Patna High Court
Radhey Shyam Pandey vs The State Of Bihar & Ors on 2 November, 2012
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.569 of 1997
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Radhey Shyam Pandey son of Shri Kailash Pati Pandey, resident of village Papaur,
Police Station Pachrukhi, District-Siwan.
.... .... Petitioner
Versus
1. The State of Bihar
2. The Secretary Finance, Government of Bihar, Patna.
3. The Additional Secretary, Finance, Government of Bihar, Patna.
4. The Secretary, Water Resources Department, Government of Bihar, Patna.
5. The Joint Secretary, Water Resources Department, Government of Bihar, Patna.
6. Union of India, Ministry of Home Affairs though its Joint Secretary,
New Delhi.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Siya Ram Shahi
Mr. Ram Ganesh
For the Respondent/s : Mr. Shatrughna Pandey, A.C. to S.C. 23
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
C.A.V. JUDGMENT
Date: 2-11-2012
Heard Mr. Siya Ram Shahi, learned counsel for the petitioner,
Mr. Shatrughna Pandey learned Assistant Counsel to Standing
Counsel-23 on behalf of State of Bihar and other official Respondents
and learned counsel appearing for Respondent No. 6, the Union of
India.
2. While posted as Assistant Engineer in Tubewell Division,
Siwan, under the Water Resources Department, Government of Bihar,
the petitioner was detained on 22.08.1976 under Maintenance of
Internal Security Act, 1971, (hereinafter referred to as „MISA‟) on the
allegation of his association with Chhatra Sangharsh Samiti and
Rashtriya Swayam Sewak Sangh. He represented before the Central
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Government against his detention. It is stated in the writ petition that
the Joint Secretary, Ministry of Home Affairs, Government of India
sent a communication dated 23.11.1976 to the Chief Secretary,
Government of Bihar, to the following effect:-
"Radhey Shyam Pandey was detained under
„MISA‟ on 22.08.1976 as the D.M. Siwan found his
activities prejudicial to the security of the state and
maintenance of public order. After his appointment as
an assistant engineer in the Tubewell Division, Siwan,
Radhey Shyam Pandey developed some differences with
the senior colleagues, namely, Bharat Singh, Executive
Engineer, Tubewell Division, Siwan and D.K. Yadava,
S.D.O. of the same Division over the issue of passing a
bill of a contractor, who had allegedly bribed the above
mentioned Executive Engineer. The Departmental
colleagues pressed upon Radhey Shyam Pandey not to
take this issue, but the latter did not budge under their
pressure. Radhey Shyam Pandey is an out-spoken man
in the habit of sending complaints to VIPs regarding the
bunglings of his own departmental officers. He took up
the issue of alleged bungling of Rs. 40 lakhs by officials
of his department. He sent information alleging mis-
appropriation to the concerned high officials of the State
Govt. and demanded an enquiry into the affairs of the
Tubewell Division, Siwan. This brought him to the
adverse notice of his department and he was suspended
for some time. Pandey, therefore, went to Delhi and sat
on Dharna in front of the Rashtrapati Bhavan
demanding justice. It is reported that the senior officers
at Delhi assured him to look into the matter and he was
thereafter reinstated. His reinstatement created anxiety
among the corrupt officials of his department, who
considered him a trouble maker. They stared pulling
strings and finally succeeded in winning over the D.M.,
who issued orders for a detention of Shri Pandey. It
would, therefore, appear that the detention of Shri Radhe
Shyam Pandey was not bonafide."
3. The allegation of the petitioner is that in spite of such
communication he was not released and he thus remained detained up
to March, 21, 1977 and only after „Emergency‟ was lifted he was
released on March 22, 1977. His further plea is that "Shah
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Commission" was constituted to enquire into the excesses committed
during the period of Emergency. The Shah commission also took into
account the fact that petitioner continued in detention up to March 21,
1977 despite the communication dated 23.11.1976 of the Joint
Secretary, Ministry of Home Affairs, Government of India.
4. In the year 1978, the petitioner approached the
Commissioner, Irrigation Department, Government of Bihar for
adequate compensation on the ground that his detention was illegal
and mala fide.
