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2009 (7) TMI 1223
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....he case of the co-detenu Iqbal Mohan Amritlal Mehra as well as the grounds on which the said detention order was issued in respect of the said co-detenu, have been placed on record as annexures P-3 and P-4 to the writ petition. It is the case of the petitioner that the grounds for detention in respect of the co-detenu Iqbal Mehra are virtually identical to the grounds for detention pertaining to the petitioner‟s husband. It was pointed out by the learned counsel that the co-detenu‟s matter was taken up by the Advisory Board and by an order dated 23.05.2001, the Central Government, after having considered the report of the Advisory Board, revoked the detention order and directed that Mr Iqbal Mehra be released from the COFEPOSA detention forthwith. The report of the Advisory Board revealed that the retraction of the co-detenu Mr Kiran Vora made on 28.02.2001 had not been placed before the detaining authority prior to the issuance of the detention order. According to the said report of the Advisory Board, the said document was a vital document which ought to have been placed before the detaining authority. The view taken by the Advisory Board was that the non- placement o....
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....ra on 24.02.2001 and 25.02.2001 as would be clear from paragraph 17 of the grounds of detention of the co-detenu Mr Iqbal Mehra. The earlier two statements, that is, of 30.08.2000 and 03.10.2000 had been retracted by Mr Kiran Vora on 13.02.2001. It is, thereafter, that the other two statements of 24.02.2001 and 25.02.2001 had allegedly been given by Mr Kiran Vora. However, even these two statements were retracted by Mr Kiran Vora on 28.02.2001 as would be apparent from the opinion of the Advisory Board in the case of Iqbal Mehra. It is the non-placement of this retraction dated 28.02.2001 which led to the revocation of the detention orders in respect of the co- detenus Iqbal Mehra and Kiran Vora. The learned counsel for the petitioner submitted that it is in the alleged statements of Mr Kiran Vora dated 24.02.2001 and 25.02.2001 that there are serious allegations against the petitioner‟s husband (Mukesh Vora) and it is in these statements that the latter‟s alleged role has been given in detail. Therefore, the retraction letter of 28.02.2001 retracting these statements was a material document insofar as Mukesh Vora was concerned. It is apparent from paragraph 25 of Iqbal....
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.... petitioner the only response to this submission that can be discerned from the counter-affidavit filed on behalf of the respondents is that the petitioner having absconded and thereby evaded the service of the detention order cannot be permitted to take this plea. He submitted that for whatever reasons, if a detention order is not served upon the proposed detenu for a great length of time, the detention order may itself lose relevance. This is so because the extreme measure of preventive detention is a permissive encroachment on the liberty of an individual provided there are clear reasons for such preventive detention. The objective of preventive detention is the prevention of the happening of certain prejudicial activities. If there is no history of any prejudicial activity in the interregnum between the making of the detention order and the number of years that have passed by, the link between the detention order and its object has severed. Therefore, in such a case, detaining a person after a lapse of a great length of time, would serve no purpose and the detention order ought to be set aside. 7. The learned counsel appearing on behalf of the respondents raised a preliminary ....
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....ith the grounds of detention of the petitioner‟s husband. Therefore, it cannot be stated with certainty as to whether the retraction was placed before the detaining authority or not. The learned counsel further submitted that, without prejudice to this submission, even if it is presumed that the retraction was not placed before the detaining authority, it will still have to be seen as to whether the retraction was a relevant document or not for considering the case of the petitioner‟s husband. 10. With regard to the second plea taken by the petitioner, the learned counsel for the respondents submitted that the petitioner cannot take advantage of his own wrong. He further submitted that this plea does not fall within any of the exceptions enumerated in the decision of the Supreme Court in Additional Secretary to the Government of India & Others v. Smt. Alka Subhash Gadia and Another : 1992 Supp (1) SCC 496. The learned counsel also relied upon the decision of the Supreme Court in the case of Naresh Kumar Goyal v. Union of India: (2005) 8 SCC 276. The learned counsel also submitted that in Gopa Manish Vora (supra) the principle laid down in Naresh Kumar Goyal (supra) was....
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....ance on Naresh Kumar Goyal (supra) as also on T. A. Abdul Rahman v. State of Kerala & Ors: (1998) 4 SCC 741 and Abdul Salam v. Union of India: (1990) 3 SCC 15. He submitted that in the context of the present case the delay in execution of the detention order is satisfactorily explained on the part of the respondents inasmuch as the petitioner has been absconding and has remained outside India for all these years. The detention order could not be served upon the petitioner on account of the conduct of the petitioner and not by reason of any failure on the part of the respondents. Thus, the learned counsel for the respondents submitted that the plea that the detention order had become stale with efflux of time and, therefore, had lost its relevance cannot be accepted. For all these reasons, the learned counsel urged this court to reject the writ petition. 13. In rejoinder, particularly to the plea of territorial jurisdiction, the learned counsel for the petitioner submitted that Article 226 of the Constitution of India as it stood prior to the 15th amendment, did not provide for the situs of the cause of action as a circumstance for deciding the territorial jurisdiction of a High Co....
