Syed Badruddoza vs J.C. Talukdar

Sarma Sarker, J.—This is an application u/s 491 of the Code of Criminal Procedure read with Article 226 of the Constitution for a writ in the nature of habeas corpus for illegal detention u/s 3(1) of the Maintenance of Internal Security Ordinance of 1971 (hereafter referred to as the Ordinance).

The application is filed by one Shabbir Ahmed alleging that Saiyad Badruddoza has been detained u/s 3(1) of the Ordinance by the State Government. The order was served on May 31, 1971, and the grounds of detention, were served on June 5, 1971. It is, alleged by the Petitioner that the order of detention is illegal as it was passed on the satisfaction of the Home Secretary, Government of West Bengal, and not that of the State Government. It is also contended that the grounds of detention are vague, remote and have no rational nexus with the alleged object of detention. It is also further alleged that the Order of detention is mala fide as it was passed with a view to "preventing the detenu from contesting in the bye-election for Parliament on the death on May 25, 1970, of Ab Alab Chowdhury, sitting member of Parliament from the said constituency.

The opposite party No, 1 has shown cause by affidavit-in-opposition supported by corroborative affidavit of Sri Arun Prosad Mukherjee, Deputy Commissioner of Police, Special Branch. It is contended on behalf of the opposite party that the Petitioner has no locus standi to file this application and he is not related to nor authorised by the detenu to file the application. The Rule is also opposed on the ground that the order of detention was passed on the satisfaction of the State Government represented by the satisfaction of the then Chief Minister Sri Ajoy Kumar Mukherjee. It is also denied that the grounds are vague, remote and irrelevant or that the order of detention was passed mala fide.

The points for consideration are: (i) whether the application is properly presented, (ii) whether the order of detention was legal and constitutional and, (iii) whether the grounds of detention are vague, irrelevant or mala fide.

So far as the first point is concerned, it appears to us the application is not in proper form or in accordance with the rules framed by this High Court. The application was not filed by the detenu himself but by one Shabbir Ahmed. It is nowhere revealed how the Petitioner is interested in the detenu either as a relation or otherwise nor is it mentioned anywhere that the Petitioner was authorised by the detenu to file this application. But, having regard to the fact that this is an application challenging the detention without trial, we ignore the defect in the form of the application and proceed to decide other points.

As regards the second point Mr. Somenath Chatterjee, learned Counsel for the Petitioner, has argued that the order of detention passed u/s 3(1) of the Ordinance can only be passed on the satisfaction of the State Government. But, the order of detention that was served and made an annexure to this petition explicitly and clearly shows that it was passed on the satisfaction of one J.C. Talukdar, Secretary to the Government of West Bengal, Home Department, Writers'' Buildings, Calcutta. It is necessary to set out the order in full and it runs as follows:

Whereas I am satisfied with respect to the person known as Sri Saiyad Badruddoza, 19 European Asylum Lane, that with a view to preventing him from acting in any manner prejudicial to the security of India, it is necessary so to do, I, therefore, in the exercise of the powers conferred by Section 3(1) of the Maintenance of Internal Security Ordinance, 1971 (No. 5 of 1971), make this order directing that the said Saiyad Badruddoza be. detained. Given under my hand and seal of office.

Sd. J. C. Talukdar

Secretary to the Government of West Bengal

Home Department, Writers'' Buildings, Calcutta.

In this connection Mr. Somenath Chatterjee referred to Article 166 of the Constitution which runs thus:

Article 166(1): All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authorised in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

Mr. B. Das, the learned Advocate-General, appearing for the State has conceded that the order of detention is not in accordance with Article 166 of the Constitution. Had it been so, the Petitioner would have been precluded from questioning the satisfaction of the Governor. But, because the order is defective, the burden is thrown on the State Government to satisfy the Court that it was passed on the satisfaction of the State "Government. The learned Advocate-General then takes us to the rules of business framed by the Government of West Bengal and Item No. 18 of pt. II of the Home Department shows that preventive detention is within the exclusive jurisdiction of the Home Department of which Sri Ajoy Kumar Mukherjee, Chief Minister, was in charge at the relevant time on May 31, 1971. The learned Advocate-General also referred to the allocation of business which goes to show that this was in the exclusive jurisdiction of the Chief Minister as Home Minister at the time and it was not necessary for him to place the file before the Governor. Under Article 166(2) of the Constitution the satisfaction of the Chief Minister was the satisfaction of the Governor or the Government of the day. The Advocate-General next argues that in the instant case the relevant file will show that the Chief Minister indicated his satisfaction in the order of detention by his dated signature in the draft order of detention:

