Haji Abdulla Haji Ibrahim Mandhra vs Union of India (UOI) and Others

G.T. Nanavati, Acting C.J.

The petitioner''s representation dated 5-3-1992 made to Mahendra Prashad, Joint Secretary to the Government of India, was not considered by him but was considered and rejected by the Central Government. According to the petitioner, Mahendra Prashad, being the detaining authority his representation ought to have been considered by Mahendra Prashad as required by Article 22(5) of the Constitution of India read with Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and as that has not been done, his continued detention has become illegal. This is one of the points raised by the petitioner in his petition challenging his detention.

The petition was placed for final hearing before a Division Bench. While considering the abovestated point, the Division Bench found that "there are contrary observations made by the Supreme Court". In the order passed by it for reference to a Larger Bench. It has referred to the decision of the Supreme Court in State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, and the decision of this Court in Praful Keshavji Thakkar Vs. Union of India (UOI) and Others, wherein the view taken is that even when the empowered officer makes in order of detention, the detaining authority is the appropriate Government. It has also referred to the decision of the Supreme Court in Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, and Amir Shad Khan and another Vs. L. Hmingliana and others, and one decision of the Madras High Court in M. Arumugam v. Joint Secretary (1992) 40 ECC 206 wherein a contrary view has been taken. In the order, it is then observed as under:

In view of the contrary views taken by different Courts an important question arises in this case as to who is the detaining authority in view of the aforesaid judgments of the Supreme Court. Looking to the importance involved in the question we think that this point should be referred to the Larger Bench of this Court. Hence we formulate the following question:

Whether Shri Mabendra Prasad, Joint Secretary to Government of India, who issued the detention order against the petitioner on 14-2-1992 is the detaining authority or not?

In Sushila Mafatlal"s case the order of detention was passed by D.N. Capoor, Officer on Special Duty and ex-ojficio Secretary to the Government of Maharashtra. The detenu was told that he had a right to make a representation to the State Government and to the Government of India. The detenu was not told that he had also a right to make a representation to the detaining authority himself, Treating this omission as violation of Article 22(5), the detention was challenged as illegal in the Bombay High Court. What was urged was that as the order of detention was passed by D.N. Capoor in his capacity as an officer specially empowered by me Government of Maharashtra to issue an order u/s 3(1) of the Act, the detenu had a right to make a representation to him in the first instance and only thereafter to the State and the Central Government. As the detenu was not informed about that right, it amounted to violation of the constitutional safeguard provided by Article 22(5) inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the detaining authority D.N. Capoor rejecting his representation. The Bombay High Court accepted this contention and quashed the order of detention. The State challenged that decision in the Supreme Court. The Contention, which was raised on behalf of the State, was that "neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afford scope for any differentiation being made between an order of detention passed by a specially empowered officer of the State Government or the Central Government, as the case may be, and an order of detention passed by the State Government or the Central Government itself, as the case may be, and for holding that if an order of detention falls under the former category, the Constitution obligates a different kind of procedure to be followed in the matter of affording opportunity to the detenu to make his representations against the order of detention". It was also contended that "the theory that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention has been exploded in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, and Smt. Masuma Vs. State of Maharashtra and Another, and therefore the High Court was not right in holding that the detenu had such a right". On behalf of the detenu, it was contended that the officer making an order of detention is the detaining authority and hence the detaining authority is under an obligation to afford an opportunity to the detenu to make a representation to himself in the first instance before the detenu avails of his right to make a representation to the State Government and then to the Central Government. In support of this contention, the decisions of the Supreme Court in Santosh Anand v. Union of India, (1981) 2 SCC 420 and Pushpa v. Union of India AIR 1979 SC 1963 were relied upon. In view of these rival contentions, the following three questions were raised by the Supreme Court for its consideration:

Does an order passed by an officer of the State Government or the Central Government specially empowered for the purposes of Section 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three-fold opportunity to make his representation, i.e., the first to himself and the other two to the State Government and the Central Government.

Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government solely in exercise of the powers conferred on him u/s 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers u/s 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government to act on behalf of the Government.

Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act u/s 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government.

The Supreme Court then referred to Article 22(5) and its decision in Sk. Abdul Karim and Others Vs. State of West Bengal, ; John Martin Vs. State of West Bengal, ; Jayanarayan Sukul Vs. State of West Bengal, and Haradhan Saha Vs. The State of West Bengal and Others, , and observed as under:

We can, therefore, conclude without finisher discussion that on the plain language of Article 22(5) that Article 22(5) does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make representation to D.N. Capoor himself as he had made the order of detention.

