N Writ Petition Crl No 508 of 1989 etc
Under Article 32 of the Constitution of India
107 Harjinder singh RN Joshi A Acharjee Navin Malhotra Jagan M Rao and Raju Ramchandran for the Petitioners
VC Mahajan B Parthasarthy
P Parmeswaran and M Veerappa for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
A Division Bench of this Court while expressing the view that the decisions in JV Jain vs Shri Pradhan and Ors  and Om Prakash Bahl vs Union of India and Ors WP No 845 of 1979 decided on 15101979 Unreported require re consideration has referred these matters to the Constitution Bench
It is convenient at this point to refer to the statement of law laid down in the aforesaid two cases
In both the cases as in present case the persons were detained under the the Act 
The detenu made representation to the appropriate government
By then the Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu
The Government forwarded the detenu s representation to the Advisory Board
The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person
The Government after considering that report confirmed the order of detention
It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter in vs
J Jain case this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation
This view has been reiterated in the unreported judgement in Om Prakash Bahl case
The relevant facts of the present case may now be narrated On 1 December 1988 the officers of the Directorate of Revenue Intelligence upon getting information that the contraband gold has been secreted in the room occupied by KM Abdulla Kunhi searched the room in the presence of independent witnesses
Another person called 108 Mohammed Ali was also present inside the room
The officers recovered one Samsonite pouch and some bundles of the Indian currencies amounting to Rs 34800 from the table drawer in the room
Inside the said pouch there were five gold biscuits of 24 ct
purity and of foreign origin
under the Mahazar the officer seized the gold biscuits along with the Indian currency
On 24 February 1989 the State Government passed two separate orders of detention under Section 31iv of the Act directing the detention of KM Abdulla Kunhi the common petitioner in WP Crl No 508 of 1989 and SLP crl 2009 of 1989 and BL Mohammed Ali the common petitioner in WP Crl No 542 of 1989 and SLP Crl No 2117 of 1989
On 9 March 1989 Mohammed Ali was taken into custody
both of them were detained in Central Prison Banglaore
On 17 April 1989 the detenus made representations to the Government
The representations could not be immediately considered since they required translation and collection of information and comments from different authorities
In the meantime the case was referred to the Advisory Board which had its meeting on 20 April 1989
The Board considered the case of the detenus and reported that there was sufficient cause for their was unexplained delay in considering the representation of the detenu
Indeed counsel for the petitioners very fairly submitted that they are not raising the question of delay
They also did not argue that the rejection of the representation after the confirmation of detention was not an independent consideration
There are two constitutional safeguards namely clause 4 of Article 22 and clause 5 of Article 22
the former requires that if a detenu is liable to be detained for a longer period than three months his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention
The function of the Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution
Clause 5 of Article 22 provides that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be 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
The detenu has two rights under clause 5 of Article 22 of the constitution i to be informed as soon as may be of the grounds on 109 which the order of detention is based that is the grounds which led to the subjective satisfaction of the detaining authority and ii to be afforded the earliest opportunity of making a representation against the order of detention
There are also statutory safeguards with regard to detention of persons under the Act in tune with the Constitutional requirements
Section 3 of the Act provides power to make detention orders
Sub Section 1 speaks of authorities who are competent to make detention orders
Sub section 2 states that when an order of detention is made by the State Government or by an officer empowered by the State Government the State Government shall within ten days forward to the Central Government a report in respect of that order
Sub section 3 thereof provides that a person detained in pursuance of a detention order shall be furnished with the grounds of detention order as soon as may be but ordinarily not later than five days after the detention
But in exceptional circumstances and for reasons to be recorded in writing the grounds shall be furnished not later than fifteen days from the date of detention
Section 8 of the Act provides for reference of the detenu s case to the Advisory Board the Chairman and members of which shall possess the qualification specified in sub clause a of clause 4 of Article 22 of the Constitution
They must be persons who are or have been or are qualified to be appointed as Judges of a High Court
Clause b of Section 8 makes it obligatory for the Government to refer the case of the detenu to Advisory Board within five weeks from the date of detention
Clause c of Section 8 provides that the Board shall after considering the reference and other material place before it and after hearing the detenu if he desires to be heard in person give its report as to whether or not there is sufficient cause for the detention of the person concerned
The Board shall submit the report within eleven week from the date of detention of the person concerned
Clause f of Section 8 states that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the Government may confirm the detention order and continue his detention for such period as the Government deems fit subject to the maximum period permissible under the Act
In every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person the Government shall revoke the detention order and release the person forthwith
This provision of course is subject to Section 9 with which we are not concerned
