Sen, J. - (1.) This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated January 19, 1987 rejecting the petition under Art. 226 of the Constitution filed by the appellant in the High Court for grant of a writ of habeas corpus. The appellant has been placed under detention by the impugned order dated September 7, 1985 passed by the District Magistrate, Beed under S. 3(2) of the National Security Act, 1980 on his being satisfied that it was necessary to do so 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order'. The appellant challenged the impugned order of detention on grounds inter alia that there was infraction of the constitutional safeguards enshrined in Art. 22(5) read with S. 8 of the Act inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation.
(2.) On the view that we take, it is not necessary to deal with the facts elaborately. The material facts are these. The appellant was taken into custody on September 8, 1986 and was lodged at the Aurangabad Central Prison, Aurangabad where he is now detained. He was served with the grounds of detention along with the copies of the relevant documents on September 14, 1986. It appears that a week thereafter i.e. on September 22, 1986 he addressed a representation to the Chief Minister through Superintendent, Aurangabad Central Prison, Aurangabad which the Superintendent forwarded to the Home Department on September 24, 1986. The State Government, in the meanwhile, under S. 3(4) of the Act accorded its approval to the impugned order of detention on September 18, 1986. On October 6, 1986 the appellant made another representation to the Advisory Board which met and considered the same on October 8,1986. On October 13, 1986 the Advisory Board after considering the representation made by the appellant together with the materials placed before it forwarded its report to the State Government recommending confirmation of the impugned order of detention as there was, in its opinion, sufficient cause for the detention of the appellant. Acting upon the report of the Advisory Board, the State Government by its order dated November 19, 1986 confirmed the order of detention. In the meantime, the appellant moved the High Court on November 13, 1986.
(3.) The main ground on which the legality of the impugned order of detention was assailed in the High Court was that although the appellant had addressed a representation to the Chief Minister on September 22, 1986, it was not considered and disposed of by the Chief Minister till November 17, 1986 i.e. there was unexplained, unreasonable delay in disposal of the same. It was said that such unreasonable delay in disposal of the representation was sufficient to render the continued detention of the appellant illegal. The High Court did not think it necessary to call upon the respondents and by an oral judgment dismissed the writ petition mainly on the ground of imperfect pleadings. It observed that the appellant had not specifically pleaded that there was unreasonable delay in the office of the Chief Minister which had not been explained and therefore the detention was illegal, but his grievance was that his representation had not been considered. It referred to paragraph 4 of the writ petition where it is submitted:It is submitted that in law, the State Government is bound to consider the representation before the decision of the Advisory Board, but in the instant case neither the State Government has considered the representation of the petitioner nor the Government has communicated its decision." It referred to the underlined portion of the averments in paragraph 4 of the writ petition namely: "Eight weeks have elapsed since the date of detention of the petitioner but still neither the State Government has taken any decision on the representation forwarded through the Home Department nor the petitioner is communicated any decision pursuant to the report .........." The High Court distinguished the decision of this Court in Harish Pahwa v. State of U. P. (1981) 3 SCR 276 on the ground that in that case the Court had before it the affidavit of the Government showing that it had no explanation to offer except that it had referred the matter to the Law Department and also there was sufficient material to show that there was unreasonable delay in dealing with the representation whereas in the present case there was no such ground raised. The High Court disallowed the prayer for grant of a writ of habeas corpus mainly on the ground of defective pleadings, and added that the appellant "had not even asked for time to amend the petition" and "put the respondents to notice". It observed: "While the State undoubtedly has the duty to process the representation of the detenu promptly, it is also the duty of the petitioner to make specific averments of facts and their effect, if necessary, by amendment. This is necessary to put the respondents to notice, that the effect of these facts have to be answered and explained. The respondents may have an explanation as to why the Chief Minister took so much time. On such submission we cannot hold that the respondents have failed to explain delay or that the time taken by the Chief Minister was wholly necessary. We should not be understood to have held that the time taken by the Government was justified. Far from it but we cannot allow the petitioner to take the respondents by surprise by such a style of pleading.";