ition Criminal No 359 of 1989
Under Article 32 of the Constitution of India
Dr Shankar Ghosh Ashok Ganguli Md Nizamuddin and Ms Mridula Ray for the Petitioner
VC Mahajan A Subba Rao and P Parmeshwaran for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
Mr Kubic Dariusz a Polish national holding a Polish passport arriving Calcutta by air from Singapore via Bangkok was arrested on 2941989 under sec tion 104 of the Customs Act by the officers of the Customs Department attached to Calcutta Airport on the ground that he was carrying in his possession foreign gold weighing about 70 tolas
On 3041989 he was produced before the Chief Judicial Magistrate Barasat who remanded him to jail custody till 15th May 1989
He was interrogated by Intelli gence officer when he made corrected and signed his state ments in English
His application for bail was rejected by the Chief Judicial Magistrate
While still in custody he was served with the impugned detention order dated 1651989 passed under section 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act herein after referred to as the COFEPOSA Act along with the grounds of detention
On 245
1989 he was granted bail by the Calcutta High Court but the same could not be availed of because of the detention order which is now being challenged in this petition
102 The detention order was passed with a view to preventing the detenu from smuggling goods and it stated that the detaining authority namely the Additional Secretary to the Government of India in the department of Revenue Ministry of Finance was satisfied that the detenu was likely to smuggle goods into and through Calcutta Airport which was an area highly vulnerable to smuggling as defined in Explana tion 1 to section 91 of the COFEPOSA Act
In the grounds of detention it was stated inter alia that arriving at Calcutta by Thai Airways the detenu opted for the green Channel meant for the passengers not having any dutiable andor prohibited goods for customs clearance and proceeded towards the exit gate that he declared that he did not have any gold with him but on search 7 gold bars weighing 70 tolas valued approximately at Rs271728 deftly concealed between the inner soles of the left and right sports shoes in specially made cavities were recovered that in his voluntary statement before the customs officer he admitted the recovery that he had been able to learn English as he was with some English people during the period of 2nd Ke dardham Expedition or Kedarnath Dham Expedition in the year 1987 and he was also learning English when he was in France in the year 1985 that scrutiny of his passport revealed that he visited Delhi on 621989  212
1989 Trichi on 2241989 and Calcutta on 2941989 that he admitted to have been in India in 1986 1987  1988 and that on chemi cal tests the sample was found to be containing 999 of gold
Shankar Ghosh the learned counsel for the petitioner assails the detention order primarily on two grounds name ly that the detenu knew only the Polish language and did not know English wherefore he was unable to read and be informed of the grounds of detention given in English and he was not given the grounds of detention in a language under stood by him so as to enable him to defend himself and that the representation submitted by him was not considered acted upon or replied to at all by the detaining authority wherefore the detention order was liable to be quashed as violative of Article 225 of the Constitution of India
Mr VC Mahajan the learned counsel for the respond ents emphatically refutes the first ground submitting that the detenu was conversant with the English language as would appear from the answers to the questions put to him in course of interrogation by the Intelligence authorities and this was clearly stated in the grounds of detention and consequently there arose no question of his being furnished with the grounds of detention in Polish and not in English 103 language
Refuting the second submission Mr Mahajan submits that the so called representation dated 1361989 addressed to the Chairman Central Advisory Board COFEPOSA through the Superintendent Central Jail Dum Dum Calcutta was duly sent to and received by the Chairman and the detenu appeared before the Advisory Board which after hearing the detenu found sufficient cause for his detention and there was therefore no question of the representation being separate ly dealt with by the Central Government
Besides Mr Maha jan submits had the detaining authority accepted the state ment that the detenu did not know English they would have been in a trap
Counsel would also submit that the so called representation dated 1361989 was not a representation to the appropriate Government against the detention and could not be treated as such
Taking up the first submission we find that Article 225 of the C of India provides that when any person is detained inpursuance of an order made under any law provid ing for preventive detention the authority making the order shall as soon as may be I communicate 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 settled law that the communication of the grounds which is required by the earlier part of the clause is for the purpose of enabling the detenu to make a representation the right to which is guaranteed by the latter part of the clause
A communication in this context must therefore mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed that is of the prejudi cial acts which the authorities attribute to him
Such a communication would be there when it is made in a language understood by the detenu as was held in Harikisan vs The State of Maharashtra  In Razia Umar Bakshi vs Union of India  Fazal Ali J held that the service of the grounds of detention on the detenu was a very precious constitutional right and where the grounds were couched in a language which was not known to the detenu unless the contents of the grounds were fully explained and translated to the detenu it would tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie
In Nainmal Partap Mal Shah vs Union of India the detenu stated that he did not know the English language and therefore could not under stand the grounds of detention nor he was given a copy of the grounds duly translated in 104 vernacular language
In the counter affidavit the detaining authority suggested that as the detenu had signed a number of documents in English it must be presumed that he was fully conversant with English
Rejecting the contention it was held by this Court that merely because he may have signed some documents it could not be presumed in absence of cogent material that he had working knowledge of English and under those circumstances there had been clear violation of the constitutional provisions of Article 225 so as to vitiate the order of detention
Thus what was considered necessary was a working knowledge of English or full expla nation or translation
In Surjeet Singh vs Union of India   the petitioner being served the detention order and the grounds in English contended that English was not a language which he under stood and that this factor rendered it necessary for the grounds of detention to be served on him in Hindi which was his mother tongue and that the same having not been done there was in law no communication of such grounds to him and it was held that under those facts and circumstances it had not been shown that the petitioner had the opportunity which the law contemplated in his favour of making an effec tive representation against his detention which was there fore illegal and liable to be set aside
Where it is stated that the detaining authority ex plained the grounds of detention to the detenu Court in sists on adequate proof in the absence of any translation being furnished
Thus in Lallubhai Jogibhai Patel vs Union of India  Ors   the detenu did not know English but the grounds of detention were drawn up in Eng lish and the detaining authority in affidavit stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu
Admittedly no translation of the grounds of detention into Gujarati was given to the detenu
It was held that there was no sufficient compliance with the mandate of Article 225 of the Constitution which required that the grounds of detention must be communicated to the detenu
Communicate is a strong word
It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands so as to enable him to make a purpose ful and effective representation
If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 225 is infringed
This follows from the decisions in Harikisan vs State of Maharashtra supra and Hadibandhu Das vs District Magistrate 1969 1 SCR  105 Mr Ghosh relies on the decision in Ibrahim Ahmad Batti vs State of Gujarat   wherein the detenu under the COFEPOSA Act was a Pakistani national to whom the detention order and the grounds of detention were served in English and he contended that as he did not know English and the grounds of detention and the document relied on were not furnished in Urdu within the statutory period the detention was bad
Urdu translation of all the documents and state ments referred to in the grounds for reaching the subjective satisfaction had not been supplied to the detenu in time and translations of quite a few of such documents and statements had not been supplied at all
The petitioner s mother tongue seemed to be Urdu and a little knowledge of English figured
It was evident that the petitioner knew English figures understood English words written in capital letters and was also conversant with talking in Hindi and Gujarati and therefore it was argued for the detaining authority that the non supply of Urdu translation of the documents could not be said to have caused prejudice to the petitioner in the matter of making representation against his detention
This Court held that the Explanation was hardly satisfactory and could not condone the non supply of Urdu translation of those documents
In that case with the assistance of counsel of either side the Court had gone through many of those documents and statements and for the Court it was not possi ble to say that most of them were statements of accused containing figures in English with English words written in capital letters
A large number of documents were in Hindi and Gujarati and were material documents which had obviously influenced the mind of the detaining authority in arriving at the subjective satisfaction and those were all in a script or language not understood by the detenu and there fore it was held that the non supply of Urdu translation of those documents had clearly prejudiced the petitioner s right against his detention and hence the safeguards con tained in Article 225 was clearly violated
In the instant case the basis of the statement that the detenu did not know English is his representation dated 1361989 that is nearly one month after his detention
An English rendering of the representation is found at page 75 of the Writ Petition which is attested to have fully corre sponded to its original in Polish language
It is signed by the detenu and is addressed to the Chairman Central Adviso ry Board COFEPOSA High Court of Delhi through the Super intendent Central Jail Dum Dum Calcutta
It reads Ref Govt
of India Finance Department and Revenue Department Order No F No 67332289 CUS VIII dated 1605
1989 106 SUPREME COURT REPORTS 1990 1 SCR Sub Representation against my detention under COFEPOSA Respected Chairman 1
I am a Polish national
I do not know any other language except Polish language
I cannot speak write and read English language and do not know small English letters
I know how to write my name in Block letters
I have received all the documents concerning the above mentioned case in English language and for the fact that I do not know that language the documents were so complicated for me to understand
In view of the above facts I kindly request your goodself to provide me with the order of detention together with the grounds of detention in my language Polish lan guage so that I can effectively present my defence