110 Section 10 prescribes the maximum period for which any person may be detained
Section 11 provides power to the State Government or the Central Government to revoke the detention order without prejudice to the provisions of Section 21 of the General Clauses Act
This revocation shall not bar the making of another detention order under section 3 against the same person
It is now beyond the pale of controversy that the constitutional right to make representation under clause 5 of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation
Secondly the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government s obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government
It is implicit in clauses 4 and 5 of Article 22 that the Government while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation
It has to consider the representation on its own without being influenced by any such view of the Board
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references
The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law
The Board on the other hand considers the representation and the case of the detenu to examine whether there is sufficient case for detention
The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government
The right to have the representation considered by the Government is safeguarded by cl
5 of Article 22 and it is independent of the consideration of the detenu s case and his representation by the Advisory Board under cl
4 of article 22 read with section 8c of the Act
See Sk
Abdul Karim  Ors
vs State of West Bengal   Pankaj Kumar Chakrabarty  Ors
vs State of west Bengal   Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr   B Sundar Rao and Ors
vs State of Orissa  John Matrin vs State of West Bengal 1975 3SCR 211 SK Sekawat vs State of West Bengal and haradhan Saha  Anr
vs State of West Bengal and Ors
1975 The representation relates to the liberty of the individual the highly cherished right enshrined in Article 21 of our Constitution
111 Clause 5 of Article 22 therefore casts a legal obligation on the Government to consider the representation as early as possible
it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible
The words as soon as may be occuring in clause 5 of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay
However there can be no hard and fast rule in this regard it depends upon the facts and circumstances of each case
There is no period prescribed either under the Constitution or under the concerned detention law within which the representation should be dealt with
The requirement however is that there should not be supine indifference slackness or callous attitude in considering the representation
Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal
This has been emphasised and re emphasised by a series of decisions of the Court
See Jayanarayan Sukul vs State of West bengal 1970 1 SCC 219 Frances Coralie Mullin vs WC Kambra and Ors
   Rama Dhondu Borade vs VK Saraf Commissioner of Police and Ors and Aslam Ahmed Zahire Ahmed Shaik vs Union of India and ors
  In Jayanarayan Sukul case AN Ray J as he then was speaking for the Constitution Bench has laid down four principles which should govern the consideration of representation of detenus at p224 First the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible
Secondly the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board
Thirdly there should not be any delay in the matter of consideration
It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens
A citizen s right raised a correlative duty of the state
fourthly the appropriate 112 Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu s representation to the Advisory Board
If the appropriate Government will release the detnu the Government will not send the matter to the Advisory Board
If however the Government will not release the detenu the Government will send the case along with the detenu s representation to the Advisory Board
If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu
If the the Advisory Board will express any opinion against the release of the detnu the Government may still exercise the power to release the detenu
 In frances Coralie Mullin vs WC Khambra and Ors Chinappa Reddy J while dealing with the time imperative for consideration of the representation has emphasised at 279 We however hasten to add that the time imperative can never be absolute or obessive
The Court s observations are not to be so understood
There has to be lee way depending on the necessities we refrain from using the word circumstances  of the case
One may well imagine a case where a detenu does not make representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it
Several such situations may arise compelling departure from the time imperative
But no allowance can be made for lethargic indifference
No allowance can be made for needless procrastination 
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved
The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority
 In Frances Coralie Mullin s case the detenu s representation was received by the detaining authority on December 26 1979
Without any loss of time copy of the representation was sent to the customs 113 authorities for their remarks which was obviously necessary because the information leading to the order of detention was collected by the customs authorities
The fact were undoubtedly complex since allegation against the detenu revealed an involvement with an international gang of dope smugglers
The comments of the customs authorities were received on January 4 1980
The Advisory Board was meeting on january 4 1980 and so there could be no question of the detaining authority considering the representation of detenu before the board met unless it was done in a great and undue haste
After obtaining the comments of the customs authorities it was found necessary to take legal advice as the representation posed many legal and constitutional question so after consultation with the Secreatary Law and Judicial Delhi Administration the representation was finally rejected by the Administrator or January 15 1980
it was held that if there appeared to be any delay it was not due to any want of care but because the representation required a thorough examination in consultation with investigation agencies and advisers of law We agree with the observations in frances Coralie Mullin case