5. The plea is that Irrigation Department had agreed for
payment of compensation to the tune of Rs. 50, 000/- (rupees fifty
thousand) for such illegal detention subject to concurrence of the
Home Affairs Department. The Home Affairs Department also, is
said to have given its concurrence but subject to concurrence by the
Finance Department. The file, according to the petitioner, kept on
moving from 1978 to 1992 when finally the Additional
Commissioner, Finance Department passed an order on 14.12.1992
(Annexure-3) that if the petitioner felt that any compensation was
due, he might approach the competent Court, if so advised. The
Additional Commissioner, Finance Department, in the said order
dated 14.12.1992 (Annexure-3) recorded that it was not possible for
the Government to adjudicate as to the agony, if any, reason thereof
and the compensation amount. On 24.09.1993, the petitioner filed a
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representation to the Additional Commissioner, Water Resources
Department, Government of Bihar, requesting him to serve a copy of
the order about which he had learnt unofficially. Thereafter, vide
letter dated 03.12.1993 (Annexure-4), the Additional Secretary,
Water Resources Department, Government of Bihar communicated
that his claim for compensation had been rejected.
6. The further plea of the petitioner is that he sought permission
vide his letter dated 25.04.1995 (Annexure-5) from the Special
Secretary, Water Resources Department, Government of Bihar, for
moving competent Court in this regard in terms of Rule 21 of the
Bihar Public Service Code Rules. Vide letter dated 01.03.1996
(Annexure-6) the Department, however, rejected the said application
dated 25.04.1995.
7. The petitioner in the background of above noted facts
approached this Court by filing the present writ petition under Article
226 of the Constitution of India for a direction commanding the
Respondents to pay adequate compensation to him against his illegal
detention under „MISA‟ during the period of Emergency.
8. This writ petition could have been dismissed on the sole
ground of inordinate delay in approaching this Court in writ
jurisdiction for the reason that the cause of action, if any, arose
immediately after his release on 22.03.1977 whereas the petitioner
filed the present writ petition in 1997. In my opinion, the plea that the
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matter remained pending with the State Government Department for
adjudication could not be a valid explanation for such delay in
approaching the Court after more than a decade.
However, in view of issue raised and the question involved in
the present writ application, I proceed to adjudicate upon merits of the
case.
10. „MISA‟, which came into force with effect from July 2,
1971 conferred power on the State Government, Central Government
and competent authority to detain a person, if it was satisfied with
regard to such person that it was necessary with a view to prevent him
from acting in any manner prejudicial to defence of India, the
relations of India with foreign powers or the security of India; or the
security of the State or the maintenance of public order, the
maintenance of supplies and services essential to the communities etc.
11. On December 3, 1971 the President of India had issued a
proclamation in exercise of power conferred by Clause (1) of Article
352 of the Constitution of India declaring that a grave emergency
existed whereby the security of India was threatened by external
aggression. Subsequently, while the proclamation dated December 3,
1971 was still in force, in exercise of power conferred by Clause-1 of
Article 359 of the Constitution of India, the President of India by a
proclamation dated 16.11.1974 declared as follows:-
a) "the right to move any court with respect
to orders of detention which have already
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been made or which may hereafter be
made under Section 3(1)(c) of the
Maintenance of Internal Security Act,
1971 as amended by Ordinance 11 of
1974, for the enforcement of the rights
conferred by Article 14, Article 21 and
clauses (4), (5), (6) and (7) of Article 22
of the Constitution, and
b) all proceedings pending in any court for
the enforcement of any of the aforesaid
rights with respect of orders of detention
made under the said Section 3(1)(c),
shall remain suspended for a period of six months from
the date of issue of this Order or the period during which
the Proclamation of Emergency issued under clause (1)
of Article 352 of the Constitution on the 3rd December,
1971 is in force, whichever period expires earlier."
12. The above Presidential Order was subsequently amended
by substituting „twelve months‟ for „six months‟. On June 25, 1975
another proclamation of emergency was issued by the President of
India which reads as follows:-
"In exercise of the powers conferred by clause
(1) of Article 352 of the Constitution of India, I,
Fakhruddin Ali Ahmed, President of India, by this
Proclamation declare that a grave emergency exists
whereby the security of India is threatened by internal
disturbance."
