Writ Petition Crl No 359 of 1988
Under Article 32 of the Constitution of India  RK Jain RK Khanna and AS Pundir for the Petitioner
Yogeshwar Prasad Mrs Rachna Gupta Mrs Rachna Joshi Dalveer Bhandari Ms CK Sucharita and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This petition under Article 32 of the Constitution of India has been filed by the petitioner to seek the issue of appropriate writs for quashing an order of detention passed against 261 him under Section 32 of the here inafter the Act  by the State of Uttar Pradesh and for his release from custody
On April 5 1988 an order of detention was passed against the petitioner under Section 32 of the Act but the petitioner could not be served the order of detention and taken into preventive custody as he was ab sconding
Consequently he was treated an absconder and resort was had to Section 72 of the Act and a proclamation was obtained against him under Sections 82 and 83 of the Criminal Procedure Code on May 4 1988 and the said order was executed on May 4 1988
Thereafter the petitioner surrendered himself in Court on July 4 1988 and he was sent to the District Jail at Meerut where he was served the detention order and the grounds of detention on July 5 1988
In the grounds of detention three grounds were set out for the detention of the petitioner and they read as fol lows 1
On 8787 at about 930 PM in the night at Kasba Sardhana Police Station Sard hana Meerut you alongwith your other compan ions went to the garden of Lala Om Prakash Jain which is in the possession of Yusuf So Ismail on contract
You said to Yusuf etc
who were present there that they do not pay the CHAUTH fee for GUNDAGARDI of the Mango therefore you using abusive language said Kill the Salas so they may vanish for ever and you people with an intention to kill Yusuf etc
assaulted them
On the information of Shri Yusuf a case has been registered against you as Crime No 211 under Sections 307 323 IPC which is under consideration of the Court
Due to your aforesaid misdeed terror in Sardhana and in District Meerut terrorism has spread and in this way you have acted in such manner which is against the Maintenance of Public Law and order situation
On 11 2 88 at about 1100 AM in the day at the Binauli Road in Kasba and Police Station Sardhana you alongwith your companion Vinay Kumar went to the Shop of Shri Ashok Kumar and you threatened Shri Ashok Kumar that he should pay Rs 10000 Ten thousand by tomorrow or day after tomorrow otherwise he will be killed
On the basis of information of Shri Ashok Kumar Crime No 48 under Section 506 IPC has been diarised which is under consideration
Due to your aforesaid indecent terror in Kasba Sardhana and in the District of Meerut terrorism has prevailed and in this way you have acted in such manner which is against the maintenance of the Public Law and Order situation
262 3
On 3388 in the Kasba of Sardhana Police Station Sardhana District Meerut you taking a Revolver in your hand in the market of Sardhana said to the Shopkeepers that who so ever will not pay money CHAUTH he cannot open the shop in the market due to which the shops were closed in the market
HC Khajan Singh with the help of other employ ees when tried to arrest you then you ran away on the Motor Cycle alongwith your companion while firing in the air
Information to this effect has been got diarised by HC
Khajan Singh at Police Station in GD No 14 at 1010 hours and investigation to this effect has been done by the Inves tigation Inspector Shri RC Verma and on investigation the aforesaid incidents were found correct and entry to this effect has been carried out at GD No 33
By your afore said indecent activity in Sardhana and in District Meerut terrorism has prevailed and in this way you have acted in such manner which is against the provisions of Maintenance of Public law and Order situation
The grounds of detention also set out the following 1 The petitioner if he so desires could make repre sentation under Section 8 of the Act to the Home Secretary Ministry of Home State Government through the Superintend ent of Jail at the earliest possible 2 That the papers relating to the petitioner s detention would be submitted under Section 10 of the Act to the Advisory Board within three weeks from the date of detention and that if the representation is received late it would not be considered by the Advisory Board 3 That if the petitioner so desired he could also make representation to the Government of India by addressing the representation to the Secretary Government of India Ministry of Home Internal Security Department North Block New Delhi through the Superintendent of the Jail and 4 That if under the provisions of Section 111 the petitioner desired to have a personal hearing by the Adviso ry Board he should specifically make mention of it in his representation or he should inform the State Government of his desire through the Jail Superintendent
263 It is common ground that the petitioner made a represen tation to the Government against his detention and the order passed therefore
Therein he had set out that he wished to have the services of a friend at the time of the meeting of the Advisory Board to make representations on his behalf
The representation was received by the District Magistrate Meerut on July 15 1988
After receipt of the comments of the SSP Meerut the representation along with the comments of the District Magistrate were sent to the State Government on July 21 1988
