tition Criminal No 30 of 1987
Under Article 32 of the Constitution of India
Harjinder Singh for the petitioner
RS Sodhi for the Respondent
The Judgment of the Court was delivered by KANIA J
This is a petition under Article 32 of the Constitution of India for a writ of habeas corpus or any other appropriate writ or order quashing the order dated 3rd January 1985 passed by the Special Secretary to the Government of Punjab for detention of the petitioner and praying for the release of the petitioner
By our order dated 8th May 1987 we had held that the writ petition succeeds for the reasons which we would give later
We had also set aside the order of detention and directed the petitioner to be released
We are now giving the reasons for the said order
459 The facts necessary for disposal of the writ petition lie within a fairly narrow compass
The petitioner was detained on 21st November 1985 pursuant to an order of detention dated 3rd January 1985 passed under Sub Sections 1  2 of section 3 of the National Security Act 1985 signed by the Special Secretary to the Government of Punjab setting out that the President of India in exercise of the powers conferred by Sub Sections  1  2 of Section 3 of the National Security Act 1985 was pleased to order that the petitioner should be detained
The ground given in that order is that the petitioner is indulging in activities prejudicial to the defence of India and the security of the State
On 17th April 1985 the petitioner when he was in jail was served with an order passed under Section 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Act referred to hereinafter as COFEPOSA dated 17th April 1985 directing his detention
The petitioner made a representation against his order of detention under COFEPOSA
He was produced before the Advisory Board under that Act and pursuant to the recommendation of the Advisory Board his detention Under COFEPOSA was revoked
The petitioner was also produced before the same Board being also the Advisory Board under the National Security Act
The petitioner did not make any representation against his detention under that Act as according to him he was confused and believed that his detention was only under COFEPOSA
It appears that the Advisory Board confirmed the order of his detention
On 24th January 1986 an order was passed by the Under Secretary to the Government of Punjab Home Department setting out that the President of India in exercise of powers conferred on him under Sub Section  1 of Section 12 read with Section 14 A 1 2 c  d of the No 65 of 1980 as amended confirmed the aforesaid order of detention and was pleased to order that the petitioner would continue to be detained in the custody of the Inspector General of Prisons Punjab for a period of two years from the date of his detention
The petitioner made a representation dated 18th December 1986 through his Advocate addressed to the President of India for revocation of his detention
On 24th December 1986 the petitioner made a representation to the Special Secretary to the Government of Punjab Department of Home Affairs and Justice against his detention
In this representation the petitioner inter alia contended that his detention was invalid as vital facts and materials that should have influenced the minds of the declaring authority and the detaining authority had not been placed before them
Both the representations made by the petitioner were rejected on 26th February 1987
According to the respondent the representation made to the Special Secretary Government of Punjab was 460 received on 14th January 1987
But according to the petitioner it was received by the Special Secretary on 30th December 1986
In support of this contention the detenu has produced an acknowledgement slip along with a copy of his representation
We propose to proceed on the assumption that the representation was received by the Special Secretary on 14th January 1987 because even on that assumption the petitioner in our opinion must succeed in the petition
In the petition the petitioner has challenged the order of detention passed against him under the on various grounds including the ground that Section 14 A of the is void as violating the Constitution of India
We propose to dispose of the petition only on one ground namely that there was inordinate delay in consideration of the representation made by the petitioner to the Government of Punjab through Special Secretary and hence we do not propose to discuss the other grounds urged by the petitioner
We may mention here that as far as representation made by the petitioner to the Central Government by his Advocate s letter addressed to the President of India is concerned we do not propose to enter into any controversy regarding that representation as the Union of India has not been joined as a party to the petition
The contention of the petitioner on the basis of which we propose to dispose of this petition is that he made a representation to the Government of Punjab on 18th December 1986
That representation as per admission of the Government of Punjab was received on 14th January 1987 and there was undue delay in disposing of that representation which was rejected on 26th February 1987 as aforesaid
According to the petitioner there is no justification for this delay and on account of this delay the rights of the petitioner under Article 225 of the Constitution of India have been violated and the continued detention of the petitioner is not valid in law