13. On June 26, 1975, the President of India, in exercise of
powers conferred by Clause-1 of Article 359 of the Constitution of
India made the following order:-
"In exercise of the powers conferred by clause
(1) of Article 359 of the Constitution, the President
hereby declares that the right of any person (including a
foreigner) to move any court for the enforcement of the
rights conferred by Article 14, Article 21 and Article 22
of the Constitution and all proceedings pending in any
court for the enforcement of the abovementioned rights
shall remain suspended for the period during which the
proclamation of Emergency made under clause (1) of
Article 352 of the Constitution on the 3rd December,
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1971 and on the 25th June, 1975 are both in force.
This Order shall extend to the whole of the
territory of India except the State of Jammu and
Kashmir.
This Order shall be in addition to and not in
derogation of any Order made before the date of this
order under clause (1) of Article 359 of the
Constitution."
14. Certain amendments were introduced in „MISA‟ with effect
from June 29, 1975 incorporating Section 16-A. Evidently this
amendment came into force after declaration of Emergency. By
Constitution (38th Amendment) Act, 1975, Article 1 (A) was inserted
in Article 359 which is relevant for the purpose of the present
adjudication which is as follows:-
"[(1A) While an order made under clause (1)
mentioning any of the rights conferred by Part III is in
operation, nothing in that Part conferring those rights
shall restrict the power of the State as defined in the said
Part to make any law or to take any executive action
which the State would but for the provisions contained
in that Part be competent to make or to take, but any law
so made shall, to the extent of the incompetency, cease
to have effect as soon as the order of aforesaid ceases to
operate, except as respects things done or omitted to be
done before the law so ceases to have effect.]"
(emphasis added)
15. „MISA‟ came to be further amended by Act No. 14 of 1976
by adding Section-16 A (9) which received the Presidential ascent on
January 25, 1976.
16. In the background of above, the question which needs to be
decided in the present writ application is whether the petitioner can,
through present writ application, question the validity/legality of the
order of detention passed during the period when proclamation of
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Emergency was in operation and during which the right to move any
Court for enforcement of such of the fundamental rights conferred by
Part III of the Constitution of India was under suspension; on the
ground that such exercise of power detaining him under „MISA‟ was
mala fide and on extraneous considerations. Further, whether he can
claim compensation as of right for such detention.
17. „MISA‟, which was basically a pre-emergency enactment
was amended during the proclamation of emergency was in operation
by Act 39 of 1975 with effect from June 29, 1975 by introducing
Section 16A with specific recital to the effect that the provisions of
this Section shall have effect during the period of operation of
proclamation of emergency, notwithstanding anything contained in
the Act or any rules of natural justice. Subsequently, Sub-section (9)
to Section 16A of MISA was added by introducing amendment in Act
39 of 1975, which reads as follows:-
" (9) Notwithstanding anything contained in any other
law or any rule having the force of law,-
(a) the grounds on which an order of detention is made
under sub-section (1) of Section 3 against any
person in respect of whom a declaration is made
under sub-section (2) or sub-section (3) and any
information or materials on which such grounds or
declaration under sub-section (2) or a declaration or
confirmation under sub-section (3) or the non-
revocation under sub-section (4) of a declaration are
based, shall be treated as confidential and shall be
deemed to refer to matters of State and to be against
the public interest to disclose and save as otherwise
provided in this act, no one shall communicate or
disclose any such ground, information or material or
any document containing such ground, information
or material;
(b) no person against whom an order of detention is
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made under sub-section (1) of Section 3 shall be
entitled to the communication of disclosure of any
such ground, information or material as is referred
to in clause (k) or the production to him of any
document containing such ground, information or
material."
18. Whether the question of mala fide can be gone into while
exercising power of judicial review of an order of detention passed
under „MISA‟ during the period when proclamation of Emergency
was in operation came to be considered by Constitutional Bench of
the Supreme Court in case of A.D.M., Jabalpur v. Shivakant Shukla
(1976) 2 SCC 52. By its majority judgment, the Supreme Court held
that in view of the Presidential Order dated 27.06.1975, challenge to
the legality of order of detention on the ground that it was vitiated by
mala fide, factual or legal or was passed on extraneous consideration
was not permissible in a proceeding under Article 226 of the
Constitution of India.
19. The entire claim of the petitioner in the present case is
based on the plea that the order of detention passed against him was a
mala fide exercise of power and he was detained during the
emergency period on extraneous considerations. However, following
the majority judgments of Constitution Bench of Supreme Court in
case of A.D.M., Jabalpur v. Shivakant Shukla (Supra), I am of the
view that such plea is not sustainable. The petitioner‟s claim for
compensation on the ground that his detention was based on mala fide
exercise of power or on extraneous considerations is fit to be rejected
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accordingly.