Even prior to it the copies of the repre sentation were forwarded to the State Government and the Advisory Board on July 19 1988
The representation was considered and rejected by the State Government on July 28 1988 and the petitioner was informed of the same through the Jail Superintendent Meerut
The meeting of the Advisory Board to consider the case of the petitioner was fixed on August 2 1988 and a Radio gram was sent by the State Government to the District Magis trate and the Superintendent District Jail Meerut informing the date of the meeting of the Advisory Board
The Radio gram further set out as follows Board further directs that either District Magistrate or Superintendent of Police to appear before the Board on the date of hearing withall relevant records and on request of the detenu his best friend non advocate may also be allowed to appear with him A copy of the Radio gram was sent to the Jail Superintendent and it was shown to the petitioner and his acknowledgement was obtained
The Adviso ry Board considered the written and oral representations of the petitioner and gave a report that there was sufficient cause for the detention of the petitioner
The State Govern ment accepted the report of the Advisory Board and passed a further order on August 1718 1988 confirming the detention of the petitioner
Thereafter the petitioner has come for ward with this petition under Article 32 of the Constitu tion
In his petition the petitioner has raised several grounds to assail his detention one of them being the non furnishing of the investigation report of Shri RC Verma Inspector of Police who had verified the truth and correct ness of the report of HC 1057 Khajan Singh about the inci dent which took place on March 3 1988
However during the hearing of the writ petition no arguments were advanced in respect of this ground of objection
Mr Jain learned counsel for the petitioner assailed the order of detention on the following grounds 264 1 All the three grounds set out in the grounds of detention even if true are not incidents which would affect the maintenance of public order and at best they can be con strued only as offences committed against individuals or incidents which are likely to affect the law and order situation
2 The third ground is a concocted incident in order to give credibility to the detention order by making it appear that the petitioner was indulging in anti social acts which affected the maintenance of public order
3 The petitioner was denied opportu nity to have the assistance of a friend when he appeared before the Advisory Board on August 2 1988
Besides these contentions Mr Jain also raised a fourth contention that under Section 35 of the Act the State Government is enjoined to send a report within seven days to the Centre Government of the detention of any detenu under the Act together with the grounds on which the order had been made and on receipt of such a report the Central Gov ernment is bound to consider the matter and either approve the detention or revoke the same in exercise of its powers under Section 14 of the Act
In this case there was no material to show that the Central Government had performed its duty under the Act
Since this contention was not raised in the petition and since the Central Government had not been impleaded a party respondent the petitioner s counsel filed a petition and sought leave of Court for raising an additional ground and for impleading the Central Government as a party respondent
These prayers were acceded and on notice being issued to the Central Government the Central Government made its repre sentation through counsel
The contentions of the petitioner in his petition have been refuted by the respondents in their counter affidavits one by the second respondent District Magistrate Meerut and the other filed by Shri PN Tripathi Upper Division Assistant Confidential Section 8 of UP Civil Secre tariat Lucknow on behalf of the first respondent the State of UP
We will now examine the merits of the contentions of the petitioner in seriatum
The first contention is that the three grounds 265 mentioned in the grounds of detention could by no stretch of imagination be construed as acts which would affect the maintenance of public order or the even tempo of life of the community
Mr Jain learned counsel for the petitioner referred to Gulab Mehra vs State of UP 1987 IV SCC 302 and urged that the first ground of detention in that case also pertained to the detenu therein threatening to shoot the shopkeepers of Khalasi Line locality if they failed to give money to him and the shopkeepers becoming terror stricken and closing their shops
This Court had construed the ground as only affecting law and order and not the maintenance of public order
Mr Jain argued that grounds 1 and 2 were threats meted out to individual persons regarding which criminal cases have been registered and the 3rd ground was identical to the one noticed by this Court in Gulab Mehra s case
Consequently it was argued that we should also hold as was done in Gulab Mehra s case that the grounds set out against the petitioner would at best affect only the law and order situation and would not pose a threat to the maintenance of public order
We have given the matter our careful consideration but we find ourselves unable to agree with the contention of Mr Jain
