others, reported in AIR 1979 SC 1925, 414 which, for the convenience of ready reference, is reproduced below :"05. A reading of the first paragraph shows that it is vague in several respects. It does not state the places where the petitioner is said to have organized the meetings or the nature of lawlessness instigated by him. It does not also mention the names of the villages where he is said to be in the habit of going for compelling the shopkeepers to close down their shops and to participate in the meetings. So also, it does not mention the villages where the petitioner was reported to have "recently" started the campaign asking the inhabitants not to sell their extra paddy, or to manhandle the government officials. The paragraph is therefore undoubtedly very vague.........................7. The sixth paragraph is also vague for while it states that the petitioner was found leading the unruly mobs in different villages and instigating them to set fire to the house of the worker of the Jamat-i-Islami, the names of those villages and the name of the owner of the burnt house have not been stated. 8. It is obvious therefore that the above grounds of detention are vague. This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenue under article 22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made or communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference in this connection may be made to this Court's decision in State of Bombay vs. Atma Ram Sridhar Vaidya, 1951 SCR 167 where the guarantee of article 22(5) has been characterized as an elementary of a citizen in a free democratic State, and it has been held that if a ground of detention is not sufficient to enable the detained person to make a 415 representation at the earliest opportunity, it must be held that his fundamental right in that respect has been infringed in as much as the material conveyed to him does not enable him to make the representation. So as the aforesaid grounds of detention are vague, the petitioner is entitled to an order of release for that reason alone. It is true that as has been held in Naresh Chandra Ganguli's case (supra) "vagueness" is a relative term, and varies according to the circumstances of each case, but if the statement of facts contains any ground of detention, which is such that it is not possible for the detenue to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation, it does not require much argument to hold that one such vague ground is sufficient to justify the contention that his fundamental right under clause (5) of the article 22 of the Constitution has been violated and the order of detention is bad for that reason alone. Reference in this connection may also be made to the decision in Tarapada De vs. State of West Bangal, 1951 SCR 212, Dr. Ram Krishan Bhardwaj Vs. State of Delhi, 1953 SCR 708, Shiban Lal Saxena Vs. State of Uttar Pradesh, 1954 SCR 418, Rameshwar Lal vs. State of Bihar, (1968) 2 SCR 505, Moti Lal Jain Vs. State of Bihar, (1968) 3 SCR 587 and Pushkar Mukerjee Vs. State of West Bengal, (1969), 2 SCR 635..............................17. We are primarily concerned in this case with article 22(5) which is as follows : "When any 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"The extent and the content of article 22(5)have been the subject matter of repeated pronouncements by this Court (vide, State of Bombay versus Atma Ram 1951 SCR 167, Dr. Ram Krishan Bhardwaj Vs. State of Delhi, 1953 SCR 708, Shiban Lal Saxena Vs. State 416 of Uttar Pradesh, 1954 SCR 418, Dwakar Das Bhatia vs. State of Jammu & Kashmir, 1956 SCR 948). The interpretation of article 22(5), consistently adopted by this Court, is , perhaps, one of the outstanding contribution of the Court in the cause of human rights. The law is now well settled that a detenue has two rights under article 22(5) of the Constitution: (1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenue entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenue's constitutional rights is that the precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority." 