N Writ Petition CrlNo 54 of 1989
Under Article 32 of the Constitution of India
TU Mehta and SC Patel for the Petitioner
SK Dholakia MN Shroof and Ms Hemantika Wahi for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
The Commissioner of Police Ahmedabad by his order dated 26121988 directed the deten tion of the petitioner under section 32 of the Gujarat Prevention of AntiSocial Activities Act 1985 hereinafter referred to as the Act 
The petitioner was taken into custody under the order on that very day
The material portion of the order of detention stated WHEREAS ISN Sinha Commissioner of Police Ahmedabad City am empowered in this behalf by the Government of Gujarat by its order Home Department No GG155SB IVPASA10851191 dated 2851985 under sub section 2 of section 3 of the Gujarat Pre vention of Anti Social Activities Act 1985
AND WHEREAS I am satisfied with respect to person known as Shri Ahmed hussain  Kalio Shaikhhussain Shaikh resident of Dariyapur Bukhari Mohallo Ahmedabad City that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City it is necessary to make an order directing that the said Shri Ahmedhussain  Shaikhhus sain Shaikh be detained
NOW THEREAFTER in exercise of the powers conferred by sub section 1 of section 3 of the Gujarat Prevention of Anti Social Activities Act 1985 I SN 180 Sinha Commissioner of Police Ahmedabad City hereby direct that the said Shri Ahmedhussain  Kalio Shaikhhussain Shaikh be detained
 The grounds communicated to the petitioner under section 91 of the Act alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and was selling it by himself and through his men in the area of Dariyapur and three prosecutions had been launched against him under the Bombay Prohibition Act of 1949
From the particulars it appeared that one case was pending in court while the other two were under investigation
The detaining authority there after stated Thus on careful study of the above said complaints and entire papers with the propos al it is found that you are a prohibition bootlegger  and are conducting anti social activities of selling indigenous and foreign liquor illegally
You and your companions beat the innocent citizens of the above stated area in public and create an atmosphere of fear and terror for continuing your criminal anti social activities
Moreover you and your companions are creating atmosphere of fear by beating the innocent citizens threaten them to kill while passing through that area by showing dangerous weapons suspecting them to be the informants of the police
The customers of your adda in drunken condition play mis chief and beat the persons in open people residing there have fear and terror is spread in the said area
Moreover you beat those who oppose your bringing the quantity of wine and you threaten to kill and you create an atmos phere of fear and terror
Because of such activities the citizens residing in the above stated area have fear of damage to their property and the safety for themselves
Thus you become an obstructionist in the mainte nance of public order
The citizens residing or doing their trade in the said area have stated the facts corroborating your above stated criminal anti social activities as a result of which you become obstructionist in the maintenance of public order
Such incidents have been stated in detail
The copies of the statements thereof are given to you herewith
Reference was made to a previous order of detention of July 12 1987 181 which was set aside by the High Court on 3121987 and to the fact that notwithstanding the previous detention the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order
In the grounds it was further stated I had also considered to prevent your anti social activities of selling wine by taking action us 93 of the Prohibition Act
But according to the provision of section 93 only surety for good conduct can be taken
I am fully satisfied that even if you give the surety for good conduct you will not obey the same
Looking to your activities uptil now I feel that you will not obey the same
So I do not think it possible to prevent your such anti social activities immediately by taking action against you under section 93 of the Prohibition Act
I had considered to take action against you us 57c of the Bombay Police Act for your externment
But under the provision of section 57c three convictions within a period of three years under the Prohibition Act are necessary
In your case of the cases which are registered against you under the Prohibition Act one is pending in the Court and two cases are pending for police investi gation
In your case there is no such convic tion so it is not possible under the law to take action against you us 57c for extern ment
I had also considered to take pro ceeding against you us 56B of the Bombay Police Act for externment but if the proceed ings us 56B of the Bombay Police Act are taken against you first of all show cause notice is required to be given to you us 591 of the Bombay Police Act
Then such order can be passed only after giving you full opportunity to defend by examining your de fence witnesses