The Supreme Court then considered Sections 2, 3, 8 and 11 of the Act and the schema of the Act as disclosed by those Sections and held that:

...even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Government itself. If that be so, then it is the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of Business of the Government to deal with such representation, if the detenu addresses his representation to the officer himself.

In order to make the position clear, the Supreme Court has observed that without the special empowerment u/s 3(1), even if he be empowered to act on behalf of the Government under the Rules of Business, he cannot pass an order of detention against any one. The Supreme Court also referred to the power of revocation, which is conferred only upon the State Government and the Central Government and considered it relevant to note that no provision is made for an officer making an order of detention to exercise powers of revocation. The Supreme Court then considered the effect of the officer passing the order not being available for consideration of the representation and the resultant effect thereof. The Supreme Court then referred to its two earlier decisions in Santosh Anand''s and Pushpa ''s case (supra) and observed that they were not decisive pronouncements on the question of law which arose for consideration and as against that the decision by a Bench of three Judges in Devji Vallabhbhai Tandel Ors. Vs. Administrator of Goa, Daman and Diu and Another, has a more binding force.

In Ibrahim Bachu Bafan''s case, the first order of detention was revoked and on the same day another order was made. The second order was challenged in this Court and it was quashed by the High Court. On the same facts, a fresh order was made. That order was challenged before the Supreme Court on the ground that the power conferred u/s 11(2) of the COFEPOSA Act is not available to be exercised where there has been no revocation u/s 11(1) of the said Act of a previous order of detention but has been quashed by the High Court in exercise of its extraordinary jurisdiction. In order to determine the ambit and scope of Section 11(2), the Supreme Court examined the legislative scheme in the background of pronounced judicial view till then that repeated orders of detention are not to be made. While doing so, it interpreted and construed Section 11(1) and held:

u/s 21 of the General Clauses Act, therefore, the authority making an order of detention would be entitled to revoke that order by rescinding it. We agree with the submission of Mr. Jethmalani that the words ''without prejudice-to the provisions of Section 21 of the General Clauses Act, 1897'' used in Section 11(1) of -the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys u/s 21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities named in Clauses (a) and (b) of Section 11(1) of the Act. Power conferred under Clauses (a) and (b) of Section 11(1) of the Act could not be exercised by the named authorities u/s 21 of the General Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the order. Therefore, conferment of such power was necessary as Parliament rightly found that Section 21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power u/s 21 of the General Clauses Act of the original authority making the order, power to revoke or modify has been conferred on the named authorities.

Therein, the Supreme Court has further observed that the power conferred under Clauses (a) and (b) of Sub-section (1) of Section 11 is, in fact, extension of the power recognised u/s 21 of the General Clauses Act, and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under Clauses (a) and (b) of Section 11(1) of the Act are also entitled to exercise the power of revocation. Taking this view, the Supreme Court further held that in a situation where the order of detention has been quashed by the High Court, Sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order u/s 3 of the Act on the same grounds.

In Amir. Shad Khan''s case, the Supreme Court was called upon to consider whether failure on the part of the detaining authority as well as the State Government to accede to the request of the detenu to take out copies of the representation and forward the same to the Central Government for consideration had resulted in violation of his constitutional/ statutory right to have his representation considered by the Central Government. In order to determine that point, the Supreme Court first though it necessary to refer to Clause (5) of Article 22 and held that this clause cast a dual obligation on the detaining authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made, and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Accepting the corresponding right of the detenu to make a representation, the Supreme Court then considered ''to whom must the representation be made''. It then observed that the question must be answered in the context of the relevant provisions of law. After examining Sections 2(b), 3(1), 3(2), 3(3), 8 and 11, it then held as under:

...It is obvious from a plain reading of the two clauses of Sub-section (1) of Section 11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to Section 21 of the General Clauses Act which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exerci-sable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of Section II of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. u/s 11 an officer of the State Government or that of the Central Government specially empowered u/s 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to Section 21 of the General Clauses Act. Therefore, when an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of Section 21 of the General Clauses Act since Section 11 of the Act does not entitle him to do so. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so u/s 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under Clause (b) of Section 11(1) of the Act and not u/s 21 of the General Clauses Act. This clarifies why the power u/s 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government...

