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C.V. Madhava Mannadiar Vs. District Collector and Addl. District Magistrate, Palghat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 4024 of 1968
Judge
Reported inAIR1970Ker50; 1970CriLJ344
ActsPreventive Detention Act, 1950 - Sections 3(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 39; Madras General Clauses Act, 1891 - Sections 15
AppellantC.V. Madhava Mannadiar
RespondentDistrict Collector and Addl. District Magistrate, Palghat and ors.
Appellant Advocate K. Chandrasekharan and; T. Chandrasekhara Menon, Advs.
Respondent AdvocateAdv. General
DispositionPetition dismissed
Cases ReferredPolubha v. Tapu Ruda
Excerpt:
.....depend on what the statute concerned requires, in other words, on what expressions like, specially empowered' mean in the context in which they are used, although, as we have already indicated, where the expression is followed by expressions like, in this behalf' that would be a clear indication that it is the purpose and not the person that has to be special. with reference to the persons empower-ed, an empowerment by name or in virtue of office would be a special empowerment, (the reference by office being as good a specification of the person em-powered as a reference by name) while an empowerment of classes of officials by their official titles would be a general empowerment. section 39, it seems to us, clearly shows that a special empowerment within the meaning of the former set of..........powers of a districtmagistrate is not disputed. what is disputed is that he has been 'specially empowered' within the meaning of clause (b) of sub-section (2) of section 3 of the act 3. on the 21st october 1967, the state government made the following order which was notified in a gazette extraordinary of the same date:'under clause (b) of sub-section (2) of s, 3 of the preventive detention act, 1950 (central act 4 of 1950), the government of kerala hereby specially empower the additional district magistrates in the state (district collectors) to exercise the powers under sub-clauses (ii) and (iii) of clause (a) of sub-section (1) of the said section.'we are told that all district collectors in the state as also their personal assistants have been appointed additional district.....
Judgment:

Raman Nayar, J.

1. The point that falls to be determined in this application for a writ of habeas corpus Questioning the detention of the petitioner under Section 3. Sub-section (1) (a) (iii), of the Preventive Detention Act, 1950 (the Act, for short) is whether the 1st respondent, described as the District Collector and Additional District Magistrate, Palghat who ordered the detention (by means of Ext. P-1 dated 30-9-1968) had the authority to do so. For the rest, the ground for the detention as disclosed by the memorandum. Ext. P-2, of the same date, duly served on the petitioner as required by Section 7 of the Act, namely, that the petitioner was habitually engaging himself in the unlawful transport of paddy from the district of Palghat to the adjoining areas of the Madras State, and that he was thus hindering the procurement of paddy in the district the purpose of equitable distribution under the scheme of rationing thereby prejudicing the maintenance of supplies essential to the community, is obviously a good and sufficient ground for the detention. If the petitioner's grievance is that he has not been furnished with sufficient particulars to enable him to make his defence, then he should ask for further particulars. And, if his grievance is that there are no materials justifying the conclusion on which the ground is based, then he should urge that before the Advisory Board constituted under Section 8 of the Act by means of a representation made under Section 7, not before us.

2. Ext. P-l was made by Shri G. Gopalakrishna Pillai, the District Collector of Palghat. in his capacity as Additional District Magistrate, Palghat. That, in June 1967, Shri G. Gopalakrishna Pillai was duly appointed by the State Government under Section 12 of the Criminal Procedure Code to be a Magistrate of the first class in the district of Palghat, and, under Section 10(2), to be Additional District Magistrate of the district with all the powers of a DistrictMagistrate is not disputed. What is disputed is that he has been 'specially empowered' within the meaning of Clause (b) of Sub-section (2) of Section 3 of the Act

3. On the 21st October 1967, the State Government made the following order which was notified in a Gazette Extraordinary of the same date:

'Under Clause (b) of Sub-section (2) of S, 3 of the Preventive Detention Act, 1950 (Central Act 4 of 1950), the Government of Kerala hereby specially empower the Additional District Magistrates in the State (District Collectors) to exercise the powers under Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1) of the said section.'

We are told that all District Collectors in the State as also their personal Assistants have been appointed Additional District Magistrates under Section 10 of the Code, and that the meaning of the above notification is that such of these Additional District Magistrates as are District Collectors (but not the rest) are specially empowered to exercise the power under Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1) of Section 3 of the Act. That that is the meaning of the notification (although, perhaps, it could have been more artistically expressed) admits of little doubt, but it is contended that the words, 'specially empower' notwithstanding this is in truth a general empowerment of all Additional District Magistrates who are District Collectors and not the special empowerment required by Clause (b) of Sub-section (2) of Section 3 of the Act.

4. This sub-section runs as follows:

'(2) Any of the following officers, namely:

(a) district magistrates,

(b) additional district magistrates specially empowered in this behalf by the State Government,

(c) the Commissioner of Police for Bombay. Calcutta. Madras or Hyderabad,

(d) Collectors in the territories which, immediately before the 1st November, 1956, were comprised in the State of Hyderabad,

may, if satisfied as provided in Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1), exercise the power conferred by the said sub-section.'

