Criminal Appeal No 27 1 of 1990
From the Judgment and Order dated 1611989 of the Delhi High Court in Criminal Writ No 34 of 1989
KV Vishwanathan and SR Setia for the Appellant
TT Kunhikanna Udai Lalit and P Parmeshwaran for the Respondents
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
Leave granted
519 This is an appeal seeking a writ of habeas corpus
The appellant who has been detained under Section 31i and 31iii of the COFEPOSA Act 1974 has challenged the detention order
The appellant is a native of Panakkad Malapuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Jeddah he landed in Bombay on 15987
Then he started by a bus to go to his native place
On 17987 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign marking were found and they were duly recovered
Further some incriminat ing documents were also recovered
The gold was valued at Rs464951 and it was found to be smuggled gold
The appel lant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded
He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits
Criminal proceedings were initiated
However the detaining authori ty the Home Secretary to Government of Kerala being satis fied passed the detention order dated 21988 against the appellant with a view to preventing him from smuggling activities
The grounds also were served within time and in the grounds all the above mentioned details are mentioned
In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board he may address it to the Chairman Advisory Board and that he can also make a representation to the detaining authority or the Central Government
Questioning the same the present appeal is filed
It is submitted that the representation was made on 27988 to the Central Government and it was disposed of on 21188
Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 225 of the Constitution of India
The next submission is that though the alleged smug gling of gold is said to have been taken place on 17987 the detention order was passed on 21588 ie after a lapse of eight months and that too it was a solitary instance and because of the delay the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of deten tion
The next submission is that there was delay in the execution of the detention order which was executed only on 6888 though passed on 21588 and that there is no allega tion that the appellant was absconding
It is also submitted that the appellant was not given an effective opportunity to represent his case before the 520 Advisory Board inasmuch as the appellant was not permitted to be represented by an advocate or by his next friend
In the counter affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 2431988 and the detention order was passed on 2151988 and the appellant was detained on 681988
The appellant made a representation to the detaining authority on 2791988 and it was rejected by the State Government on 1101988 and the Central Government rejected the same on 2111988
Therefore in the counter affidavit it is admitted that there is a delay of one month and five days in consid ering and rejecting the representation by the Central Gov ernment
It can be seen that so far as the State Government namely the detaining authority is concerned there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal
Article 225 of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention the au thority making the order shall as soon as may be communi cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
It is well settled that this Clause confers a valuable fight upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay
Therefore the right under this Clause is two fold namely that the authority making the order must communicate to the detenu the grounds on which the order has been made as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a representation against the order
Article 225 itself does not say to whom the represen tation is made or who will consider the representation
By virtue of provisions of the statute under which he has been detained the appropriate Government is legally obliged to comply with these requirements
It is obligatory on the appropriate Government to consider the detenu s representa tion separate from the consideration of the detenu s case by the Advisory Board
But what the learned counsel submits is that the Central Government which has the power to revoke the detention order passed by the State authority is also under legal obligation to dispose of the representation without delay
Learned counsel relied on some of the deci sions of this Court
In Khudiram Das vs The State of 521 West Bengal and Others  this Court held that one of the basic requirement of clause 5 of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will be ineffective unless there is a corresponding obligation to consider the repre sentation of the detenu as early as possible
It may not be necessary for us to refer to all those decisions which deal with the delay caused by the appropriate Government in considering the representation inasmuch as in the instant case there is no delay in considering the representation by the State Government which is the detaining authority
Section 11 of the COFEPOSA Act 1974 deals with the revo cation of detention orders and under Section 11b the Cen tral Government may at any time revoke or modify an order made by the State Government
Though strictly speaking the Central Government is not the detaining authority within the meaning of Article 225 yet they are under legal obligation to dispose of the representation as early as possible but the question is whether such delay by the Central Government also should be subjected to such a rigorous scrutiny as is done in the case of a delay caused by the appropriate Gov ernment