In ground No 1 the petitioner had gone with his associates and threatened one Yusuf the contractor of a mango grove that fees for goonda gardi Chauth should be paid to him and the petitioner and his associates assaulted Yusuf saying that they will Kill the salas
On Yusuf reporting the matter to the police a case was registered under Sections 307  323 IPC against the petitioner and his associates
The demand for chauth from the contractor and the attack launched on him would show that it was not a case of singling out a particular contractor for payment of chauth but a demand expected to be complied with by all owners or contractors of mango groves in the locality
In such circumstances the demand made and the attack launched would undoubtedly cause fear and panic in the minds of all the owners and contractors of mango groves in that area and this would have affected the even tempo of life of the community
Similarly the second ground pertains to the petitioner going to the shop of one Ashok Kumar and making a demand of Rs 10000 and threatening him that unless the money was paid on the following day or the day after the shopkeeper would be killed
The shopkeeper had reported the matter to the police authorities and a case has been registered against the petitioner us 506 IPC
This incident must also be viewed in the same manner in which the first incident has been construed
It is not as if the demand and the threat following it were made against Ashok Kumar in an insolated manner
On the other hand the demand had been made as part of a scheme to extort money from all the shopkeepers under a threat that their continuance of business and even 266 their lives would be in danger if chauth was not paid
The demand made on Ashok Kumar would have certainly made all the shopkeepers in that locality feel apprehensive that they too would be forced to make payments to the petitioner and that otherwise they would not be allowed to run their shops
It so far as the 3rd incident is concerned it is seen that the petitioner had taken a revolver with him and threatened all the shopkeepers in the market of Sardhana that if anyone failed to pay chauth he would not be al lowed to open his shop and he would have to face the conse quences
On account of this threat the shop owners downed the shutters of their shops and at that point of time HC Khajan Singh happened to reach the market
Seeing what was happening HC Khajan Singh attempted to apprehend the petitioner but he managed to escape on his motor cycle after firing several shots in the air with his revolver
HC Khajan Singh had at once returned to the station and made an entry in the general diary about this incident
This incident cannot be considered as merely causing disturbance to the law and order situation but must be viewed as one affecting the even tempo of fife in the mar ket
The shopkeepers had closed their shops and they as well as the public in the market area would have felt terrified when they saw the petitioner moving with a revolver and demanding chauth  payment by the shopkeepers
Whether an act would amount to a breach of law and order or a breach of public order has been considered by this Court in a number of decisions and we may only refer to some of them viz
Dr Ram Manohar Lohia vs State of Bihar   Arun Ghosh vs State of West Bengal  Nagendra Nath Mondlal vs State of West Bengal  and Nandlal Roy vs State of West Bengal In Gulab Mehra s case supra after noticing all these decisions it was set out as follows Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the socie ty
If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large andor the even tempo of the community then it becomes a breach of the public order
 267 In State of UP vs Hari Shankar Tewari  referring to SK Kedar vs State of West Bengal and Ashok Kumar vs Delhi Administration it was held as follows Conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order
One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle
Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potenti ality of the act if so put as to disturb or dislocate the even tempo of the life of the community it will be an act which will affect public order
 Viewed in this perspective it cannot be said that the demands made and threats given by the petitioner to the contractors and shopkeepers as mentioned in the grounds would have its reach only to the limited extent of affecting the law and order situation and not go so far as to affect the maintenance of public order
We are therefore unable to sustain the first contention urged on behalf of the peti tioner
Learned counsel for the petitioner then contended that no credence should be given to the last mentioned ground because the names of the shopkeepers who had closed their shops out of fear for the petitioner or the names of the witnesses to the incident have not been set out in the grounds
It was further contended that the 3rd incident has been concocted in order to give a colour of credibility to the detention order
The counsel argued that in the report made by Inspector RC Verma for an order of detention being passed against the petitioner a number of instances were given but in spite of it the police authorities felt diffi dent about the adequacy of the materials and had therefore concocted the third incident given as ground No 3
We do not find any merit in this contention because the records go to show that HC Khajan Singh had promptly reported the incident at the police station and the truth of his report had been verified by Inspector RC Verma
