AI Structured Summary
Not yet generated for this judgment
Judgment
K.M. Natarajan, J.—This writ petition is filed by one Rani, wife of the detenu Ganesan, under Art.226 of the Constitution of India, seeking
for the issuance of a writ of Habeas Corpus, quashing the order of detention passed by the District Magistrate and Collector of North Arcot
Ambedkar District, Vellore, the first respondent herein and set the detenu at liberty. The detenu came to the adverse notice as a forest offender in
view of the single case referred to in the preamble of the grounds of detention and was detained on the basis of the ground case by the first
respondent in exercise of the power conferred under S. 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982), hereinafter
referred to as the Act, with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
The facts which led to the passing of the impugned order are set out in detail in the grounds of detention which was duly served on the detenu,
and in view of the plea taken in the writ petition, we do not feel it necessary to reiterate the same in this order. Though various grounds are raised
in the writ petition, the learned counsel for the petitioner, Mr. Ramasubramaniam, confined his argument on two grounds. The learned counsel
requests the Court to decide the question regarding the validity of the Government Order under which the power was delegated to the first
respondent to pass the impugned order under S. 3(1) of the Act, as a preliminary point. Hence, in the first instance the said question was taken up
as preliminary issue. G.O.Ms. No.245, Prohibition and Excise (XII) Department, dated 18.10.1991, under which the power of detention was
delegated by the State Government to the first respondent is challenged on the following ground. At the time when the Act came into force the Act
was in force with regard to Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers and not for Forest Offenders.
''Forest Offender'' was introduced by an amendment in the year 1988 by Act 1 of 1988 on 13.1.1988. Hence, the term ''forest offender'' could
not have been present and is not present in G.O.Ms. No.25, Prohibition and Excise Department, dated 18.1.1982. In the present G.O.Ms.
No.245, Prohibition and Excise (XII) Department, dated 18.10.1991, it has been specifically stated that even in G.O. Ms. No. 25, Prohibition
and Excise Department, dated 18.1.1982 the ''forest offender'' has been present and it shows non-application of mind by the Government in
delegating the powers without seeing the contents of the original Government Order. It is further contended that as per S. 3(1) of the Act the
power to make an order of detention primarily rests with the State Government. But, the State Government if satisfied in certain circumstances may
order the District Magistrate or the Commissioner of Police also to make an order of detention to prevent the detenu from acting in any manner
prejudicial to the maintenance of public order. In the present G.O.Ms. No.245, Prohibition and Excise Department, dated 18.10.1991, under
which the delegation to pass the impugned order was given. The word ''also'' has been removed, so as to mean that the District Magistrate alone
has got the power to clamp the order of detention and the Government have relinquished the power vested with them. Such a delegation is not
authorised by the Act and it is due to non-application of mind and it has to be quashed. It is further contended that the Act specifically enumerates
that the State Government has to identify the area within the local limits of the District Magistrate or Commissioner of Police. If a District
Magistrate or a Commissioner of Police is to exercise the powers conferred under S. 3(2) of the Act, the circumstances prevailing or likely to
prevail in the specified area are to be mentioned in the Government Order. The Act does not authorise a blanket delegation to the District
Magistrate or the Commissioner of Police without specifying the area to which the delegation applies. When it comes to the delegation of powers,
the State Government has to identify the area of disturbance having regard to the circumstances prevailing in that area to delegate the powers. In
the absence of clear demarcation of the area to which the delegation applies, the delegation made in G.O.Ms. No.245, Prohibition and Excise
(XII) Department, dated 18.10.1991 is bad in law. Further, in the absence of existence of circumstances expressly stated on the date of the order
or likely to prevail on later date, the circumstances for which dangerous activity is sought to be prevented in exercise of the said power, the
G.O.Ms. No.245, Prohibition and Excise (XII) Department, dated 18.10.1991 is bad and invalid in law.
