IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/09/2003
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
C.R.P. (NPD) No. 1250 of 2003
and
C.M.P. No. 13716 of 2003
1. Duraikannu
2. Meenakshi Ammal
3. Sellammal
4. Seeniammal ... Petitioners
-Vs-
Malayammal ... Respondent
Revision under Section 115 of C.P.C. against the Order dated 18-03-2
003 made in I.A. No. 8 of 2002 in A.S. No. 275 of 2002 on the file
of the Additional District Court at Namakkal.
!For Petitioners : Mr. Valliappan
for M/s. Sarvabhauman Associates
^For Respondent : ---
:ORDER
The Plaintiffs 2 to 5 in the suit are the petitioners herein. The
Plaintiffs have filed the suit O.S. No. 728 of 1987 before the Additional
District Munsif, Namakkal for declaration and injunction. Before the trial
court, both the plaintiffs and defendant have let in oral and documentary
evidence. After considering the same, the trial court dismissed the suit.
Aggrieved by the judgment and decree passed by the trial court, the
petitioners herein have preferred A.S. No. 275 of 2002. Pending appeal, the
petitioners have filed I.A. No. 8 of 20 02 under Order 23 Rule 1 (3) CPC
seeking permission of the Court to withdraw the suit with liberty to file a
fresh suit on the same cause of action. After affording opportunity to both
sides, the first Appellate Court dismissed the application, which is
challenged in this revision.
2. Mr. Valliappan, learned counsel appearing for the petitioners
submitted that the first Appellate Court erred in dismissing the application
filed under Order 23 Rule 1 (3) CPC without following the principles
enunciated therein; that the Court below failed to note that the respondent
herein claims title from one Pachaiyammal, wife of Marudhamuthu Udayar and the
petitioners herein claim title from Pachaiyammal, Wife of Subbaraya Udayar and
the identity in the names of Predecessors in title of both parties was not
clarified properly in the suit; that because of the technical omission stands
in the way of proper appreciation of points in issue, the petitioners were
constrained to file the petition under Order 23 Rule 1 (3) CPC to withdraw the
suit with the view to avoid formal defect and for making proper submission and
prayed for setting aside the order passed by the first Appellate Court.
3. The learned counsel appearing for the petitioners relied on
the decision of this Court reported in (Esanya Madalayam Religions Institution
owned by Koviloor Muthuramalingam Gnana Desigar Madalayam, rep. by its
Madathipathi Sri-la-Sri Nachiappa Gnanadesiga Samigal Vs. Thiruvannamalai
Sevasramam Educational Trust, rep. by its Secretary Dr. B. Subbarayan) 1999
MLJ Volume 2 Page No.360.
In this case, the plaintiff has filed two suits against the defendants
for permanent injunction, when the defendants are in possession. The
Plaintiff intended to file a comprehensive suit after withdrawing the earlier
suits. This Court held that though in the absence of formal defect, if there
is sufficient grounds or cause to withdraw the suit, hence leave could be
granted by the Court.
4. This revision lies in a narrow campus. The petitioners have
filed the application under Order 23 Rule 1 (3) CPC seeking permission of the
Court to withdraw the suit and to file a fresh suit for the very same cause of
action. Order 23 Rule 1 (3) CPC runs as follows:-
“1. Withdrawal of suit or abandonment of part of claim
(3) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff
to institute a fresh suit for the subject matter of a suit or part of a claim,
it may, on such terms, as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to institute a
fresh suit in respect of the subject matter of such suit or such part of the
claim.”
5. Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn
with a liberty to sue afresh on sufficient grounds. The expression ”
sufficient grounds” must be read ‘ejusdem generis’ with clause (a) and a
ground to be sufficient ground must be similar or alike to the cause mentioned
in Order 23 Rule 1 (3) (a).