20. I am not unmindful of the fact that the majority judgment of
Supreme Court in case of A.D.M., Jabalpur v. Shivakant Shukla
(Supra) came under severe criticism so much so that the Apex Court
in case of Ram Deo Chauhan V. Bani Kanta Das reported in (2010)
14 SCC 209 made the following observation:-
"54. There is no doubt that the majority
judgment of this Court in A.D.M., Jabalpur case
violated the fundamental rights of a large number of
people in this county. Commenting on the majority
judgment, Chief Justice Venkatachaliah in the Khanna
Memorial Lecture delivered on 25.02.2009, observed
that the same be "confined to the dustbin of history".
The learned Chief Justice equated Khanna, J.‟s dissent
with the celebrated dissent of Lord Atkin in liversidge v.
Anderson. In fact the dissent of Khanna, J. became the
law of the land when, by virtue of the Forty-Fourth
Constitutional Amendment, Articles 20 and 21 were
excluded from the purview of suspension during
Emergency.".
However, the fact remains that the said judgment, to the extent
it deals with the provisions of Section 16A of „MISA‟ with reference
to the proclamation of Emergency and the Presidential order dated
June 26, 1975 is still a binding precedent having not been overruled
expressly or impliedly.
21. I am of the further opinion that Clause (1-A) of Article 359
of the Constitution also puts a bar on challenge to an order of
detention passed during the emergency period. The clause, which has
been quoted hereinabove, saves the "things done or omitted to be
done"; under a law made by State (within the meaning of Part III of
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the Constitution) while an order made under Clause (1) of Article 359
is in operation, in exercise of the power conferred under Clause (1-A);
though such law would cease to have effect to the extent of
incompency of the State to make such law being in conflict with the
rights conferred by Part III of the Constitution, as soon as order under
Article 359(1) ceases to operate. This is to be noted that Clause (1-A)
was introduced in Article 359 with retrospective effect from the date
of the Constitution. Section 16A of MISA is thus covered by Clause
(1-A) of Article 359 of the Constitution and, therefore, things done
under such law can‟t be questioned even after the Emergency came to
be lifted.
22. Reference may be made in this regard to the Constitution
Bench judgment of nine Judges of Supreme Court in case of Attorney
General for India v. Amritlal Prajivandas reported in (1994) 5 SCC 54
which considered the effect of amendment in the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(COFEPOSA) made with effect from 01.07.1975 after the
proclamation of emergency on 25.06.1975 and action taken
thereunder during the period when proclamation of emergency was in
operation. The orders of detention in that case were made after the
proclamation of emergency to which Section 12A of COFEPOSA was
applicable. In view of provisions under Section 12A of COFEPOSA,
the detenues were not supplied the grounds of detention nor were
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given any opportunity to make representation against their detention
nor the cases were referred to the Advisory Board. They were,
however, released on or within a day or two of the date on which the
Emergency was lifted. However, the order of detention was being
made basis for taking action against such detenues under Smugglers
And Foreign Exchange Manipulators (Forfeiture of Property) Act,
1976, (SAFEMA). The detenues questioned the order of detention
passed under COFEPOSA after their release, on the ground that such
order of detention was made a basis for action under SAFEMA
against them and they were thus entitled to challenge the validity of
the order of detention. They contended that they might not have been
able to question the validity of the detention during their detention
because of the operation of the proclamation of Emergency but after
lifting of Emergency, they were entitled to challenge the order of
detention, such order being used for action under SAFEMA. The
Supreme Court negatived the plea holding that Clause (1-A), was
introduced in Article 359 by Constitution (38th Amendment) Act,
1974, with a view to bring the effect of Presidential Order under
Article 359(1) on par with Article 358(1) of the Constitution. The
Apex Court, dealing with the words "except as respects things done or
omitted to be done before the law so ceases to have effect" as
occurring in Clause (1-A) of Article 359 of the Constitution held that
effect of these words was evidently the same as that obtaining under
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Article 358 (1) of the Constitution of India.
