SCA/21775/2005 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21775 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ============================================================== RAJESH HIMATLAL SHETH - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ============================================================== Appearance : MR. K.S. Nanavati ld. Sr. counsel with Mr. Keyur Gandhi, advocate for Petitioner(s) : 1, MR. L.R. Pujari, AGP, for Respondents ================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 27/03/2006 CAV JUDGMENT 1. The present petition has been filed by the petitioner praying for a writ of mandamus or any other SCA/21775/2005 2 JUDGMENT appropriate writ, order or direction for quashing and setting aside the detention order dated 18th October, 2005 passed by respondent No. 2, the Collector and District Magistrate, Patan, purportedly under Section 3 read with Section 2(h) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as “PASA Act”). 2. In this petition the petitioner is seeking protection of his personal liberty guaranteed under Articles 14, 19 and 21 of the Constitution of India. The petitioner has approached at the pre-execution stage in view of the fact that the impugned detention order has been passed without authority and de hors the provisions of the PASA Act on vague, extraneous and irrelevant and non-existent grounds not germane to the facts. The respondent No. 2 had no authority to pass such an order of detention purportedly under Section 3 read with section 2(h) of the PASA Act. 3. The petition was filed by the petitioner on 24.10.2005. When the petition was placed before this Court on 26.10.2005, this Court issued notice returnable on 28th October, 2005. At that time the detention order was not challenged and the petitioner has filed petition SCA/21775/2005 3 JUDGMENT challenging the said pre-detention order relying on the criterion III, IV and V enumerated in the case of Additional Secretary to the Government of India and Ors. Vs. Smt. Alka Subhash Gadia reported at 1992 (Suppl.) 1 SCC 496. Thereafter, the Court adjourned the matter to 8.11.2005. 4. Thereafter, the petitioner filed Civil Application No. 11189 of 2005 before this Court on 31.10.2005 praying that the petitioner may not be arrested pursuant to the impugned detention order dated 18.10.2005. In the said Civil Application this Court passed order on 1.11.2005 where this Court stated that the respondents will not take any coercive measure against the petitioner till 8.11.2005 and the Civil Application to be heard on 8.11.2005. On 8.11.2005 the said observation that the authority will not take any coercive measure was continued and the matter was adjourned to 16.11.2005. On 16.11.2005 the learned advocate for the petitioner stated that in identical matter in the matter of Mukesh Himatlal Sheth, brother of the petitioner who also filed petition, this Court has allowed the petition on 5.11.2005 and therefore the petitioner requested that the interim relief which was granted earlier may be continued till 22.11.2005. SCA/21775/2005 4 JUDGMENT However, on that date, though judgement was delivered on 5.11.2005, the said judgement was not available and the learned advocate has stated that since the judgement is not available, he seeks an adjournment and he assured this Court that as soon as the judgement is available, the same will be produced before this Court. Thereafter, on 22.11.2005 learned advocate for the petitioner has produced the judgement in the aforesaid matter. Thereafter the matter was kept for 24.11.2005 and the interim relief which was granted was continued. On 29.11.2005 the matter was heard and arguments were almost completed. Thereafter, it is stated that for further arguments the matter will be heard thereafter. 5. It may be noted that the State Government has also filed affidavit-in-reply on 31.10.2005 and the matter was heard in the month of January, 2006. The learned advocate for the petitioner filed written submissions on 7.2.2006 and the learned counsel for the Government has also filed written submissions. Thereafter, again the matter was heard and now the pleading is over and the matter is decided finally. 6. I have heard Mr. K.S. Nanavati, learned sr. counsel with Mr. Keyur Gandhi for the petitioner. The SCA/21775/2005 5 JUDGMENT learned advocate has raised the following contentions. He submitted that the petitioner is seeking protection of his personal liberty guaranteed by Articles 14, 19 and 21 of the Constitution of India. The petitioner has approached at the pre-execution stage in view of the fact that the impugned detention order has been passed without authority and de hors the provisions of the said Act on vague, extraneous and irrelevant and non-existent grounds not germane to the facts stated hereinbelow and that respondent No. 2 had no authority to pass such an order of detention purportedly under Section 3 read with Section 2(h) of the PASA Act. 7. The learned advocate has set out the following facts. He stated that on 21.10.2005 at around 2.30 a.m., a large contingent of police force number around 15 or more forcibly entered his residence ostensibly looking for the arrest of the petitioner pursuant to the detention order purportedly passed under the provisions of the Act. However, as the petitioner was travelling the petitioner was not arrested and the said detention order could not be served - executed. 