The question, as we have already indicated, is whether in view of the notification of the 21st October 1967. Shri. G. Gopala-krishna Pillai, who is undisputedly an Additional District Magistrate and a District Collector, can be regarded as having been 'specially empowered in this behalf' within the meaning of Clause (b) of the sub-section.

5. We think he can. The word, ''specially' in the clause in question qualifies the word, 'empowered'; and, doubtless, the expression, 'specially empowered' qualifies the expression, 'additional district magistrates'. But it does not necessarily follow that a particular Additional District Magistrate must be specified (either by name or by office) in order that there might be a special empowerment. That will depend on whether, in the context, 'specially empowered' means empowered with specific reference to the particular magistrate on whom the power is conferred (which would involve the selection of a particular magistrate from among the class of magistrates mentioned), or, empowered with specific reference to the power that is conferred, namely, so far as we are here concerned, the power under Sub-clause (iii) of Clause (a) of the sub-section. If it is the latter, the notification of the 21st October 1967 must pass muster as a special empowerment within the meaning of the sub-section; if it is the former, it cannot.

6. We consider that, in the context, the words, 'specially empowered' means specially empowered with reference to the power conferred and this we think is emphasized by the words, 'in this behalf' that follow. The legislative intent seems to be clear. Ordinarily the power is to be exercised by District Magistrates (or by the officers, mentioned in Clauses (c) and (d) of the sub-section); but, Additional District Magistrate also can be trusted with the power, and if the exigencies of the situation demand that, the State Government may specially empower Additional District Magistrates (all or any as it chooses) to exercise the power. And this, of course, it might do (since the word, 'specially,' referring as it does to the power rather than to the person empowered, cannot in the least be regarded as express provision to the contrary within the meaning of Section 15 of the General Clauses Act) either by name or by virtue of office. The power has to be specially conferred on Additional District Magistrates if they are to exercise it --it is not one of their ordinary powers --and, once it is so conferred, whether on particular individual Additional District Magistrate or on all Additional District Magistrates as a class -- 'additional district magistrates specially empowered', not 'an additional district magistrate specially empowered', is what the section says--they would all be 'specially empowered in this behalf' within the meaning of the section.

7. With great respect we think it misleading to go, as some decisions have done, to Section 39 of the Criminal Procedure Code for the purpose of ascertaining whether a special empowermentimplies the selection of a particular specified person for the conferment of the power. That would depend on what the statute concerned requires, in other words, on what expressions like, 'specially empowered' mean in the context in which they are used, although, as we have already indicated, where the expression is followed by expressions like, 'in this behalf' that would be a clear indication that it is the purpose and not the person that has to be special. What Section 39 of the Code does is to prescribe the mode of conferring powers thereunder. Such powers, it says, may be conferred on persons specially by name or in virtue of their office, or on classes of officials generally by their official titles. With reference to the persons empower-ed, an empowerment by name or in virtue of office would be a special empowerment, (the reference by office being as good a specification of the person em-powered as a reference by name) while an empowerment of classes of officials by their official titles would be a general empowerment. But this does not help us to find out whether a particular statute uses the words, 'specially empower-ed' with reference to the persons on whom the power is to be conferred or with reference to the power to be conferred. Indeed, it seems to us that the Code itself uses the words, 'specially empowered in this behalf' as synonymous with, 'empowered in this behalf', both meaning that there must be an empowerment with specific reference to the power conferred -- compare Sections 108, 110, 144, 164, 167, 186, 190, 260 and 562 on the one hand with Sections 143, 174, 206, 407, 435 and 524 on the other. The former set of sections, it would appear, no more require the specification of the particular person on whom the power is conferred than the latter. Section 39, it seems to us, clearly shows that a special empowerment within the meaning of the former set of sections, in other words, the con-ferment of the special powers under these sections, can be on persons specially by name or in virtue of their office or on classes of officials generally by their official titles.

8. Powers may be conferred generally on a particular person. For example, there can be an empowerment by which a particular named District Magistrate is given all the powers that can under any law be conferred on a District Magistrate. That would be a special empowerment so far as the person is concerned but a general empowerment so far as the powers conferred are concerned. Or, a particular power conferrable on District Magistrates may be given to all District Magistrates. That would be a general empowerment so far as the person on whomthe power is conferred Ss concerned, but a special empowerment so far as the power conferred is concerned. Or again, a particular power may be conferred on a particular named District Magistrate. That would be a special conferment both with regard to the person and with regard to the power conferred. Whether a particular conferment satisfies the requirements of the statute concerned will depend entirely on what the statute requires. It may require a special conferment both with regard to the power and the person; or it might require it only with regard to the person; or only with regard to the power. In the case on hand we consider that what the statute requires is a special conferment of the power in question and that that requirement is satisfied by the notification of the 21st October 1967, because it specifically refers to the power conferred, namely, the power under Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1) of Section 3 of the Act. Had the notification, on the other hand, purported to confer on all Additional District Magistrates, or even on a particular named Additional District Magistrate, all the powers that may under any law be conferred on Additional District Magistrates, that would not be, 'specially empowering in this behalf' within the meaning of Clause (b) of Sub-section (2) of Section 3 of the Act. even though the chosen Additional District Magistrate might be said to have been specially selected, and, in that sense specially empowered.