6. No doubt, a Court of appeal has power in a proper case to
grant permission to withdraw a suit with liberty to file a fresh suit,
however, such power should be used very cautiously by a Court of appeal. The
Plaintiff/appellant is not entitled, as a matter of right to withdraw his suit
and he will not be permitted to do so if the effect of allowing him to
withdraw it would be to deprive the defendant of the benefit of the lower
court’s adjudication in his favour.
7. The granting of the permission to withdraw with liberty to
bring a fresh suit removes the bar of resjudicata which would otherwise apply,
if a fresh suit on the same cause of action is brought. Clause (3)
contemplates the circumstance in which the permission could be granted by the
Court on its satisfaction namely (i) a suit must fail by reason of formal
defect and (ii) there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter of a suit or part of a claim.
8. Formal defect means a defect of form, which is prescribed by
Rules or Procedure. A defect which goes to the root of the plaintiff’s claim
is not a formal defect. The formal defect may be omission to obtain
permission of Court to file the suit, misjoinder of parties or cause of
action, failure to disclose cause of action for the Plaint, erroneous
valuation of the subject matter of the suit and institution of a suit in a
Court which has no jurisdiction to entertain it.
9. The other sufficient ground is that the defect must not be due
to plaintiff’s own fault, hence the expression ‘other sufficient ground’
should be construed ‘ejusdem generis’ with formal defect. The failure of the
plaintiff to prove his own case is no ground for allowing him to withdraw his
suit with liberty of suing again for the same subject matter.
10. The object of the Rule is not to enable a plaintiff, after he
failed to conduct his suit with proper care and diligence and after his
witnesses failed to support his case, to obtain an opportunity of commencing
the trial afresh in order to avoid the result of his previous bad conduct of
the case so as to prejudice the opposite party.
11. The sufficient grounds are like the evidence being not
available for no fault of the plaintiff, the suit being pre-matured and the
cause of action accruing pending the suit, the plaintiff has failed to put in
evidence an important document and where the plaintiff had been mislead by the
absence of a specific denial by the defendant.
12. After satisfaction, the Court may grant permission. The
matter of granting permission under this Rule is within the discretion of the
Court. The Court, when granting permission under this Rule must give its
reason for granting such permission, although in the case of refusal there is
no such obligation.
13. In this case, the petitioners herein wants to withdraw the
suit on the ground that the respondent claims her title under a sale deed said
to have been executed by one Pachiammal, wife of Marimuthu Udayar, who is no
more and the petitioners herein claim their title and possession from one
Pachiammal, wife of Subbaraya Udayar and that the identity of the names
between two different person was not clarified properly in the suit by the
lower court, hence they want to withdraw the suit as this technical omission
stands in the way of enquiry of the appeal. The appellate Court found that
both parties trace their title and possession of the suit property by
producing so many documents, adducing oral evidence before the trial court and
on the basis of the evidence by which the trial court decided the right of the
parties and if the petition is allowed as prayed for, it will affect the
vested right of the respondent herein and ultimately dismissed the application
to withdraw the suit.
14. The respondent relied on the decision of the Supreme Court
reported in (Rathinavel Chettiar Vs. Sivaraman) 1999 II CTC Page No.593
before the lower Appellate Court wherein it was held that withdrawal of suit
at appellate stage having effect of destroying or nullifying the decree
affecting the rights of the parties vested under the decree cannot be allowed
as a matter of course and such withdrawal can be allowed only when a strong
case is made out. The said decision of the Honourable Supreme Court, relied
on by the respondent before the lower Appellate Court is squarely applicable
to the facts and circumstance of the case.
15. As mentioned supra, the Rule is not to enable the Plaintiffs
after they fail to conduct the suit with proper care and diligence, hence the
lower appellate Court is right in dismissing the application to withdraw the
suit. The decision relied on by the counsel for the petitioner is not
applicable to the facts and circumstance of the case on hand. Therefore,
interference of this Court is unwarranted.