The time imperative for consideration of representation can never be absolute or obsessive
it depends upon the necessities and the time at which the representation is made
The representation may be received before the case is referred to the Advisory Board but there may not be time to dispose of the representation before referring the case to the Advisory Board
In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu
The representation may be received after the case of the detenu isreferred to the Board
Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings
In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board
Nor it could be said that the government has delayed consideration of the representation unnecessarily awaiting the report of the Board
It is proper for the Government in such situations to await the report of the Board
If the Board finds no material for detention on the merits andreports accordingly the Government is bound to revoke the order of detention
Secondly even if the Board expresses the view that there is sufficient cause for detention the Government after considering the representation could revoke the detention
The Board has to submit its report within eleven weeks from the date of detention
The Advisory Board may hear the detenu at his request
The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of 114 The High Court
It is therefore proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board
If the representation is received by the Government after the Advisory Board has made its report there could then of course be no question of sending the representation to the Advisory Board
It will have to be dealt with and disposed of by the Government as early as possible
The crucial question that remains for consideration is whether the Government should consider and dispose of the representation before confirming the detention
This Court in VJ Jain case has observed at 405 that it is a constitutional obligation under clause 5 of Article 22 to consider the representation before confirming the order of detention
if it is not so considered the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation
To reach this conclusion the Court has relied upon two earlier judgments of this Court i Khudiram Das vs State of West Bengal and Ors  and ii Khairul Haque vs State of West Bengal WP No24669 decided on 1091969Unreported
The decision in Khudiram case is of title assistance to the principle stated in VJ Jain case
It was a case of belated consideration of the representation without acceptable explanation
The decision in Khairul Haque case however relevant
It is also unreported decision
The facts of the case and the principles stated therein may be furnished
There the petitioner was detained by an order dated 5 June 1969 of the District Magistrate 24 Parganas West bengal under Section 32 of the 
He was arrested and detained in Dum Dum Central Jail on 6 June 1969
The District magistrate informed the State Government of his said order on 9 June 1969
On 14 June 1969 the Governor gave his approval and reported the case of the Central Government
On or about 23 June 1969 the Government received the representation of the petitioner
On 30 June 1969 the Governor referred the case of the petitioner to the Advisory Board
The Advisory Board made its report on 11 August 1969 to the effect that there was sufficient cause for the detention of the petitioner
Thereafter on 12 August 1969 the Governor confirmed the order of detention
On 29 August 1969 the Governor rejected the petitioner s representation
The Court while referring these facts said that there was unaccounted delay of little more than two months in the consideration of the representation 
Doubtless the detention was invalid on this delay alone and the Court could have quashed the 115 detention on that ground
But the Court however observed that it is doubtful whether the Government s consideration of the representation was independent as implicit in the language of Article 225
If the confirmation by the Government of the order of the District magistrate is made first and the Government rejects the representation thereafter such rejection is not an independent consideration but as the result of its decision to confirm the order of detention
It was also observed that the process of decision making has to be the other way about that is to say the Government must first consider the representation and only later decide whether it should confirm the order of the District magistrate on the basis of the report of the Advisory Board
The decision in Khairul Haque case has been followed in VJ Jain case which in turn was followed in Om Prakash Bahl case
There is no constitutional mandate under cl
5 of Article 22 much less any statutory requirement to consider the representation before confirming the order of detention
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention
Indeed there is no justification for imposing this restriction on the power of the Government
As observed earlier the Government s consideration of the representation is for a different purpose namely to find out whether the detention is in conformity with the power under the statute
This has been explained in Haradhan Saha case where Ray CJ speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law
There need not be a speaking order in disposing such representation
There is also no failure of justice by the order not being a speaking order
All that is necessary is that there should be real and proper consideration by the Government
It is necessary to mention that with regard to liberty of citizen the Court stands guard over the facts and requirement of law but Court cannot draw presumption against any authority without material
It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation
Secondly there may be cases where the Government has to consider the representation only after confirmation of detention
Clause 5 of Article 22 suggests that the representation could be received even after confirmation of the order 116 of detention
The words shall afford him the earliest opportunity of making a representation against the order  in clause 5 of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order before it is confirmed according to the procedure laid down under Section 8 of the Act