268 It is not therefore possible to accept the contention that the 3rd incident referred to in the grounds of detention is a concocted affair
In Gulab Mehra s case upon which reliance was placed by Mr Jain we find that the facts therein were quite differ ent
The first ground of detention in that case pertained to the detenu demanding money from the shopkeepers of Khalasi Line but no shopkeeper had come forward to complain about the detenu and only a picket employed at the police station had made a report
The second ground related to the detenu lobbing a comb at a police party when it tried to effect his arrest
It was in those circumstances this Court deemed it appropriate to quash the order of detention
In the present case it may be seen that specific reports had been given by Yusuf and Ashok Kumar about the incidents forming grounds 1 and 2 and cases had been registered against the petitioner
In so far as the 3rd ground is concerned HC Khajan Singh was himself a witness to the threats given by the petitioner to the shopkeepers with a revolver in his hand and the firing of the revolver by the detenu while leaving the place
The report of HC Khajan Singh has been verified by Inspector RC Verma and found to be true
It is thus seen that the facts in the two cases have no similarity whatever
On the other hand the observation in State of UP vs Karnal Kishore Saini  at 213 would be of relevance in this case
It was held in that case that if firing is made in a public street during the day time the incident would undoubtedly
affect public order as its reach and impact would disturb public tranquility and it would affect the even tempo of the life of the people in the locality concerned
Therefore the decision in Gulab Mehra s case supra cannot be of any avail to the petitioner
In so far as the 3rd contention is concerned it was urged that in spite of the petitioner having specifically asked for the assistance of a friend at the time he was heard by the Advisory Board he was denied opportunity to have such assistance
The petitioner has averred in his petition as follows The petitioner orally as well as in writing requested the Chairman of the Advisory Board to allow him to engage a counsel or atleast a person who is acquainted with the law to represent him before the Advisory Board as the petitioner was illiterate and was not capable of representing his case before the Advisory Board
Unfortunately the Advisory Board rejected the request of petitioner and did not allow him to engage a legal counsel or atleast a person 269 who is acquainted with the provisions of the and forced the petition er to appear before the Advisory Board without any defence helper
This part of the act of the members of the Advisory Board is illegal unconstitutional and violative of Articles 14 19 21 and 22 of the Constitution of India
 In the counter affidavit of the District Magistrate this allegation has been refuted as follows Averments made in para No 2 are wrong and denied
The petitioner was detained on 5788 in Distt
Jail Meerut and his detention is absolutely legal and constitutional
It is wrong to say that the petitioner was not provided an opportunity by the Advisory Board to defend himself
On the contrary he was heard by the Advisory Board on 2889 and the detaining authority had no objection to his case being represented by a person who is not an advocate
The fact that his request was rejected by the Advisory Board is not in the notice of detaining authority
As per the Tele
dated 26788 of the Home Deptt
of Government of UP Lucknow the petitioner was allowed to appear before the Advisory Board through non advocate next friend
A copy of the said message is annexed hereto and marked as annexure R I
However the petitioner s assertion that he is illiterate is wrong because he knows English and has submitted detailed representation
According to information available petitioner is an Intermediate
The ratio of the decision in AK Royal vs UOI reported in AIR 1982 SC 709 has not been contravened in any manner in the instant case
 In the counter affidavit on behalf of the State of U P it has been stated as follows But it is evident from the record that the Advisory Board had directed the State Govt
through its letter dated 2 Ist July 1988 that since the petitioner Shri Sharad Tyagi had requested to appear alongwith his next friend he may be informed to attend the Board s meeting alongwith his next friend non advo cate on the date of hearing
The State Gov ernment complied with the instructions of the Advisory 270 Board and had sent the necessary directions to the District Authorities through its radiogram message dated 26 July 1988 a copy of which is annexed hereto and marked as Annexure R I
Besides the specific averment made in the counter affi davit Shri Yogeshwar Dayal learned counsel for the State of UP also drew our attention to the radiogram sent by the Government to the District Magistrate wherein it has been clearly stated that on request of detenu his next friend non advocate may also be allowed to appear with him Mr Yogeshwar Dayal also made available to us the file contain ing the original records relating to the detention of the petitioner
We find from the records that the radiogram had been served on the petitioner through the Superintendent of the Meerut District Jail