23. The Apex Court in case of Attorney General for India v.
Amritlal Prajivandas (Supra) held in paragraph 32 as follows:-
" 32. Now coming to Clauses (1) and (1-A) of
Article 359 the position is this: While clause (1)
empowers the President to suspend the enforcement of
the fundamental rights named in such notification (and
any and all proceedings in that behalf in any court), it
does not empower the President to suspend the
fundamental rights. Evidently, the Founding Fathers did
not think it necessary to clothe the President with such a
power. The words in clause (1) are clear and
unambiguous. They only speak of suspending the
enforcement of the rights in Part III and not suspending
the rights themselves. We see no warrant, no
justification and no basis for holding that the suspension
of enforcement of the rights means in effect the
suspension of the rights themselves. If that were the
intention of the Founding Fathers, they would have said
so expressly. Indeed, they have stated what they meant
in explicit language. In view of the fact that the
fundamental rights in Part III are allowed to be affected
by a Presidential Order, we think, we ought not to read
anything more than what the clause expressly says- and
its language leaves no room for any doubt. This is the
view taken in Makhan Singh [as well as by Bhagwati, J.
in A.D.M. Jabalpur v. Shivakant Shukla] and we agree
with them respectfully. Then came clause (1-A),
introduced by the 38th Amendment Act with
retrospective effect from the date of Constitution. It
says that while a Presidential Order suspending
particular fundamental rights is in operation, the State
shall be entitled to make any law or to take any
executive action which it would not have been entitled
to make or to take but for the suspension of the
enforcement of the said rights. At the same time, the
clause says that any law so made shall, to the extent of
incompetency, cease to have effect as soon as the
Presidential Order ceases to operate "except as respects
things done or omitted to be done before the law so
ceases to have effect". The effect of these words
("except as respects....effect") is evidently the same as
that obtaining under Article 358 (which too employs
identical words) which we have explained hereinbefore
at some length. It is true that clause (1) of Article 359
does not provide for the suspension of any of the
fundamental rights but only their enforcement and it
equally true that those fundamental rights (whose
enforcement is suspended) continue in theory to be
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alive, yet we must also give effect to clause (1-A),
which is equally a part of Article 359 now- and must be
deemed to be such a part at all points of time
commencing from 26-1-1950. The conclusion is,
therefore, inescapable that during the period the
Presidential Order under Article 359(1) suspending
enforcement of certain rights conferred by Part III is in
operation, the State is empowered to make any law or to
take any executive action inconsistent with such rights.
All this is so because the emergency proclaimed to meet
the threat to the security of India has to be effectively
implemented. The requirements of emergency
constitute both the foundation as well as an implied
limitation upon the power. What is warranted is what is
necessary for effective implementation of emergency. "
24. In the present case, as was the situation in case of Attorney
General for India v. Amritlal Prajivandas (Supra), the petitioner was
detained under MISA after proclamation of Emergency dated
25.06.1975. Section 12A introduced in COFEPOSA by Act 19 of 1976 is almost identical to the amendment made in MISA by introducing Section 16A to the Act. The petitioner in the present case was released immediately after the Emergency was lifted. In my opinion, following the ratio laid down for Attorney General for India v. Amritlal Prajivandas (Supra), the petitioner cannot question the legality of order of detention and claim compensation. In view of Clause (1-A) of Article 359 of the Constitution, the orders passed during the period of Emergency are saved by giving effect to the words "except or respects things done or omitted to be done before the law so ceases to have effect" occurring in Clause 359(1-A) of the Constitution.
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25. In view of the provisions of Clause (1-A) of Article 359, the petitioner cannot sue the State for damages or other reliefs nor can he take any other proceedings against the State for detaining him during the period of Emergency because the validity of the things done or omitted to be done cannot be questioned either during or after Emergency by virtue of Article 359(1-A) of the Constitution of India.
26. Learned counsel for the petitioner has placed reliance on the judgments of Apex Court reported in 1964 SCR 332(Kharak Singh Vs. State of U.P.) and A.I.R. 1986 SC 494 (Bhim Singh v. State of J & K) in order to claim compensation. None of these cases would apply in the facts and circumstances of the present case as none of them deal with detention of a person during proclamation of emergency, under law covered by Article 359(1-A) of the Constitution.
27. This writ application is, accordingly, dismissed but without cost.
(Chakradhari Sharan Singh, J.) Saif/-A.F.R.