With regard to the above question, in the counter-affidavit filed on behalf of the second respondent, by the Deputy Secretary to Government
Prohibition and Excise Department, Government of Tamil Nadu, it is submitted that in order to ensure that the maintenance of public order in this
State is not adversely affected by the activities of anti-social elements, like bootleggers, drug offenders, goondas, immoral traffic offenders and
slum grabbers, Tamil Nadu Act 14 of 1982 was enacted to detain the above five categories of persons and it came into force with effect from
5.1.1982. Subsequently, it was brought to the notice of the Government that the illicit cutting of trees and indiscriminate killing of wild animals,
particularly elephants, in forests are on the increase in this State and it posed a grave danger to the persons, property and to the ecological system
of the region and disturbed the public order. The provisions of the Tamil Nadu Forest Act, 1982, and the Wild Life (Protection) Act, 1972 did not
have the desired effect of preventing the commission of the above offences by anti-social elements. In order to ensure that the public order is not
adversely affected by the activities of such antisocial element, the Tamil Nadu Act 14 of 1982 was amended by Tamil Nadu Act 1 of 1988 by
including ''forest offenders'' within the scope of the Act with effect from 13.1.1988. At the time of issue of G.O. Ms. No.25, Prohibition and
Excise, dated 18.1.1982, ''forest offender'' was not within the scope of the said Government Order, since it was included in Tamil Nadu Act 1 of
1988 only. After the said amendment, G.O.Ms. No.25 Prohibition and Excise, dated 18.1.1982, was amended from time to time and continued
after the coming into force of the Tamil Nadu Act 1 of 1988, which includes within the purview ''forest offender'' as so included in the amending
Act. The delegation of powers conferred on the District Magistrate and Collector of North Arcot Ambedkar District in G.O.Ms. No.245,
Prohibition and Excise (XII), dated 18.10.1991 to detain ''forest offender'' is therefore legal and valid in law.
Tamil Nadu Act 14 of 1982 enables the Government to confer the powers to detain persons under the Act also to the District Magistrate and
the Commissioner of Police. The absence of the word ''also'' in the delegation of powers, referred to by the petitioner, does not in any way affect
the order of detention which is otherwise valid. Further, it is not correct to say that there was non-application of mind on the part of the
Government on that score. In any event, the absence of the word ''also'' will not be fatal to the order of delegation passed by the Government. It is
submitted that it can be seen from the section that the delegation to the District Magistrate or the Commissioner of Police, may be on account of
the circumstances prevailing or likely to prevail in the area concerned, and further the expression ""circumstances prevailing"", which is the subjective
satisfaction of the Government, would cover the entire period of three months during which the Government Order was to be in force and that the
prevalance of the circumstances is one of the prerequisites for the issue of the Government Order. It is submitted that the decision in Abhay
Shridhar Ambulkar v. S.V. Bhave and others 1991 I S.C.C. 500 was rendered while considering the validity of an order of delegation passed by
the Government of Maharashtra under S. 3(3) of the National Security Act, 1980. The Apex Court in the above decision has taken the view that
the subjective satisfaction may be either on the prevailing circumstances or circumstances that are likely to prevail at a future date. It is also stated
that with regard to the power delegated to the detaining authority in G.O.Ms. No.939, Prohibition and Excise, dated 15.10.1990, W.P.Nos.2397,
Vela @ Velanganni @ Johney v. State of Tamil Nadu and Another, W.P.No.6072 Abdul Samad v. State and Another and 7089 of 1991 Raji v.
State of Tamil Nadu rep. by Secretary to Government, Home Department, Madras-9 and another were filed, and this Court allowed the said
petitions on 11.10.1991 invalidating the power delegated to the Commissioner of Police, Madras City, in the said Government Order. As against
the said order, the State of Tamil Nadu has filed SLP (Criminal) Nos. 4118, 4132 and 4182 of 1991 and has, on 12.3.1992, obtained stay of
operation of the said order. It is submitted that the contention raised by the petitioner is not tenable. It is further stated that the delegation of power
was made after taking into account the prevailing circumstances and which are likely to prevail in the local limits and jurisdiction of the District
Magistrate of North Arcot Ambedkar District. Hence, G.O.Ms. No.16, Prohibition and Excise (XII), dated 18.10.1991 is in order and satisfies
the requirements of S. 3(2) of the Act. Hence, it is submitted that the challenge to the Government Order is devoid of merits.
The point arises for consideration is whether the order delegating power to the first respondent is valid or not.