16. With the result, the revision fails, liable to be dismissed
and accordingly dismissed. No costs. Connected CMP is closed. What are all
stated above need not be taken into account by the appellate Court at the time
of deciding the appeal on merits.
17. The learned counsel appearing for the petitioner prays this
Court to observe the right of the petitioners herein to approach the appellate
Court for adducing additional evidence. Such an observation may not be
required. In case such a petition is filed, it is for the appellate Court to
decide the same on its own merits and in accordance with law.
rsh
Index : Yes
Internet : Yes
To
The Additional District Judge
Additional District Court
?IN THE HIGH COURT OF JUDICTURE AT MADRAS
%Dated: 16/09/2003
*Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice P.D. DINAKARAN
+W.P. No.21071 of 2003
and W.P.Nos. 21072 to 21075 OF 2003
#S. Mohammed Ali ….. Petitioner
-Vs-
$1. The State of Tamil Nadu
rep. by Secretary to Government
Public (SC) Department
Fort St. George
Chennai 600 009
2. The Commissioner of Customs
Airport, Chennai 600 027
3. Union of India, rep. by its
Secretary, Ministry of Finance
Department of Revenue
New Delhi ….. Respondents
Petitions under Art.226 of the Constitution of India, praying for a Writ of
Certiorarified Mandamus as stated in the petitions
!For Petitioner :: Mr. K. Subramaniam, S.C.
for Mohammed Shafi
^For Respondents :: Mr. I.Subramaniam,
Public Prosecutor/S.C.
assisted by
Mr. A. Navaneethakrishnan
Addl. Public Prosecutor
:ORDER
V.S. SIRPURKAR, J.
All the above-mentioned five writ petitions shall be disposed
of by this common judgment.
2. Petitioner herein seeks to quash the orders passed by the
respondents dated 25-4-2003 and 15-2-2001 whereby the pre-detention
representations of the petitioner were rejected. By the first order, the
petitioners representation dated 17-6-2002 was dealt with while, by the
second mentioned order, the subsequent four representations dated 7-7-2002,
9-8-2002, 25-9-2002 and 22-10-2002 were disposed of. These representations
were made by the petitioner praying therein that a detention order dated
15-2-2001 passed under the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (in short COFEPOSA) should not be executed
and should be cancelled. Following facts will highlight the controversy
involved in these unusual writ petitions.
3. Petitioner, who claims to be a lawyer, holds a licence as
an accredited overseas recruiting agent, which licence is granted by the
Ministry of Labour, Government of India. Petitioner has been holding this
licence right from 1984. He was intercepted at Anna International Airport,
Chennai on 10-12-2000, when he was on his way to Malaysia. He claimed that he
was going there in pursuance of his business and that on 11th and 12th
December, he had sent sixty workers to Malaysia for the purpose of employment.
He claimed that he was carrying the amount of those sixty persons and thus he
was carrying with him US$1 1700 in the denominations of US$100s, US$50s and
US$20s. This amount was obviously not declared by him and he was therefore
arrested by the officials of the Enforcement Wing. He was also charged with
an offence under Sec.135-1A of the Customs Act and was put behind the bars.
He claims that on this basis, an order for his detention came to be passed
under COFEPOSA.
3.1. He did not wait for being served with the order of detention,
which was tried to be served upon him and approached this Court vide W.P.
No.3212 of 2001 on 16-2-2001. An interim order of status quo came to be
passed in the said writ petition on 20th April 2001. Needless to mention that
in the meantime, the respondents could not nab him. Ultimately, the writ
petition came to be decided on 5-6-200 2, whereby the writ petition was
dismissed relying on the reported decision of the Supreme Court in Government
of India v. Alka Subash Gadia (1992 Supp. (1) 496). The Division Bench
(Jagadeesan and Murugesan, JJ.) gave a categorical finding therein that the
petitioners case did not fall under any of the eventualities contemplated
under the decision of Alka Subash Gadia, cited supra, so as to enable him to
move a writ petition even before the order of detention was served against
him. The Division Bench also took notice of the latter decisions of the
Supreme Court in SAYED TAHER BAWAMIYA v. JOINT SECRETARY (2000 [8] SCC 630)
and UNION OF INDIA v. MUNEESH SUNEJA (2001 [3] SCC 92) and came to the
conclusion that the writ petition was liable to be dismissed. It was also
observed by the Bench, relying on UNION OF INDIA v. PARASMAL RAMPURIA (1998
[8] SCC 402) that the petitioner was bound to surrender before the petition
could be entertained.
