vil Appeal Nos 8 to 10 of 1972
From the Judgment and Order dated 1511970 of the Gujarat High Court in Special Civil Application Nos 305368 526 384 and 495 of 1962
80 TU Mehta UA Rana and KL Hathi for the Appellants
GA Shah and MN Shroff for the Respondents
The Judgment of the Court was delivered by KANIA J
These are appeals by special leave against the judgment of a learned Single Judge of the Gujarat High Court in Special Civil Applications Nos 305368 and 526 of 1972
The controversy raised in the appeal is very limited and hence the relevant facts can be very briefly stated
The appellants before us are the tenants of certain intermediary landlords known as Girasdars
Respondents Nos 1 to 3 are statutory authorities namely the Mahalkari Kutiana Deputy Collector of Porbandar Division and the Gujarat Revenue Tribunal respectively
They have no interest in the result of these appeals but they are represented by counsel before us
Respondents Nos 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease
One Respondent No 9 is a Girasdar who is represented by the Assistant Custodian of Evacuee property and the rest of the respondents are the remaining Girasdars from whom the appellants held lands on leases
Before going into the facts or the arguments advanced we propose to take note of the relevant provisions of the Saurashtra Land Reforms Act 1951 hereinafter referred to as the said Act
The said Act was enacted with the object of improvement of the land revenue administration and for ultimately putting an end to the Girasdari system and to regulate the relations between the Girasdars and their tenants
We may mention that very briefly stated the Girasdars were in the nature of intermediary landlords like the Zamindars
Unlike most of the land reforms acts the object of which was to take away completely the right of the Zamindars or intermediary landlords the said Act provided for the abolition of the Girasdars system and at the same time sought to achieve equitable distribution of land for personal cultivation between the Girasdars and their ten ants
Sub section 12 of section 2 of the said Act runs as follows  economic holding  in relation to any region speci 81 fied in Column I of the First Schedule means a holding of land of an area shown in the corresponding entry in Column 2 thereof
 Column 2 specifies the area of land comprised in econom ic holdings for the various districts to which the said Act was applicable
Sub section 14 of section 2 lays down that Gharkhed means any land reserved by or allotted to a Girasdar before the 20th May 1950 for being cultivated personally and which is in his personal cultivation
Sub section 15 of section 2 contains the definition of the term Girasdar and provides that the said expression in cludes within its ambit a talukar bnagdar bhayat cadet or mulgirasia and includes any person declared by the Govern ment by a notification to be a Girasdar for the purposes of the said Act
Under sub section 18 of section 2 the term land basically means agricultural land
Section 4 of the said Act provides that all land of whatever description held by a Girasdar is and shall continue to be liable to payment of land revenue to the State of Gujarat
Section 5 provides for classification of Girasdars
It is sufficient to note that under sub section 1 of that section a Girasdar shall be deemed to belong to A class if the total area of agricul tural land comprised in his estate exceeds eight hundred acres to B Class if the total area of agricultural land comprised in his estate exceeds one hundred and twenty acres but does not exceed eight hundred acres and to C Class if the total area of agricultural land comprised in his estate does not exceed one hundred and twenty acres
Section 21 deals with the question of allotment of land to Girasdars of Classes A and B
For our purposes it is sufficient to note that a Girasdar of Class A is entitled to three economic holdings and a Girasdar of Class B is entitled to two eco nomic holdings
Section 22 inter alia deals with the princi ples and method of allotment of land to Girasdars of A and B Classes
The relevant part of the said section for the purposes of the appeal runs as follows In making an allotment of land to any Giras dars of A Class or B Class the Mamlatdar shall have due regard to the following provisions namely a firstly such of the bid land or cultiva ble waste of the estate as the Girasdar wishes to utilise for personal cultivation shall be allotted to him b secondly if the land allotted under clause a is not sufficient such agricultur al land as is held by a 82 tenant in excess of one economic holding shall be available for allotment
 The relevant portion of section 23 which deals with the topic of Girasdars to whom the land may be allotted runs as follows 23
Under the provisions of this Chapter land shall be allotted a in the case of an undivided family of Girasdar only to the head of the family on behalf of the family or b in case of a family divided in interest only to all the members of the family jointly as to a single unit or c in the case of a Girasdar whose land was separate from that of the other members of his family by metes and bounds before the 1st February 1951 to such Girasdar
 Section 24 provides that agricultural land will be allotted to C Class Girasdars for being cultivated personal ly to the extent of one half of the total area of the land held by each of his tenants provided that the total area of the holding of a C Class Girasdar made up of Gharkhed in his estate and any bid land or cultivable waste land and other land of a kind set out in the proviso to sub section 1 of the said section does not exceed one economic holding in the case of one in whose estate agricultural land does not exceed eighty acres and one and half economic holdings in the case of one in whose estate agricultural land exceeds eighty acres but does not exceed one hundred and twenty acres