 While it is the settled law that the detention order the grounds of detention and the documents referred to and relied on are to be communicated to the detenu in a language understood by him so that he could make effective represen tation against his detention the question arises as to whether the courts have necessarily to accept what is stated by the detenu or it is permissible for the Court to consider the facts and circumstances of the case so as to have a reasonable view as to the detenu s knowledge of the language in which the grounds of detention were served particularly in a case where the detenu is a foreign national
If the detenu s statement is to be accepted as correct under all circumstances it would be incumbent on the part of the detaining authority in each such case to furnish the grounds of detention in the mother tongue of the detenu which may involve some delay or difficulty under peculiar circum stances of a case
On the other hand if it is permissible to ascertain whether the statement of the detenu in this regard was correct or not it would involve a subjective determina tion
It would of course always be safer course in such cases to furnish translations in the detenu s own language
We are of the view 107 that it would be open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is reigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished
In the instant case we find that when the detention order and the grounds of detention were served the detenu received them and acknowledged the receipt thereof as it appears from the records putting his signature in English
He did not complain that the grounds of detention were not understood by him
On the other hand in the very grounds of detention it was stated that in course of interrogation he answered the questions in English including the questions as to how he happened to learn English
The gist of his answers in this regard was also given in the grounds of detention
We have perused the statements and find that those contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogators unless he knew the English language
We also find that in several places he corrected the statements putting appropri ate English words and signing the corrections
While the detention order was passed on 16 5 1989 his representation was admittedly dated only 13 6 1989
In the meantime bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court
There is nothing to show that he did not give instructions to his counsel
After all the detenu is not required to write an essay or pass any lan guage test
A working knowledge of English enabling him to understand the grounds would be enough for making a representation
He could very well send his representation in the language known by him
In Parkash Chandra Mehta vs Commissioner and Secretary Government of Kerala  Ors   Venilal D Mehta his daughter Miss Pragna Mehta and son Bharat Mehta were detained under the COFEPOSA Act by an order dated 19th June 1984 and the detention order was challenged in this Court under Article 32 of the Constitution of India
They were alleged to have been in possession of 60 gold biscuits of foreign origin
After their arrest the father and his daughter were taken to the Central Excise and Customs De partment Cochin where statements on their behalf were written in English by the daughter
The father Venilal D Mehta put his signature in English as Balvant Shah but the daughter told the officers concerned that the correct name of her father was Venilal Mehta
In the writ petition it was the case of the father that he could not understand read speak or write English but could only sign his name in English
He was served 108 with the grounds of detention in English language on 20th June 1984
A Hindi translation of the grounds of detention was served on 30th June 1984
On 27th May 1984 the father made a representation in Gujarati to the detaining authority praying that he was unable to read and write either in English or Hindi or Malayalam and the grounds of detention may be given to him duly translated in Gujarati
In Court it was contended that the order and grounds should have been communicated to the detenu in the language or languages they understood and Venilal Mehta understood nothing except Gujarati
He did not understand English or Hindi or Malaya lam
The Hindi translation was admittedly furnished beyond a period of 5 days and no exceptional circumstances were stated to exist
Following Harikisan vs State of Maharashtra supra and considering the definite case of Venilal Mehta this Court observed that the facts revealed that the detenu Venilal Mehta was constantly in the company of his daughter as well as son and both of them knew English very well
The father signed a document in Gujarati which was written in English and which was his mercy petition in which he com pletely accepted the guilt of the involvement in smuggling
That document contained a statement I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold
 On those facts and circum stances this Court observed There is no rule of law that common sense should be put in cold storage while considering Constitutional provisions safeguards against misuse of powers by authorities though these Constitutional provisions should be strictly con strued
Bearing in mind this salutary principle and having regard to the conduct of the detenu Venilal Mehta especially in the mercy petition and other communications the version of the detenu Venilal in feigning lack of any knowledge of English must be judged in the proper perspective
He was however in any event given by 30th June 1984 the Hindi translation of the grounds of which he claimed ignorance
The gist of the annexures which were given in Malayalam language had been stated in the grounds
That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth
He goes to the extent that he signed the mercy petition not knowing the contents not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a 109 time when he was under arrest his room had been searched gold biscuits had been recovered from him
Court is not the place where one can sell all tales
The detaining authority came to the conclusion that he knew both Hindi and English
It had been stated so in the affidavit filed on behalf of the respondent
We are of the opinion that the detenu Veni lal Mehta was merely reigning ignorance of English After referring to the decisions in Hadibandhu Das vs District Magistrate Cuttack  Anr supra Nainmal Partap Mal Shah vs Union of India  Ors
supra and Ibrahim vs State of Gujarat  Ors
supra this Court in Prakash Chan dra Mehta supra rejected the contention that the grounds of detention were not communicated to Venilal Mehta in a language understood by him
Considering the facts and circumstances of the instant case and in view of the fact that no objection regarding non communication of the grounds in a language understood by the detenu was made within the statutory period for furnish ing the grounds and the fact that the representation was beyond the statutory period almost a month after the grounds were served along with the detenu s statements as to how he learnt English we have no hesitation in holding that the detenu understood the English language had working knowledge of it and was reigning ignorance of it and there was no violation of Article 225 of the Constitution on the ground of non communication of the grounds of detention in a language understood by him
The first submission of the detenu has therefore to be rejected
Coming to the second submission in the representation dated 136
1989 the detenu clearly requested that he be provided with the order of detention together with the grounds of detention in his language Polish language so that he could effectively present his defence
He called it a representation against his detention under COFEPOSA Act
Admittedly this representation was not disposed of by the appropriate Government and indeed has not been disposed of or acted upon till today
Mr Mahajan submits that it having been addressed to the Chairman Central Advisory Board it need not have been dealt with by the Central Government and it could not be regarded as representation at all and the Government smarted out of the trap by not admitting that the detenu did not know English
We are not inclined to accept this submission
Admittedly the representation was sent through the Superintendent Central Jail Dum Dum 110 Calcutta
There was no scope to hold that what has been stated to be representation  was not representation at all inasmuch as it only requested for translated copies of the grounds of detention and the annexed documents in Polish language
Supply of translated copies would have surely not affected the detention order ipso facto
In Smt
Shalini Soni vs Union of India  19811 SCR 962 it has been held that under Article 225 no proforma for representation has been prescribed and a request for release of the detenu therefore has to be deemed a representation so also a request to supply copies of documents etc
Oppor tunity to make a representation comprehends a request for supply of translated copies
Therefore the detenu s repre sentation  asking for copies of documents must be held to have amounted to a representation and it was mandatory on the part of the appropriate Government to consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order
There has been a catena of decisions of this Court that the representation of the detenu must be considered by the appropriate Government and Article 225 does not say which is the authority to whom representation shall be made or which authority shall consider it
But it is indisputable that the representation may be made by the detenu to the appropriate Government and it is the appropriate Government that has to consider the representation as was reiterated in John Martin vs State of West Bengal  3 SCR 211
It is settled law that delay in disposing the represen tation when inordinate and unexplained the detention would be bad and the detenu must be ordered to be released forth with
Chandroo Kundan vs Union of India AIR 1980 SC 1123 Pabitra N Rana vs Union of India   Saleh Mohammed vs Union of India  Kamla Kanyalal Khusahalani vs State of Maharashtra  are some of the decisions settling this proposition of law
In Rattan Singh vs State of Punjab  Ors   it was held that section 111 of the COFEPOSA Act confers upon the Central Government the power of revocation of an order of detention made by the State Government or its officer
That power in order to be real and effective must imply the right in a detenu to make a representation to the Central Government against the order of detention
The failure of the Jail Superintendent to either forward the representation to the Government concerned or to have for warded the same to the State Government with a request for their onward transmission to the Central Government in that case was held to have 111 deprived the detenu of his valuable right to have his deten tion revoked by the Government
The continued detention of the detenu was
therefore held illegal and the detenu was set free
In the instant case though the representation was addressed to the Chairman Central Advisory Board the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advi sory Board and the same having not been done Article 225 has to be held to have been violated
In Kirit Kumar Chaman Lal Kundaliya vs Union of India  Ors 1981 2 SCC 426 a case under the COFEPOSA Act where the order of detention was made by the Home Minister and the representation made by the detenu had been rejected not by the Home Minister but by the Secretary this Court held that the representation had been rejected by an authority which had no jurisdiction at all to consider or pass any order on the representation of the detenu and that therefore ren dered a continued detention of the petitioner void follow ing Santosh Anand s case  where it was held that the representation was not rejected by the detaining authority and as such the constitutional safeguards under Article 225 could not be said to have been strictly ob served or complied with