It is necessary for us to decide first whether having regard to the nature of the order of detention the State Government will at all be allowed to agitate the question that it was not the satisfaction of the Home Secretary but of the Chief Minister or the Government, and secondly, whether the record produced clearly and expressly show that the order of detention was passed on the satisfaction of the Chief Minister Sri Ajoy Kumar Mukherjee. So far as the first question is concerned, the learned Advocate-General referred to a number of cases to show how in spite of the order being defective the State can establish that the order was passed on the satisfaction of the State Government. We have carefully considered those cases but we find that none of them is applicable to the facts of the present case. The law is now well-settled that if the order is passed strictly in terms of Article 166(2) of the Constitution the order cannot be challenged in a Court of law which is precluded from going behind the order but when the order is defective the State Government can establish by extraneous evidence or materials that it was really the satisfaction of the State Government. This is naturally so when the order is con-. fused and admits of double interpretation. But whereas, in the present case, the order is explicit and clear and does not suffer from confusion and is not amenable to double interpretation. We do not think that the State Government will be entitled to place materials to show that though the order explicitly, clearly, unequivocally purports to have been passed on the satisfaction of the Home Secretary yet it was in reality the satisfaction of the Chief Minister or the Governor of the State. We may, therefore, conclude that when the validity of the order is challenged under Article 166 of the Constitution then one of the three positions may appear. In the first place, the order may be perfectly good in terms of Article 166(2) of the Constitution. If so, the order cannot be challenged on the ground that there was no satisfaction of the proper authority. Secondly, if the order is not at all passed for and on behalf of the Government then no extrinsic materials or evidence may be allowed to be laid before the Court to show that though the order was passed by individual in his official capacity yet in reality it was the satisfaction of the Government and not of the individual Home Secretary. In the third place, the order may show that it was passed as the Government order, but there was some defect in the expression, then in that case the State Government may be allowed to place materials to show that it was passed on the satisfaction and direction of the proper authority.

We may now examine the cases cited by the learned Advocate-General. He first refers to the case The State of Bombay Vs. Purushottam Jog Naik, . It will be seen from the case that the order was expressed on the satisfaction of the Government and the signature was made by the Secretary, Home Department, ''by order of the Governor''. But the words ''and in his name'' after the words ''by order-of the Governor'' was not mentioned. Under these circumstances, the State was allowed to show that it was the satisfaction of the Governor. The next case cited is The State of Bihar Vs. Rani Sonabati Kumari, where it was laid down that the process of making an order precedes and is different from the expression of it and that while Article 166(1) merely prescribes how orders are to be made the authentication referred to in Article 166(2) indicates the manner in which a previously made order should be embodied. The term ''executive'' in Article 154(1) is used in the broader sense as including both a decision and action in carrying out that decision. In that case, order of the Government, namely, a notification u/s 3(1) of the Bihar Land Reforms Act is expressed to be made in the name of the Governor and is authenticated by/ the Additional Secretary of the Government as prescribed by Article 166(2), and the validity of the order or instrument in such a case cannot be called in question that it is not an order or instrument made or executed by the Governor. Even assuming that the order did not originate from the Governor personally but was made by some one on his behalf within Article 154(1), the Governor nevertheless remains responsible for the action of his subordinates taken in his name. That case is also not attracted to the present case. The next case relied on is State of Rajasthan v. Sripal Jain (3). That was a case of compulsory retirement of a Police Circle Inspector under Rule 44(2) of the Service Rules as passed by the Government of Rajasthan. In that case, it was held that though the order was communicated by the Inspector-General the order was really passed by the Government and it was observed: It is well-settled that any defect of form in the order of the Government would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Article 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. It is pertinent to observe that this privilege is given to the Government only when there is a defect of form in the order by Government but where, as in this case, it was not only a-defect in form but defect in -substance there case laws do not apply, as nowhere it was mentioned that it was the satisfaction of the Government or the Governor and nowhere it is mentioned that the order was passed by order of the Governor. To allow the State to go behind the order in such a case is not only to rectify the defect in form but to allow to make a new distinct and different case by substituting the satisfaction of the State Government for the satisfaction of the individual who was then the Home Secretary. Mr. Das was trying to argue that the impugned order was passed not in his individual capacity but as Secretary to the Home Department and, as such, there was some official connection. But even so, the satisfaction of the Home Secretary is fundamentally different from the satisfaction of the Chief Minister or the Governor. In our view, therefore, when there is a defect in substance and not merely in expression or form the State Government cannot %e allowed to go behind the order as a challenger is not allowed to go behind the order which is passed in terms of Article 166(2) of the Constitution. The next case cited is Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat and Another, . In that case the validity of the notification u/s 6 of the Land Requisition Act of the State of Gujarat was questioned by writ petition on the ground among others that there was no formation of opinion by the Government as regards the urgency. In that case, the notices were perfectly, in order and in terms of Article 166(2) of the Constitution and the Court held that the validity of the order could not be called in question on the ground that it was not an order made by the Government. That case also does not apply to the facts of the present case.

