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S. HaleemuddIn Rahat Malsey Vs. the U.P. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1977CriLJ622
AppellantS. HaleemuddIn Rahat Malsey
RespondentThe U.P. State and anr.
Excerpt:
.....on the evidence. where the notification under section 6 clearly states that it appears to the state government that the land is required for a public purpose and the declaration is published in the official gazette under the signature of the secretary to the state government, the notification satisfies the requirements of section 6, it is no doubt open to the petitioner challenging the validity of the notification to state that the appropriate government was not satisfied and unless the appropriate government is factually satisfied, the condition precedent for the exercise of power under section 6 does not exist. but that would be a matter of fact to be clearly stated in the petition. was satisfied from reports received that the land was required for a public purpose as stated in..........was being made in regard to his application end the result of the same would be forwarded to the state government such an enquiry was made and its result was forwarded to the government but the plaintiff did not hear from the government till 23rd september, 19557. the latter informed the plaintiff-appellant that hie application had been rejected by an order dated 23rd march, 1967. the said order of the state government was said to be arbitrary and illegal and, therefore, the plaintiff instituted a suit praying for a decree for rs. 1500/-against the defendants. the sum of rs. 1500/- comprised of rs. 1110/- as maintenance allowance from 28-11-1956 to 10-2-1957 @ rs. 15/- per day and rs. 390/- as damages by way of interest for withholding the payment within the period. the suit was.....
Judgment:

M.P. Mehrotra, J.

1. This appeal arises out of a suit for recovery of maintenance allowance.

2. The brief facts are these. The plaintiff-appellant was arrested on 6-9-1956 under Section 147/323 I.P.C. His bail application was allowed on 27-11-56 but as soon as he was released on 28-11-1956 he was again arrested at the jail gate and was served with an order under the Preventive Detention Act, 1(950. The plaintiff remained a security prisoner from 28-11-1956 to 10-2-1957. This detention substantially affected the means of his dependents and the defendant-respondent No. 1 State of Uttar Pradesh, was bound to pay allowance for the maintenance of such dependents under Rule 152 of the Security Prisoners' Rules, 1950. The plaintiff-appellant made an application to the District Magistrate, Moradabad, the defendant-respondent No. 2 on 1-12-1956 praying for maintenance allowance at the rate of Rs. 15/- per day to be paid to his wife. The District Magistrate informed the plaintiff that an enquiry was being made in regard to his application end the result of the same would be forwarded to the State Government Such an enquiry was made and its result was forwarded to the Government but the plaintiff did not hear from the Government till 23rd September, 19557. The latter informed the plaintiff-appellant that hie application had been rejected by an order dated 23rd March, 1967. The said order of the State Government was said to be arbitrary and illegal and, therefore, the plaintiff instituted a suit praying for a decree for Rs. 1500/-against the defendants. The sum of Rs. 1500/- comprised of Rs. 1110/- as maintenance allowance from 28-11-1956 to 10-2-1957 @ Rs. 15/- per day and Rs. 390/- as damages by way of interest for withholding the payment within the period. The suit was contested by the defendants and various pleas were taken in defence. The civil court's jurisdiction to go into the plaintiff's grievance was questioned. It was alleged that due enquiry was held in the plaintiff's application and that it was found that the plaintiff was not entitled to any maintenance allowance. The suit was also contended to be barred by Section 15 of the Preventive Detention Act, 1960, The trial court framed the necessary issues and dismissed the suit. In the lower appellate court the decree of the trial court was maintained. Now, the plaintiff has come up in the instant second appeal and in support thereof I have heard Shri S.S. Chandwaria, learned Counsel for the plaintiff-appellant. The learned Standing Counsel has made his submissions in opposition. The relevant rule whose interpretation is called for is as follows:

52. (1) Allowance for the maintenance of the dependents of a Security Prisoner will only be granted in cases where the State Govt. are satisfied that the detention of the prisoner in question has substantially affected the means of subsistence of those dependents.