In B Sundar Rao  Ors
vs State of Orissa  where the detention was under the Orissa Preventive Detention Act 1970 and sections 7  11 thereof conferred the right on the detenu to make represen tation and have it considered by appropriate authority it was held that such consideration was independent of any action of Advisory Board as there was necessity of Govern ment to form opinion and judgment before sending the case to the Advisory Board
In Vimalchand Jawantraj Jain vs Shri Pradhan  Ors
   it was held by this Court that under Article 225 independent of the reference to the Advisory Board the detaining authority must consider the representa tion at the earliest and come to its own conclusion before confirming the detention order and consideration and rejec tion of the representation subsequent to report of the Advisory Board would not cure the defect
It was clearly held that it is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board had considered the representation and then made a report in favour of deten tion
Even if the Advisory Board had made a report upholding the detention the appropriate Government is not bound by such opinion and it may still on considering the represen tation of the 112 detenu and keeping in view all the facts and circumstances relating to the case come to its own decision whether to confirm the order of detention or to release the detenu as in that case there was nothing to show that the Government considered the representation before making the order con firming the detention
The Constitutional obligation under Article 225 was not complied with
In the instant case there was no consideration before and even after the Adviso ry Board considered the case of the detenu
It can not therefore be said that the representation was disposed of in accordance with law
Mr Ghosh faintly submits on merits of the case that a single instance of possessing 70 tolas of gold in gold bars was not enough to genuinely satisfy the detaining authori ties to resort to preventive detention of the petitioner who is a Polish national and not resident in India
It is true that the detention order was passed with a view to prevent ing the detenu from repeating smuggling activities
That the detenu in the particular act indulged in smuggling could not of course be denied
It is stated in the counter that the detention of persons under the COFEPOSA Act serves two purposes 1 to prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foreign exchange and also preventing him from smuggling activities and thereby to render him immobile by the detain ing authority so that during that period the society is protected from such prejudicial activities on the part of the detenu and 2 to break the links between the persons so engaged and the source of such activity and from his associates engaged in that activity or to break the continu ity of such prejudicial activities so that it would become difficult if not impossible for him to resume the activi ties
There is undoubtedly scope for interpreting that the above two purposes envisage continuous residence of the person engaged in smuggling and as such may be more readily applicable to a resident of the country
But such habitual smuggling activity may not have similarly been envisaged in respect of a foreign national who is not a resident of this country
The customs Act itself makes appropriate provisions for adjudication confiscation and punishment for smuggling and prevents possible repetition or recurrence
Preventive detention of a foreign national who is not resident of the country involves an element of international law and human fights and the appropriate authorities ought not to be seen to have been oblivious of its international obligations in this regard
The universal declaration of human fights include the fight to life liberty and security of person freedom from arbitrary arrest and detention the right 113 to fair trial by an independent and impartial tribunal and the right to presume to be an innocent man until proved guilty
When an act of preventive detention involves a foreign national though from the national point of view the municipal law alone counts in its application and interpre tation it is generally a recognised principle in national legal system that in the event of doubt the national rule is to be interpretted in accordance with the State s interna tional obligations as was pointed out by Krishna Iyer J in Jolly George Verghese vs The Bank of Cochin  There is need for harmonisation whenever possible bearing in mind the spirit of the Covenants
In this context it may not be out of place to bear in mind that the funda mental rights guaranteed under our Constitution are in conforming line with those in the Declaration  The Covenant on Civil and Political Rights and the Covenant Economic Social and Cultural Rights to which India has become a party by ratifying them
Crimen Trahit personam
The crime carries the person
The commission of a crime gives the court of the place where it is committed jurisdiction over the person of the offender
Legal relations associated with the effecting of legal aid on criminal matters is governed in the interna tional field either by the norms of multilateral interna tional conventions relating to control of crime of an inter national character or by special treaties concerning legal cooperation
Smuggling may not be regarded as such a crime
The system of extradition of criminals represents an act of legal assistance by one State the requestee to another State the requestor with the aim of carrying out a crimi nal prosecution finding and arresting a suspected criminal in order to bring him to court or for executing the sen tence
