Vinod Kumar Tripathi and Others vs District Magistrate,Allahabad and Others

Since the common question is involved in these writ petitions hence they are being decided by a common judgment.

By means of these writ petition in the nature of habeas corpus, detention of the petitioners dated 211999 have been assailed mainly on two grounds, firstly, that extraneous materials were placed before the Detaining Authority by the SHO and on the basis of that information the detaining authority passed the order and secondly that Union of India has not passed the order on the representations preferred by the petitioners as soon as possible.

As far as first ground is concerned we need not delve into it, because consideration of second ground would be sufficient for the purposes of disposal of these writ petitions.

According to the admitted facts the petitioners preferred their representations for consideration by the Union of India on 1521999. The representations were received by the Union of India on 2321999. On 2521999 a crash wireless message was sent to the State of U.P. to furnish certain vital information. The information was received in the Home Ministry on 131999. The relevant papers were placed before the Joint Secretary on 5 31999, who ordered it to put up before the Minister concerned. The Minister concerned passed the order rejecting the representations on 1231999, meaning thereby that there was delay of seven days in the disposal of the representations.

In the counteraffidavit only this much has been averred that out of seven days two days were holidays.

It was contended by the learned Counsel for the petitioners that delay in disposal of representations by the Minister concerned was fatal inasmuch as the same was in violation of the Constitution guarantee, contained in Article 22 (5) of the Constitution of India. In that regard the learned Counsel referred to the pronouncement of the Hon''ble Supreme Court in Rajammal v. State of Tamil Nadu and another. In Rajammal case (supra), the Hon''ble Supreme Court observed:

�It is a constitutional obligation of the Government to consider the representation forwarded by the detenue without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words ''as soon as may be'' in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. It delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words it is for the authority concerned to explain the delay if any in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is to the duration or range of delay, but how it is explained by the authority concerned. Thus in the present case the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for passing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order after five days and there was no explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only after five days is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters if not sufficient to justify the delay since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.�

The case of Rajammal was difficult one on comparison of the case of the petitioners. There was an explanation that the Minister was on tour and the delay or lapse in disposal of the representation was caused because Minister was not available in his Headquarters at Delhi, but was on tour. Even after considering that explanation, the Hon''ble the Supreme Court was of the view that five days delay was fatal as the delay caused was in contravention of the Constitutional guarantee enshrined under Article 22 (5) of the Constitution of India. In the instant case there exist no explanation as to why the Minister took seven'' days in disposal of the representation made by the petitioners. The mere submission that out of seven days two days pertained to holidays is not a sufficient explanation as to why he has not passed the order on the representation of the petitioner within the remaining five days.

In view of the dictum of Hon''ble the Supreme Court in Rajammal (supra), we are of the view that the delay or lapse on the part of the Home Minister concerned in disposing of the representation belatedly is in contravention of the Constitutional guarantee contained in Article 22 (5) of the Constitution of India, inasmuch as no valid explanation has been made for causing the delay in disposal of the representation.

In view of what has been indicated here and above these habeas corpus petitions succeed and are allowed. Petitioners are directed to be set at liberty forthwith in case they are not wanted in any other cases.