Coming to the affidavit filed by Shri VV Chadha Under Secretary to the Government of Punjab in this connection we may point out that apart from saying that the representation made by the petitioner as aforesaid was received on 14th January 1987 no explanation whatever is given as to why it took over a monty and ten days to consider and dispose of that representation
It has been repeatedly laid down that in a matter of detention the representation made by the detenu should be disposed of with utmost expedition and failure to do so vitiates the order of detention because it infringes the fundamental right given to every citizen under Article 225 of the Constitution of India
In support of his arguments learned counsel for the petitioner 461 drew our attention to the decision of this Court in Saleh Mohammed vs Union of India where a delay of 22 days in considering the representation of the detenu was held to be inordinate and unreasonable
It was held that this delay violated the rights of the petitioner under Article 225 of the Constitution of India and vitiated the detention order
In that case the detention order was under COFEPOSA and the detenu was arrested on 21st January  1980
On 20th February 1980 the detenu made a representation to the detaining authority through Superintendent of Jail
On 25th February 1980 he was produced before the Advisory Board
On 10th March 1980 his detention was confirmed by the State Government and on 26th March 1980 his representation was rejected by the State Government
In the affidavit filed by the respondent in that case it was contended that the representation of the detenu made on 20th February 1980 was received in the Home Department on 14th March 1980
It has been pointed out by this Court in that case that Times out of number this Court has emphasised that where the liberty of an individual is curtailed under a law of preventive detention the representation if any made by him must be attended to dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 225 of the Constitution and the statute concerned should be stultified and rendered meaningless
 It was held that the functionaries of the state were guilty of gross negligence in dealing with and disposing of the representation of the detenu
The delay of about 22 days during which time the representation of the detenu remained unattended in the office of the Suprintendent of Jail or Inspector General of Prisons was to be held as inordinate
In Harish Pahwa vs State of UP  ors
 19811 3 SCR 276 it has been pointed out by this Court that it does not look with equanimity upon delays in considering the representations of detenus
Where the liberty of a person is involved it is the duty of the State to determine his representations with the utmost expedition and deal with it continuously until a final decision is taken and communicated to the detenu
In that case the representation of the detenu was received by the State Government on 4th June 1980
The detention was under COFEPOSA
Comments were called for from the Customs authorities on 6th June 1980 and the comments were received on 13th June 1980
462 On 17th June
1980 the State Government referred the representation A to its Law Department for is opinion which was furnished on 19th June 1980
The representation was rejected on 24th June 1980
The rejection was communicated to the jail authorities two days later
The writ petition filed by the petitioner was dismissed by the High Court
The aforesaid principles were reiterated by this Court on an appeal preferred by the detenu against the decision of the High Court
It was held in that case that there was no explanation given by the Government as to why no action was taken on the representation of the detenu on 4th 5th and 25th June 1980 and what consideration was given by the Government to it from 13th June 1980 to 16th June1980
On that ground it was held that there was inordinate delay in considering the representation of the detenu and the detention became bad in law
In the light of these decisions in the present case it must be held that the delay in dealing with the representation of the petitioner which was admittedly received by the Government on 14th January 1987 and rejected as late as on 26th February 1987 must be considered as inordinate delay in dealing with the representation
No explanation is given in the counter affidavit as to why the representation could not have been dealt with and disposed of earlier and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation
It was contended by the learned counsel for the respondent that the representation made by the detenu to the Special Secretary Government of Punjab was invalid as the Advocate who sent the representation had no authority to make that representation
It was submitted by him in the alternative that the delay in dealing with the representation was on account of the fact that it was made by a person claimed to be the Advocate of petitioner but whose authority was not checked
In our view neither of these contentions can be upheld
These contentions have not been taken up in the counter affidavit and cannot be urged merely at the hearing of the petition
There is nothing in law which prevents a representation being made by an Advocate on behalf of the detenu
If there was any difficulty on that ground enquiries should have been made with the Advocate as to what was his authority to represent the detenu and no such enquiry has been made in the present case