In concluding such convention the States base them selves on principles of humanitarianism in their efforts to contribute to the more effective achievement of the objec tives of the correction and re education of violators of the law
Where such conventions exist the citizens of a State who were convicted to deprivation of freedom in another signatory State are in accordance with mutual agreement of States transferred to the country of which they are citizens to serve their sentences
The transfer of the convicted person may take place only after the verdict has entered into legal force and may be carried out on the initiative of either of the interested States
The punish ment decided upon with regard to a convicted person is served on the basis of the verdict of the State in which he was convicted
On the strength of that verdict the competent court of the State of which the person is a citizen adopts a decision concerning its implementation and determines in accordance with the law of its own State the same period of deprivation of freedom as was assigned under the verdict
While such ameliorative practices may be available in case of a foreign 114 national being criminally prosecuted tried and punished no such proceedings are perhaps possible when he is preventive ly detained
A preventive detention as was held in Rex vs Holiday 1917 AC 268 is not punitive but precautionary measure
 The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it
No offence is proved nor any charge is formulated and the justification of such deten tion is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence
In this sense it is an anticipatory action
Pre ventive justice requires an action to be taken to prevent apprehended objectionable activities
In case of punitive detention the person concerned is detained by way of punish ment after being found guilty of wrong doing where he has the fullest opportunity to defend himself while preventive detention is not by way of punishment at all but it is intended to prevent a person from indulging in any conduct injurious to the society
There may therefore be cases where while a citizen and resident of the country deserves preventive detention apart from criminal prosecution in case of a foreign national not resident of the country he may not be justifiably subjected to preventive detention in the event of which no international legal assistance is possible unlike is case of criminal prosecution and punish ment
Considering the facts and circumstances of the instant case however we find sufficient evidence of the detenu having visited this country though on earlier occasions he was not found to have been carrying on such smuggling activ ities
However in view of our decision in the earlier submissions we do not express any opinion on this submis sion
In the result we find force in the second submission and hold that continued detention of the detenu has been ren dered illegal by nonconsideration of his representation by the appropriate Government according to law resulting in violation of Article 225 of the Constitution and he is to be set at liberty forthwith in this case
RNJ Petition allowed


Summary:
The appellant Corporation assessed property tax in respect of buildings belonging to the respondent Market Committee which refused to pay the same
Proceedings were commenced for recovery of the dues
The respondent moved the High Court under Article 226 of the Constitution for quash ing the recovery proceedings
The High Court following its earlier decision arising under Section 334 of the MP Municipalities Act 1961 allowed the petition quashed the recovery proceedings and directed the Corporation to refer the dispute to the Govern ment under Section 415 of the MP Municipal Corporation Act 1956
Aggrieved by the aforesaid decision the Corporation appealed to this court
Allowing the appeal this Court HELD 1
The assessment of tax or demand of any fees by the Corporation under the provisions of the MP Municipal Corporation Act 1956 could fail within the term anything done or intended to be done under the Act as provided under Section 415 of the Act
Even 145 refusal of the Corporation to consider the objections against assessment and recovery of tax or fees could also be considered as anything done or intended to be done under the Act
But section 415 does not provide that the Corpora tion has to move the Government when the local authority has refused to pay the tax or fees levied and demanded
148GH 149A 2
The structure of section 415 of the MP Municipal Corporation Act 1956 is different from section 334 of the MP MuniCipalities Act 1961
Section 415 speaks of dispute between the Corporation and local authority as regards anything done or to be done under the Act
And such a dis pute shall be referred to the Government for decision
Section 334 refers to a dispute on a matter in which the Municipal Council and local authority are jointly interested and it states that such dispute shall be referred to the State Government for decision
Section 334 does not refer to the dispute as regards anything done or to be done under the Act
 Section 415 does not speak of any dispute in which the Corporation and the local authority are jointly inter ested
There are no rules framed for operation of section 415 while under section 334 the State Government has framed Rules
In view of these differences the view taken by the High Court that the Corporation must take steps to resolve the dispute cannot be justified
It has apparently no sup port either from the terms of section 415 or from any rules framed for the purpose
Therefore the recovery proceedings should not have been quashed by the High Court
And the Corporation should not have been directed to refer the dispute to the Government under section 415 of the MP Municipal Corporation Act 1956
150F H 151A Jawahar Krishi Upaj Mandhi Samiti Gadarwara  Anr
vs Municipal Committee Gadarwara  Anr
Petition No 994 of 1981 decided by the MP High Court on 551983 distin guished