But if the detenu does not exercise his right to make representation at that stage but presents it to the government after the Government has confirmed the order of detention the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute
The confirmation ofthe order of detention is not conclusive as against the detenu
It can be revoked suo motu under Section 11 or upon a representation of the detenu
It seems to us therefore that so long as the representation is independently considered by the Government and if there is no delay in considering the representation the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention
Nor it could be presumed that such consideration is not an independent consideration
With all respect we are not inclined to subscribe to the views expressed in VJ Jain
Om Prakash Bahl and Khairul Haque cases
They cannot be considered to be good law and hence stand overruled
Counsel however submitted that the representation of the detenu was not sent to the Advisory Board for consideration
This question was not raised before the High Court nor in the Writ Petitions before us and hence rejected
These petitions will now be placed before the Division Bench for final disposal
NVK Petitions disposed of


Summary:
The appellant tenant executed a lease agreement of the demised premises on a standard rent of Rs 900 per month
In addition thereto the tenant also undertook to pay a lump sum of Rs 120 per month by way of education cess and other daxes in respect of the premises
The 1st respondent filed a suit for eviction of the tenant inter alia on the ground that he was in arrear of rent for more than six months and had failed and neglected to pay the amount within one month from the date of receipt of the notice served on him terminating the tenancy and for eviction
During the pendency of the suit section 123 of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 was amended whereby clauses a and b of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court s right to pass a decree of eviction on the ground of arrears of standard rent etc if the tenant paid or tendered in Court the arrears as stipulated in the amended clause
The appellant claimed that the said amendment had retrospective effect and he was entitled to the benefit thereof
The Trial Court dismissed the suit
The Court held that since the tenant had failed to pay or deposit the arrears claimed by the eviction notice within one one month from the receipt thereof he was liable to be evicted under section 123a of the Act but in view of the substituted section 123 he was entitled to protection he had paid the entire arrears together with interest and costs before the passing of the decree
On appeal the Appellate Court reversed the decree of the trial 52 Court
The Appellate Court held that the tenant having failed to pay arrears within one month of receipt of a valid notice he was liable to be evicted under section 123a of the Act since the amended section 123 was prospective in nature
The appellant tenant preferred a writ petition to the High Court which was dismissed on the ground of sub letting
Before this Court it was inter alia contended on behalf of the appellant that i since the tenant was obliged to pay the education cess and other taxes by way of permitted increases which were payable at the end of the year the case would not attract section 123a as a part of the rent became payable annually and not monthly and therefore the case attracted section 123b and ii the tenant having deposited the arrears etc in time the courts below were justified in granting and eviction decree for arrears of rent under section 123a
On the other hand it was contended on behalf of the respondent that the case was clearly governed by the provisions of section 123a since indisputably the rent inclusive of the quantified tax amount was payable by the month
It was argued that once the quantum in respect of the tax was determined by agreement between the parties same formed part of the rent and it was not open to contend that notwithstanding the agreement the tax amount remained payable by the year and the tenant was obliged to pay the same only after the landlord had paid the taxes to the local authority
Dismissing the appeal this Court HELD1 In view of the decision of this Court the case would be governed by section 123 as it stood before its amendment since the substituted section 123 was found to be prospective in nature
57G Arjun Khaimal Makhijani vs Jamnadas C Tuliani  followed
2 It is clear from the term of the lease agreement that the parties intended the tenancy to be a monthly tenancy
62C 3 The statutory right to recover the amount of education cess in respect of the demised premises from the occupanttenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education case
62E 53 4 It seems to be well settled that education cess is a part of rent  within the meaning of the ACt and when the same is claimed addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 57 of the Act and being payable on a year to year basis the rent ceases to be payable by the month within the meaning of section 123a of the Act
63D E Panchal Mohanlal Ishwardas vs Maheshwari Mills Ltd
1962  Prakash Surya vs Rasiklal Ishverlal Mehta  Vanlila Vadilal Shah vs Mahendrakumar J Shah AIR 1975 Guj 163 Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar1969 71 BLR 752 Bombay Municipal Corporation vs Life Insurance Corporation of India Bombay  5 If for convenience and to facilitate payment the parties by mutual consent work out an arrangement for the enforcement of the owner s statutory right to recover the tax amount and for discharging the tenant occupant s statutory obligation to reimburse the owner no reasons are seen for refusing to uphold such a contract and if the parties have agreed thereunder to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the total tax liability the said monthly payment would constitute rent  payable by the month within the meaning of section 123 a Act
64BC Vishwambar Hemandas vs Narendra Jethalal Gajjar AIR 1986 Guj
153 overruled
6 As the tenant had failed to comply with the requirement of section 123a to seek protection from eviction the Courts below were justified in ordering his eviction