SCA/20563/2005 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20563 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 ============================================================== SURESHBHAI RATILAL TANNA - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================================== Appearance : MR PM THAKKAR FOR M/S THAKKAR ASSOC. for Petitioner(s) : 1, MR LR POOJARI, AGP for Respondents ================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 23/03/2006 CAV JUDGMENT 1. Rule. Mr.L.R.Poojari, learned AGP appears and waives service of rule on behalf of respondents. SCA/20563/2005 2 JUDGMENT 2. Sureshbhai Ratilal Tanna, petitioner, has filed this petition under Article 226 of the Constitution of India, challenging the legality and validity of the order of District Magistrate, Rajkot, - respondent No.2 seeking to detain the petitioner under provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA”). The said petition was filed on 8th October, 2005, and the Court has issued notice on 11th October, 2005, and passed the orders from time to time and ultimately on 29th December, 2005, this Court passed the order that during pendency of petition the authority will not take any coercive measure in this behalf. 3. The facts giving rise to this petition are as under:- 3.1 Mr.P.M.Thakkar, learned Senior Counsel for the petitioner stated that the detention order was passed (which is still not executed – pre-detention matter) is as under: SCA/20563/2005 3 JUDGMENT 3.1A There is a land bearing Survey No.466 paiki ad-measuring 3 Acre 30 Gunthas which was purchased by Ashok Co-operative Housing Society in 1965 by Registered Sale Deed by the then promoters and office bearers of the society from the predecessor in title Tapu Bechar. According to the claim of the revenue authorities, the land does not belong to the previous owner Tapu Bechar but the same belongs to Government and therefore the society has encroached upon the Government land and it amounts to grabbing of the Government land. 3.2 The learned counsel submitted that it is pertinent to note that the land in question which was purchased by the housing society in 1965 by registered sale deed dated 20.10.1965 by the then President and Promoters of the society. In support of the same he has relied upon Annexure “A” page 14 which provides said “sale deed” in this behalf. It is the case of the petitioner that the petitioner was neither office bearer nor the petitioner had SCA/20563/2005 4 JUDGMENT attributed any rule in purchasing the said land for the society. He further submitted that somewhere in 1982-83 upon implementation of Town Planning Scheme in Rajkot City, the society was reallocated Final Plot No.939 ad-measuring 10450 sq.mtrs. The society was alloted a final plot. Out of that the society allotted 54 plots to the members and possession was handed over to them. The petitioner became member of the society in 1984 and was allotted plot no.11 by the society. 3.3 From the year 1982 to 2000, the society was managed by the President Ratilal Dhanjibhai. Thereafter society went into liquidation and on 1.10.2000 the District Registrar, State of Gujarat, appointed custodian to the said society. From 1.10.2000 to 13.6.2002 the said custodian has managed the affairs of the society. 3.4 The Managing Committee was elected on 13.6.2002 and took over the charge of the society. On the same day, the petitioner was elected as Honorary SCA/20563/2005 5 JUDGMENT Secretary of the said society. At this stage it is relevant to note that the Mamlatdar, Rajkot City, issued a notice on 27.5.1996 under Section 61 of the Land Revenue Code which provides penalties for unauthorized occupation of land inter-alia alleging that the society has encroached upon the Government land and therefore the encroachment should not be removed. The society in response to aforesaid notice filed reply on 20.9.1996 and produced registered sale deed under which the society had purchased the same from a private party in 1965. The Mamlatdar, Rajkot City after examining the revenue record and the evidence produced by the society vide an order dated 8.4.1999 gave a finding that there is no evidence to establish that it is a Government land. The encroachment proceedings were therefore dropped vide order dated 8.4.1999. 3.5 In support of the same, the learned advocate has relied upon Annexure “C” the order dated 3.4.1999 passed by the Mamlatdar, Rajkot City (relevant pages 48 and 49). The learned counsel SCA/20563/2005 6 JUDGMENT further submitted that the Collector, Rajkot City thereafter issued a notice dated 21.2.2000 to the society as to why the above order passed by the Mamlatdar should not be taken in review. The society has submitted its objections and the said proceedings are still pending for adjudication. 3.6 Being aggrieved and dissatisfied with the said action the society also filed appeal before the Gujarat Revenue Tribunal challenging the notice issued by the Collector, Rajkot. Thus, the title of the Government in respect of the land is yet not fully adjudicated and established and the main dispute is pending for adjudication before the revenue authorities. The learned advocate therefore submitted that till the final adjudication and until it is held that the land in question is Government land, the detaining authority cannot presume the title to the land of Government and proceed to pass the detention order against the petitioner. 3.7 The learned advocate further submitted that SCA/20563/2005 7 JUDGMENT the Ex-President Shri Ratilal Dhanjibhai who remained from 1982-2000 as President of the society was detained as “Property Grabber” under PASA on the same grounds for which he has relied upon Annexure “F” (pages 59 to 73) wherein the grounds of detention has been given. However, the Advisory Board did not approve the detention and the order of detention has been revoked by the Government in this behalf. 3.8 In view of the aforesaid facts and circumstances of the case, the learned advocate submitted that the society was managed by custodian appointed by the District Registrar, State of Gujarat from 1.10.2000 to 13.6.2002 and transferred the plots of the society in favour of purchasers. Even the custodian of the Government at no point of time took the stand that the land possessed by the society is a Government land. 3.9 As indicated above, the petitioner was elected as Honorary Secretary of the society on 13.6.2002. As a secretary of the society, the SCA/20563/2005 8 JUDGMENT petitioner has to implement and carry out the resolutions passed by the Managing Committee of the society. It is pertinent to note that the petitioner has neither purchased the land for the society nor the petitioner has sold any plot to anybody. The learned advocate submitted that if any member sells his plot to the buyer, the Managing Committee of the society has to give no objection, and as and when, any member has sold the land by executing sale deed, the purchaser would produce it before the society and as a Secretary, the petitioner has to enter the name of the purchaser in the record of the society as was done by the custodian appointed by the Government. Thus, the petitioner cannot be said to be “property grabber” as defined under sec.2(h) of the Act. 3.10 The learned advocate submitted that however to the great shock and surprise of the petitioner, though the proceedings in respect of the land in question is pending for final adjudication, the District Magistrate, Rajkot has passed an order of detention under PASA on 25.9.2002 and has detained SCA/20563/2005 9 JUDGMENT Ex-President – Ratilal Dhanjibhai Rajdev as the property grabber, who is accused no.1 in the FIR. The petitioner therefore has a genuine apprehension that the petitioner will be detained under PASA to the order dated 25.9.2005 passed by the respondent No.2 District Magistrate, Rajkot City which is annexed and marked as Annexure “F” to the petition. 