3.2. However, in the last paragraph of the judgment, the Division
Bench observed that it was open to the petitioner to make a representation
after the receipt of the order of the High Court to the concerned authority
and that such representation was bound to be considered as to whether the
order of detention had to be implemented in view of the lapse of time by
taking into consideration the subsequent conduct of the petitioner coupled
with his explanation offered for possession of foreign and Indian currency
while he was bound to leave India. This judgment was delivered on 5-6-2002.
However, the petitioner was not arrested. The petitioner, accordingly, made
the first representation on 17-6-2002. He also made four other
representations on 7 -7-2002, 9-8-2002, 25-9-2002 and 22-10-2002.
3.3. These five representations were considered and rejected by the
order dated 27-11-1002. However, the said order of rejection was challenged
in W.P. No.44378 of 2002 on the ground that the order of rejection was not a
speaking order. The Division Bench of this Court again passed an order on
30-1-2003, directing the respondents to consider the first representation
alone on the ground that they had directed the petitioner to file only one
representation. Accordingly, on 25-4-2003, the first representation dated
17-6-2002 was rejected.
3.4. Before this, the Government had challenged the first order of
the Division Bench by way of a Special Leave Petition but, that was dismissed
in limine. After the rejection of the representation, the petitioner filed a
writ petition under Art.32 of the Constitution, which was registered as
W.P.(Crl.) No.90 of 2003. This was disposed of by order dated 23-6-2003. The
petitioner also filed S.L.P. No.2219 of 2003 against the decision of this
Court dated 30-1-2003 wherein, this Court had directed to decide only the
first representation of the petitioner, ignoring the subsequent four
representations made by him. This Special Leave Petition and W.P. No.90 of
2003 came to be disposed of on 23-6-2003. The Supreme Court therein observed
that the part of the High Courts order directing the respondents not to
consider the petitioners subsequent four representations could not be
sustained. The Court directed the first respondent to dispose of the said
four representations also and further directed that the order of detention
should not be executed till the disposal of the four representations. As
regards the writ petition filed by the petitioner, i.e. W.P. (Crl.) No.90 of
2003, the Supreme Court directed the petitioner to withdraw the said writ
petition with liberty to move the High Court in the event of an occasion
arising for that purpose.
3.5. On 17-7-2003, the respondents passed separate orders and
rejected the petitioners four subsequent representations. Now the petitioner
has come up by way of the present writ petitions challenging those orders by
which, the respondents have rejected the representations. In the present writ
petitions, the petitioner has claimed a Writ of Certiorarified Mandamus for
quashing the orders of rejection and for forbearing the respondents from
executing the order of detention dated 15-2-2001 passed by the respondents.
4. Learned senior counsel, Shri K. Subramaniam, appearing on
behalf of the petitioner, contended before us that all these orders were
liable to be quashed and the respondents were bound to cancel the detention
order passed owing to the towering delay in execution of the detention order.
Learned counsel contended that the live-link between the incident, on which
the detention was based, and the necessity to detain the petitioner was
already snapped because of this towering delay and that the respondents were
in error in not realising this.
5. Learned counsel also fell back on the first order of this
Court wherein, the writ petition of the petitioner was dismissed and canvassed
that this Court had specifically directed to taken into consideration the
subsequent conduct of the petitioner before considering the representations
made by him and that the orders were silent about the said subsequent conduct.