The learned Advocate General appearing for the State would submit that there is an error of fact in the preamble portion of the order by the
inclusion of the word ''forest offender'' while incorporating G.O.Ms. No.25. Prohibition and Excise Department, dated 18.1.1982, but not in the
operative portion where the subjective satisfaction is reached. He would submit that even though the impugned G.O. is an executive order, the
principle laid down regarding statutory enactment in respect of the principle of preamble will equally apply to the G.O. He would submit that we
have to see what is the relevancy and scope of the preamble while deciding the validity of the G.O. in question and in respect of the same, he drew
the attention of this Court to the scope of preamble in certain text books and submitted that even though preamble is a part of the Act, it is not
operative portion thereof and the aid of the preamble can be taken only when there is some doubt with regard to the meaning of the operative
portion of the Act. It cannot confer power. Further, preamble, can be only brought in as an aid to construction if the language of a statute is not
clear and admits of plurality of meanings. According to him, de hors of the first portion in the G.O. there is no error of fact or law whatsoever
which would vitiate the order as there is valid recording of the satisfaction in the last two paragraphs of the G.O. The impugned order does not
stop with G.O. Ms. No. 25, dated 18.1.1982 but it also took note of the amendment of the Act while issuing the impugned G.O. He would also
submit that the recital of wrong source of power in a notification will not vitiate any action if it is justified by any other Act and in respect of the
same, he drew the attention of this court to various decisions of the Supreme Court. According to him, the power is derived under S.3(2) of the
Act and it is not vitiated by the inclusion of the words ''forest offender'' in respect of the operative portion of the order. He has reiterated that de
hors the preamble portion, from the last two paragraphs it is clear that there is no error to vitiate the order. Lastly it was submitted that even if it is
held that that part is invalid, the doctrine of severability can be adopted and that portion can be eschewed. Accordingly, applying the doctrine of
severability it can be safely held that the impugned order is not vitiated relying on the operative portion of the G.O. as the delegation is under S.
3(1) read with Proviso to Sub-section (1).
Per contra the learned counsel appearing for the petitioner vehemently argued that in G.O. Ms. No.25, dated 18.1.1982 which was issued
under Act 14 of 1982, before ever the amendment came into force, the ''forest offender'' was referred to and admittedly, the ''forest offender'' was
included by the amended Act I of 1988, and that the amendment has not been considered while issuing the impugned G.O. and prior as many as
16 G.Os. He would submit that what is required under preventive laws in strict compliance of the Act and any non-application of mind in issuing a
Government Order under which delegation of power is given, that alone would vitiate the order. According to him, the impugned order has been
passed without application of mind but mechanically. The learned counsel relying on the decision of the Supreme Court in 1990 (4) Judgment
Today 759 submitted that in view of the ratio laid down in the above decision, there is absolutely nothing to show that while passing the impugned
G.O. the circumstances prevailing in respect of forest offender, at the time of passing the order and in future, in the area in question, were not taken
into consideration and on that ground also, the order is vitiated.
The learned Advocate General repelled the said contentions and submitted that the previous decision rendered by this court on similar
contentions raised with regard to delegation of power under this Act, is now pending consideration by the Supreme Court in SLP filed by the
Government of Tamil Nadu and as such that question cannot be the subject matter of this petition.
Now the only question to be considered is, whether by quoting the earlier G.O. Ms. No.25, dated 18.1.1982 which came into force when the
words ''forest offender'' was not included in the Act, the inclusion of the words ''forest offender'' in the preamble portion of the said G.O. would
invalidate the G.O. as contended by the learned counsel for the petitioner.
For proper appreciation of the respective contentions and to decide the question regarding the validity of the impugned G.O., it is worthwhile
to quote the impugned G.O. which reads as follows:
Government of Tamil Nadu Abstract
Preventive Detention - Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) -Empowering of District Magistrate of North Arcot Ambedkar
District under Sub-Section (2) of Section 3 - Orders-issued.
Prohibition and Excise (XII) Department
G.O.Ms.No.245
Dated 18.10.1991
Iyppasi, Projorpathi, Thiruvalluvar Andu, 2022.
Read
G.O.Ms. No.25, Prohibition and Excise Department, dated 18.1.1982.
G.O.Ms. No.190, Prohibition and Excise (XII) Department, dated 18.7.1991.