13/ On the basis of the law laid down above, what can be said is that the grounds of detention are vague in almost all respects. These do not state as to where the activities, attributed to the detenue, took place. Each such accusation had to be explained by reference to the relevant material, which, in turn, had to be provided to the detenue so that a semblance of fairness could be attached to the order of detention. This 417 has not been done. This vagueness in the grounds of detention impinges on the fundamental rights of the detenue guaranteed under article 22(5) of the Constitution of India and it cannot stand. 14/ Looking at the case of the petitioner from yet another aspect, the relevant excerpts of the order bearing No. Home/PB-V/1549 of 2017 dated 14-08-2017, passed by Principal Secretary to Government, Home Department, require to be reproduced herein 418 below word for word and letter for letter : "............whereas the period of detention of the detenue is scheduled to expire on 17-08-2017 and IGP, CID vide his above quoted reference has recommended extension in the period of detention in respect of the above detenue under the aforesaid Act."15/ This order speaks volumes about the complete lack of application of mind. It states that the very foundation of the order of the extension of the period of detention is the recommendation made by the Inspector General of Police (IGP), CID, which is completely unknown to the provisions of law contained in the JKPSA. Section (8) of the JKPSA, running under the Head (Detention Of Certain Persons) provides that the Government may, if satisfied with respect of any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order etc., make an order that such person be detained by the Divisional Commissioner or by the District Magistrate. It also provides that when an order is made by the Divisional commissioner or by the District Magistrate, he shall, forthwith, report the fact to the Government together with the grounds on which the order of detention has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after making thereof unless, in the meantime, it has been approved by the Government.16/ What gets revealed from the above provision is that the order of detention made either by the Divisional Commissioner or by the 419 District Magistrate, has to be confirmed by the Government within a period of 12 days as otherwise it will lose its sanctity. Section 18 of the JKPSA provides that the maximum period of detention for which any person may be detained in pursuance of a detention order, which has been confirmed by the Advisory Board u/s 17 of the JKPSA, shall be 03 months in the first instance, which may be extended to 12 months from the date of detention of a person acting in any manner prejudicial to the maintenance of public order and 06 months in the first instance, which may be extended up to 02 years from the date of detention in case of a person acting in any manner prejudicial to the security of the State. Sub section 02 of Section 18 of JKPSA provides that nothing contained in this section shall affect the powers of the Government to revoke or modify the detention at any earlier time or to extend the period of detention.17/ A conjoint reading of the two sections quoted above would mean that the Divisional Commissioner or the District Magistrate can pass an order, thereby detaining a person for a period of 12 days,within which period, it has to be confirmed by the Government as otherwise it will lose its validity. So it is the Government, which has to regulate the period of detention of the detenue after the afflux of this time. However, in the instant case, fate had it for the detenue, that the order of detention has been extended on the mere asking of IGP, CID, which is in utter violation of the law.18/ Life and liberty of the citizens of the State are of paramount 420 importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. The personal liberty of a citizen, guaranteed to him/her by the Constitution, cannot be deprived except in due course of law and for the purposes sanctioned by law. 19/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. DMS/ PSA/01/2017 dated 09th of May, 2017, passed by the respondent No.2 - District Magistrate, Srinagar, is quashed with a further direction to the respondents to release the person of Syed Asiya Andrabi, Wife of Ashiq Hussain Faktoo R/O Soura Srinagar, Kashmir, forthwith from the preventive custody.20/ The petition is, accordingly, disposed of along with connected IAs. Registry to return the record to the learned counsel for the respondents.