8. It is the case of the petitioner that the petitioner is the owner of properties in Patan town in SCA/21775/2005 6 JUDGMENT Gungadipatti area bearing R.S. No. 69 and R.S. No. 70 which are adjacent to each other. The learned advocate for the petitioner has relied on 7/12 abstract i.e. record of rights in which name of the petitioner is shown. In view of the aforesaid the lands were converted for non-agriculture use after due process of law, post permission being granted for the same by the Collector, Patan. NA permission was also granted and the land has, thereafter, converted into non-agricultural land. He has relied on the order of the Collector, Mehsana, dated 23.4.1985 by which the Collector has converted the land into non-agriculture use on certain conditions. As per the said order the lands both the survey numbers were divided into sub-plots which have been approved by the District Inspector of Land Records and the City Survey Officer. 9. The learned counsel for the petitioner submits that the petitioner constructed shops on the said land in the year 1991 after obtaining Raja Chiththi for starting construction from the Patan Nagar Palika, as on one side of R.S. No. 69 there is a public road, thus being unsuitable for residential purposes. The construction was completed in the year 1993. The petitioner submitted that as per condition No. 17 of the conditions of grant SCA/21775/2005 7 JUDGMENT of non-agricultural permission, necessary plans and maps of the shops on R.S. No. 69 were submitted to the authority. The Local Authority of Patan Nagar Palika sanctioned the said plans and maps and the authority granted permission by letter No. 812 and gave permission to start construction. After obtaining due permission the petitioner constructed shops as per the maps submitted by them and sanctioned by the authority. It is the case of the petitioner that the constructions has been made on petitioner's own land after leaving the marginal space between the Nagar Palika road and the construction of shops. It is the case of the petitioner that there is no slightest encroachment on the public road or any other land and the entire construction has been carried out as per the Rules and Regulations. The petitioner has relied on the Raja Chiththi issued by the Patan Nagar Palika being No. 405 under the provisions of the Gujarat Municipalities Act, namely under Section 155 dated 10.9.1993. The authority has also granted permission on certain conditions. The learned counsel for the petitioner has relied on said Raja Chiththi which is produced at Annexure-C to the petition. In view of the aforesaid position, it is the case of the petitioner that from the year 1990-91, on the map and plan of the shops being produced before the City Survey Officer within the SCA/21775/2005 8 JUDGMENT jurisdiction of the Collector, the City Survey Officer took the measurements of the site and gave separate City Survey Number to the shops and each shop keeper has been given separate Sanad. It is the case of the petitioner that it is also within the knowledge of the Superintendent of City Survey, Patan that the shops are in existence since last 15 years. After the completion of the shops, local taxes like cess, education tax, water tax and other taxes were assessed, levied and collected by the Patan Nagarpalika since last 15 years. It is the case of the petitioner that the petitioner has not put up any further construction on the land after 1993-94. The above constructed shops have been sold and such buyers are carrying on their business like dispensary etc. One such sale Deed is annexed with the petition at Annexure- D. The Sale Deed is dated 15.2.2001 between Salvi Devendra Mohanlal and Shri Rajeshbhai Himatlal Sheth. The purchaser purchased the shop which is in ground floor B-10. 10. The petitioner thereafter submitted that the District Collector issued notice on 9.2.2005 to the petitioner as was also done to the tenants/purchases of the shops earlier, alleging breach of condition of non- agricultural use of the aforesaid lands and the SCA/21775/2005 9 JUDGMENT petitioner was asked to remain present personally. Accordingly, the petitioner remained present on 29.3.2005 before the (Barnisi Karkun) officer in the office of the Collector and submitted written reply. On the very same day such a reply was also submitted to the Deputy Collector. 11. It is the case of the petitioner that in the aforesaid reply the petitioner clarified that there is no breach of any of the conditions of the NA permission as the petitioner had constructed the said shops pursuant to the Raja Chiththi issued by the local authority and that too in the year 1991. It was further contended that the local authority and the City survey Officer have approved the plans of the shops and therefore there was deemed revised NA permission. After the said reply, the Deputy Collector issued separate notices to the shop owners for breach of condition and on 1.6.2005 the Resident Deputy Collector issued notices to the petitioner, his brother i.e. Mukesh Himatlal Sheth who filed Special Civil Application No. 22095 of 2005 which has been decided on 5.11.2005 since reported in 2006(1) GLH 28 and his mother for breach of condition of NA permission and asked them to remain present personally on 9.6.2005. The petitioner has annexed copy of the notice as well as his reply at SCA/21775/2005 10 JUDGMENT Annexure-F collectively to the petition. 