namely the detaining authority
In Tara Chand vs The State of Rajasthan  this Court held that Once a representation is made to the Central Government it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting itif there is inordinate delay in considering the representation that would clearly amount to violation of Article 225 so as to render the detention unconstitutional and void In Shyam Ambalal Siroya vs Union of India and Ors  it is held that The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power
Any petition for revocation of an order of detention should be dealt with reasonable expe dition  
It may be permissible for the Central Govern ment to take reasonable time for disposing any revocation petition
But it would not be justified in 522 ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government
It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the peti tion declining to order for revocation In Sabir Ahmed vs Union of India and Ors  dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exer cise of its power of detention by the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and that what is reasonable expedition depends upon the circumstances of the particular case
No hard and fast rule as to the measure of reasonable time can be laid down
It is also observed that it certainly does not cover the delay due to negli gence callous inaction avoidable red tapism and unduly protracted procrastination
In Sabir Ahmed s case as well as in Shyam Ambalal Si roya s case the representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 225
In Rama Dhondu Borade vs
VK Saraf Commissioner of Police and Others the detenu made a repre sentation to the Central Government on 2691988 and the decision of the Central Government rejecting the representa tion was communicated to the appellant on 31101988
The explanation submitted by the Central Government was not accepted on the ground that it is not satisfactory
In TA Abdul Rahman vs State of Kerala and Others  there was a delay of 72 days and it was observed that the representation of the detenu has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to
Bearing these principles in mind we shall examine wheth er the Central Government has expeditiously considered the representation or not
We have already noted that the repre sentation was made on 27988 and disposed of by the Central Government on 21188 ie within a month and five days
In the counter affidavit filed on behalf of the Central Govern ment it is stated that the representation dated 27988 was received in the COFEPOSA Section of the Ministry of Finance on 101088 and the representation was in Malayalam
It is also 523 stated that there were some allegations regarding the non placement of certain documents and non supply of certain documents to him
Therefore a copy of the representation was sent to the sponsoring authority ie Collector of Customs Cochin on that very day and the comments from the Collector of Customs Cochin dated 251088 were received in the COFEPOSA Section on 271088 and that the Additional Secre tary examined them and with his comments they were forward ed to the Minister of State for Revenue on 311088 since 29th and 30th October 1988 were holidays
The Minister of State for Revenue with this comments forwarded the represen tation on the same day ie 311088 to the Finance Minis ter
The Finance Minister considered and rejected the repre sentation on 11188 and the file was received in the Office on 21188 and on the same day a memorandum rejecting the representation was sent to the detenu
From the explanation it can be seen that the representation was considered most expeditiously and there is no negligence or callous inac tion or avoidable red tapism
For these reasons we are unable to accept this contention of the learned counsel
The next submission of the learned counsel is that the date of search was 17987 and the detention order was passed on 21588 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority
The learned counsel submits that there was no live existing connection between the incident and the detention
In Lakshman Khatik vs The State of West Bengal it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu
In Rajendrakumar Natvarlal Shah vs State of Gujarat and Others  it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention
In Abdul Rahman s case seizure of the gold biscuits was on 301186 and the detention order was passed 11 months thereafter
On the ground that there was no satisfactory explanation for this undue unreasonable and unexplained delay it was held that the delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority
In the counter affidavit in the instant case filed on behalf of the detaining authority it is stated that the case records relating to the 524 petitioner were received at the office of the sponsoring authority on 1288 and they were processed in the Office and the show cause notice under the Customs Act was issued on 9288 and the proposals were sent for COFEPOSA action on 24388 and they were received by the State Government on 2488
The matter was considered by the Screening Committee which met on 28488 and thereafter submitted the proposals to the detaining authority
On 2588 the detaining authori ty ordered to ascertain the reasons for the delay in spon soring the case and accordingly the sponsoring authority at Cochin was addressed on 2588
He was reminded on 7588 and 12588
His reply was received on 16588 and thereaf ter the order was passed on 21588
In our view the delay has been reasonably explained
The courts have not laid down that on mere such delay the detention has to be struck down
In Yogendra Murari vs State of UP  it is held that It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay  
It is necessary to consider the circumstances in each indi vidual case to find out whether the delay has been satisfac torily explained or not
 That apart we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory
In appreciating such a contention
the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same
It is this potentiality in him that has to be taken into con sideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground
In Hemla ta Kantilal Shah vs State of Maharashtra  it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person
For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained
Yet another ground urged by the learned counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order
In the counter affidavit it is stated that after the detention order was passed it was sent to the Superintendent of Police Malappuram on 23588 for 525 immediate execution and they were passed on to Circle In spector Malappuram
On 29688 it was reported that the Circle Inspector had made due enquiries but the detenu could not be apprehended
Thereupon a special squad was deputed as per the directions of the Superintendent of Police and thereafter he was detained on 6888
It is further submit ted in the counter affidavit that the delay in execution of the order is caused due to detenu s deliberate attempt to make himself scarce
That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid
In the instant case the delay if at all is only about 212 months and the explanation offered for the delay is reasona ble
The learned counsel however relied on Abdul Rahman s case
In that case the detention order was passed on 71087 and the detenu was arrested on 18188
The court found that there was no reasonable explanation for the delay in the counter affidavit at all
This ground was taken into consid eration alongwith the other important grounds in quashing the detention
In SK
Serajul vs State of West Bengal it is observed that There was delay both at the stage of passing the order of detention and in arresting him and this delay unless satisfactorily explained would throw considerable doubt on the genuineness of the subjective satisfaction
But this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arrest ing the detenu pursuant to the order of detention the sub 
jective satisfaction of the detaining authority must be held to be not genuine or colourable
Each case must depend on its own peculiar facts and circumstances
The detaining authority may have a reasonable explanation for the and that might be sufficient to dispel the inference that its satisfaction was not genuine
 It can therefore be seen that on the mere delay in arresting me detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine
Each case
depends on its own facts and circum stances
The Court has to see whether the delay is explained reasonably
As mentioned above in the instant case we are satisfied with the explanation for the delay in arresting the detenu
Therefore this contention is also liable to be rejected
For all the above mentioned reasons the appeal is dismissed
Y Lal Appeal dismissed


Summary:
The appellants fried an Execution Application in 1970 in the Court of Munsiff under Section 13B of the Land Reforms Act 1969 for the restoration of the possession of the properties which were sold in Court auction in pursuance of a decree for arrears of rent
The decree holder and Court auction purchasers were close relatives
The sale took place on 2611
1962 and was confirmed on 1481964
It is the 3rd Respondent a stranger in the present appeal who purchased the property in the Court auction and got the possession of the same on 911965 from the appellants
The appellants trespassed into the suit property again and were ejected in 1966 pursuant to a decree in a suit
Thereafter the 3rd Respondent ie the auction purchaser assigned the property in favour of Respondents No 1  2 who were the close rela tives vide sale deeds dated 5121966 Exts A2 and A3
The appellants had already filed Execution Application for restoration of possession after making necessary deposit for the purchase money under section 6 of Act 9 of 1967
The same was pending when Act 35 of 1969 came into force and so the appellants made an application with a prayer that the earlier deposit be treated as a deposit under section 13B of 1969 Act
The Court auction purchaser ie 3rd Respondent and his assignees Respondents No 1  2 strongly contended that appellants have no interest in the properties
The appel lants attacked the validity of the sale deeds being made without consideration
The trial Court held that the appel lants were tenants when they were dispossessed and also held that the deposit made by the appellants was sufficient for restoration of possession and Respondents No 1  2 are not bona fide purchasers for consideration and hence set aside the sale
The Respondents No 1  2 made application before the sub court 540 and the court held the petitioners were competent to main tain the application and were bona fide purchasers as per records such as revenue and tax receipts plus the admission of the vendor and vendee as to the payment of consideration
As to the deposit made by the appellants it was considered to be sufficient in case they were found entitled for resto ration of possession set aside the Trial Court order and allowed the appeal
The appellants therefore filed ESA in the High Court and the High Court upheld that the decision and the decree of the lower Appellate Court as per evidence and as circum stances of the case complied with public records establish ing that Respondents 1  2 are the bona fide purchasers for consideration
But the first appellate court concurred with the Trial Court regarding the deposit already made to be sufficient and the interest accrued would be directed to be deposited if the appellants were found entitled to restora tion of possession
The said finding has not been dislodged by the High Court
Allowing the Special Leave Petition this Court HELD In the instant case two substantial questions are involved ie 1 whether respondents 1  2 are bona fide purchasers of the scheduled land in dispute for adequate consideration and thereby entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec
13B1
547F 2 Whether the appellants are entitled to the benefit of subsection 1 of section 13B of the Act
547F G As per section 13B where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before the commencement of the Kerala Land Reforms Amendment Act 1969 such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding subject to the provisions of this section
558 B C Provided that nothing in this sub section shah apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispos session and before the date of the publication of Kerala Land Reforms Amendment Bill 1968 in the Gazettee
554D E 541 The concurrent finding of facts by both the appellate courts that Respondents No 1  2 are bona fide purchasers for consideration warrant interference because both the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties inter se ie the decree bolder court auction purchaser are close relatives and have assigned the property in favour of their close relatives and a stranger This assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching satis factory conclusion
The court has failed to render any finding on substantial question of Law
The lack of recitals with regard to the consideration has also been completely ignored It seemed to have disposed of the case summarily
553B D It is not merely the inadequacy of consideration as pointed out by the lower appellate court but there is lack of evidence in substantiating the recitals of the documents that Respondents No 1  2 are bona fide purchasers
The receipts for the payment of tax rent or revenue are by themselves cannot dispel the claims of the appellants
545C The conclusion arrived at by both the courts is only backed by assertions rather than by acceptable reasoning based on the proper evaluation of evidence
So the evidence and circumstances of the case coupled with the evidence on record do establish that the Respondents 1  2 are not bona fide purchasers for consideration
553E F Discretionary powers under Article 136 has to be exer cised sparingly but when there are exceptional and special circumstances justifying the exercise of discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or excluding material evidence resulting in undue hardships this Court will be justified in stepping in and interfering with the concurrent findings of facts in the interest of justice and it is also the duty of this Court to remedy the injustice so resulted
Dipak Baneriee vs Lilabatichakraborty   relied on
552H 553A B On the question whether the appellants are entitled to the benefit of section 13B1 of the Act it was held 553G The Kerala Land Reforms Act of 1963 came into force on 141964 Act 9 of 1967 was a temporary Act and remained in force till 31121969 Act 35 of 1969 came into force from 111970 and section 13B is substantially on the same terms as section 6 of 1967 Act with a 542 proviso super added
To invoke section 13B two conditions are sine qua non
1 Any holding to which a tenant is entitled to restoration of possession should have been sold in execution of any decree for arrears of rent
2 The tenant should have been dispossessed of the holding after 141964 and before the commencement of 1969 Act
553H 554A C Thus the tenant shall be entitled to restoration of possession under section 13B provided the holding is not sold to a bona fide purchaser for consideration after the date of dispossession and before the publication of the Kerala Land Reforms Amendment Bill 1968 in the Gazettee
The appellants are entitled to have the benefit of sub section 1 of section 13B only if they have made the deposit of the purchase money together with interest at the rate of 6 Per Annum in the Court and applied to the Court for setting aside the sale and for restoration of the hold ing
The appellants in the instant case had already made deposit under 1967 Act and it was pending when Act 35 of 1969 came into force
So the appellants made an application with a prayer to treat the said deposites continuation unaffected by the provisions of 1969 Act
554D F The Language of section 13B is plain clear and unam biguous and the very purpose of the section is to vest rights on the displaced tenants which is the dominant purpose of the statute which should be considered
554G H P Rami Reddy  Ors
vs State of Andhra Pradesh  Ors
  Skandia Insurance Co Ltd vs
Kokilaben Chandravadan  Ors 1987 2 SCC 654 and Ms Doypack Systems Pvt Ltd vs Union of India  Ors  relied on
The sale of holdings of the appellants was in execution of the decree for arrears of rent in OS No 817 of 1943 and appellants are tenants who were dispossessed of the holdings after 141964 and before the commencement of 1969 Act
They are therefore entitled to restoration of posses sion of the properties in dispute but without prejudice of the rights if any of the Respondents Nos 7 to 10 who are the wife and children of Gopalan Nambiar
The amount under deposit made by the appellants is permitted to be withdrawn by respondents 1 to 3
558B C