KRISHNA MURARI AGGARWALA Vs. UNION OF INDIA

JUDGEMENT

(1.) BY an order dated 8/11/1974 passed by the District Magistrate, Badaun. the petitioner was detained under Section 3 (1)(a)(iii) of the Maintenance of Internal Security Act 1971 - hereinafter referred to as 'the Act' - because the allegations made in the grounds of detention disclosed that he had committed acts prejudicial to the maintenance of supplies and services essential to the community. The grounds of the order of detention were served on the petitioner by the District Magistrate, Badaun, on 13/11/1974. The State Government approved the order of detention on 19/11/1974 and made a report to the Government of India on 22/11/1974. According to the respondents, the Government of U. P. had made a reference to the Advisory Board constituted under the Act on 22/11/1974 but as it had not received the representation from the petitioner, the same was forwarded later. The representation, according to the respondents was received on 28/11/1974 which was rejected on 6/12/1974. The representation was sent to the Advisory Board on 18/12/1974 which gave its report holding that the grounds were suffcient for detention of the petitioner and after receipt of the opinion of the Advisory Board on 7/01/1975 the order of detention was finally confirmed by the Government on 17/01/1975.

(2.) WE might mention at the very outset that there was some controversy on two points before us. In the first place the petitioner did not accept the stand of the Government that the reference to the Advisory Board was made on 22/11/1974. but relied on a counter -affidavit flied by Mr. S. K. D. Mathur, the then District Magistrate of Badaun, in this Court to support his plea that the reference to the Advisory Board was made on 20/12/1974 vide para. 2 (vi) of the counter -affidavit appearing at page l18 of the Paper Book. It was therefore contended by the learned counsel for the petitioner that as the reference was made to the Advisory Board beyond the period mentioned in Section 10 of the Act, there being a violation of the mandatory provision of the statute, the order of detention fell on this ground alone. WE gave an opportunity to the Government to produce before us materials to show the exact position and from the original file produced before us we find that the counter -affidavit filed by Mr. S. K. D. Mathur in this Court to the effect that the reference was made to the Advisory Board on 20/12/1974 was factually incorrect and that the reference was really made on 22/11/1974 by the Government by virtue of letter No. 107/2/48/74. The file also contains a letter of the Registrar dated 7/01/1975 forwarding the opinion of the Advisory Board wherein also it was mentioned that the reference was made on 22/11/1974. In view of these cogent materials Mr. Sen learned counsel for the petitioner did not choose to press this point. WE cannot, however, leave this matter without expressing our strong disapprobation on the careless and irresponsible manner in which the counter affidavit has been filed by the respondents. particularly by Mr. S. K. D. Mathur who happened to be the then District Magistrate, Badaun. WE hope the Government will be careful in future and see that such incorrect affidavits are not filed before this Court, which may create unnecessary confusion and controversy and make a simple issue so very much involved.

(3.) SECONDLY it was argued by the learned counsel for the petitioner that on the materials produced before us the subjective satisfaction of the detaining authority has also not been established. To begin with it is not clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds. In the second place the grounds appear to have been served by Mr. R. C. Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining authority also. On a consideration of these two points we are of the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail. Coming to the first point we find that Mr. S. K. D. Mathur has clearly alleged in his counter -affidavit that Mr. R. C. Arora the permanent District Magistrate of Badaun had proceeded on leave from 21/10/197 4/11/1974 and during his absence the deponent S. K. D. Mathur was acting as the District Magistrate of Badaun. It is further stated in the affidavit that Mr. R C. Arora rejoined his duty on 12/11/1974 and took charge of his office. The order of detention, however, appears to have been passed while Mr. S.K.D. Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes no secret of the fact that the order of detention was passed by him after being satisfied of the grounds of detention. In the counter -affidavit submitted by Mr. S. K. D. Mathur before the High Court, which is Annexure D at p. 66 of the Paper Book Mr. Mathur categorically stated that he himself had passed the detention order after recording his satisfaction. In this connection paragrauh 1 of the counter affidavit before the High Court is as follows :