The petitioner has affixed his signature in English therein and also written the word date but he has not filled up the date
It is stated in the counter affidavit that the petitioner is not an illiter ate but has studied upto Intermediate
This would falsify the averment in the rejoinder affidavit filed by the peti tioner s wife Smt
Shobha Tyagi that the copy of the tele gram annexed to the counter affidavit of the respondent No 2 was not served upon the detenu the detenu was never informed that he was entitled to be represented by a friend who is not an advocate Mr Jain s contention was that even if the radiogram had been shown to the petitioner it must have been done belatedly and there would not have been time for the petitioner to contract anyone and make arrangements for a non advocate friend appearing alongwith him at the meeting of the Advisory Board
We are unable to countenance this argument because of several factors
In the first place the petitioner has not raised such a plea in his petition
His specific contention was that he had requested the Chairman of the Advisory Board in writing as well as orally to permit him to have the services of a counsel or a person acquainted with the law to represent his case before the Advisory Board but the Advisory Board rejected his request
It was not therefore his case that he was shown the radiogram belatedly and he did not have time to make ar rangements for anyone to appear alongwith him before the Advisory Board
Another circumstance which militates the contention of Mr Jain is that there is no material to show that the petitioner had orally represented to the Chairman of the Advisory Board that he wanted the services of a friend and that he had been shown the radiogram very late
The respondents have filed a copy of the letter sent by the Additional Registrar of the High Court to confirm that the Advisory Board had accorded permission to the petitioner to appear before the Board 271 alongwith a non advocate friend but in spite of it no one appeared along with the petitioner on the date of hearing and hence no mention was made in the report of the Advisory Board about the non appearance of a friend on behalf of the petitioner
Mr Jain argued that in a number of decisions commencing from AK Roy vs Union of India  1 it has been consistently held that even though a detenu will not be entitled to have legal assistance he does have a right to have the assistance of a friend at the time his case is considered by the Advisory Board and hence denial of opportunity to have the assistance of a friend would vitiate the detention
This principle is undoubtedly a well stated one
It has however to be noticed that though the Advisory Board had permitted the detenu to appear alongwith a friend the detenu had failed to take a friend with him
He did not also represent to the Advisory Board that he did not have adequate time to get the services of a friend and that he required time to have the services of a friend
Such being the case he cannot take advantage of his own lapses and raise a contention that the detention order is illegal because he was not represented by a friend at the meeting of the Advisory Board
This position is a settled one and we may only refer to the observation of this Court in Vijay Kumar vs Union of India AIR 1988 SC 934 at 939 It appears from the observation made by the High Court that the appellant without making any prayer before the Advisory Board for the examination of his witnesses or for giving him assistance of his friend started arguing his own case which in all probability had given an impression to the members of the Advisory Board that the appellant would not examine any witness
The appellant should have made a spe cific prayer before the Advisory Board that he would examine witnesses who were standing outside
The appellant however did not make any such request to the Advisory Board
There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or friend at the time of hearing but the appellant did not avail himself of the same
In the circum stances we do not think that there is any substance in the contention made on behalf of the appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the wit nesses produced by the appellant at the meet ing of the Advisory Board and in not giving permission to the appellant to have the as sistance of his friend
 272 From the materials on record we are satisfied that the appellant was accorded permission to have the services of a friend and the radiogram sent by the Government was duly communicated to him but for some reason he had not availed the services of a friend
He did not also choose to repre sent to the Advisory Board that he was not given sufficient time to secure the services of a friend
Consequently the third contention also fails
We are only left with the fourth and last contention
No grievance was made in the petition that the Central Govern ment had not considered the petitioner s case when the State Government sent a report under Section 35 of the Act and the non application of mind by the Central Government viti ates the detention of the petitioner
This ground of objec tion was raised only during the arguments and consequently the Central Government was permitted to be impleaded as a party respondent
Learned counsel appearing for the Central Government has stated that the Central Government had infact considered the report sent by the State Government and saw no reason to revoke the order in exercise of its powers upon Section 14