We are, therefore, satisfied that in the present case the State Government cannot be allowed to change its case and prove the substitution of the satisfaction of the State Government in place of the satisfaction of the Home Secretary. It is significant to point out that in the order of detention the Home Secretary has stated not only that he was satisfied but that on his satisfaction he passed the order of detention. If we now allow the Government to prove that the order was passed on the satisfaction of the Government, it will be substituting new case for the one on the basis of which detention order was. passed. We asked the learned Counsel of both sides to cite any case where substitution of the satisfaction of the State was permitted in place of satisfaction of individual. But no such case could be cited. There cannot perhaps be a precedent of an unprecedented case. We, therefore, hold that the impugned order is not an order at all u/s 3(1) of the Ordinance and, as such, the order is illegal and without jurisdiction of the Home Secretary who purports to pass the order.

Even assuming we go behind the order and try to ascertain whether there was any satisfaction of the State Government, the paper produced does not seem to be sufficient. A draft order written by Home Secretary on the line of the order served on the detenu was passed on May 31, 1971, and that order was placed before the Chief Minister for approval and there is an initial of the Chief Minister with date of May 31, 1971. Of course, in the affidavit-in-opposition both the Home Secretary and the Deputy Commissioner of Police, Special Branch, have come with the story that the papers were placed before the Chief Minister on May 26, 1971, and he passed a verbal order for drawing up the order which was drawn up by the Home Secretary and approved by the Chief Minister on May 31, 1971. There is no indication on the record that papers were placed on May 26, 1971. Apart from that, the Chief Minister has not sworn any affidavit to show that he was satisfied. The affidavit of the Home Secretary or the Deputy Commissioner of Police may be sufficient in some cases of a routine nature but not in the circumstances of the-instant case. Mere signature at the bottom of a draft order which shows patently that it was passed on the basis of satisfaction of the Home Secretary does not indicate that the Chief Minister applied his mind and came to an independent decision and was satisfied that detention was necessary. Moreover, there is allegation of want of satisfaction and mala fide. In the absence of any affidavit of the Chief Minister it is not possible to come to a decision whether he was really satisfied independent of mere formal approval of the draft order and more particularly whether the order was mala fide of not. The Home Secretary was not competent to rebut the allegation of mala fide on political grounds in the absence of the affidavit of the Chief Minister who alone was competent to refute the allegation made and assert that the order was passed on his satisfaction and without any political motive. On these grounds the order of detention must be struck down as invalid and without jurisdiction and unconstitutional.

In view of our decision above, it is unnecessary to discuss the third point whether the grounds are" vague, irrelevant or mala fide when we have found that it was no order of the State Government and that the grounds of detention were supplied in respect of the satisfaction of the Home Secretary. Under these circumstances, further discussion on the merits of the grounds of detention will be improper. Accordingly, it is ordered that the Rule be made absolute and the detenu Syed Badruddoza be released from detention forthwith.

A.P. Das, J.

I agree.