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Makhan Lal Gokul Chand v. Administrator, Union Territory Of Delhi And Another
Factual and Procedural Background
The petitioner was detained under an order dated 15-12-1982 issued under the COFEPOSA Act. He challenged that detention on three earlier occasions: (i) Writ Petition No. 6 of 1983 before the Delhi High Court, dismissed on 1-2-1983; (ii) Special Leave Petition No. 379 of 1983 and Writ Petition (Crl.) No. 182 of 1983 before the Supreme Court, both dismissed on 23-2-1983; and (iii) Writ Petition (Crl.) No. 363 of 1983, dismissed on 27-4-1983.
After the third dismissal, the petitioner made another representation on 7-5-1983 invoking Section 21 of the General Clauses Act read with Section 11 of COFEPOSA and sought the constitution of a fresh Advisory Board. The Delhi Administration rejected that representation on 23-5-1983. The present (fourth) writ petition challenges the same detention order on the ground that a fresh Advisory Board was not convened.
In an earlier proceeding on 27-9-1983, a three-Judge Bench had doubted the correctness of certain observations in Ram Bali Rajbhar v. State of W.B. (1975) 4 SCC 47 and perceived a possible conflict with Pushpa v. Union of India, 1980 Supp SCC 391. It referred the issue to a larger Bench and, noting that the detenu had already undergone ten months of the twelve-month detention, released him on parole. The present judgment by the larger Bench disposes of both the reference and the fourth writ petition.
Legal Issues Presented
- Whether Ram Bali Rajbhar v. State of W.B. (1975) and Pushpa v. Union of India (1980) are in conflict, warranting reconsideration of the law laid down in Rajbhar.
- Whether the State’s refusal to constitute a fresh Advisory Board to consider the petitioner’s representation dated 7-5-1983 invalidates the detention order.
- Whether, after sixteen years on parole with only about two months of detention remaining, the petitioner should now be remanded to custody.
Arguments of the Parties
Petitioner’s Arguments
- The observations in Pushpa conflict with those in Rajbhar; therefore the Rajbhar view should be reconsidered.
- The State’s failure to convene a fresh Advisory Board in response to the representation dated 7-5-1983 vitiates the detention.
- Given that the detenu has already suffered ten months’ detention and has been on parole for over sixteen years, it would be unjust to send him back to jail.
Respondent-State’s Arguments
- There is no conflict between Rajbhar and Pushpa; the reference need not be answered.
- The representation of 7-5-1983 introduced no new material or subsequent events; hence there was no obligation to constitute another Advisory Board.
- The State acted within its discretion in rejecting the representation on 23-5-1983.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Bali Rajbhar v. State of W.B. (1975) 4 SCC 47; (1975) 3 SCR 63 |
Correct approach to consideration of detenus’ representations and the role of the Advisory Board under COFEPOSA. | The Bench affirmed that Rajbhar lays down the correct law and requires no reconsideration. |
| Pushpa v. Union of India 1980 Supp SCC 391; AIR 1979 SC 1953 |
Whether a second representation must be placed before a different Advisory Board. | The Court held that, on its facts, Pushpa is not contrary to Rajbhar, as both representations there were considered by the same Board; hence no conflict exists. |
Court's Reasoning and Analysis
(i) Alleged conflict between Rajbhar and Pushpa: After an extensive reading of both judgments, the Court found “no area of conflict.” It concluded that Rajbhar correctly states the law, and Pushpa does not deviate from it. Consequently, the earlier reference to a larger Bench required no answer.
(ii) Validity of not constituting a fresh Advisory Board: The petitioner’s representation of 7-5-1983 contained no new facts, material, or subsequent events—only a change in language. The Court held that in the absence of fresh grounds, the State was under no obligation to empanel a new Advisory Board. Rejecting the representation was therefore within the State’s discretion and could not invalidate the detention order.
(iii) Relief concerning remaining period of detention: Although the writ petition was meritless, the Court considered the lapse of more than sixteen years since the petitioner’s release on parole and the minimal unserved detention (about two months). In these “peculiar facts and circumstances,” it found that justice did not require cancellation of parole or re-incarceration.
Holding and Implications
Holding: The writ petition is DISMISSED; however, the petitioner “need not now be taken into custody to undergo the remaining period of detention.”
Implications: The judgment re-affirms the authority of Ram Bali Rajbhar and clarifies that, absent fresh grounds, the State is not obliged to convene a new Advisory Board for successive representations. No new precedent is created on parole or detention duration; the decision not to remand the detenu is confined to the exceptional delay and facts of this case.
1. On 27-9-1983 a three-Judge Bench of this Court doubted the correctness of the “wide observations” made in the case of Ram Bali Rajbhar v. State of W.B (1975) 4 SCC 47, (1975) 3 SCR 63 and being of the opinion that the view expressed in Pushpa v. Union of India 1980 Supp SCC 391, AIR 1979 SC 1953 ran in the teeth of the judgment in Rajbhar case (1975) 4 SCC 47, (1975) 3 SCR 63 referred the matter to a larger Bench. The referring Bench noticing that the detenu had already suffered detention for a period of 10 months out of the 12 months' period of detention imposed by the order dated 15-12-1982, directed the detenu to be released on parole.