ORDER
Whereas orders have been issued in the G.O. first read above directing that the power to make orders detaining Bootleggers, Drug Offenders,
Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers under Sub-section (1) of Section 3 of the Tamil Nadu Prevention of
Dangerous Activities of Traffic Offenders and Slum Grabbers Act, 1981 (Tamil Nadu Act 14 of 1982) may also be exercised by the District
Magistrate of North Arcot Ambedkar District for a period of three months on and from 18th January, 1982;
And Whereas orders have been issued subsequently, amending the G.O. first read above and extending the above period, from time to time, by
three months at a time;
And whereas the said period, last extended for three months from the 18th July, 1991 in G.O. Second read above, expired on the 17th October
1991;
And whereas dangerous activities of certain anti-social elements, such as bootleggers, drug offenders, forest offenders, goondas, immoral traffic
offenders and slum grabbers are causing harm and danger and a feeling of insecurity among the general public apart from grave and widespread
danger to life and public heath, adversely affecting the maintenance of public order;
And whereas the Government are satisfied that having regard to the circumstances prevailing and which are likely to prevail in the North Arcot
Ambedkar District it is still necessary that the power to make orders detaining the Bootleggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders and Slum Grabbers sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) shall be
continued to be exercised by the District Magistrate of North Arcot Ambedkar District for a further period of three months from the 18th October,
1991;
Now therefore in exercise of the powers conferred by subsection (2) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Boot
leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982)
read with the proviso to the said sub-section (2) the Governor of Tamil Nadu hereby directs that the powers to make orders detaining the
bootleggers, drug offenders, forest offenders, goondas, immoral traffic offenders and slum grabbers under sub-section (1) of Section 3 of the said
Act shall be continued to be exercised by the District Magistrate of North Arcot Ambedkar District for a further period of three months on and
from the 18th October, 1991 and makes the following amendment to G.O.Ms. No. 25, Prohibition and Excise, dated 10th January. 1982 as
subsequently amended:
Amendment
In the said order, for the expression ""for the period upto 17th October 1991"", the expression ""for the period upto 17th January 1992"" shall be
substituted.
T.V. Venkataraman,
Chief Secretary to Government.
G.O. Ms. No.25, Prohibition and Excise (V) Department, dated 18.1.1982 referred to in the preamble of the above quoted Government Order
reads as follows:
Government of Tamil Nadu
Prohibition and Excise (V) Department
Abstract
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers
Ordinance 1982 (Tamil Nadu Ordinance 1 of 1982) - Empowering of under Sub-section (2) of Section 3- Orders - Issued.
G.O.Ms. No.25
Date: 18.1.1982
ORDER.
Whereas the Government are satisfied that having regard to the circumstances prevailing in Madras City, Chengalpattu District, South Arcot
District, Thanjavur District, Pudukkottai District, Tiruchirappalli District, Ramanathapuram District, Madurai District, Tirunelveli District,
Kanyakumari District, Coimbatore District, Periyar District, Salem District, Dharmapuri District, North Arcot District, The Nilgiris District it is
necessary to direct that the power to make orders detaining bootleggers, drug offenders, goondas immoral traffic offenders and or slum grabbers
under sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral
Traffic Offenders and Slum Grabbers Ordinance 1982 (Tamil Nadu Ordinance of 1 of 1982) also be exercised by the Commissioner of Police,
Madras, District Magistrate, Chengalpattu District; District Magistrate, South Arcot District; District Magistrate, Thanjavur District; District
Magistrate, Tiruchirappalli District; District Magistrate, Ramanathapuram District; District Magistrate, Madurai District; District Magistrate,
Tirunelveli District; District Magistrate, Kanniyakumari District; District Magistrate, Coimbatore District; District Magistrate, Periyar District;
District Magistrate, Salem District, District Magistrate, Dharmapuri District; District Magistrate, North Arcot District; District Magistrate, The
Nilgiris District.
Now, therefore, in exercise of the powers conferred by sub-section (2) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Ordinance, 1982 (Tamil Nadu Ordinance 1 of 1982), the
Governor of Tamil Nadu hereby directs that for a period of three months on and from the date of this order, the.
Commissioner of Police, Madras; District Magistrate, Chengalpattu District; District Magistrate, South Arcot District; District Magistrate,
Thanjavur District; District Magistrate, Pudukottai District, District Magistrate, Tiruchirappalli District; District Magistrate, Ramanathapuram
District; District Magistrate, Madurai District; District Magistrate, Tirunelveli District; District Magistrate, Kanyakumari District; District
Magistrate, Coimbatore District; District Magistrate, Periyar District; District Magistrate, Salem District, District Magistrate. DharmapurU District;
District Magistrate, North Arcot District; District Magistrate, The Nilgiris District, may also, if satisfied as provided in the sub-section (1) of
Section 3 of the said Ordinance exercise the powers conferred by the said sub-section (1) thereof.