12. It is the case of the petitioner that the petitioner again submitted written reply on 8.6.2005 requested to issue revised NA by regularising the construction which was made in the year 1991 assuming there was technical breach of the NA permission. The petitioner requested for such regularisation more particularly in view of the fact that one of the plot holders of R.S. No. 70 after purchase of the plot from the petitioner had got revised N.A., and the other owners had got revised N.A., for consolidated plots. The petitioner contended that no site of common plot has been given in sale and that there is still ample open land lying and thus the petitioner has not constructed any excess area than what is granted. The petitioner vide the said reply dated 8.6.2005 requested for grant of revised NA on payment of appropriate charges. 13. It is the case of the petitioner that on 1.8.2005 the Resident Deputy Collector issued notice to Methaji of the petitioner namely Jethalal Manilal in the capacity of power of attorney holder and called him to remain personally present. On receipt of the said letter he submitted letter on 3.8.2005 informing that nothing SCA/21775/2005 11 JUDGMENT more is required to be stated in addition to what the petitioner had earlier submitted. It is the case of the petitioner that the Resident Deputy Collector informed the son of Jethalal that his father should have come personally otherwise he would ultimately go to jail under PASA. Therefore, the petitioner was constrained to make a representation to the Chief Secretary, State of Gujarat, on 1.8.2005 inter alia requesting the authorities to intervene in the mater and in any event regularize the technical breach of the N.A. Order. 14. It is the case of the petitioner, despite the above, respondent No. 2 passed an order of detention under the provisions of the PASA Act against the petitioner due to which as mentioned earlier the police had raided the house of the petitioner at an unholy hour and disturbed the peace of the house and the members therein by threatening the members and the servants. In view of the aforesaid conduct, behaviour and the threat given by the police officials, the wife of the petitioner has made a complaint on 21.10.2005 to the Deputy Commissioner of Police, Zone-I, Mumbai. 15. It is the case of the petitioner that the petitioner came to know that search party from Gujarat SCA/21775/2005 12 JUDGMENT had come to arrest the petitioner pursuant to a detention order dated 18.10.2005 passed by respondent No. 2 and /or 3 under the Act against which the petitioner has filed the present petition. 16. The learned advocate for the petitioner has relied on Section 3 read with Section 2(h) and (i) of the PASA Act. Section 2(h) of the Act reads as follows: “ (h) “property grabber” means a person who illegally takes possession of any lands not belonging to himself but belonging to Government, local authority or any other person or enters into or creates illegal tenancies or lease or licence agreements or any other agreements in respect of such lands who constructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental or lease and licence basis for construction or use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands for construction of unauthorised structures thereon or who collects or attempts to collect from any occupiers of SCA/21775/2005 13 JUDGMENT such lands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things.” Section 2(i) of the PASA Act reads thus: (i)“unauthorised structure” means any structure constructed in any area without express permission in writing of the officer or authority having jurisdiction in such area required under the Bombay Land Revenue Code, 1879 (Bom. V of 1879) and the Gujarat Town Planning and Urban Development Act, 1976 (Presi. Act 27 of 1976) and the Bombay Provincial Municipal Corporations Act, 1949) (Bom. LIX of 1949), the Gujarat Municipalities Act, 1963 (Guj. 34 of 1964) or as the case may be, the Gujarat Panchayat Act, 1961 (Guj. VI of 1962) or except in accordance with any other law for the time being in force in such area.” SCA/21775/2005 14 JUDGMENT 17. The learned counsel submitted that Section 3 read with Section 2(h) and (i) does not authorise preventive detention of a citizen for breach of the conditions of N.A. Permission. Therefore, the detention of the petitioner would be clearly violative of Articles 19 and 21 of the Constitution of India. Section 3(4) of the PASA Act provides that for the purpose of this Section, a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is engaged in or is making preparation for engaging in any activities whether as a bootlegger or dangerous person or drug offender of immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Therefore the the petitioner has filed the present petition at pre-execution stage. PRELIMINARY CONTENTIONS RAISED BY THE LEARNED A.G.P. 18. Before the learned advocate for the petitioner submitted the present petition, Mr. L.R. Pujari, learned AGP raised a preliminary contention. 