Learned counsel pointed out that there was nothing done by the petitioner
contrary to law so as to attract the provisions of the COFEPOSA. It was also
tried to be urged that there was total apathy on the part of the authorities
to nab the petitioner though the petitioner was not protected by the stay
order either from this Court or from the Apex Court and, there was absolutely
no explanation regarding the same. This itself suggested that there was, in
reality, no necessity by the Department to clamp the detention order against
the petitioner. It was also tried to be suggested that there was no material
furnished for the subjective satisfaction of the concerned authority regarding
the necessity of executing the order. Learned counsel also urged that the
detention was based on solitary incident and as such could not be justified in
law and that the authorities had failed to consider this aspect while
disposing of the representations.
6. As against this, leanred Additional Public Prosecutor
again reiterated the decisions of Alka Subash Gadia, Sayed Taher Bawamiya,
Muneesh Sunerja and Parasmal Rampuria, cited supra. It was pointed out by the
learned Public Prosecutor that the writ petitions now could not be entertained
questioning the correctness or otherwise of the reasons given by the
respondents to reject the representations. It was pointed out by the learned
Public Prosecutor that what was actually being done by the petitioner was to
challenge the detention order itself as if the detention order was not only
passed but served also. Learned Public Prosecutor based his arguments mainly
on the theory that what was contemplated under Art.22(5) of the Constitution
was a representation, which was of post-detention nature, and that there
was no scope to make the representation even before the order of detention was
passed or as the case may be served upon the detenu. Learned Public
Prosecutor urges that the representations made by the detenu could not be
treated on par with the representation contemplated under Art.22(5) of the
Constitution complaining against the detention. According to the learned
Public Prosecutor, a writ petition was permissible only to the extent as
stated in the above-mentioned four Supreme Court judgments and more
particularly Alka Subash Gadia case, which law was fossilised by the Supreme
Court in Muneesh Suneja case, cited supra. Learned counsel pointed out that
thereafter there was no change in the law at all.
7. On this backdrop, it has to be seen as to whether the
petitioner can successfully challenge the impugned orders dated 25-4-2003 and
17-7-2003. All these orders were separately passed, considering the
petitioners representations individually. A cursory glance at the individual
orders passed by the respondents, rejecting the representations, suggests that
not only have the authorities considered these representations in detail but,
have given equally detailed reasons for arriving at the conclusions that they
did. The orders are in the nature of parawise remarks and it is pointed out
in all the orders that it was the petitioner who was to be blamed for not
being nabbed in time. When we take into consideration the first order dated
17-7-2003 in respect of the second representation dated 7-7-2002, the
authorities have explained as to why the order could not be executed against
the petitioner. They have also categorically denied the claim of the
petitioner to revoke the detention. There can be no doubt that the petitioner
had a right under Sec.11 of COFEPOSA. However, in view of the language of
Sec.11 that a detention order could at any time be revoked or modified, there
does not appear to be any scope to hold that the pre-detention representations
were not possible to be made at all. Perhaps, bearing this in mind, this
Court in its first judgment had held that if it was felt, the detenu could
make the representations and that those representations were bound to be
considered by the detaining authority.
8. During the whole debate, learned counsel for the
petitioner did not assail the orders on their merits questioning the reasons
given to reject the representations. The main thrust of the argument was that
firstly the order, if made, was illegal and that the fact that the order was
passed in 2001 and was not served for more than three years was sufficient for
the authorities to revoke the said order or rather to put it straight, the
authorities were bound to revoke the said order, considering the towering
delay. We have to, therefore, consider mainly as to whether it is now
possible to question those reasons by way of a writ petition and what would be
the scope of the writ petition and whether it would be permissible to examine
the reasons and to hold on that basis that the detention order was not
justified or that the said detention order should be revoked.
