# Smt. Shobha Chaturvedi v. U.O.I. & others

- **Citation:** (1999) 2 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shobha-chaturvedi-v-u-o-i-others-39262
- **Pages:** 7

## Text

2 All.] ALLAHABAD SERIES
139
appreciate as to how then the petitioner can be coerced to pay the
outstanding bills of the company's telephone which is in 'custodia
legis of the Delhi High Court.

19. In our considered view the stand of the Respondents that they
can disconnect the telephone of the petitioner on account of nonpayment of the bills of the Company's telephone, is thoroughly
misconceived and unjustified and thus rejected. It is indeed pity that
such a course has been taken by the Respondents.

20. For the reasons aforementioned, we are of the view that the
petitioner is entitled to the reliefs prayed for.

21. .In the result, we allow this writ petition and quash the impugned
order and direction as contained in Annexure No. 5 and 11 by grant
of a writ of certiorari. The Respondents are commanded not to
disconnect the telephone of the petitioner provided the petitioner has
not defaulted or does not default in regard to payment of bills of her
aforementioned telephone number.

22. Since the petitioner has been unnecessarily and illegally coerced
by Respondent No. 2, she is entitled to costs, which we assess to the
tune of Rs.2,000/- only to be paid by Respondent No.2 to her.

23. The office is directed to hand-over a copy of this order within
one week to Sri Parekh, learned Standing Counsel for the Union, for
its intimation to and follow up action by the Respondents.

Petition Allowed.

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1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
1999
------
April, 9
THE INDIAN LAW REPORTS [1999
140
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By the Court

1.
Petitioner Ali Akhtar has filed this Habeas Corpus Petition
against the order of detention )Annexure 1) dated 21st July, 1998
passed by District Magistrate, Azamgarh under section 3 (2) of
National Security Act of 1980 (hereinafter called the Act). The
grounds of detention supplied to the petitioner are given in Annexure
1A. A perusal of the grounds shows that on 9th May, 1998 one Raj
kumar Singh alongwith his friend Ram Badan Singh alias Ramai was
going on Rajdoot Motor Cycle No. URX 7747 from Bilariaganj to
his village Bagahi Dand. At about 3-00 PM when the motor cycle
reached village Khalitpur Bazar, petitioner Ali Akhtar alongwith his
companions Ashfaq Master, Salam Jafar pradhan and Sarfuddin
armed with unlicensed pistols stopped the motor cycle and fired at
Raj Kumar Singh, who died. Ali Akhtar and his companions made a
murderous assault on Ram Badan Singh alias Ramai and
indiscriminately fired their pistols. Due to the daring broad day
;light murder and the firing of guns shots there was a commotion at
Khalitpur amd the pedestrians and person going on vehicle fled
away. The shop keepers started closing their shops and an
atmosphere of fear and terror was created in the localaity . The
public was agitated and the relations between the two communities
were affected. People belonging to Hindu comunity resorted to
"Chakka jam and the public order was adversely affected.

2.
A First Information Report was lodged by Kishun Dev Singh
at P.S. Bilariaganj and a case under Sections 147 148 149 307 302
IPC was registered by the police. The accused was arrested and a
charge sheet against them was filed on 25th June 1998.

1999
------
Ali Akhtar
 Vs.
State of U.P.
and others
------
O.P.Jain, J.
S.K.Agarwal,J.
2 All.] ALLAHABAD SERIES
141
3.
We have heard Sri Sarvesh, learned counsel for the petitioner,
Sri A.K.Tripathi, learned A.G.A. on behalf of the state and Sri
Chandra Prakash for Union of India and have gone through the
record.

4.
The first information report lodged by Kishun Dev Singh is
Annexure-2 and its perusal shows that in the Holi festival preceding
the day of the incident there was some communal disturbance
between the Hindus and Muslims of the locality because 'Abeer'
was ap;plied to a person who objected to it. In this communal
incident who ;persons belonging to Muslim community and one
person belonging to Hindu community lost their lives . A report of
the communal; violence was lodged by Raj Kumar Singh who is the
victim of the incident dated 9th May, 1998. It is stated in the F.I.R.
that after the incident on the Holi festival the petitioner and his
companions were in the lookout of a chance to kill Raj Kumar Singh.