3. Shri Chandwaria has contended that the State Govt. was bound to give reasons for rejecting the plaintiff's application and since it failed to do so the order was bad. He also contended that the court could scrutinise such reasons and see whether they were relevant or not. Learned Counsel placed reliance on the following cases:

4. Chandreshwari Pd. v. State of Bihar : AIR1956Pat104 where it is laid down as under:

The word 'satisfied' in Section 4(h) must be construed to mean 'reasonably 'satisfled', and, therefore, the finding of the Collector under Section 4(h) cannot be a subjective or arbitrary finding but must be based upon the adequate material. It is not a capricious satisfaction but must be capable of being tested in an objective manner. It cannot, therefore, be contended that the satisfaction of the Collector under Section 4(h) was in the nature of a subjective satisfaction and, therefore, could not be questioned by a Superior Court in a proceeding under Article 226 of the Constitution.

5. Kissenlal Agarwalla v. Nagarmal Agarwalla AIR 1954 Assam 83 : 1954 Cri LJ 721; while interpreting Section 145(1) of the 'old Criminal Procedure Code' it was laid down as under:

It has to appear from the order in writing of the Magistrate that he was satisified as to the existence of a dispute likely to cause a breach of the peace and he has to state the grounds of his being so satisified. Simply mentioning of the police report with a dubious import does not satisfy the requirements.

6. In Faqir Chand v. Bhana Ram while interpreting Section 145(1) of the old Cr.P.C. it was laid down as under:

The word 'satisfied' is a term of considerable expansiveness. The term means, free from anxiety, doubt, perplexity, suspense or uncertainty. Satisfaction for purposes of judicial determination must depend on sufficiency of facts placed before the Magistrate. No doubt the satisfaction is to be of the Magistrate resting on the discretion vested in him but such discretion is not arbitrary and, must be a sound judicial discretion, and should be regulated according to known rules of law. In order that a Magistrate be relieved of all doubts or uncertainty and for his mind to be reasonably certain or free from doubt it is necessary that he should permit parties concerned to place before him sufficient material justifying initiation of the proceedings. Secondly, the moment it is found that there is no likelihood of a breach of the peace the jurisdiction of the Magistrate ceases and therefore it is & very important decision for the Magistrate to make whether there is likelihood of a breach of the peace. He cannot refuse to and then to decline to pass a preliminary order on the ground that he is not satisfied as to the existence of a prima facie case disclosing a reasonable apprehension of the breach of the peace.

7. From the fact that there has been no actual breach of the peace, it cannot be suggested that the Magistrate is free to receive or refuse material which an applicant apprehending a breach of the peace might like to place for his satisfaction.

8. Earnest John White v. Mrs. K.O. White : [1958]1SCR1410 was a case where Section 14 of the Indian Divorce Act (4 of 1869) was considered. Section 14 is as follows:

In case the Court is satisfied on the evidence that the case of the petitioner has been proved....

The Court observed that the important words requiring consideration are 'satisfied on the evidence.

9. A.D.M. Jabalpur v. S. Shukla : 1976CriLJ945 . This case deals with the right of a MISA detenu to maintain a habeas corpus petition. Such a right has been held to be not available to such a detenu in any circumstance.

10. Learned Standing Counsel placed reliance on the following cases:

M.S. Khan v. C.C. Bose : 1972CriLJ1020 . In this case the Supreme Court was called upon to interpret Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. It was laid down that the satisfaction of the District Magistrate was subjective and it was his satisfaction which was material under the Act and not the satisfaction of the court of law.

11. In Ratilal v. State of Gujarat : AIR1970SC984 the Court considered the effect of Section 6(3) of the Land Acquisition Act.

12. In Ganga Bishun v. Cal. Pinjrapole Society : [1968]2SCR117 again the Supreme Court considered the nature of declaration under Section 6 of the Land Acquisition Act and laid down that it was not necessary that in the Notification issued under Section 6 the Government's satisfaction should be explicitly stated.