Even if such order is passed against you you can go in appeal against the externment us 60 of the said Act and the possibility of granting stay to you cannot be avoided
So a long time is taken in the pro ceedings of externment us 56B and during this period you may continue your anti social activities and there are all chances that you become obstructionist in the maintenance of public order so it is not possible to prevent your anti social activities immedia 182 tely by taking action us 56B and I do not think proper to take action against you us 56B
You and your companions of Dariyapur Kalupur are keeping dangerous weapons and making conspiracy to beat the innocent persons and because of your activi ties an atmosphere of fear and terror is spread in the said area and people have fear of safety for themselves and damage to their property
Because of your such activities you have become obstructionist to the maintenance of public order and because of your such activities the atmosphere of public order has been disturbed
Thus considering all the above facts I am fully satisfied that you are a prohibition boot legger and you are conducting anti social activities of selling indigenous and foreign liquor and you are creating an atmosphere of fear and terror by beating innocent persons in public and threaten them to kill by keeping dangerous weapons in the above stated area and you are conducting activity of selling the wine in person or through your persons
Action under the ordi nary law has been taken for preventing your such activities
At present you are in jail under the Prohibition Act  
There is every possibility that you will be bailed out by giving surety by the Court because this offence is bailable
It is quite possible that you may continue your criminal anti social activities after release on bail from court  
As it has become necessary to prevent your anti social activities to prevent the same as there is no other alternative and as the last alternate I pass the order to take you in detention under the said Act
 A list of documents relied upon by the detaining author ity was appended to the grounds and the said list is Annex ure D to the petition
The detaining authority has filed his affidavit in support of the order of detention
In paragraph 7 of such affidavit the deponent has stated With reference to paragraph 7 of the peti tion I submit that the averments made therein are absolutely wrong in view of the fact that the petitioner has not been wrongly involved by me under the PASA Act
It is only on 183 perusal of the relevant record which has been supplied to the petitioner and after consider ing the prognosis about the futuristic activi ties of the petitioner I was subjectively satisfied that it is necessary to detain the petitioner preventively under the provisions of the PASA Act with a view to preventing him from indulging in like activities and therefore the impugned order was passed by me
In paragraph 8cof the counter affidavit the detaining authority has further stated I further submit that so far as the petition er s detention in the year 1987 is concerned it is true that the Hon ble Gujarat High Court had directed the authorities to release the petitioner and the said fact has already been clearly mentioned in the grounds of detention
I further submit that since the Hon ble Guja rat High Court had passed the order the order being judicial one I have nothing to comment on it
However I submit that there is no nexus between the order of the Hon ble High Court in that petition and the facts of the present case and therefore the judicial pronouncement by the Hon ble Gujarat High Court has no application whatsoever to the facts of the present case
Since the present order is passed on totally fresh grounds which are sufficient enough to give subjective satisfaction to me for the purpose of passing the order of detention  
I further submit that the fact that the petitioner was earlier detained and the fact that the order of detention was quashed by the Hon ble Guja rat High Court was considered by me and that has also been mentioned in the grounds of detention    The Bombay Prohibition Act of 1949 is in force in the State of Gujarat and prohibition is in force in this State
We have extracted a substantial portion of the grounds of detention communicated to the petitioner to show how helpless the authorities feel in the matter of enforcing prohibition within the State
Obviously neither the Prohibi tion Act nor the other statutes referred to by the detaining authority could be called in aid to meet the requirements of the situation
On his own showing afraid of the petitioner being released on bail and resorting to anti social activi ties and with a view to ensuring his detention in jail the impugned order has been made
184 The satisfaction of the detaining authority is not open to judicial review but as has been pointed out by several Constitution Bench decisions of this Court a citizen is entitled to protection within the meaning of Article 225 of the Constitution of the procedural guarantees envisaged by law