9. There is a common thread in all the orders that the
detention order against the petitioner could not be executed for two reasons,
viz. firstly, due to petitioners concealment and secondly, the orders passed
by this Court and the Supreme Court wherein there was a clear-cut injunction
against the respondents to execute the detention order. We are of the clear
opinion that the scope to consider such a petition would be extremely limited
and that this Court would not and could not go into the correctness or
otherwise of the reasons. In our considered opinion, this Court will desist
from going into the merits of the reasons, atleast at this stage, when the
detention order is not even served on the detenu and when the detenu has not
surrendered and when the liberty of the detenu has not been jeopardised.
10. In K.M. ABDULLA KUNHI AND ABDUL KHADER v. UNION OF
INDIA ( AIR 1991 SC 574), the Apex Court considered the necessity of the
reasons rejecting the representation. In paragraph 19 of the said judgment,
the Apex Court observed as follows:
This has been explained in Hardhan Saha case, AIR 1974 SC 2154, where Ray,
C.J. speaking for the Constitution Bench observed that the consideration of
the representation by the Government is only to ascertain whether the
detention order is in conformity with the power under the law. There need not
be a speaking order in disposing such representation. There is also no
failure of justice by the order not being a speaking order. All that is
necessary is that there should be real and proper consideration by the
Government.
Going strictly by these observations, when we see the impugned orders, it is
obvious that the impugned orders are not only reasoned but, a meticulous care
has been taken to meet each and every point raised in the representations.
There has thus been an active consideration of the representations sent by
the petitioner in all the cases. It will not be for this Court to judge as to
whether the authorities could still serve the order of detention which is
already passed earlier. A glance at the impugned order suggests that the
concerned authority has blamed the petitioner for evading the order and has
reiterated the need to serve the order and thereby reiterating the need to
detain the petitioner. Once there is an active consideration of the
representations, that should be the end of the matter because, it will not be
for this court then to go and find out whether those reasons are sufficient
for the detaining authority to hold that the detention is still necessary. In
our opinion, that stage has not arrived yet at all.
11. In the reported decision in UNION OF INDIA AND OTHERS v.
PARASMAL RAMPURIA (1998 8 SCC 402), the situation was somewhat alike. There
also even before the detention order could be served, a writ petition came to
be filed before the High Court. Initially, an injunction restraining the
service of the order came to be passed by the learned single Judge and
thereafter by the Division Bench. Aggrieved by the interim order passed by
the Division Bench, the detaining authority challenged the same before the
Apex Court. The Apex Court observed as follows:
When the writ petition was filed, the respondent had not surrendered. Under
these circumstances, the proper order which was required to be passed was to
call upon the respondent first to surrender pursuant to the detention order
and then to have all his grievances examined on merits after he had an
opportunity to study the grounds of detention and to make his representation
against the said grounds as required by Article 22(5) of the Constitution of
India.
The Apex Court ultimately vacated the interim orders passed by the Division
Bench which were continued throughout for the period of two years and directed
the prospective detenu to surrender and observed that after surrendering, it
would be open to him to amend the writ petition and to take all permissible
legal grounds to challenge the detention order. The Apex Court went on to set
aside all the extension orders by which the interim relief was extended.
12. This only goes on to suggest the approach of the Apex
Court in these matters, which approach had already been settled in Muneesh
Sunerja case, cited supra where the Apex Court had the occasion to examine the
law laid down in Alka Subash Gadia case as also Sayed Taher Bawamiya case.
This was also a case where a writ petition was filed even when the detention
order was not served. The Apex Court reiterated the five principles laid down
in Alka Subash Gadia case, cited supra and held that the writ petition was not
to be treated as a writ for Habeas Corpus but like any other ordinary writ
petition. The Apex Court further observed:
This Court has been categorical that in the matters of predetention cases
interference of court is not called for except in the circumstances setforth
by us earlier. If this aspect is borne in mind, the High Court of Punjab and
Haryana could not have quashed the order of detention either on the ground of
delay in passing the impugned order delay in executing the said order. That
mere delay either in passing the order of detention or executing thereof is
not fatal except where the same stands unexplained.