(Sd.) Commissioner and Secretary to Government.
G.O.Ms. No. 25, Prohibition and Excise (V) Department, dated 18.1.1982 was issued immediately after the Tamil Nadu Act 14 of 1982 came
into force on 18.4.1988, The Tamil Nadu Act 14 of 1982 was amended by the Act 1 of 1988 on 13.1.1988 and by virtue of the amendment,
forest offenders"" were included as one of the categories which are liable to be detained under the Act. After the amendment, delegation of power
has been given by issuing Government Orders once in three months, to detain the ""forest Offenders"" and in those Government Orders, the very first
G.O. Ms. No. 25, Prohibition and Excise Department, dated 18.1.1982 was referred to. The impugned G.O. Ms. No. 245, Prohibition and
Excise (XII) Department was issued on 18.10.1991 wherein the last Government Order in this regard, namely, G.O. Ms. No. 190, Prohibition
and Excise (XII) Department, dated 18.7.1991 was referred to.
The impugned Government Order is challenged on the only ground that while describing G.O.Ms. No. 245, dated 18.10.1991 it proceeds as
if the said G.O. includes ''Forest Offenders'' also even on 18.1.1982 when it was issued. It is seen from the impugned G.O. that subsequently
orders have been issued once in three months amending the said G.O. The Government Order does not stop with that. Subsequently, it was also
observed that ""dangerous activities of certain anti-social elements, such as, bootleggers, drug offenders, forest offenders, goondas, immoral traffic
offenders and slum grabbers are causing harm and danger and a feeling of insecurity among the general public apart from grave and widespread
danger to life and public health adversely affecting the public order and the Government are satisfied that having regard to the circumstances
prevailing and which are likely to prevail in the North Arcot Ambedkar District it is still necessary that the power to make orders detaining the
above categories of persons including forest offenders under sub- section (1) of S. 3 of the Act in question, namely, Tamil Nadu Act 14 of 1982,
shall be continued to be exercised by the District Magistrate of the said district for a further period of three months from 18.10.1991 and
accordingly in exercise of the powers conferred by sub-section (2) of the S. 3 of the said Act read with the proviso to the said sub-section (2), the
Governor of Tamil Nadu directed that the powers to make orders detaining those categories of persons including ''forest offenders'' under sub-
section (1) of S. 3 of the said Act shall be continued to be exercised for a further period of three months from 18th October 1991"". At the end, it
is further stated that ""consequently the following amendment is made to G.O. Ms. No. 25, Prohibition and Excise dated 10.1.1982 as
subsequently amended."" The subsequent amendment G.O. which is referred to as G.O.Ms.No.190, Prohibition and Excise (XII) Department,
dated 18.7.1991 contains delegation of powers with regard to forest offenders. Though the amendment is in respect of the period, as rightly
contended by the learned Advocate General that by the inclusion of the word ''forest offenders'' in the pramble, it cannot be said that the
Government while delegating the powers has not applied its mind and has not reached any subjective satisfaction in respect of the category of
forest offenders who were included by virtue of Act 1 of 1988. If the Government simply extended the period without showing any subjective
satisfaction with regard to the category of prsons of forest offenders by virtue of the amended Act, certainly it can be said that there is non
application of mind on the part of the Government while delegating the power under Sec.3(2) of the Act. It is not in dispute that only in the
preamble portion G.O. Ms. No. 25, dated 18.1.1982 has been described and in that preamble portion the words ''forest offenders'' has been
included.
As regards the scope, relevancy and applicability of the preamble in the Government Order, while deciding the validity of the impugned
Government Order it is rightly submitted by the learned Advocate General that even though the G.O. is an executive order, the principle laid down
regarding statutory enactment in respect of the principle of preamble will equally apply, and he, in support of his contention, drew our attention to
certain text books. In ""Principles of Statutory Interpretations"" by Justice G.P. Singh (5th edition 1992) at page 103 which deals with ''Preamble'' it
is stated (page 105) as follows:
The principle has also been enunciated by the Supreme Court, where Mudholkar, J., speaking for the Court observed:
It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the
object or meaning of an enactment is not clear, the preamble may be resorted to explain it. Again, where very general language is used in an
enactment which, it is clear must be intended to have a limited application, the preamble may be used to indicate to what particular instances, the
enactment is intended to apply. We cannot, therefore, start with the preamble for construing the provisions of an Act, though we could be ""justified
in resorting to it, may, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of
fact Parliament intended that it should have a limited application."" Burrakur Coal Co., Ltd. Vs. The Union of India (UOI) and Others, . These
observations, it is submitted, must be read subject to the rule that the Act including the preamble must be read as a whole to decide whether any
part of the enacting provision is clear or ambiguous. (A.G. v. HRH Prince Earnest Augustus of Hanover (1957) I All ER49 (HL).
In Legislation and Interpretation by Jagadish Swarup, Senior Advocate, at pages 225 and 226 it is stated as follows:
Though a preamble may afford useful light as to what a statute intends to reach, it is a settled rule that the preamble cannot, for any purpose,
control, restrict, extend, qualify, alter, detract from, or add to, the enactments themselves where they are expressed in clear and unambiguous
terms. A. C. Sharma v. Delhi Administration, 1973 S.C. 913 .
In Bindra''s Interpretation of Statutes,7th edition the learned author has stated:
Not an operating part - But though the Preamble is a part of the Act, it is not an operating part thereof (Mohammed Yusuf v. Imtiaz Ahmad Khan,
ILR 14 Luck 492) . The aid of the Preamble can be taken only when there is some doubt about the meaning of the operative part of the Act
Rehman Shagoo and Others Vs. The State of Jammu and Kashmir, which have to be given effect to when they go beyond the Preambroe, the
Preamble notwithstanding. (Rehman Kunju v. State of Kerala, 1968, S.C.D.552) . (page 25). ""It cannot confer power:- The function of the
Preamble, it may further be noted, is to explain and not to confer power (Sutherland: Statutory Construction, 3rd Ed., Vol.2 Art. 4804 at p.346).
Further, the learned Advocate General submitted that if once it is not disputed that the Government is empowered to delegate the power of
detention u/s 3(2) in respect of ''forest offenders'' also after the amended Act 1 of 1988 came into force, the wrong reference to the power by
quoting the earlier Government Order will not in any way vitiate the impugned Government Order. In this connection, he drew the attention of this
Court to certain decisions of the Apex Court. In Hukumchand Mills Ltd. Vs. The State of Madhya Bharat and Another, , a Constitution Bench
held:
The amendments which were made in the Tax Rules on December 28,1948, could be justified on the basis of Act 1 of 1948. All that S.5 of Act 1
of 1948 requires is the publication of the regulation made thereunder and their being made by the Government, and that has been complied with in
this case. There is no other formality required for making regulations and therefore, even though there was a mistake in the opening part of the
Notification of December 28,1949, the amendments made in the Tax Rules can be upheld under S.5 of Act 1 of 1948 as regulations.
In The Vice-chancellor, Jammu University and Another Vs. Dushiant Kumar Rampal, it has been held:
It is true the order of suspension did not recite Statute 24(ii) as the source of power under which it was made, but it is now well settled, that when
an authority makes an order which is otherwise within its competence it cannot merely fail because it purports to be made under a wrong provision
of law, if it can be shown to be within its powers under any other provisions. A wrong label cannot vitiate an order which is otherwise within the
power of the authority to make.
In Mayongbam Radhamohan Singh Vs. The Chief Commissioner (Administrator), Manipur and Others, it has been held:
If power can be traced to a valid power the fact that the power is purported to have been exercised under non-existing power does not invalidate
the exercise of the power. In the present case, the affidavit evidence establishes that the commissioner exercised his powers and was of the opinion
that it was in public interest to make the order of compulsory retirement.
In P. Radhakrishna Naidu and Others Vs. Government of Andhra Pradesh and Others, it has been held:
The mere fact that three different rules were mentioned in the impugned orders without scoring out the rules which are not applicable to a petitioner
in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The omission on the part of the officers
competent to retire the petitioners in not scoring out the rules which are inapplicable to a particular individual does not render the order bad. The
reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the
applicability of the rule mentioned. Further this Court has taken the view that a wrong reference to power will not vitiate any action if it can be
justified under some other power under which the Government can lawfully do the act. See Hukumchand Mills Ltd. Vs. The State of Madhya
Bharat and Another, . In the present case the valid rule is mentioned in each case.
