Biju Aduppukalllingal v. Advisory Board under KAAPA; Inspector General of Police, Kannur Range; Deputy Inspector General of Police, Kannur Range; Sub Inspector of Police, Aaralam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935 ## **WP(C).No. 2288 of 2013 (I)** ## **PETITIONERS:** BIJU ADUPPUKALLINGAL, AGED 36 YEARS S/O.DEVASSIA, ADUPPUKLLINGAL HOUSE, KEEZHAPPALLY P.O., AARALAM AMSOM, VATTAPARAMB, KANNUR DISTRICT. BY ADV. SRI.P.V.SURENDRANATH ## **RESPONDENTS:** 1. ADVISORY BOARD, - UNDER KERALA ANTI SOCIAL ACTIVITIES(PREVENTION ) ACT REPRESENTED BY ITS SECRETARY, 'SREE NIVAS' VIVEKANANDA NAGAR, PADOM ROAD, ELAMAKKARA KOCHI 682 026. 2. INSPECTOR GENERAL OF POLIEC KANNUR RANGE, KANNUR 670 702. 3. DEPUTY INSPECTOR GENERAL OF POLICE KANNUR RANGE, KANNUR 670 702 4. SUB INSPECTOR OF POLICE - AARALAM 670 704, KANNUR. BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI R2 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.BIJU MEENATTOOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6.6.2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - EXT.P1 TRUE COPY OF THE ABOVE SHOW CAUSE NOTICE DATED 22.2.2012. - EXT.P2 TRUE COPY OF THE EXPLANATION DATED 7.3.2012 BY THE PETITIONER. - EXT.P3 TRUE COPY OF THE ORDER DATED 14.8.2012 - EXT.P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. - EXT.P5 TRUE COPY OF THE EXPLANATION DATED 1.12.2012 SUBMITTED BY THE COUNSEL FOR THE PETITIONER BEFORE THE FIRST RESPONDENT. - EXT.P6 TRUE COPY OF THE ORDER DATEDE 20.12.2012. - EXT.P7 TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE COMPLAINANT IN CRIME NO.24/2010 OF AARALAM POLICE STATION ALONG WITH THE FIR IN THE CRIME. - EXT.P8 A TRUE COPY OF THE FIRST INFORMATION STATEMENT OF THE COMPLAINANT IN 70/2011 OF AARALAM POLICE STATION DATED 8.3.2011. - EXT.P9 TRUE COPY OF THE FI STATEMENT OF THE COMPLAINANT ALONG WITH THE FIR. - EXT.P10 TRUE COPY OF THE JUDGMENT IN C.C.NO.977/2010 DATED 5.7.2010 IN THE AUSE TITLE AND DATED 6.9.2012 IN THE BOTTOM OF THE JUDGMENT. - EXT.P11 TRUE COPY OF THE FI STATEMENT IN CRIME NO.168/2011 OF THE AARALAM POLICE STATION DATED 14.6.2011. ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN & B.KEMAL PASHA, JJ. ---------------------------------------------------W.P.(C) NO. 2288 OF 2013 (I)** **---------------------------------------------------Dated this the 6[th] day of June, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The questions of law involved in this Writ Petition are the following: - A) Whether the Advisory Board exercising powers under Section 15(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as “KAAPA”) has jurisdiction to condone the delay in filing the representation under subsection (2) of Section 15? - B) Whether the person against whom an order is passed under Section 15(1) of KAAPA can challenge that order under Article 226 of the Constitution of India after the period fixed for filing a - representation before the Advisory Board? 2. The Deputy Inspector General of Police, Kannur issued ## **W.P.(C) NO. 2288 OF 2013(I)** :: 2 :: Ext.P1 show cause notice to the petitioner directing him to show cause as to why he should not be restrained from entering into the jurisdiction of the District Police Chief of Kannur, for a period of one year under Section 15(1) of KAAPA. In Ext.P1, the allegation is that the petitioner is involved in six cases, where charge sheets were filed before the Judicial Magistrate of the First Class concerned. It is also stated in Ext.P1 that the Deputy Inspector General of Police was, prima facie, satisfied that the petitioner is a “known rowdy” as defined in Section 2(p) of KAAPA and that he is indulging in antisocial activities within the jurisdiction of the District Police Chief, Kannur. 3. The petitioner submitted Ext.P2 reply to Ext.P1 show cause notice. The Inspector General of Police, Kannur Range passed Ext.P3 order dated 14.8.2012 under Section 15(1) of KAAPA, restraining the petitioner from entering into Kannur District for a period of one year, except with the prior permission of the District Police Chief, Kannur for the purposes specified in the order. It is stated in Ext.P3 that the decision taken earlier to issue an order under Section 15(1) was confirmed. ## **W.P.(C) NO. 2288 OF 2013(I)** :: 3 :: 4. The petitioner filed a representation to the Advisory Board under Section 15(2) of KAAPA. The representation was not submitted within fifteen days as provided under sub-section (2) of Section 15. There was a delay of three days in filing the representation. Going by the date of service of the order, the petitioner should have submitted the representation to the Advisory Board on or before 23.9.2012. However, the representation was sent by registered post on 24.9.2012 and it was received by the Advisory Board on 26.9.2012. 5. The Advisory Board held in Ext.P6 order that it has no jurisdiction to condone the delay in making the representation and therefore, the representation was not considered. 6. The petitioner challenges in this Writ Petition Ext.P6 order passed by the Advisory Board as well as Ext.P3 order passed by the Inspector General of Police. 7. Sri.P.V.Surendranath, the learned counsel for the petitioner, contended that the Advisory Board has jurisdiction to condone the ## **W.P.(C) NO. 2288 OF 2013(I)** :: 4 :: delay in filing the representation. It is submitted that though the Advisory Board is not a court stricto senso, the rights of parties being the subject matter of adjudication by the Advisory Board, it should have inherent power to condone the delay. It is also submitted that the Advisory Board is constituted not only to exercise the statutory jurisdiction conferred on it but also to protect the constitutional rights of the person aggrieved, under Articles 14, 19 and 21. KAAPA curtails the liberty of citizens and, therefore, it must ensure fairness in procedure. Fairness is guaranteed by providing a right to make a representation. The Advisory Board must have jurisdiction to condone delay if the right to make the representation is to be meaningful. The learned counsel also submitted that Ext.P3 order is even otherwise illegal and liable to be quashed since the authority which passed Ext.P3 order did not record his subjective satisfaction as to whether the petitioner is a “known goonda” or “known rowdy”. 8. Sri. T.Asaf Ali, the learned Director General of Prosecution, submitted that it is well settled that Section 5 of the Limitation Act is applicable only to Courts and not to quasi judicial authorities or Administrative Tribunals. There cannot be an inherent power for the ## **W.P.(C) NO. 2288 OF 2013(I)** :: 5 :: Advisory Board to condone delay since statutory restrictions have been placed in the matter of making representation and disposing of the same. Learned Director General of Prosecution also invited our attention to the various provisions of KAAPA and submitted that time is the essence of the scheme of the Act. 9. The learned counsel for the petitioner relied on the decisions in **Mukri Gopalan** v. **Cheppilat Puthanpurayil Aboobacker** (AIR 1995 SC 2272); **The Sahkari Ganna Vikas Samiti Ltd.** v. **Mahabir Sugar Mills (P) Ltd.** (AIR 1982 SC 119); **Shibu** v. **State of Kerala** (2009 (4) KLT 872); **Virendra** v. **The State of Punjab and another** (AIR 1957 SC 896) and **Smt.Maneka Gandhi** v. **Union of India and another** (AIR 1978 SC 597) in support of his contentions. 10. Learned Director General of Prosecution relied on the decision in **Nahar Industrial Enterprises Limited** v. **Hong Kong and Shanghai Banking Corporation** ((2009) 8 SCC 646). 11. It is well settled that Section 5 of the Limitation Act applies ## **W.P.(C) NO. 2288 OF 2013(I)** :: 6 :: only to Courts and not to other bodies such as quasi judicial Tribunals or executive authority. In **P.Sarathy** v. **State Bank of India** ((2000) 5 SCC 355 = 2000 (2) KLT 771 (SC)), the Supreme Court held, while interpreting Section 14 of the Limitation Act, that it is not necessary that “the Court spoken of in Section 14 should be a Civil Court”. It was also held that any authority or Tribunal having the trappings of a Court would be a Court within the meaning of Section 14. The provisions of Section 5 of the Limitation Act would apply in respect of appeals or applications, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, provided the matter is before a Court. If the question of condoning the delay arises before a Tribunal or a quasi judicial authority, the power to condone delay must be specifically conferred on it by the statute concerned. The provisions of Sections 4 to 24 of the Limitation Act would apply even in respect of any suit, appeal or application under any special law or local law, unless the application of Sections 4 to 24 is expressly excluded by such special or local law. However, such suit, appeal or application must be before a Court. The jurisdiction to apply Sections 4 to 24 of the Limitation Act can be exercised by a Tribunal or a quasi judicial authority only when ## **W.P.(C) NO. 2288 OF 2013(I)** :: 7 :: that power is conferred. Some special statutes provide for suits, appeals or applications before Courts including Civil Court. In such cases, Sections 4 to 24 of the Limitation Act would apply even if their application is not specifically provided in the special statute. ## 12. In **Mukri Gopalan** v. **Cheppilat Puthanpurayil** **Aboobacker** (AIR 1995 SC 2272), the Supreme Court held that the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act functions as a court and that it has power to condone the delay in filing an appeal under Section 18 of the Act. The Supreme Court held that Section 5 of the Limitation Act would apply since the Appellate Authority under the Rent Control Act is a court. The learned counsel for the petitioner relied on the following sentence in paragraph 20 of the decision in _**Mukri Gopalan's case**_ , wherein it was held: “It has to be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get ## **W.P.(C) NO. 2288 OF 2013(I)** :: 8 :: satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand.” The learned counsel for the petitioner, relying on the aforesaid sentence, submitted that Section 5 of the Limitation Act would apply even if the proceeding is before any authority. We are of the view that the Supreme Court did not hold so. The Supreme Court was considering the scope and ambit of Section 29(2) of the Limitation Act while answering the question whether the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act is a court. 13. In **Shibu** v. **State of Kerala** (2009 (4) KLT 872), a Division Bench of this Court was considering the question whether a person against whom an order was passed under Section 15(1) of KAAPA could challenge it in a Writ Petition without exhausting the alternative remedy of making a representation to the Advisory Board under Section 15(2) of KAAPA. The Division Bench in Shibu's case held ## **W.P.(C) NO. 2288 OF 2013(I)** :: 9 :: that though Section 15(2) of KAAPA does not use the expression “appeal”, the right conferred therein is an effective right for the aggrieved to challenge an order of restraint passed under Section 15 (1) of KAAPA. It was held that the remedy under Section 15(2) of KAAPA is an effective, efficacious and alternative remedy and, therefore, in the absence of compelling or exceptional reasons the aggrieved party was not justified in straight away approaching the High Court invoking its jurisdiction under Article 226 of the Constitution of India. 14. The other decisions cited by the learned counsel for the petitioner, are not quite relevant for the purpose of deciding the issue before us. 15. The scheme of KAAPA is relevant while deciding the question raised by the learned counsel for the petitioner. Section 3 of KAAPA confers power on the Government or the authorised officer to pass an order of detention of a “known goonda” or “known rowdy”, with a view to prevent such person from committing any anti-social activity within the State of Kerala. If an order of detention under ## **W.P.(C) NO. 2288 OF 2013(I)** :: 10 :: Section 3 is passed by the authorised officer, such order shall not remain in force for more than twelve days from the date of detention of such known goonda or known rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary of the Home Department if generally so authorised by the Government. In every case where a detention order is passed under Section 3 of KAAPA, the Government shall place the matter before the Advisory Board constituted under Section 8 of KAAPA, within a period of three weeks from the date of detention of the person concerned. The Advisory Board shall make a report to the Government specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned. Such report shall be filed within nine weeks from the date of detention of the person concerned. In every case where the Advisory Board has reported that there is sufficient cause for the detention of a person, the Government may confirm the detention order. If the opinion of the Advisory Board is that there is no sufficient cause for detention of the person concerned, the Government shall revoke the order of detention and cause the person to be released forthwith. Section 13 of KAAPA provides that a detention order may, at any time, be revoked or ## **W.P.(C) NO. 2288 OF 2013(I)** :: 11 :: modified by the Government. In the matter of an order under Section 15(1) of KAAPA, it is not necessary for the Government to pass an order of confirmation. It is also not necessary for the Government or the officer concerned to refer the matter to the Advisory Board. On the other hand, any person aggrieved is given an opportunity to make a representation to the Advisory Board within fifteen days of the date of service of the order. The representation shall be disposed of by the Advisory Board within thirty days of the date of receipt of such representation. The Advisory Board has the power to annul, amend or confirm, either in part or in full, the order passed under Section 15(1) of KAAPA. The Government or the authority which issued the order under sub-section (1) of Section 15 has the power, on its own motion, to annul or amend the order under Section 15(3), at any time. The scheme of KAAPA is such that promptness and speed is maintained at every level. A representation submitted by the person aggrieved shall be disposed of by the government or the authority without delay. Judicial pronouncements are to the effect that delay in disposing of a representation in the matter of preventive detention would make the continued detention illegal. The Advisory Board has to dispose of ## **W.P.(C) NO. 2288 OF 2013(I)** :: 12 :: the matter either under Section 10 or under Section 15(2) of KAAPA within the specified time. The person aggrieved is also bound to make the representation before the Advisory Board within a stipulated time. It cannot be assumed that the party concerned can maintain a representation before the Advisory Board beyond the time limit prescribed under KAAPA. We are of the view that the Advisory Board has no jurisdiction to condone the delay in making the representation under Section 15(2) of KAAPA. The view taken by the Advisory Board is legal and correct. 16. In Ext.P1 show cause notice, the Deputy Inspector General of Police recorded the prima facie satisfaction that the petitioner is a “known rowdy”. Opportunity was provided to the petitioner to show cause why an order under Section 15 should not be passed against him. The petitioner submitted a reply to the show cause notice. The Inspector General of Police passed Ext.P3 order under Section 15(1) of KAAPA confirming the decision taken earlier. It is recorded in Ext.P3 that the activities of the petitioner amount to anti-social activities and that it is necessary to confirm the order passed earlier. Though in the show cause notice it is mentioned that ## **W.P.(C) NO. 2288 OF 2013(I)** :: 13 :: the petitioner is a “known rowdy”, in the order passed under Section 15(1) of KAAPA, there is no mention that the petitioner is a “known rowdy” or a “known goonda”. In Ext.P1, only the prima facie satisfaction is mentioned. In Ext.P3 order, there is no mention that the authority is satisfied that the petitioner is either a “known rowdy” or “known goonda”. An order under Section 15(1) can be passed in the case of either a “known goonda” or a “known rowdy”. The authority passing the order under Section 15(1) must record his subjective satisfaction that the person concerned is either a “known goonda” or a “known rowdy” and that he is indulging in or likely to indulge or about to indulge in anti-social activities. In the present case, the subjective satisfaction as to whether the petitioner is a “known goonda” or a “known rowdy” and that a restraint order is necessary in order to prevent the petitioner from indulging in antisocial activities is not recorded. The prima facie satisfaction mentioned in the show cause notice is not a substitute for the subjective satisfaction to be arrived at while passing the final order. Ext.P3 order, to that extent, is illegal and, therefore, liable to be quashed. ## **W.P.(C) NO. 2288 OF 2013(I)** :: 14 :: 17. KAAPA defines “goonda”, “known goonda”, “rowdy” and “known rowdy”. Going by the definition of “goonda”, it includes a “rowdy”. All “rowdies” would not be “known rowdies” and all “goondas” would not be “known goondas”, within the meaning of KAAPA. Only if the person concerned is a “known goonda” or “known rowdy”, the authority under Section 15(1) can pass an order of restraint under Section 15(1). Therefore, it is imperative that the subjective satisfaction of the authority should be specified in the order under Section 15(1) as to whether the person concerned is a “known goonda” or “known rowdy”. 18. KAAPA provides for an effective remedy for the person aggrieved to make a representation to the Advisory Board challenging the order passed under Section 15(1). The Advisory Board has jurisdiction to annul, amend or confirm, either in part or in full, the order passed under Section 15(1) of KAAPA. Even if the person aggrieved does not make a representation before the Advisory Board within time or his representation is rejected on the ground that it is belated, that does not preclude the person aggrieved from filing a Writ Petition under Article 226 of the Constitution of ## **W.P.(C) NO. 2288 OF 2013(I)** :: 15 :: India challenging the order under Section 15(1). Even if the Advisory Board rejects the representation submitted by the person aggrieved on the merits, he would have a right to approach the High Court under Article 226 of the Constitution of India. 19. For the aforesaid reasons, we quash Ext.P3 order dated 14.8.2012 passed by the Inspector General of Police, Kannur Range under Section 15(1) of KAAPA. This judgment will not preclude the authority under Section 15(1) of the KAAPA from passing fresh orders against the petitioner, if situation so warrants, after complying with the relevant provisions under KAAPA. The Writ Petition is disposed of as above. **(K.T.SANKARAN) Judge** **(B.KEMAL PASHA) Judge** ahz/