13. State of Bombay v. Purushottam Jog : 1952CriLJ1269 is not of much assistance.

14. In T.D. Corporation Ltd. v. State of Assam AIR 1961 Assam 133 a Full Bench laid down as under:

Section 6 of the Act requires satisfaction of the State Government and not of the Governor. Where the notification under Section 6 clearly states that it appears to the State Government that the land is required for a public purpose and the declaration is published in the official gazette under the signature of the Secretary to the State Government, the notification satisfies the requirements of Section 6, It is no doubt open to the petitioner challenging the validity of the notification to state that the appropriate Government was not satisfied and unless the appropriate Government is factually satisfied, the condition precedent for the exercise of power under Section 6 does not exist. But that would be a matter of fact to be clearly stated in the petition. Where the Secretary to the Government states in the affidavit that Govt. was satisfied from reports received that the land was required for a public purpose as stated in the declaration and authorised the Secretary to issue the notification, and there is no reason to doubt the statement, the Government has proved the fact of satisfaction. The noting by the Minister-in-charge on the file may not be examinable by the High Court. What advice was given by the Minister concerned to the Governor is not a matter which can be examined by the High Court. It is also not necessary that the Minister-in-charge himself should file an affidavit. It is not necessary in every case to call the Minister-in-charge. If the Secretary or any other person has the requisite means of knowledge and his affidavit is believed, that will be enough to prove that the order was validly made by the Government of the State.

15. It seems to me that not much assistance is forthcoming from the the aforesaid decided case law. The nature of satisfaction to be arrived at by a competent authority under a particular statute will not always be the same in respect of different statutes. The Magistrate's satisfaction in proceedings under Section 145(1) of the old Cr.P.C. was of a different kind from the satisfaction of the Government under Section 6 of the Land Acquisition Act. Similarly, the satisfaction which the detaining authority has to reach under the Preventive Detention Act has its own peculiarity. Therefore, it is not expedient to lay down one uniform ratio which will be universally applicable in interpreting the nature of satisfaction, whenever the said expression is used in different statutes. It seems to me that in Rule 52 of the U.P. Security Prisoners' Rules, 1950 the satisfaction of the State Government is absolutely subjective. As the rule stands, it seems that maintenance allowance can only be granted when the State Government has reached a clear satisfaction that the detention of the prisoner in question has substantially affected the means of subsistence of the dependents. In case the Government is not able to reach such satisfaction then obviously no Buch allowance is to be granted. If the Government has certain doubts on the aforesaid question then it will be justified in not granting such maintenance. It is not the requirement of the rule that the Government should state the reasons for its non-satisfaction. Therefore, the order dated 23rd March, 1957 could not be held to be bad because no reasons were given for rejecting the application. Even if it be held that it is open to an aggrieved party to contend that the Government was really satisfied, still, in the instant case no such allegation was made in the plaint. The only grievance set out in the plaint was that the order was arbitrary and illegal as no reason was given for the rejection of the plaintiff's application. It was also contended that the defendant respondent No. 2 'made some wrong report which. too, was not binding on the plaintiff on the principle-'audi alteram partem'. This ground is different from a contention that in reality the Government was satisfied or should have been satisfied that the detention of the prisoner in question had substantially affected the means of subsistence of his dependents.

16. Moreover, in my opinion, Rule 52 is not mandatory but directory. It cannot be so interpreted that Government can be forced 'by a court of law to grant maintenance allowance to a security prisoner. In this rule no basis is laid down for calculating such allowance. There is no objective test or standard on the basis of which a court of law can be enabled to quantify the amount which should be paid to a security prisoner under the said rule. It is obvious that the rule cannot be interpreted as if to ensure that the dependents of the security prisoner would continue to enjoy the same standard of living which they enjoyed before the detention of the security prisoner. In other words, the provision is not in the nature of an indemnifying one. It is obviously conceived of and is founded in a spirit of benevolence- the modern enlightened approach that preventive detention is not meant to be vindictive so as to cause starvation deaths in the family of the security prisoner. But this is far from holding that the rule provides the source or foundation for a cause of action in favour of a security prisoner against the Government. in this view of the matter, the courts below were justified In holding that the plaintiff was not entitled to maintain the suit Further, both the courts below have given concurrent findings that there were other and independent means in the shape of agricultural income available to the dependents of the plaintiff. It has come in evidence that the plaintiff had about 300 bighas of bhumidhari land which was being cultivated. Obviously, with the existence of so much land in the family, whose cultivation was being looked after by the servants etc., it was not possible to hold that the dependents were without means. The findings recorded by the two courts below are pure findings of fact and the same cannot be questioned in this appeal.

17. The appeal fails and is dismissed but in the circumstances of the case there will be no order as to costs.


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