Chapter IV of the said Act which includes sections 22 to 24 referred to earlier provides that if the land in the Girasdar or for personal cultivation of the Girasdar is less than the land he is entitled to as per the economic units allottable to him his tenants who hold excess land that is in excess of an economic holding are liable to surren der the same or a part of the same to enable the Girasdar to make up the deficit in the land which he is entitled to hold
A reading of the relevant portion of Schedule I of the said Act under section 22 makes it clear that an A Class Girasdar in the district with which we are concerned was entitled to hold 40 acres of land
We may also at this stage take note of some of the rules framed under the said 83 Act and known as The Saurashtra Land Reforms Rules 1951 hereinafter referred to as the said Rules
Rule 50 of the said Rules provides that in making allotment of land to any Girasdar of A Class or B Class the Mamlatdar shall have due regard to the provisions contained in section 22 and for allotment of land to a Girasdar of C Class to the provisions contained in section 24
The said rule also provides that in cases arising under section 22b and e and proviso to subsection 1 of section 24 the land will be taken from tenants proportionately to the excess or the holdings as the case may be
There is however a proviso to Rule 50 which states that where the proportionate excess or holding to be given by a tenant as above works hardship in any individual case the Mamlatdar may decide the proportion of land to be given by each of the tenants in a manner just and equitable
It was pointed out by Mr Mehta learned counsel for the appellants that in the form I filled in by the Girasdars as required under the said Act the cultivable land in the estate was shown as 135334 acres
The family of the Giras dars was treated as an A Class Girasdar
The Mahalkari Kutiana by his decision dated June 25 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that footing he allotted to them three economic units amounting to 60 acres
The Girasdars preferred an appeal against the said decision and in that appeal the Deputy Collector Porbandar respondent No 2 modified the allotment made under the order of Mahalkari
He held that some of these Girasdars had separate or swang lands and were entitled to separate allotments from swang lands out of their swang estate
There was a revision application preferred to the Gujarat Revenue Tribunal from the decision of the Deputy Collector
The Tribunal agreed in principle with the Deputy Collector that the Girasdars were entitled to separate allotments both from the estate held jointly by them and also to separate allotments from the estates separately held by them
In substance it held by the Tribunal that the Girasdars were entitled to three economic units out of the aforesaid cultivable land jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 135334 acres
This decision was assailed by way of a Special Civil Application before the Gujarat High Court
In all five petitions were filed by tenants challenging the decision of the Gujarat Revenue Tribunal
The learned Single Judge who disposed of the said petitions held that in re spect of the joint or Majmu  estate of the concerned Giras dars they were liable to be treated as one unit and enti tled to allotment as an A Class Girasdar and were thus entitled jointly to 84 three economic holdings which came to 60 acres
However as found by the Tribunal one Girasdar Ali Khokhar had handed over possession of 15 acres of land of the joint estate and hence on the footing of the joint holding the Girasdars were entitled to the balance area of 45 acres
Apart from this the learned Judge upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allot ment as C Class Girasdars in respect of their respective separate holdings
The learned Judge clearly proceeded on the footing that out of the said total holding of 135334 acres was partly joint and the remaining part comprised separate holdings of some of the Girasdars
The appellants are represented by senior counsel before us and so also the respondent nos
1 to 3 who are formal respondents
However the rest of the respondents who would be really affected by the result of the appeal are not appearing although served
Mr Mehta learned counsel for the appellants fairly conceded that he can find no fault with the judgment of the learned Single Judge in so far as he took the view that the Girasdars were entitled to separate allotments one allotment in respect of the land held by them jointly and the separate allotments in respect of the land held by them separately if the estate held by them was partly joint and partly separate
He however strongly contended that the learned Single Judge had wrongly assumed that a part of the said estate was joint and the remaining part was separate
According to him the entire estate was joint and the Girasdars were entitled only to an allotment of 60 acres in all as an A Class Girasdar
In our view this argument cannot be entertained at this stage at all
The finding of the Mahalkari that the estate was entirely joint was set aside by the Deputy Collector
The decision of the Deputy Collector that some of the Girasdars were entitled to separate allotments in addition to the joint allotment as aforestated was appealed against before the Tribunal
The Tribunal also proceeded on the same footing as the Deputy Collector and there is no challenge in the said special civil applications to the effect that the Tribunal had gone wrong in treating the estate as partly joint and partly separate
In view of this Mr Mehta cannot now be allowed to raise a contention that the entire estate was joint
The next submission urged by him was that although some of the tenants of the Girasdars were in the village Mal none of them has been asked to make any contribution to make up the land liable to be allotted to the Girasdars