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....d question." He submitted that in the present case we are concerned with an executive action and not a piece of legislation. Therefore, the decision in Kusum Ingots (supra) which, in any event, did not run counter to the submissions made on behalf of the petitioner, would not have any application in the present case, it being a case of a challenge to an executive action. 15. The learned counsel for the petitioner also placed reliance on a Division Bench decision of this Court in the case of Smt. Rama Devi v. K.A. Gafoor and Others: ILR (1976) I Delhi 72 wherein it was observed that "there can be and is really no doubt about the fact that High Court within whose territorial jurisdiction the order of detention is made and / or the person is detained will have jurisdiction". The learned counsel for the petitioner reiterated his submissions with regard to the merits of the matter and urged that the detention order be set aside. 16. Having set out the arguments of the counsel for the parties, we shall now take up for consideration the first issue with regard to the preliminary objection raised by the respondents on the ground of alleged lack of territorial jurisdiction of this Court i....
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....erson, authority or government was beyond the territory over which the High Court exercised jurisdiction then the said High Court could not issue a writ to such person, authority or government and consequently a writ petition seeking the issuance of such a writ would not be maintainable before such High Court. But, after the said decision in the case of Khajoor Singh (supra), as pointed out by the learned counsel for the petitioner, clause (1-A) was introduced, by way of the 15th amendment to the Constitution, in Article 226. This clause (1-A), as already pointed out, was subsequently was renumbered as clause (2) by the 42nd amendment to the Constitution. Article 226(2) reads as under: - "226 (2). The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." (underlining added) 17. It is obvious that by vi....
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....d on 02.07.2007 with which we are in full agreement. 18. The effect of the introduction of Article 226(2) is that those High Courts could also exercise jurisdiction under the said Article for issuing writs in relation to territories outside their normal jurisdiction provided the cause of action, in whole or in part, arose within their territorial limits. Article 226 (1) empowers a High Court to issue a writ to a person, authority or government located within its territorial limits irrespective of where the cause of action arose. On the other hand, Article 226(2) permits the High Courts to issue writs to persons, authorities or governments located beyond the territory of the State in which the High Court is located, provided a cause of action, in whole or in part, arises within the territory of the State. It is, therefore, clear that Article 226(2) operates as an extension of territorial jurisdiction of the High Court and not as a curtailment thereof. Article 226(2) supplements and does not supplant Article 226(1). 19. The learned counsel for the petitioner had placed strong reliance on the decision of the Supreme Court in the case of Kusum Ingots (supra). It must be noted that in....
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.... Supreme Court traced the legislative history of Article 226 (2) of the Constitution and, inter alia, concluded that:- "The effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article 226 of the Constitution." (emphasis supplied) 21. Thus, whether the present case is viewed from the standpoint of Article 226(1) or from the standpoint of Article 226(2), this Court would have territorial jurisdiction to entertain the present writ petition. 22. We now consider the arguments of the counsel on merits. As pointed out above, the petitioner had taken two pleas on the question of merits. The first plea was that the detention order was illegal since its inception inasmuch as a relevant and material document, namely, the retraction letter of Kiran Vora dated 28.02.2001 had not been placed/ considered by the detaining authority and that on the basis of this fact, the detention order of the co-detenus Iqbal Mehra and Kiran Vora had been revoked based upon the opinions of the Advisory Board. The second point urged on the part of the petitioner was that even if it be assumed that the deten....
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....udicial activity in the interregnum or not. This, we are afraid, is not a satisfactory answer. Going by the record, there is nothing to indicate that after the passing of the detention order on 13.03.2001, the proposed detenu Mr Mukesh Vora has indulged in any prejudicial activity. As observed in Gopa Manish Vora (supra) the whole object of preventive detention is to detain a person in order to prevent him from indulging in prejudicial activities. The detention, however, is based on his past conduct. Assuming that at the time when the detention order was passed, there may have been reason to do so, but the live link between the prejudicial activities and the purpose of detention has been snapped by the passage of time and the lack of any material on record to show that the proposed detenu has continued to indulge in such activities. 23. The learned counsel for the respondents stated that the petitioner‟s husband cannot take advantage of his own wrong inasmuch as it is he who has been absconding and has been avoiding arrest. On a similar plea being raised in Gopa Manish Vora (supra), this Court observed as under:- "It could be said that the passage of time between the ....
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....ry power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." (emphasis supplied) As observed in Gopa Manish Vora (supra) a plain reading of the above extract clearly indicates that the High Court in exercise of its powers under Article 226 is not precluded from entertaining g....
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....Anr: 2009 (1) JCC 49. (10) Rajinder Arora v. Union of India& Ors: (2006) 4 SCC 796; (11) T. A. Abdul Rahman v. State of Kerala & Ors: AIR 1990 SC 225; (12) Sayed Taher Bawamiya v. Joint Secretary to the Government of India: (2000) 8 SCC 630; (13) Naresh Kumar Goyal v. Union of India:(2005) 8 SCC 276;and (14) Deepak Bajaj (supra), this court followed the view taken by the Supreme Court in Deepak Bajaj (supra), after observing that it lays down the law accurately and elaborately and though the decision in Atam Parkash (supra) was later in point of time than the decision in Deepak Bajaj (supra), it had been rendered without noticing the decision in Deepak Bajaj (supra). Consequently, this Court took the view that a writ petition would be maintainable at the pre-execution stage even in circumstances other than those mentioned in Alka Gadia (supra). 26. We are bound by that view and, in any event, do not see any reason to adopt a different approach. 27. Thus, the fact that this writ petition is maintainable even at the pre-execution stage coupled with the fact that in the passage of over eight years since the passing of the detention order, there is no evid....