In Municipal Corporation of the City of Ahmedabad Vs. Ben Hiraben Manilal, it has been held:
It is well settled that the exercise of a power if there is indeed power, will be referable to a jurisdiction, when the validity of the exercise of that
power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory though the section was not referred, and
a different or a wrong section of different provisions was mentioned.
The ratio laid down in the above decisions clearly established that if there is a wrong reference to power in the order, that will not vitiate the same if
it is justified by any other Act or Rule. In this case, it is clear from the operative portion of the Government Order that the Government in exercise
of the powers conferred by sub-section (2) of S. 3 of the Tamil Nadu Act 14 of 1982 read with the proviso to said sub-section (2) delegated the
powers by directing the amendment for a further period of three months. Even de hors the preamble portion, as rightly contended by the learned
Advocate General, it is clear from the last two paragraphs of the said order that the Government has rightly exercised the power conferred by S.
3(2) of the Act as stated above. In any event by virtue of the inclusion of ""Forest Offenders"" in G.O.Ms. No. 25, dated 18.1.1982 in the preamble
portion of the impugned order, it cannot be said that the entire order is invalid.
The learned counsel for the petitioner next argued that there is absolutely nothing to show the circumstances prevailing in respect of forest offenders
to delegate the power to a particular area and that mere reproduction of Section 3 of the Act without any material for the subjective satisfaction
clearly shows non- application of mind, as in the impugned Government\order none of the prevailing circumstances and likely to prevail have been
stated. In this connection the learned counsel folied on the decision of the Supreme Court reported in Abhay Shridhar Ambulkar Vs. S.V. Bhave,
Commissioner of Police and Others, . According to the learned Advocate General, the said decision was rendered while considering the validity of
an order of delegation passed by the Government of Maharashtra under S. 3(3) of the National Security Act, 1980. The Supreme Court in the
above quoted case has only taken the view that the subjective satisfaction may be either on the prevailing circumstances or circumstances that are
likely to prevail at a future date. In the impugned order, the subjective satisfaction has been mentioned in the following words, namely ""And
whereas the Government are satisfied that having regard to the circumstances prevailing and which are likely to prevail in the North Arcot
Ambedkar District, it is still necessary that the power to make orders detaining the bootleggers, drug offenders, forest offenders, goondas, immoral
traffic offenders and slum grabberrs under sub-section(l) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) shall be
continued to be exercised by the District Magistrate of North Arcot Ambedkar District for a further period of three months from the 18th October,
1991"". According to the learned Advocate General, the delegation of power was made after taking into consideration the circumstances prevailing
and likely to prevail in the jurisdiction of the District Magistrate of North Arcot Ambedkar District and as such the impugned order is in order
satisfying the requirements of Section 3(2) of the Act. He would further submit that before a Bench of this Court in W.P. Nos. 2397, 6072 and
7089 of 1991, a similar challenge was made to the Government Order and this Court upheld the said contention and allowed the writ petitions
thereby invalidating the power delegated to the Commissioner of Police in G.O. Ms. No. 939, Prohibition and Excise, dated 15.10.1980. As
against the said judgment, the State of Tamil Nadu has filed SLP (Criminal) Nos. 4118,4132 and 4182 of 1991 in the Supreme Court and
obtained stay of operation of the order on 12.3.1992 and the question is now sub-judice before the Apex Court. When this question is now before
the Apex Court, we do not propose to deal with the same. Further, we have asked the Government to produce all the relevant files relating to the
impugned G.O. delegating powers under S. 3(2) of the Act and we are prima facie satisfied that the Government after taking into consideration all
the circumstances which are necessary for passing the impugned G.O. has issued the impugned G.O. and as such we have no hesitation in holding
that the G.O. is not vitiated on this ground also. As regards the contention that in the present G.O., under which the delegation to pass the
impugned order was given, the word ''also'' has been removed so as to mean that the District Magistrate alone has got the power to clamp the
order of detention and the Government have relinquished the power vested with them, and such a delegation is not authorised by the Act and
hence the G.O. is vitiated on the ground of non-application of mind, we do not find any force in the contention as the Act enables the Government
to confer the power to detain persons under the Act, also to the District Magistrate and the Commissioner of Police. The absence of the word
''also'' in the impugned G.O. would not mean that the Government relinquished the power of detention and the District Magistrate and the
Commissioner of Police alone are empowered to do so. But, on the other hand, on a careful reading of the relevant portion of the Act as well as
the Government Order, we find that the delegation was made in addition to the power of the Government to detain persons in certain areas.