9. That the words, 'specially empowered' do not necessarily imply a special selection of a particular person for the conferment of the power seems to be clear from the decision of the Supreme Court in S. L. Choithram Parasram v. State of Gujarat, AIR 1967 SC 1532. There it was held that a notification of the 22nd January. 1955 by the State Government specially empowering (among others) the Deputy Superintendent of Police, Porbandar to perform certain functions under the Bombay Prevention of Gambling Act, 1887 made the person holding that office in June 1964 a 'Deputy Superintendent of Police specially empowered by the State Government in this behalf' within the meaning of Section 6 (1) (i) of that Act. That means that any person occupying the position of Deputy Superintendent of Police, Porbandar, irrespective of his individual merits, would be a person 'specially empowered in this behalf' within the meaning of the section. No such consideration as that only specially selected persons, on whom the power in question could be safely conferred, would be posted as Deputy Superintendent of Police, Porbandar was as much as urged before their Lordships.although such a consideration seems to have influenced the decision in Emperor v. Savalaram, AIR 1948 Bom 156 which their Lordships approved. If the empowerment of the Deputy Superintendent of Police, Porbandar is a special empowerment satisfying the requirements of the statute, then we should think that a notification enumerating all the Deputy Superintendents of Police in the State and empowering all of them to exercise the power in question would also be a special empowerment within the meaning of the statute. And, if that be so, why should not a notification empowering all the Deputy Superintendents of Police in the State without enumerating them be a sufficient empowerment? That, however, was a question that did not arise in the case before them, and their Lordships expressly refrained from expressing any opinion thereon.

10. For the reasons stated above we are in respectful agreement with the view taken in Sundar Lal v. Emperor. AIR 1933 All 676, K. N. Vijayan v. State, AIR 1953 Trav-Co 402, State v. Judhabir. AIR 1953 Assam 35 (FB) and State of Mysore v. Kashambi, 1963 (2) Cri LJ 226 (Mys) that special empowerment with reference to a particular power can be of a class of persons although it might, perhaps, be said that some of these cases equate an empowerment of a class of officials as a whole by their official titles, which would be a general empowerment so far as the persons empowered are concerned within the meaning of Section 39 of the Code, with an empowerment of a person ex-officio which would be a special empowerment. And, with equally great respect, we are unable to subscribe to the view taken in Md. Kasim v. Emperor, AIR 1915 Mad 1159 and in Polubha v. Tapu Ruda, AIR 1956 Sau 73 that it can only be of particular specified persons.

11. It is pointed out with reference to numerous notifications under the Code, and under various special and local laws, that the invariable practice in this State has been to effect a special empowerment with specific reference by name to the person empowered and that the instant notification is the only exception. But that that has been the practice does not mean that that is essential under the law, although, we might observe, that that is doubtless the safer, and, therefore, the wiser course. Why the State Government should have thought fit to depart from this safer and wiser course in this particular instance -- and that in a matter of such importance -- we do not know unless it be that the submission by the learned Advocate General that, having now given thought to the matter, the Government has issued revised notifications specially empowering by nameall Additional District Magistrates who are District Collectors, furnishes a clue.

12. As we have already said, the statute does not require an Additional District Magistrate to be specially selected for the conferment of the power. It seems to proceed on the basis that Additional District Magistrates also may be entrusted with the power but that ordinarily it should not be necessary to do so. Ordinarily, it should be sufficient if the District Magistrates are given the power. But, if having regard to the prevailing conditions, the State Government thinks that necessary. Additional District Magistrates also may be given the power, the power being specially conferred on them. If this implies a selection apart from the selection necessarily involved in appointing a person to hold the office of Additional District Magistrate, by itself a responsible office, then we should think that even that is satisfied in this case. For, it is not all Additional District Magistrates that have been specially empowered. Only such of them as hold the very responsible position of District Collector have been empowered. And, if the State Government thinks that all persons selected by them for the very responsible position of District Collectors can be safely entrusted with the power in question, can it be blamed? Has there not been a selection of the particular Additional District Magistrates on whom the power is to be conferred?

13. In this connection we may point out that the statute was enacted before the separation of the judiciary from the executive, when, throughout the country. District Collectors (Deputy Commissioners as they are called in some States) were also District Magistrates, while Additional District Magistrates were officers subordinate in rank to the District Collectors. But the District Collectors of this State are officers of the same rank as the District Magistrates referred to in Clause (a) of Sub-section (2) of Section 3 of the Act -- their Personal Assistants would be of the rank of the Additional District Magistrates referred to in Clause (b). They are Certainly not inferior in rank to the Collectors of the territories comprised in the former State of Hyderabad on whom Clause (b) of Sub-section (2) of Section 3 of the Act directly confers the power in question.

14. In the result we dismiss this petition but make no order as to costs.


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