5.
Learned counsel for the ;petitioner has argued that the
detention order is based on a solitary incident which may affect the
law and order but does not affect public order. It was also argued that
present petitioner Ali Akhtar had nothing to do with the earlier
incident at the time of Holi festival.

6.
In our opinion, this argument is not available to the petitioner
because in respect of the same incident dated 9th May, 1998 and on
the basis of the same F.I.R. a detention order was passed against one
Ashfaq Master, who is named in the present F.I.R. The detention of
Ashfaq Master was challenged in Habeas Corpus Petition No. 28574
of 1998, Ashfaq Master Vs. State of U.P. and others decided by this
Court on 13th January, 1999. Sri Sarvesh, learned counsel for the
petitioner has very fairly made a photo copy of the judgement dated
13.1.99 available to us. A perusal of the judgement shows that the
above contention was re;pelled with the following observations.

"We, however, feel in difficult to accede to the
contention advanced on ;behalf of the petitioner. It is
because that the incident indicated in the ground of
detention is not to be considered in isolated manner,
the background of the incident is also important. It is
then only that the impact of present incident on the
members of two communities namely Hindus and
Muslims, can be appreciated. It also appears from
perusal
of
the
First
Information
1999
------
Ali Akhtar
 Vs.
State of U.P.
and others
------
O.P.Jain, J.
S.K.Agarwal,J.
THE INDIAN LAW REPORTS [1999
142
Report that originally the dispute started with the
applying of 'Abeer' (dry color) on a member of
community which followed the dispute and resulted in
death of three persons two on the side of Muslims and
one on the side of Hindus. In this background, it need
not be emphasised that after the incident occurred in
the area in which members of two communities were
involved and one person belonging to Hindus was
injured, later on who died, needless to say that it
would disturb the communal harmony. The result is
that it will be matter relating to public order. We do
not find any substance in the submission made by the
learned counsel for the petitioner.'

7. The next contention of Sri Sarvesh is that there has been
undue delay on the part of the Central Government in disposing of
the representation filed on behalf of the ;petitioner Ali Akhtar. Sri
Sarvesh admits that there has not been any delay on the part of the
State Government. But so far as the Central Government is
concerned, there is unexplained delay according to learned counsel.
The representation submitted on behalf of Ali Akhtar was received
by the Central Government on 31st August, 1998. And it was
;processed by the Director in the Ministry of Home Affairs on 4th
September, 1998. The Joint Secretary dealt with the file on 7th
September, 1998 and on the same day he submitted it to the Home
Minister, Government of India. The Home Minister rejected the
representation on nineteen days in disposing of the representation by
the Home Minister and no explanation has been given of this delay
which is described as inordinate delay by the learned council. It is
further argued that in the case of Ashfaq Master (Habeas Corpus
Petition No. 28574 of 1998) the detention was set aside on the
ground of unexplained delay in disposing of the representation of the
detenue. We , however, find that in the case of Ashfaq Master the
delay was about one month. The papers relating to Ashfaq Master
were placed before the Home Minister on 29th August, 1998 and the
representation was rejected on 25th September, 1998. Thus , there
was a delay of about 26 days.

8. In the instant case the delay is of 19 days and in the counter
affidavit filed on behalf of the Central Government by Bina Prasad,
Under Secretary it is mentioned that there were Gazetted holidays on
5,6,12,13,19 and 20th September, 1998. In view of the fact that the
papers were placed before the Home Minister on 7th September,
1999
------
Ali Akhtar
 Vs.
State of U.P.
and others
------
O.P.Jain, J.
S.K.Agarwal,J.
2 All.] ALLAHABAD SERIES
143
1998, the holidays falling on 5th September and 6th September 1998
may be excluded. Even so, there were four holidays and the Central
Government is required to explain the delay of about 15 days only.

9. It may also be mentioned in this connection that even before
the receipt of representation the matter was considered by the Central
Government on 10th August, 1998 and it came to the conclusion that
there was no necessity to interfere with the order of detention
approved by the Government of Uttar Pradesh. This order was
passed on the basis of the report received from the State
Government. When the representation of the petitioner was received
the matter was again considered and thereafter some more
information was collected by sending crash wireless message dated
14.8.1998. The information was received on 31st August 1998 and
then it was considered by the Director, Ministry of Home Affairs and
thereafter by Joint Secretary and Home Minister.

10. Learned A.G.A. has cited Smt. Kamlabai Vs. Commissioner
of Police, Nagpur and ors. JT 1993 (3) SC 666 which was also a
case; under National Security Act. In that case the Government of
India sent a wireless message on 19..5..92 asking for certain
information and again wireless message was given on 13.7.92 and
the matter was decided by 'the Government of India on 15.7.92. It
was argued before the apex court that no explanation has been given
regarding the delay between 18.6.92 to 13.7.92. This contention was
not accepted and the Court made the following observations:

" The delay by itself is not a ground which proves to
be fatal, if there is an explanation. However, the short
delay can not be given undue importance having
regard to the administrative actions. We do not think
that the delay in this case is so inordinate as to warrant
interference."

11. However, we find that a more strict view has been taken in
some latest cases. In the case of Rajammal Vs. State of T.N. and
another 1999 SCC(Criminal) 93 it has been observed that it is not
enough to say that the delay was very short. Even longer delay can
as well be explained. So the test is not the duration or range of delay
,but how it is explained by the authority concerned. In the case of
Rajammal the file was submitted before the Minister who received
it while he was on tour. The file was submitted to the Minister on
9,.2.98 and he passed the order 14.2.98. It was observed by the
1999
------
Ali Akhtar
 Vs.
State of U.P.
and others
------
O.P.Jain, J.
S.K.Agarwal,J.
THE INDIAN LAW REPORTS [1999
144
Court that there is no explanation whatsoever of far as the delay
which occurred between 9,.2.98 and 14.2.98. It was further observed
that merely stating that the Minister was on tour and hence he could
pass orders only on 14.2.98j is not a justifiable explanation when the
liberty of a citizen guaranteed under Article 21 of the Constitution is
involved. Absence of the Minister at the Headquarters is not
sufficient to justify the delay, since the file could be reached the
Minister with utmost promptitude in cases involving the vitally
important fundamental right of a citizen.

12. In the case of Parvez Vs. State of UP 1999 (1) JTC 469 (All)
there was delay of fourteen days in the disposal of the
representation. The delay remained unexplained and it was held that
intermittent holidays are not to be counted in explaining the delay .
It was found that the matter was placed before the Home Minister on
11.9.98 and there was no explanation as to in what circumstances for
fourteen days the representation, which was ripe for disposal ,
remained pending . The further detention of the detenue was held to
be invalid.

13. In the case before us there is unexplained delay of about
fifteen days . In the counter affidavit filed one behalf of the Central
Government there is not a word about the reasons which caused the
delay and, therefore, in our opinion the order of detention has to be
set aside.

14. In view of the above discussion, we hold that there has ;been
unexplained delay in considering and disposing of the representation
by the Central Government. The writ petition is thus, allowed and
continued detention of the petitioner is held to be invalid. The
petitioner shall be set at liberty forthwith unless wanted in any other
case.

Petition Allowed.

1999
------
Ali Akhtar
 Vs.
State of U.P.
and others
------
O.P.Jain, J.
S.K.Agarwal,J.
2 All.] ALLAHABAD SERIES
145
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By the Court

1.
Habeas Corpus Petition No. 36969 of 1998 has been filed by
Rafeeq alias Mantex and Habeas Corpus petition no. 35426 of 1998
has been filed by Rashid alias Kalwa. Both the detenues have been
detained by order passed under section 3 (3)j of the National Security
Act of 1980 (hereinafter called the Act). The order of detention has
been passed by District Magistrate, Jyotiba Phule Nagar who is
respondent no. 3 As the grounds of detention and the grounds on
which the detention has been challenged are similar in; both the
cases, they are being disposed of by a common judgement.

1999
------
April, 5