13. The situation is absolutely identical here. For whatever
reasons, there has undoubtedly been a delay in serving the detention order.
The impugned orders do suggest that those reasons have not only been
reiterated but justified by the authorities also. Explanations have been
given in those orders themselves as to why the detention order was not or
could not be served against the detenu. As observed in the law laid down by
the Apex Court, it would not be for this Court to quash the detention order,
which is already passed but could not be served on the petitioner on the
ground that there has been delay in serving that order on the detenu. We have
already pointed out that that has been practically the mainstay of the
argument of Mr. K. Subramaniam, who very forcibly suggested that the delay
in executing the orders became fatal. He relied on the reported decision of
the Division Bench of this Court, to which one of us (V.S. Sirpurkar, J.) was
a party, in RAJESWARI v. JOINT SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF
FINANCE, NEW DELHI AND ANOTHER (2000 (III) CTC 97). That was a case where the
detention order was passed after five and a half months and it was based on a
single incident of seizure of gold bars. It was found by the Division Bench
that since no effort was taken by the investigating agency in the meantime,
the detention order suffered from illegality and that the life-line between
the incident and the detention order was snapped. Learned counsel tried to
urge before us that in this case also, since the detention order has been
passed three years back but has not been served on the detenu, there would be
no point in now allowing the said order to be served. We do not agree. We
have already given our reasons as to why such a plea could not be raised at
this stage in the light of the observations made in Parasmal Rampuria case and
Muneesh Suneja case, cited supra.
14. Heavy reliance was placed by the learned counsel on the
unreported decision of the Division Bench of this Court in W.P. No.5737 of 1
990, which was delivered on 17-2-1992, where the learned Judges considered the
question of delay in executing the order of detention. We have already
pointed out that much water under the bridge has flown after this decision and
we find ourselves unable to agree with this decision on account of the law
settled down in Muneesh Suneja case, cited supra. The Division Bench of this
Court had quashed the detention order by a Writ of Mandamus. We have already
discussed as to how on the mere question of delay, it would be possible for
the High Court to quash the detention order. We are also unable to follow as
to how for quashing an order of detention, which was yet not served, a Writ of
Mandamus could be issued. But, there will be no question of considering all
that in view of the subsequent decisions of the Apex Court.
15. Learned counsel also relied on the reported decision in
SUNIL FULCHAND SHAH v. UNION OF INDIA (JT 2000 [2] SC 230) and relied on the
following observations in paragraph 18:
The question whether or not the detenu should be made to surrender to undergo
the remaining period of detention would depend upon a variety of factors and
in particular on the question of lapse of time between the date of detention,
the order of the High Court and the order of this Court, setting aside the
order of the High Court. A detenu need not be sent back to undergo the
remaining period of detention after a long lapse of time when even the maximum
prescribed period intended in the order of detention has expired, unless there
still exists a proximate temporal nexus between the period of detention
prescribed when the detenu was required to be detained and the date when the
detenu is required to be detained pursuant to the appellate order and the
State is able to satisfy the court about the desirability of further or
continued detention.
In our opinion, these observations have been made by the Apex Court in
entirely different situation. There the High Court had allowed the writ
petition filed by the detenu and quashed the detention order. The Apex Court
had, however, set aside the order of the High Court and was, therefore,
considering as to whether the detenu was liable to be put behind the bars for
the remainder of the detention period as ordered in the detention order. Such
is not the situation here. We have already pointed out that the
jurisdictional constraints, which are spelt out by the earlier decisions, are
rather compulsive for us not to consider any such plea.