18.1. The learned AGP submitted that the order of detention is not executed and the petitioner has not SCA/21775/2005 15 JUDGMENT surrendered to the order passed by the authorities as such no right much less fundamental right of the petitioner is violated by the respondent authorities. The petitioner is not entitled to have the copy of the grounds of detention at the pre-detention stage. By way of filing this petition, the petitioner cannot compel the authorities to disclose the grounds of detention before the same is executed. As per the settled legal position of law laid down by the Hon'ble Supreme Court of India and reiterated time and again by the Hon'ble Apex Court as well as by this Court the petitioner is required to surrender first before challenging the order of detention which is not served upon him and not executed by the authority and therefore, the present petition filed by the petitioner invoking the extraordinary jurisdiction under Article 226 of the Constitution of India cannot be treated as habeas corpus petition. As per the provisions of the Constitution and the provisions of PASA Act the petitioner is entitled to have the copy of grounds of detention and the accompaniments thereto only after the order of detention is executed and he is detained. Therefore, the respondents have preliminary objection about the maintainability of the present petition. 18.1A He has also relied on the judgement of the SCA/21775/2005 16 JUDGMENT Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS VS. PRASMAL RAMPURIA reported in (1998) 8 SCC 402 and also another judgement in the case of UNION OF INDIA VS. VIDYA BAGARIA reported in AIR 2004 SC 2220 as well as judgement in the case of UNION OF INDIA AND OTHERS VS. MUNEESH SUNEJA reported in AIR 2001 SC 854. 18.1B Mr. L.R. Pujari, learned AGP has relied upon paras 31 and 32 of the judgement of the Hon'ble Supreme Court in the case of Additional Secretary to the Govt. of India and others Vs. Smt. Alka Subhash Gadia and another reported in 1992 Supp. (1) SCC 496 and stated that this Court may not interfere in this behalf. 18.2 The learned AGP has also relied upon the judgment of this Court in Special Civil Application No.7721 of 2005 in a case of pre-detention, even after a complaint filed against the petitioner therein was quashed by this Court, without expressing any opinion on the merits of the case, considering the settled legal position this Court was pleased to dismiss the pre- detention petition filed by the petitioner therein. PETITIONER'S REPLY TO THE PRELIMINARY CONTENTION: SCA/21775/2005 17 JUDGMENT 19. Mr. K.S. Nanavati, learned counsel for the petitioner has stated that it is no doubt true that ordinarily the Court did not interfere with pre-detention order i.e., the order of detention which was not executed. However, he has submitted that there is no absolute bar in entertaining the petition in certain circumstances. Even State petition is pending. In support of the same, he has relied on the judgement of the Hon'ble Supreme Court in the case of Additional Secretary to the Govt. of India and others Vs. Smt. Alka Subhash Gadia and another (supra). In that case the Hon'ble Supreme Court has laid down the principle regarding pre- determination in para 30 on page 520 in which the Court has held that powers under Articles 226 and 32 are wide and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of administration of justice and for better and more efficient and informed exercise of the said powers. These self imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy SCA/21775/2005 18 JUDGMENT and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. However, in the said judgement the Hon'ble Supreme Court has held that it is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts have necessary power and they have used it in proper cases as has been pointed out in the said judgement, although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number. The Hon'ble Supreme Court has laid down certain exceptions. Findings on the preliminary issues: 20. I have considered the judgement of the Hon'ble Apex Court in the case of Alka Subhash Gadia (supra). From the said judgement it is no doubt true that the Hon'ble Apex Court has laid down that power to entertain the petition at pre-detention stage is a limited SCA/21775/2005 19 JUDGMENT jurisdiction. However, from that it is not correct that the Courts have no power to entertain the grievance in a detention order prior to its execution and the Courts have laid down or jurisdiction the principle in which the petition can be entertained. In view of this , the judgement of the Hon'ble Supreme Court in the case of Alka Subhash Gadia (supra) which has been followed by several other judgements of the Hon'ble Supreme Court, in my view, the contention raised by the learned AGP regarding maintainability of the petition at pre- execution stage is rejected. In view of the same, the present petition challenging the order of detention which has not been executed is still maintainable at law. SUBMISSIONS ON MERITS OF THE CASE: 21. The learned counsel for the petitioner submitted that even in the pre-execution stage also the present petition is maintainable and the said order of detention is illegal, based on vague, extraneous , non- existent and irrelevant grounds and passed without application of mind to the true facts and circumstances and therefore is liable to be quashed and set aside as it falls squarely within the exceptions as carved out in by SCA/21775/2005 20 JUDGMENT the Hon'ble Supreme Court in the case of Additional Secretary, Government of India Vs. Alka Subhash Gadia reported in 1992 Suppl. (1) SCC 496. In that case the Hon'ble Apex Court has laid down the principle regarding pre-detention in para 30 on page 520 which reads as under: (second line from bottom) “xxxxxxxxxxxxxxxxxxxxxx Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned