M. Shajida, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3270 AP

Citation : 2021 Latest Caselaw 3270 AP
Judgement Date : 31 August, 2021

Andhra Pradesh High Court - Amravati

M. Shajida, vs The State Of Andhra Pradesh, on 31 August, 2021

                 HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                                           AND

                      HON'BLE Ms. JUSTICE J.UMA DEVI

                      WRIT PETITION No.10305 OF 2021
                            (Taken up through video conferencing)

ORDER: (Per Hon'ble Sri Justice Joymalya Bagchi)

1.     Petitioner has assailed the order of detention, dated 15.03.2021,

passed under Sections 3(1) and 3(2) of the Andhra Pradesh Prevention of

Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders and Land-Grabbers Act, 1986 (hereinafter

referred to as 'the Act 1 of 1986') inter alia on the following ground:

       "(xii).   It is submitted that the Detention order is confirmed by the
       State Government basing on the opinion of the Advisory Board. It
       is submitted that the constitution of advisory board is dealt under
       Section 9 of the Act 1 of 1986, where Section 9(2) specifically
       mandates the strength of the Advisory board i.e., a Chairman and
       two other members, who are, or have been Judges or are
       qualified to be appointed as Judges of a High Court. But in the
       case on hand the advisory board constituted consists of only
       chairman and one member, which is clearly violative of Section 9
       of statue and as such the opinion rendered by an adequate body
       constituted in contra to the section 9 does not have any bearing in
       the eye of law, thereby the order of conformation is invalid as such
       the order of detention."


2.     Sri S.Dilip Jaya Ram, learned counsel for the petitioner, restricts

the challenge to the order of detention on the aforesaid ground. He relies

on a judgment delivered by this Court in W.P. Nos.9945, 10979 and 10984

of 2021, dated 16.08.2021.


3.     Sri Syed Khader Masthan, learned counsel, appearing on behalf of

the learned Additional Advocate General, opposes the prayer.


4.     We have considered the materials on record.
                                                                         JB, J & JUD, J
                                             2                   W.P.No.10305 of 2021


5.       We find that the order of detention was confirmed vide G.O.Rt.

No.899, General Administration (SC.I) Department, dated 07.05.2021 on

the opinion of the Advisory Board, which comprised of a Chairman and

one Member alone. In W.P. Nos.9945, 10979 and 10984 of 2021, this

Court held that the Advisory Board must comprise of a Chairman and two

Members as per Section 9(2) of the Act 1 of 1986. Report of an improperly

constituted Advisory Board is non est in the eye of law. In this regard,

reference may also be made to a Constitution Bench decision of the

Hon'ble Apex Court in United Commercial Bank Limited v. Workmen1,

wherein the Bench held Award made by an improperly constituted

Tribunal was void. The Bench observed as follows:


                "......In our opinion, the position here clearly is that the
         responsibility to work and decide being the joint responsibility of all
         the three members, if proceedings are conducted and discussions
         on several general issues took place in the presence of only two,
         followed by an award made by three, the question goes to the root
         of the jurisdiction of the Tribunal and is not a matter of irregularity
         in the conduct of those proceedings....."


6.       Thus, in the light of the decision of this Court in W.P. Nos.9945,

10979 and 10984 of 2021 and the aforesaid ratio of the Hon'ble Apex

Court, we are of the opinion that the detention order, dated 15.03.2021,

which was confirmed vide G.O.Rt. No.899, General Administration (SC.I)

Department, dated 07.05.2021, on the basis of the report of an improperly

constituted Advisory Board is illegal and liable to be quashed.


7.       Accordingly, the Writ Petition is allowed setting aside the detention

order, dated 15.03.2021, passed by the 2nd respondent, in relation to the

petitioner's husband, Shaik Abdul Hakeem @ Basha Bhai, S/o.Late Abdul

Rasheed, Age: 41 Years, Occ: Red Sanders Smuggling, R/o.D.No.11/116,

AIR 1951 SC 230 JB, J & JUD, J

Kummarakunta Street, Near Pedda Darga, Kadapa City, YSR District, now

residing at No.10, Kaveri Nagar, Koniyamuthur, Coimbatore City and

District, Tamilnadu State, and also the consequential confirmation order

vide G.O.Rt.No.899, General Administration (SC.I) Department, dated

07.05.2021. The detenu - Shaik Abdul Hakeem @ Basha Bhai, shall be

set at liberty forthwith unless his confinement is required in relation to any

other case. There shall be no order as to costs.

8. As a sequel, miscellaneous applications pending, if any, shall stand

closed.