Hence, it cannot be said the G.O. is vitiated on the ground of non-application of mind in this regard. For all these reasons, we hold that the
preliminary objection raised with regard to the validity of the delegation of power under the G.O. is devoid of any merit and as such we reject the
said contention holding that the impugned G.O. is valid. We answer this point accordingly. Post for further enquiry on other points on 7.9.1992.
K.M. Natarajan, J.
As regards the merits of the case, the learned counsel for the petitioner though raised various grounds in the affidavit accompanying the writ
petition, confined his arguments on the ground raised in the additional grounds in H.C.M.P. No. 32 of 1992, wherein it is contended that page
Nos. 13,33,34 and 35 and the contents of column 7 in page No. 16 of the cases relied upon are illegible and not readable. Detenu''s
representation to the jail authorities in this regard is fruitless. A seal had been affixed by the Deputy Superintendent of Central Prison, Vellore, as
though all the documents supplied to the detenu were read over and explained to the detenu in Tamil. The said Deputy Superintendent of Central
Prison, Vellore has signed on 25.12.1991 for having complied with the same. It is contended that the contents of the seal has not been complied
with. It is further contented that the unreadable pages could never be read by anybody and the seal by the authority concerned is only a show of
complying with the formality. The detenu has lost his opportunity to make an effective representation to the authorities concerned in time. Non-
supply of the legible copies of the aforesaid documents which had been relied upon by the detaining authority along with the grounds of detention
infringes the detenu''s right guaranteed under Article 22(5) of the Constitution of India as the grounds of detention have been failed to be effectively
comunicated to the detenu.
No counter-affidavit has been filed in respect of the above allegations, on behalf of any of the respondents and hence the averments stand
unrebutted. The learned counsel for the petitioner produced before us copies of the above documents. We have gone through the documents. We
find that though the document at page 13 is legible, the rest of the documents referred to in the additional grounds raised by the petitioner, namely,
documents at pages 33,34 and 35 are not readable and in page No. 16 against column 7 two lines are found missing. It is not in dispute that these
documents were referred to and relied on by the detaining authority for the purpose of drawing subjective satisfaction for passing the impugned
order. The grievance of the petitioner is that he was not furnished with legible copies so as to make effective representation against the impugned
order. We also asked the learned Public Prosecutor to go through the above documents and see whether the documents are legible. He also has
gone through and fairly conceded that the documents at pages 33, 34 and 35 are not readable and that it is a fact that two lines against column 7 in
page No. 16 are missing. With regard to the effect of supply of illegible copies, the learned counsel drew the attention of this Court to the decision
of ours in W.P. No. 4229 of 1992, dated 25.8.1992 (G. Sahadevan v. District Magistrate and Collector of North Arcot Ambedkar District,
Vellore) wherein it was observed:
In this connection our attention was drawn to an unreported decision of ours in Panjali v. State (W.P. No. 3028 of 1992, dated 28.7.1992)
wherein in a similar circumstance, following the decisions of the Supreme Court in Dhannista Bhagat v. State of Kamataka (1990 S.C.C. (Crl.) 39)
and Mehrunissa Vs. State of Maharashtra, and also the decision of the Delhi High Court in Bhagat Raj v. Union of India and Ors. (1991(2)
Crimes 498) we have held that by the supply of illegible and un-readable documents of vital in nature, the detenu was deprived of making an
effective representation and as such the impugned order of detention is violative of Article 22(5) of the Constitution of India.
The ratio laid down in the said decision applies to the facts of the instant case and the impugned order is liable to the quashed, on the ground of
violation of Article 22(5) of the Constitution of India for not furnishing legible copies of the material documents relied on so as to make effective
representation.
In the result, the writ petition is allowed, the impugned order is quashed and the detenu is directed to be set at liberty forthwith unless he is required
in connection with any other cause.