There is no reason to doubt the correctness of this statement
One other argument advanced before us was that even though the order of detention had been passed on April 5 1988 no steps were taken to take the petitioner into custo dy till he surrendered himself in Court on July 4 1988
This contention is on the face of it devoid of merit because it has been specifically stated in the counter affidavits that the petitioner was absconding and hence proclamations were made under Sections 82 and 83 Cr
PC and it was only thereafter the petitioner had surrendered himself in Court
It is not therefore a case where the petitioner was freely moving about but no arrest was effected because his being at large was not considered a hazard to the maintenance of public order
In the result we do not find any ground for quashing the order of detention passed against the petitioner
The writ petition is accordingly dismissed
NVK Petition dismissed


Summary:
Section 3 of the Uttar Pradesh Urban Planning and Devel opment Act 1973 provides for declaration of an area to be a development area  by gazette notification
Section 141 of the Act interdicts development of land in such an area by any person or body unless permission has been obtained from the Vice Chairman of the Development Authority
Section 151 requires every person or body desirous of obtaining permission to make an application in the manner prescribed
Section 153 empowers the Vice Chairman after making such an enquiry as he considers necessary either to grant the permission subject to such conditions as he may specify or refuse the permission
Section 155 provides for an appeal to the Chairman against an order made by the Vice Chairman refusing permission
Section 37 inter alia makes an order of the Vice Chairman made under section 15 final
Section 411 makes it incumbent on the Authority the Chairman or the Vice Chairman to carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the Act
Section 41 3 confers revisional powers on the State Government
The respondent lessees applied to the appellant Develop ment Authority under section 151 of the Act for permission to put up a multistoreyed building on the demised plot
The Vice Chairman of the Authority sanctioned the permission by his order dated January 31 177 1985
However on July 24 1985 the State Government issued directions purporting to be under section 411 of the Act inter dicting the progress of construction on ground of violation of the conditions of the lease
The High Court allowed the writ petition preferred by the respondents and quashed the said directions
Thereafter on August 12 1985 the State Government brought to the notice of the Vice Chairman serious illegali ties in the building sanction and indicated that the same he reviewed and revoked to which he did not agree
Finally by its communication dated October 15 1985 addressed to the Chairman of the Authority the State Government directed him to initiate immediate proceedings against the respondents for making misrepresentations fraudulent statements and concealing material facts in obtaining building permission
To that letter was annexed a notice for service on the lessees and the builder associated with construction to show cause for cancellation of the lease and demolition of unau thorised construction
The respondents filed their objec tions against the proposed cancellation but the Government by its order dated November 19 1985 found the explanation unacceptable and proceeded to terminate the lease
This order was challenged by the respondent lessees in a writ petition before the High Court
Subsequently the Vice Chairman of the Authority in a separate action issued notice dated January 9 1986 to the respondents to show cause why the building permission grant ed on January 31 1985 should not be cancelled
Respondents objected to the proposed action but the Authority found the objections unacceptable and proceeded by its order dated April 19 1986 to cancel the permission
The two lessees challenged this cancellation in writ petitions before the High Court
The High Court found that the proceedings initiated and the action taken by the Government and the Vice Chairman of the Authority in the matter respectively of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required to he quashed
It took the view that a reasonable opportunity of being heard had been denied to the lessee respondents and that the grounds for forfeiture of the lease were irrelevant and illusory that there was no provision in the Development Act confer ring powers on the ViceChairman to review the decision in the matter of sanctioning a plan to build after the same was acted upon and constructions were being made only in accord ance with it that section 411 of the Act could authorise the Vice Chairman to review the earlier permission but that there being no such directive from the Government the Vice Chairman acting as a 178 statutory authority had no power to revoke or cancel the permission once granted and that there was no casual con nection between the Government s directive dated October IS 1985 which had confined itself to the cancellation of the lease and the proceedings initiated by the Vice Chairman on January 9 1986