As pointed out by learned Single Judge that the contention was not urged before the Revenue Tribunal at all and hence it was not open to the appellants to raise this contention before the High Court nor is it open to them to raise it before us
It is significant that none of the 85 tenants of the said Girasdars in Mal village has joined as a respondent to the present appeal and it appears that this argument is nothing more than an after thought
The last submission of Mr Mehta is that as it was found that certain lands were liable to be allotted to the Giras dars to make up the land allottable to them for personal cultivation the said land should have been made up by call ing upon or directing all the tenants who had excess land that is in excess of the economic holding to surrender a proportionate part of the excess land
To appreciate this contentionone must notice that Mr Mehta represents the larger tenants who have been asked to surrender a portion of their land whereas the tenants whose holdings were only marginally in excess of the economic holding have been spared
It was urged by Mr Mehta that this is against the provisions of Rule 50 of the said Rules which we have al ready set out earlier and which provides for taking lands from tenants proportionately to the excess of land that is land in excess of the economic holding which they were enti tled to hold
He however forgets that there is a proviso to this Rule which we have referred to earlier which pro vides that where taking of such proportionate excess land would lead to hardship in that case the Mamlatdar can decide the proportion of land to be given by each of the tenants
As pointed out by the learned Single Judge of the Revenue Tribunal in deciding as to the excess land to be handed over by the tenants has proceeded on a just and equi table basis that it should touch only such tenants whose land substantially exceeds the economic holding and smaller tenants should not be asked to surrender any part of their holdings
Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdar than in the case of a tenant whose excess holding was only marginal
In view of this we find that no fault can be found with the decision of the Tribunal or the High Court
In the result the appeals fail and are dismissed with no order as to costs
Y Lal Appeals dis missed


Summary:
The petitioner was directed to be detained under section 32 of the Gujarat Prevention of Anti social Activities Act 1985
In the grounds of detention it was alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and selling it by himself and through his men and that he and his men beat innocent citizens thereby creating an atmosphere of fear and terror and he had thus become obstructionist in the maintenance of public order
Reference was made to a previous order of detention which had been set aside by the High Court and to the fact that notwithstand ing the previous detention the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order
It was further stated in the grounds that the detaining authority had considered taking action against the petitioner section 93 of the Prohibition Act for good conduct and under sections 56B and 57c of the Bombay Police Act for his externment but all these steps were either found not feasible or adequate
It was then stated that there was a possibility of the petitioner who was in jail being released on bail and continuing his criminal activities and to prevent the same there was no other alternative except to pass the order of detention
Allowing the writ petition and quashing the order of detention this Court HELD 1 The satisfaction of the detaining authority is not open to judicial review but a citizen is entitled to protection within the meaning of Article 225 of the Con stitution of the procedural guarantees envisaged by law and the Court frowns upon any deviation or infraction of the procedural requirements
184A B 2 The fact that the detenu was in jail at the time the order of 178 detention was made and the possibility of his release from jail being made a ground of detention is not approved of by this Court
184C Ramesh Yadav vs District Magistrate Etah  Binod Singh vs District Magistrate Dhanbad Bihar  Ors  and Smt
Shashi Aggarwal vs State of UP   referred to
3 The detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant material constituting fresh facts to necessitate making of an order of detention
184F Abdul Razak Abdul Wahib Sheikh vs Shri SN Sinha Commissioner of Police Ahmedabad  Anr JT and Ramesh vs State of Gujarat JT  referred to
4 There is a wide gap between law and order and public order
The criminal offence may relate to the field of law and order but such an offence would not necessarily give rise to a situation of public order
Depending upon peculiar situations an act which may otherwise have been overlooked as innocuous might constitute a problem of public order
Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to a problem of public order
Similarly commission of any other criminal offence even assault or threat Of assault would not bring the matter within the ambit of public order
185B C 5 Disclosure of adequate facts to enable a full and adequate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 225 of the Constitution
In the present case the grounds of detention show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representation
185D E AK Roy s case  referred to
6 The grounds of detention show how helpless the authorities feel in the matter of enforcing prohibition within the State
186B 7 It is perhaps necessary to indicate that the provi sions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society
Even if the provisions under those Acts are made stringent the person proceeded against has the benefit of a trial or a regular hearing and pursuing an appeal 179 against adverse orders but in a case of preventive deten tion trial is avoided and liberty is taken away without providing a right to defend himself
185H 186A