TARIQ MotaSRINAGAR.   -08-2017

(M.K.HANJURA)
JUDGE
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     HIGH      COURT        OF     JAMMU        AND      KASHMIRAT

SRINAGARHCP No. 339/2017Date of Order: 28th of March, 2018.Faisal Manzoor DarVs.State of JK & Anr.Coram:Hon'ble Mr Justice M. K. Hanjura, Judge. Appearance:For the Petitioner(s):

Mr N. A. Tabassum, Advocate.For the Respondent(s): Mr Asif Maqbool, Government Advocate. i) Whether approved for reporting in Yes/No Law Journals etc.:ii) Whether approved for publication in Press:

Yes/No01. By the dint of order bearing No. 89/DMB/PSA/2017 dated 23rd of August, 2017, passed by the Respondent No.2/District Magistrate, Baramulla, in exercise of the powers conferred in him under clause (a) of Section 8 of the J&K Public Safety Act, 1978 (for short "The Act of 1978"), one Faisal Manzoor Dar @ Fasoo S/o Manzoor Ahmad Dar R/o Noor Mohalla, Khawjabagh, Baramulla, District Baramulla, has been detained and lodged in Central Jail, Kotebhulwal. 02. The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority has failed to apply his mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. To this, it has been added, that the Respondent No. 2 has passed the order of detention on the dictates of the sponsoring agency, i.e. the Officer who has prepared the police dossier and no attempt has been made by the Respondent No.2 to scan and evaluate it 422 before passing the order of detention. 03. Counter has been filed by the Respondents, wherein it is stated that the grounds of detention have been furnished to the detenue. The detaining authority has complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue has failed to avail the remedy prescribed under the Act. He has not filed the representation against the order of detention. It has also been stated that the detenue is involved in case FIR No. 239/2017 registered in Police Station, Sopore, for the commission of offences punishable under Sections 147, 148, 149, 336, 307 RPC. In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition merits dismissal, and it may, accordingly, be dismissed.04. Heard and considered.05. The main plank of the argument of the learned counsel for the detenue is that since the detenue was in custody of the police authorities for a substantive offence and, therefore, there was no need to direct his preventive detention. It has been stated in the Counter Affidavit that the detenue is involved in FIR No. FIR No. 239/2017 registered in Police Station, Sopore, for the commission of offences punishable under Sections 147, 148, 149, 336, 307 RPC. The arrest of the detenue in the said FIR, at the time of the passing of the order of detention, has not been disputed.06. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, the question that 423 arises for consideration is whether an order of detention could be passed on the face of such an eventuality? The answer to this question is an emphatic "No", taking into consideration the law laid down by the Apex Court of the country in paragraph No.24 of the judgment delivered in the case of "Sama Aruna v. State of Telangana & Anr.", reported in "AIR 2017 SC 2662", which may be noticed :"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."07. The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph No. 13 of the judgment delivered in the case of "V. Shantha v. State of Telangana & Others", reported in "AIR 2017 SC 2625", that reads as under :"13. The order of preventive detention passed against the detenue states 424 that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act." 08. Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of "the Act of 1978", when he was already in the custody of the police authorities in the case, the details whereof have been given hereinbefore. His custody in police for the offence stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release, but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at 425 the doors of a higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land. 09. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution and of which, he/she cannot be deprived except in due course of law and for the purposes sanctioned by law. 10. The learned counsel for the detenue has also argued that the Officer, who handed over the detenue to the jail authorities of the Central Jail, Kotbhalwal, Jammu, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the execution report (annexed with the detention record), what gets revealed is that the detention warrant has been executed on the 24th of August, 2017. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue in English and explained to him in Kashmiri language, which language he understood fully well and, in token thereof, his signature was attained on the Execution Report itself. To eradicate all doubts, it was 426 incumbent on the part of the officer, namely, ASI Bashir Ahmad, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of "State Legal Aid Committee, J&K v. State of J&K & Ors.", reported in "AIR 2005 SC 1270", wherein it has been held as under:

"1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act."11. The judgement cited above is lucid and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, 427 inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 12. In the backdrop of what has been said and done above, the instant Habeas Corpus petition is allowed, as a consequence of which, the order of detention bearing No. 89/DMB/PSA/2017 dated 23rd of August, 2017, passed by the Respondent No.2/District Magistrate, Baramulla, as extended vide Government order No. Home/PB-V/162 of 2018 dated 20th of February, 2018, is quashed with a further direction to the respondents to release the person of Faisal Manzoor Dar @ Fasoo S/o Manzoor Ahmad Dar R/o Noor Mohalla, Khawjabagh, Baramulla, District Baramulla,forthwith from the preventive custody, if not required in any other case.13. The record, as produced by the learned Government Advocate, be returned to him with utmost dispatch.(M. K. Hanjura)JudgeSRINAGARMarch 28th, 2018"TAHIR"

428

HIGH COURT OF JAMMU AND KASHMIRAT SRINAGARHCP No. 383/2017Date of order: 28th March, 2018.Manzoor Ahmad GanaieVs.State of JK & Anr.Coram:Hon'ble Mr Justice M. K. Hanjura, Judge. Appearance:For the Petitioner(s): Mr Ashiq Hussain Shah, Advocate vice Mr Mir Shafkat Hussain, Advocate. For the Respondent(s):Mr M. A. Wani, Sr. AAG.


                      i) Whether approved for reporting in

        Yes/No               Law Journals etc.:ii) Whether approved for

publication           in Press:

Yes/No01. By dint of order bearing No.20/DMP/PSA/17 dated 21 st of November, 2017, passed by the Respondent No.2/District Magistrate Pulwama, in exercise of the powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short "The Act of 1978"), one Manzoor Ahmad Ganaie S/o Habib Ullah Ganie R/o Nowpora, Payeen, Tehsil Litter, District Pulwama, has been detained and lodged in District Jail, Kathua. 02. The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority did not inform him that he has the right to make a representation before him against the order of detention. To this, it has been added that the detaining authority has failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. The detenue had not filed any bail application in the FIR referred to in the 429 grounds of his detention nor were there any prospects of his release from the custody in the said FIR. It has also been stated that the Respondent No. 2 has passed the order of detention on the dictates of the sponsoring agency, i.e. the Officer who has prepared the police dossier and no attempt has been made by the Respondent No.2 to scan and evaluate it before passing the order of detention. 03. Counter has been filed by the Respondents, wherein it is stated that the grounds of detention have been furnished to the detenue. The detaining authority has complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue has failed to avail the remedy prescribed under the Act. He has not filed the representation against the order of detention. It has also been stated that the detenue is involved in case FIR No. 31/2017 registered at Police Station, Pulwama, for the commission of offences punishable under Section 7/25 Arms Act and Section 20 ULA(P) Act. In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition merits dismissal, and it may, accordingly, be dismissed.04. Heard and considered.

05. The main plank of the argument of the learned counsel for the detenue is that in the communication bearing No. 20/DMP/PSA/17 dated 21st of November, 2017, addressed to the detenue, the Respondent No.2 has not informed the detenue that he can make a representation to the detaining authority. This infringement, it has been 430 stated, renders the order of detention liable to be set aside.06. To substantiate his argument, the learned counsel for the petitioner has placed explicit reliance on the law laid down by a Division Bench of the High Court of Jammu & Kashmir (of which I, Justice M. K. Hanjura, was a component) under order dated 09th June, 2017, passed in LPA No. 43/2017 titled "Tariq Ahmad Dar v. State of J&K & Ors.", the relevant excerpts of which are reproduced below verbatim: "6.The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: 431

( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.9. 432 Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub- section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under: -

"19. Revocation of detention orders: -(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where -(i) the earlier order of detention or its continuance is not legal on account of any technical defect or(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by 433 the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under: -" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."11. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The 434 question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-

communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-"This being the position, it goes 435 without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed." From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the 436 appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned. The appeal is allowed. The impugned order is set aside." Applying the ratio of the law laid down above to the facts of the instant case, since the detenue has not been informed that he has a right to make a representation to the detaining authority, therefore, this, by itself, is sufficient to upset the order of detention. 07. Looking at the instant case from the other perspective, the detenue has pleaded, in his petition, that he was in custody of the police authorities for a substantive offence and, therefore, there was no need to direct his preventive detention. In the Counter affidavit, this plea of the petitioner has not been rebutted or proved otherwise. It has been stated in the Counter affidavit that he is involved in FIR No. 31/2017 registered at Police Station, Pulwama, for the commission of offences punishable under Section 7/25 Arms Act and Section 20 of the ULA(P) Act. The arrest of the detenue in the said FIR, at the time of the passing of the order of detention, has not been disputed.08. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, the question that arises for consideration is whether an order of detention could be passed on the face of such an eventuality? The answer to this question is an emphatic "No", taking into consideration the law laid down by 437 the Apex Court of the country in paragraph No.24 of the judgment delivered in the case of "Sama Aruna v. State of Telangana & Anr.", reported in "AIR 2017 SC 2662", which may be noticed :"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."09. The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph No. 13 of the judgment pronounced in the case of "V. Shantha v. State of Telangana & others", reported in "AIR 2017 SC 2625", that reads as under :"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from 438 indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act." 10. Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the Act of 1974, when he was already in the custody of the police authorities in the cases, the details whereof have been given hereinbefore. His custody in police for the offences stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at the doors of the higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not 439 applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land. 11. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution and of which, he/she cannot be deprived except in due course of law and for the purposes sanctioned by law. 12. In the backdrop of what has been said and done above, the habeas corpus petition is allowed, as a consequence of which, the order of detention bearing No. 20/DMP/PSA/17 dated 21st of November, 2017, passed by the Respondent No. 2-District Magistrate, Pulwama, is quashed with a further direction to the respondents to release the person of Manzoor ahmad Ganaie S/o Habib Ullah Ganie R/o Nowpora, Payeen, Tehsil Litter, District Pulwama, forthwith from the preventive custody, if not required in any other case.13. The record, as produced by the learned Senior Additional Advocate General, be returned to him with utmost dispatch.

(M. K. Hanjura)JudgeSRINAGARMarch 28th, 2018"TAHIR" 440 441

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State Of J&K; & Ors vs Pervaiz Ahmad Bhat on 1 June, 2018