16. Another decision relied upon by the learned counsel is
RAJESH GULATI v. GOVERNMENT OF N.C.T. OF DELHI AND ANOTHER (JT 2002 [6]
331). This was a case where the detention was directed though the detenu s
passport was retained by the Customs authorities. A plea was, therefore,
raised that under the circumstances, there was no possibility of the detenu
engaging himself in any prejudicial activity and as such, the conclusion drawn
by the detaining authority was baseless. The Apex Court in paragraph 15 came
to the conclusion that since none of the instances of the smuggling by the
appellant, as stated in the impugned detention order, describe the appellant
as having travelled without a passport for the purpose of smuggling, the
conclusion drawn by the detaining authority was based on no material. Learned
counsel tried to heavily rely on this judgment and suggest that in the present
case also, there was no question of the petitioners engaging in any smuggling
activity. In our opinion, this judgment has no relevance with the controversy
involved in the present case. We, therefore, reject the contention.
17. It was then tried to be suggested that this was a
solitary incident in which the petitioner was involved and, therefore, the
petitioner should not be allowed to be detained now. For this purpose, the
reported decision in CHOWDARAPU RAGHUNANDAN v. STATE OF TAMIL NADU AND OTHERS
(2002 SCC (Cri.) 714) was relied upon. In our opinion, for the reasons that
we have given, it is futile for us to go into the merits of the detention
order at this stage. Therefore, this contention of the learned counsel is
also rejected.
18. It was tried to be argued that a detention order is not
punitive in nature and should not be used as a warrant. For this purpose,
a few decisions were cited before us. We have absolutely no difficulty in
accepting this. However, suffice it to say that it is not established in this
case that this detention order has been treated as a punitive order or as a
warrant. The authorities have insisted in their orders that the detention
order needs to be served even now. In their orders rejecting the
representations, the authorities have again and again reiterated the need to
execute the detention order. Paragraphs 4 and 5 of the order dated 17-7-2003,
in reply to the representation dated 25-9-2002, are sufficient to suggest the
application of mind on the part of the authorities.
19. In short, this is a case where the petitioner, who claims
to be a lawyer and who also claims to be holding a permit for doing business
of arranging manpower to work in Malaysia (we do not know how is it
permissible for a lawyer to do such business) has successfully thwarted the
orders, so much so, that the authorities have not been able to nab him even
when there were no stay orders either by this Court or by the Apex Court.
Taking the advantage of the last paragraph of the first Division Bench
judgment, the petitioner fired representations after representations and
thereby skirted his arrest. We are not at all happy with the way the
Department has treated the whole affair. We fail to follow as to why the
petitioner who has a permanent address and who claims to be a lawyer could not
be served with the detention order. In fact, the learned counsel for the
petitioner had reiterated before us that the licence of the petitioner has
again been renewed which suggests the good behaviour on the part of the
petitioner after the detention order was passed. In our opinion, the renewal
of the licence is completely irrelevant in so far as the controversy in this
case is concerned. We, however, record our utter dissatisfaction for the way
the matter of arrest of the petitioner has been treated by the department.
However, we do not find any merit in the writ petitions. The writ petitions
are dismissed.
Index:Yes
Website:Yes
Jai
To:
1. Secretary to Government
Public (SC) Department
State of Tamil Nadu
Fort St. George
Chennai 600 009
2. The Commissioner of Customs
Airport, Chennai 600 027
3. Secretary to Government
Ministry of Finance
Department of Revenue
New Delhi
4. The Public Prosecutor
O/o Public Prosecutor
High Court Buildings
Chennai
Learned senior counsel for the petitioner, after declaration
of the judgment, made an oral application under Art.134(1)(c) for leave to
file an appeal against the instant order before the Supreme Court under
Art.134A(b) of the Constitution of India on the ground that this case is a fit
one for appeal to the Supreme Court. Learned counsel also suggests that the
question falling in here is involving the substantial question of law as to
the interpretation of the Constitution.
2. We have already given our reasons as to why we are not
agreeing with the contentions raised by the learned counsel. We do not see
any reason to grant the leave. Leave is rejected.
Jai