The Court frowns upon any deviation or infraction of the procedural requirements
That in fact is the only guar antee to the citizen against the State s action of preven tive detention
The fact that the detenu was in jail at the time the order of detention was made and the possibility of his release from jail being made a ground of detention was not approved of by this Court in Rarnesh Yadav vs District Magistrate Etah  Ors and Binod Singh vs District Magistrate Dhanbad Bihar  Ors  In Smt
Shashi Aggarwal vs State of UP  Ors AIR  this Court pointed out Every citizen in this country has the right to have recourse to law
He has the right to move the court for bail when he is arrested under the ordinary law of the land
If the State thinks that he does not deserve bail the State could oppose the grant of bail
He cannot however be interdicted from moving the court for bail by clamping an order of detention
The possibility of the court grant ing bail may not be sufficient
Nor a bald statement that the person would repeat his criminal activities would be enough
There must also be credible information or cogent reasons apparent on the record that the dete nu if enlarged on bail would act prejudi cially to the interest of public order
 We may now refer to two decisions of this Court under the present Act
In the case of Abdul Razak Abdul
Wahib Sheikh vs Shri SN Sinha Commissioner of Police Ahmeda bad  Anr JT it has been held that the detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant materi al constituting fresh facts to necessitate making of an order of detention
In that case as here the detenu was in jail in connection with a criminal case and the order of detention was served on him in jail
The detenu s mere complicity in earlier incidents was not considered adequate and the detention under the Act was set aside
In the case of Ramesh vs State of Gujarat  Ors JT  an order of detention under the Act was under challenge
The Court found that referring to incident which constituted the subject matter of an earlier 185 order of detention vitiated the impugned order
Apart from these in the instant case the material disclosed is quite vague with reference to the persons affected or victimised as also the time and place of such victimisation
This Court has on several occasions indicated that there is a wide gap between law and order and public order
The criminal offence may relate to the filed 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 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
Disclosure of adequate facts to enable a full and ade quate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 225 of the Constitution
In AK Roy s case a Constitution Bench of this Court indicated that full est disclosure of material should be made to enable the representation to be effective
In the present case the grounds which we have extracted show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representa tion
Four witnesses had deposed against the petitioner
Their statements were supplied to the petitioner without disclos ing their names
It is the stand of the respondent that if the names were disclosed the witnesses were likely to be bodily injured or even eliminated
There may be certain situations where the disclosure has to be with held but in view of the infirmities already indicated it is not neces sary for us to examine whether in the facts of the present case such withholding would not by itself vitiate the order of detention
We are satisfied that the impugned order cannot be sustained
Accordingly we quash the order and direct that the petitioner be set at liberty forthwith
It is perhaps necessary to indicate that the provisions 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 186 the benefit of a trial or a regular hearing and pursuing an appeal against adverse orders but in a case of preventive detention trial is avoided and liberty of a citizen is taken away without providing a right to defend himself
The grounds provided by the detaining authority have clearly exhibited a sense of helplessness to meet the requirement of the situation that however is a matter for the Legisla ture and the Administration to consider but the Court has to zealously guard enchroachments on the liberty of the citi zen
RSS Petition allowed


Summary:
The appellants landlords leased out their land situate at Kolhapur to respondents Nos 1 and 2 and the husband of respondents Nos 3 and 4 on 12101950 for a period of ten years
After the expiry of the lease period they initiated proceedings under the Bombay Tenancy and Agricultural Lands Act 1948 for obtaining possession of the lands but the application was dismissed ex parte as it was held that the provisions of the Act were not applicable to the land inas much as only grass grew thereon naturally
Thereupon the appellants terminated the tenancy under the provisions of the Land Revenue Code and filed a Civil Suit against the respondents for possession mesne profits and for damages
Respondents 1 and 2 contested the suit contending inter alia that the civil court had no jurisdiction to try the suit inasmuch as the Act was applicable to the land and that they having been in rightful possession the notice of termina tion of tenancy was invalid
The trial court tried the issues amongst others relating to the applicability of the Act jurisdiction of the civil court and estoppel and after going through the evidence led by the parties decreed the suit
The respondents appeal against the said decree having failed before the first appellate court they preferred Second Appeal to the High Court of Bombay
The High Court set aside the judgment and order of the trial court as affirmed by the first appellate court and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under Section 85A of the Act in regard to the issues which are required 2 to be determined by the competent authority under the Act and on receipt of findings dispose of the suit according to law
Being dissatisfied with the said order the appellants moved application for leave to appeal under the Letters Patent but the same having been dismissed they have filed this appeal after obtaining special leave
The appellants  principal contention amongst others before this court is that the appellants  application under Section 292 read with section 252 of the Act having been dismissed on the ground that the Act was not applicable and thus the authority had no jurisdiction to deliver possession is a finding which would operate as res judicata hence the High Court s direction making a reference to the competent authority under section 85A of the Act now would be barred
According to them the civil court itself has jurisdiction to decide the issues
Respondents  contention is that the direction of the High Court is consistent with the provi sions of the Act and that the earlier proceedings under the Act initiated by the appellants having been determined ex parte it could not operate as res judicata
Dismissing the appeal this Court HELD After the amendment of section 70b of the Act by insert ing words or was at any time in the past a tenant  the position has changed
The Civil Court has now no jurisdic tion to decide an issue arising incidentally in a civil suit which is to be specifically decided by a competent authority under the Act
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accord ance with the decision of the authority
11F See GS Shinde vs RB Joshi   The High Court in the instant case has rightly sent back the suit to the trial court with the direction to refer issues if raised to be determined exclusively by the compe tent authority to that authority
13G If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclu sive jurisdiction the adjudication will bar the trial of the same matter in a subsequent suit
15E In the instant case the Mamlatdar having decided the appellants  application for possession the appellants themselves went to the Civil Court and filed the suit
It does not now lie in their mouth to say that 3 the decision of the Mamlatdar would act as res judicata for the trial court15F The Mamlatdar s Court is a civil court for the purpose of Section 85A of the Act
15F In its comprehensive sense the word suit is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords
The modes of proceedings may be various but if a right is liti gated between parties in a court of justice the proceeding by which the decision of the court is sought may be a suit
But if the proceeding is of a summary nature not falling within the definition of a suit it may not be so treated for the purpose of Sec 11
15H 16A Besides assuming the Mamlatdar in deciding the applica tion in 1962 63 to have been a court of exclusive jurisdic tion for the purpose of section 11 CPC its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that deci sion
16B The expression heard and finally decided  in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter
It is essential that it should have been heard and finally decided
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension
16F G See Vithal Yaswant vs Shikander Khan Mutumukhtan  The law is well settled that a court which had no juris diction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata
Conversely the decision relating to jurisdiction cannot be said to constitute the bar of res judicata where by an erroneous interpretation of a statute it holds that it has no jurisdiction
17B See Pandurang Mahadeo Kavade  Ors
vs Annaji Balwant Bokil  Ors  Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande 1953 55 Bom
Law Reporter
843 Dhondi Tukaram vs Dadoo Piraji  Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr   Mussamiya 4 Imam Haidar Bax Razvi vs Rabari Govindhai Ratnabhai  Ors   Trimbak Sopana Girme vs Gangararn Mhatarba Yadav  Ishverlal Thakorelal Almaula vs Motibhai Nagjibhai 1966 1 SCR 367 Pandurang Hari Jadhav vs Shankar Maruti Todkar  Kalicharan Bhajanlal Bhayya vs Rai Mahalaxmi  Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri AIR 1966 Mys
154 Jambu Rao Satappa Kocheri vs Neminath Appayya Hanammannaver   Noor Mohd Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli   Ramchandra Rao vs Ramchandra Rao 1922 49 IA 129 and Bhagwan Dayal vs Mst
Reoti Devi   referred to