2. Mr Harjinder Singh, learned counsel appearing for the petitioner has taken us through the judgments in Rajbhar case (1975) 4 SCC 47, (1975) 3 SCR 63 and Pushpa case 1980 Supp SCC 391, AIR 1979 SC 1953. A careful perusal of both the judgments, however, shows that there is no conflict between the two. The view expressed in Rajbhar case (1975) 4 SCC 47, (1975) 3 SCR 63 in our opinion, lays down the correct law and does not call for any reconsideration. Insofar as the view expressed in Pushpa case 1980 Supp SCC 391, AIR 1979 SC 1953 is concerned, it deserves to be noticed that the learned Single Judge, deciding the petition during the vacation, did not say anything which may be considered as running contrary to the view expressed in Rajbhar case 1980 Supp SCC 391, AIR 1979 SC 1953. On facts it was found in that case that two representations had been made by the detenu against the order of detention and both the representations were placed before the same Advisory Board when it met and the Board considered the representations at that sitting. The argument raised in that case that the second representation had not been considered by an Advisory Board was thus found, on facts, as not valid. The Court, under those circumstances, declined to examine the contention whether personal appearance of the detenu to explain his case before the Advisory Board, since he had filed detailed written representation, infringed any of the rights of the detenu.
3. Learned counsel appearing for the parties have been unable to point out any area of conflict between Rajbhar case (1975) 4 SCC 47, (1975) 3 SCR 63 and Pushpa case 1980 Supp SCC 391, AIR 1979 SC 1953. In fairness to the learned counsel it must be noticed that they submitted that the reference does not require to be answered. We agree.
4. Coming, however, to the facts of the present case. It is found that representations had been made by the petitioner against the order of detention which were considered by the detaining authority and the Advisory Board. The representations were rejected. The order of detention and the order of rejection of the representations was challenged through Writ Petition No. 6 of 1983, which was dismissed by the Delhi High Court on 1-2-1983. The order of the Delhi High Court was challenged through Special Leave Petition No. 379 of 1983 in this Court. Together with Special Leave Petition No. 379 of 1983, another writ petition, being Writ Petition (Crl.) No. 182 of 1983, was also filed under Article 32 of the Constitution of India, once again putting in issue the same order of detention which had been upheld by the Delhi High Court. The special leave petition as well as the writ petition stood dismissed by a three-Judge Bench of this Court on 23-2-1983. The petitioner thereafter filed yet another writ petition being Writ Petition (Crl.) No. 363 of 1983 challenging the order of detention on some “additional grounds”. That writ petition was also dismissed by this Court on 27-4-1983. After dismissal of the third writ petition on 27-4-1983 the petitioner appears to have sent a representation, on 7-5-1983, to the first respondent invoking powers under Section 21 of the General Clauses Act read with Section 11 of COFEPOSA. The petitioner also requested for the constitution of a fresh Advisory Board to consider his representation. On 23-5-1983, the representation of the petitioner was rejected by the Delhi Administration after due consideration. This fourth writ petition has been filed thereafter challenging the same order of detention, the validity of which had been upheld earlier as noticed above. Mr Harjinder Singh appearing for the detenu submitted that the failure of the State to constitute a fresh Advisory Board to consider the representation dated 7-5-1983, rendered the order of detention bad.
5. After perusing the record and hearing learned counsel for the parties, we are of the opinion that there is no merit in the submission made by the learned counsel for the detenu. As already noticed, the petitioner had three times earlier, challenged the order of detention and failed. In the representation filed by the petitioner on 7-5-1983, we find that neither was any fresh material brought on record nor were any subsequent events pointed out which may have warranted a “fresh” consideration of the representation made by the detenu. It was only change in the language of the representation. The Delhi Administration was, therefore, justified in rejecting the representation dated 7-5-1983 by the order communicated to the petitioner on 23-5-1983. Since there were no “fresh grounds” nor any “fresh material” or “subsequent events” brought out in the representation dated 7-5-1983, there was no obligation on the State to get that representation considered by a “fresh Advisory Board” and, therefore, the exercise of discretion by the State in rejecting the representation and not constituting a “fresh” Advisory Board cannot be faulted. The detenu had, as already noticed, unsuccessfully challenged the same order of detention thrice. Making of the representation on 7-5-1983, without any fresh cause being available to him, was apparently designed to file yet another writ petition. We cannot but disapprove this attitude of the detenu. There is no merit in this writ petition, which fails and is hereby dismissed.
6. Learned counsel for the petitioner then lastly submitted that since the detenu had already remained under detention for a period of ten months before being enlarged on parole, he may not be sent back to jail to undergo the remaining period of detention.
7. The petitioner was detained, as already noticed, by an order made on 15-12-1982. After he had suffered detention for a period of about 10 months, he was directed to be released on parole by this Court on 27-9-1983. More than 16 years have now gone by. In our opinion, in the peculiar facts and circumstances of this case, it would now not be in the interest of justice to cancel the order of parole and direct the petitioner to undergo the remaining period of detention of about two months.
8. We, therefore, while dismissing the writ petition, direct that the detenu need not now be taken into custody to undergo the remaining period of detention.
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