What is contended on behalf of the respondent authorities was that a question similar to the one which we are required to answer arose directly in Sushila Mafatlal''s case and therefore the ratio decidendi of that case should be regarded as a binding precedent as against the observations of the Supreme Court, which are obiter dictum only, made in the cases of Ibrahim Bachu Bafan and Amir Shad Khan. The learned Counsel for the petitioner, on the other hand, contended that the enunciation of law on the point of representation in Amir Shad Khan''s case cannot be regarded as obiter dictum only and in any case obiter dictum of the Supreme Court are equally binding on the High Courts and subordinate Courts. Moreover, he submitted that the decision in Amir Shad Khan''s case being later in point of time, should be followed in preference to the earlier decision in Sushila Mafatlal''s.

Before we proceed to consider the rival contentions, it would be profitable to consider the correct legal position. We believe that it is now well settled that a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case, which comes up for decision subsequently. Again, a case is only an authority for what it actually decides. It cannot be quoted for the proposition that may seem to follow logical from it. Moreover, while considering the observations of a high judicial authority, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations even though expressed in broad terms in a general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case, their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in band [See : Quinn v. Leathen 1901 AC 495; The State of Orissa Vs. Sudhansu Sekhar Misra and Others, ; Additional District Magistrate, Jabalpur Vs. Shivakant Shukla, ; Prakash Amichand Shah Vs. State of Gujarat and Others, and Ahmedabad Mfg. and Calico Prtg. Ltd. and Others Vs. Union of India, .

The underlying principle of a judicial decision which forms its authoritative element for the future is termed ratio decidendi. It is contrasted with an obiter dictum or that part of a judgment which consists of the expression of the Judge''s opinion on a point of law which is not directly raised by the issue between the litigants (Stephen in his book Commentaries Vol. 1, Page 11). Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dictum and are not authoritative Municipal Corporation of Delhi Vs. Gurnam Kaur, . As regards obiter dictum of the Supreme Court, the Bombay High Court in Mohandas Issardas and Others Vs. A.N. Sattanathan and Others, has pointed out that it consistently taken the view that obiter dictum of the Privy Council is binding on the High Courts and its subordinate Courts. In State of Kerala Vs. Parameswaran Pillai Vasudevan Nair, , the Kerala High Court in this behalf has observed as under:

Judicial propriety, dignity and decorum demand that being the highest judicial Tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force.

This passage from the judgment of the Kerala High Court has been approved by the Supreme Court in Amir Shad Khan''s case.

The learned Counsel for the petitioner, however, drew our attention to the Full Bench decision of the Karnataka High Court Govinda Naik v. West Patent Press Co. AIR 1980 Kar 92, wherein it was considered as to which of the two decisions of the Supreme Court would be binding on the High Courts and other Courts, if both of them cannot be reconciled. The Karnataka High Court answered the question as under:

If two decisions of the Supreme Court on a question of law cannot be reconciled and if one of them is by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench whether it is earlier or later in point of time, should be followed by the High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts.

8.1 Taking this as a settled legal position, we have to consider whether the Supreme Court in Amir Shad Khan''s case wanted to lay down the law as regards the authority to whom a representation can be made and what is the nature and extent of duty of the appropriate authority as regards consideration of such a representation. It is no doubt true, as urged by the learned Counsel for the respondents, that who can be said to be the detaining authority when an order of detention is passed by the Secretary, specially empowered by the appropriate Government, did not directly arise in Amir Shad Khan''s cow, but, in order to find out the ambit and width of the right of the detenu to make a representation and the nature and extent of obligation of the appropriate authority arising under Article 22, the Supreme Court thought it fit and necessary to consider the constitutional provisions in this behalf and also the relevant sections of the Act. After interpreting those provisions, it laid down as a proposition of law that as and when an order is passed by the Secretary specially empowered by the appropriate Government that authority has the power to cancel or revoke the order passed by it in view of Section 21 of the General Clauses Act and, therefore the detenu has a right to make a representation to such an authority. It is difficult to accept the contention raised on behalf of the respondents that the observations made by the Supreme Court in Amir Shad Khan''s case are only passing observations and they are merely obiter dicta, which were not intended to be authoritative in essence. We are clearly of the opinion that while deciding the case of Amir Shad Khan, the Supreme Court intended that its decision be regarded as an authoritative pronouncement on the point of law, and that it should be followed by other Courts. For that reason and for the reason that the decision in Amir Shad Khan''s case is later in point of time, it has to be followed in preference to the earlier decision of the Supreme Court in Sushila Mafatlal''s case.

We, therefore, answer the question referred to us by stating that Shri Mahendra Prashad, Joint Secretary to Government of India was the detaining authoiity of the petitioner. The matter now will go back to the Division Bench for disposing the petition in light of what we have held on the question referred to us.