Thus in the present case the fact that the representation was made by the Advocate does not explain the delay in dealing with that representation and cannot constitute any explanation for the delay in dealing with it
463 lt was next sought to be contended by learned counsel for the respondent that the delay in dealing with the representation had caused no prejudice to the petitioner because it admitted that he preferred a writ petition against his detention to the Punjab  Haryana High Court and that writ petition was dismissed by the High Court
In our view this submission also cannot sustain order of detention
It is true that the writ petition preferred by the petitioner to the Punjab and Haryana High Court was dismissed but we are informed that a Special Leave Petition filed against that decision is pending in this Court
Moreover at the time when the writ petition was dismissed the petitioner had not made any representation to the State Government at all and hence the dismissal of his writ petition by the High Court cannot be regarded as any substitute for consideration of his representation by the State Government which unlike the Court might be entitled to go into the factual merits of the grounds forming the basis of detention order
In support of his contention learned counsel for the respondent sought to rely on the decision of this Court in Smt
Asha Keshavrao Bhosale vs Union of India  Anr  in which case it was held that the delay of about two months in disposal of the representation made by the petitioner on behalf of the detenu to the Chief Minister against his order of detention did not vitiate the order of detention
That case however is of no assistance to the respondent because it turns on its own facts
A detailed representation was made in that case by the Secretary Khed Taluka Maratha Seva Sangh which espoused the cause of the detenu and challenged the detention
That representation was received on 29th November 1984 in the Secretariat of the Chief Minister
It was forwarded to the Home Department on 3rd December 1984 and disposed of expeditiously namely on 12th December 1984
The rejection of that representation was communicated on 13th December 1984
The High Court which dismissed the petition of the detenu had considered the contents of both the representations and held that the representation made by the petitioner was the second one and based yon the same grounds and delay in disposing of that representation did not prejudice the case of the detention
That conclusion was confirmed by the Supreme Court
The facts in this case are nowhere comparable to the facts of that case and hence the principles laid down in that case have no application to the case before us
It was for the aforesaid reasons that the order setting aside the order of detention was passed by us as stated earlier
NPV Petition allowed


Summary:
In 1945 the first respondent Trustees of Port of Bombay granted lease of plot owned by them for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs 925
In 1946 the lessee erected a permanent godown
In 1958 he granted lease of the said godown to the petitioners
The first respondent filed a suit against the heirs of the original lessee for eviction on the ground of termination of tenancy and obtained a decree
When warrant of possession was sought to be executed the petitioners obstructed the execution of the decree
The first respondent thereupon took out a Chamber Summons for removal of obstruction under order 21 Rule 97 101 CPC
The petitioners contended that as they were lessees under the original lessee they were entitled to protection of the Bombay Rent Hotel and Lodging Houses Rates Control Act 1947 the Bombay Rent Act which applied to the building erected by a lessee from the local authority
The trial court rejected the petitioners  objection and allowed the Chamber Summons
The appeal of the petitioners was dismissed by the Single Judge of the High Court holding that they were not entitled to the benefit of the Bombay Rent Act
The contentions arising out of the Easement Act and alleged acquiescence of the first respondent were negatived
The Letters Patent Appeal was also dismissed by the Division Bench
On the question whether the petitioners were entitled to protection under section 41a of the Bombay Rent Act
484 dismissing the Special Leave Petition  HELD Where a building was erected by the lessee not pursuant to or not under any agreement with the lessor then the case did not fall under section 41a of the Bombay Rent Hotel and Lodging Houses Rates Control Act 1947
486G Section 41 gives immunity to the local authority in respect of the land which it has let out to the lessee and that immunity cannot be taken away merely because the lessor on his own volition and without being in obligation under any agreement choses to put up structures on that land
Therefore if the premises belonged to the Government or a local authority then the Act would not apply
486H 487A D In the instant case The lands belong to the local authority but the structures were put on by the lessees of the first respondent not under any building lease and such protection cannot be claimed in respect of these premises
In view of the fact that the original lease was only a monthly tenancy and not a building lease the High Court was right in dismissing the objections on behalf of the petitioners
Since the petitioners have been in possession of the premises for some time the petitioners are allowed to continue to remain in the premises upto 15th September 1988
489F H Kanji Manji vs The Trustees of the Port of Bombay 1962 Suppl
3 SCR 461 applied