It further found that as personal hearing has not been given to the petitioners the order passed by the Vice Chairman violates the principles of natural justice and that the grounds alleged were not sufficient to sustain the cancellation of the permission
In the appeals by special leave preferred by the State Government in the matter of forfeiture of lease it was contended for the appellants that the High Court fell into an error in allowing a matter which should properly have been the subject matter of a civil suit to be agitated in proceedings under Article 226 of the Constitution
The submission was that the question whether there were breaches of covenants on the part of the lessees involved the con struction of the terms of the lease deed which required evidence on the matter and such a dispute could not be resolved on mere affidavits and that the relationship between the parties being one of lessor and lessee the dispute between them pertained to a private law situation
It was also submitted that no hearing could be contemplated in the context for forfeiture of a lease of this nature
For the respondents it was contended that the State even as a lessor could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such context cannot always be reckoned as private law situations and that at all events the threatened exercise of extra judicial re entry by the State being violative both of the limitations of the powers of the State as lessor under the law of landlord and tenant and or its actions as State was a matter which required to be mandated against
In the appeals by special leave by the Development Authority in the matter or cancellation of permission to build it was contended for it that the order dated April 19 1986 itself disclosed the extent or opportunities af forded to the lessees and there could therefore be no question of failure or natural justice that if permission had been obtained by the lessees by misrepresentation or fraud or if after obtaining the permission there had been violation of the terms and conditions or the grant as in the instant case the statutory authority granting the permission has itself the inherent and incidental and sup plemental powers to revoke the permission and that no express grant of power in this behalf was necessary
For the respondents it was contended that the proceedings for can cellation of the permission having been initiated at 179 the instance of and compelled by the directions issued by the Government purporting to act under section 411 of the Act there was a surrender of statutory discretion on the part of the Vice Chairman thereby vitiating the decision that the Vice Chairman had no authority in law to cancel the permis sion that the power to cancel or revoke a licence or per mission even assuming_ that the statute enables such can cellation was clearly distinguishable from the power of refusal of an initial grant and that the exercise of power of cancellation which prejudicially affects vested fights partakes predominantly of quasi judicial complexion and that as there was denial of a reasonable opportunity of being heard the order passed by the Vice Chairman violates the principles of natural justice
Allowing appeals by the State HELD 1
The question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed by the High Court to he agitated under Article 226 of the Constitution since it involved resolution of disputes on questions of fact as well
191C Express Newspapers vs Union of India 1985 Suppl 3 SCR 382 referred to
A lessor with the best of title has no right to resume possession extra judicially by use of force from a lessee even after the expiry or earlier termination of the lease by forfeiture or otherwise
The use of the expression re entry  in the lease deed does not authorise extrajudi cial methods to resume possession
Under law the possession of a lessee even after the expiry or its earlier termina tion is judicial possession and forcible dispossession is prohibited
He cannot therefore be dispossessed otherwise than in due course of law
191F G In the instant case the fact that the lessor is the State does not place it in any higher or better position
On the contrary it is under an additional inhibition stemming from the requirement that all actions of Government and governmental authorities should have a legal pedigree 
The State Government is accordingly prohibited from taking possession otherwise than in accordance with law
192C Bishandas vs State of Punjab   referred to
The question of the legality and validity of the purported cancella 180 tion of the lease and the defence of the lessees is left open to be urged in appropriate legal proceedings whenever and wherever Government proceeds to initiate action in accordance with law for resumption of possession
192D E Partly allowing the appeals by the Development Authority HELD 11 The Vice Chairman for purposes of section 153 of the Act is a distinct statutory authority with statutory powers of his own distinct from Development Authority which under section 42 is a body corporate having perpetual succes sion and common seal
197C D 12 An order made by him under section 153 of the Act granting permission is not one of the orders revisable by Government under section 413
Such an order under the scheme of the Act is not also appealable but assumes a finality contemplated by section 37
197F G 13 The power of control of the State Government under section 411 consistent with the scheme of the Act cannot be construed as a source of power to authorise any authority or functionary under the Act to do or carry out something which that authority or functionary is not otherwise competent to do or carrying under the Act
The section is not a Super Henry VIII clause for the supply or source of additional provisions and powers not already obtaining under the Act
198A B 21 The view of the High Court that in the absence of a directive or authorisation from the Government under section 411 the ViceChairman acting as the statutory authority dispensing permissions for development under the Act cannot revoke or cancel a permission once granted is clearly erro neous
198F 22 The grant of permission is part of or incidental to the statutory power to regulate orderly development of the development area  under the Act under regulatory laws
The power to regulate with the obligations and functions that go with and are incidental to it are not pent or exhausted with the grant of permission
The power of regulation which stretches beyond the mere grant of permission takes within its sweep the power in appropriate cases to revoke or cancel the permission as incidental or supplemental to the power to grant
Otherwise the planitude of the power to regulate would be whittled own or even frustrated
198F H 23 The power to grant where the grant is itself vitiated by fraud 181 or misrepresentation on the part of the grantee at the time of obtaining the grant or where the grantee after the grant violates the essential terms and conditions subject to which grant is made must therefore be held to include the power to revoke or cancel the permit even in the absence of any other express statutory provisions in that behalf
The grounds must of course be such as would justify such drastic action
This cancellation is a preventive step
There may however be cases of the third kind where the grant may be voidable at the instance of the Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission
199G H 200A B 24 It is erroneous to equate the powers under sections 14 and 15 of the Act with judicial power which in the absence of express provisions could not enable the review of a judicial order after its exercise on the principle of func tus officio
198H 199A Sardul Singh vs The District Food and Supplies Control ler Patiala and O rs
 WP No 126 of 1962 decided on December 19 1962 referred to
The power of revocation or cancellation of the per mission is akin to and partakes of a quasi judicial complex ion
In exercising the power the authority must bring to bear an unbiased mind consider impartially the objections raised by the aggrieved party and decide the matter consist ent with the principles of natural justice
The authority cannot permit its decision to be influenced by the direction of others as this would amount to abdication and surrender of its discretion
It would then not be the authority s discretion that is exercised but someone else section If an authority hands over its discretion to another body it acts ultra vires
Such an interference by a person or body extra neous to the power would plainly be contrary to the nature of the power
conferred upon the authority
200B D Judicial Review of Administrative Action by SA de Smith referred to
In the instant case however there was no such surren der of discretion by the Authority
The directive from the Government dated August 12 1985 had spent itself out with the then the Vice Chairman declining to act in accordance with it
The directive dated October 15 1985 confined itself only to the cancellation of the lease and as inciden tal thereto required the stoppage of work pending decision whether the lease should be cancelled or not
201B D 182 41 It not unoften happens that what appears to be a judicial review for breach of natural justice is in reali ty a review for abuse of discretion
201H 42 Judicial review under Article 226 cannot be convert ed into an appeal
Judicial review is directed not against the decision but is confined to the examination of the decision making process
202B 43 When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably have made such a decision the judicial review of the decision making process includes examination as a matter of law of the relevance of the factors
In the instant case it is however not necessary to go into the marits and relevance of the grounds
202F H Chief Constable of the North Wales Police vs Evans  referred to
There has been a denial of natural justice in the proceedings culminating in the order of cancellation
The show cause notice itself is an impalpable congeries of suspicions and fears of relevant or irrelevant matter and has included some trivia
On a matter of such importance where the stakes are heavy for the lesses who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity the statutory authority should in the facts of the case have afforded a personal hearing to the lessees
Both the show cause notice dated January 9 1986 and the subsequent order dated April 19 1986 cannot therefore be sustained
203B D It is left open to the statutory authority should it consider it necessary to issue a fresh show cause notice setting out the precise grounds and afford a reasonable opportunity including an opportunity of personal hearing and of adducing evidence wherever necessary to the respond ent lessees
In view of this liberty reserved to the au thority the finding recorded by the High Court on the merits of the grounds is set aside
203D E