3.11 Being aggrieved and dissatisfied with the said action, the petitioner has filed present petition against execution of detention order on following main, amongst other grounds. 4. Before the learned advocate for the petitioner submitted the present petition, Mr. L.R. Poojari, learned AGP raised a preliminary contention. 4.1. The learned AGP submitted that the order of detention is not executed and the petitioner has not 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. SCA/20563/2005 10 JUDGMENT 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. SCA/20563/2005 11 JUDGMENT 4.1A He has also relied on the judgement of the 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. 4.1B Mr. L.R. Poojari, 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. 4.2 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 SCA/20563/2005 12 JUDGMENT 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. 5. Mr. P.M. Thakkar, 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. 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 SCA/20563/2005 13 JUDGMENT resulting in civil or criminal consequences. 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: 6. 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 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 SCA/20563/2005 14 JUDGMENT 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. SUBMISSION ON THE MERITS OF THE MATTER: 7. The learned counsel for the petitioner submitted that the action on the part of respondent No.2 in seeking to detain the petitioner is in violation of Articles 21 and 22 of the Constitution of India. The learned advocate further submitted that the preventive detention is to prevent a person from indulging into anti-social activities which are SCA/20563/2005 15 JUDGMENT prejudicial to the maintenance of public order. The petitioner is a genuine businessman having no past history or criminal antecedents. The petitioner is not connected with any anti-social activity which would warrant the detaining authority to book the petitioner under PASA. The detaining authority appears to have exercised the powers of preventive detention in an arbitrary manner for some oblique motives. The impugned action not being in consonance with the provisions of Articles 21 and 22 of the Constitution of India, the same is required to be quashed and set aside. 7.1 It is the apprehension of the petitioner that the Government has passed the order on the ground that the petitioner is a “property grabber” as defined under the provisions of PASA Act. At this stage I refer to Sec.2(h) of the PASA Act which defines “property grabber” which reads as under: “property grabber” means a person who illegally takes possession of any lands not SCA/20563/2005 16 JUDGMENT belonging to himself but belongings to Government, local authority or any other person or enters into or creates illegal tenancies or lease and licence agreements or any other agreements in respect of such lands or 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 of use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands or for Construction of unauthorized structures thereon or who collects or attempts to collect from any occupiers of 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.” SCA/20563/2005 17 JUDGMENT 7.2 The learned advocate further submitted that the detaining authority has relied upon statements of few members of the society who have directly purchased the plots from its original owners. The society has not sold any plots to anybody and therefore the petitioner cannot be held responsible. Moreover, the said plot holders have constructed residential houses without obtaining any permission at their own cost and risk. Their statements do not disclose any fraud committed by the petitioner or by the society since they have directly purchased the plots by registered sale deed from original owners. Thus, the detaining authority has not properly applied its mind and the subjective satisfaction of the detaining authority is vitiated since it is not based on any cogent material. The detention order is therefore unsustainable in the eye of law. 7.3 The learned advocate for the petitioner submitted that the detaining authority has passed the order on vague, extraneous and irrelevant grounds inasmuch as the adjudication with regard to title of SCA/20563/2005 18 JUDGMENT the land is still pending. At this stage it cannot be assumed that the land in question is a Government land and the society has illegally obtained possession. The petitioner submitted that the question raised in the petition is regarding pre- detention of the detention order. In this connection the petitioner relied upon the judgment of the Hon'ble Apex Court in the case of Additional Secretary, Government of India and others Vs. Smt. Alka Subhash Gadia and another reported in 1992 Supp(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:(at the 2nd 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 SCA/20563/2005 19 JUDGMENT 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 order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.” SCA/20563/2005 20 JUDGMENT 7.4 In view of the aforesaid decision, the learned advocate submitted that the order of pre- detention can be challenged on following grounds. (i) That the impugned order is not passed under the Act, under which it is purported to have been passed. (ii) That it is sought to be executed against a wrong person. (iii) That it is passed for a wrong purpose. (iv) That it is passed on vague, extraneous and irrelevant grounds; or (v) That the authority which passed it, had no authority to do so. 7.5 The learned advocate for the petitioner, therefore, submitted that the case of the petitioner is covered by the aforesaid exceptions namely, SCA/20563/2005 21 JUDGMENT Exception (i) and Exception (iv). Exception (i) that the impugned order is not passed under the Act under which it is purported to have been passed and Exception (iv) that it is passed on vague extraneous and irrelevant grounds. 7.6 The learned advocate for the petitioner submitted that considering the proposition laid down by the Hon'ble Supreme Court in the aforesaid decision, the petitioner does not appear to fall within the ambit of “property grabber” as defined under Sec.2(h) of the Act. Thus, the case of the petitioner falls under exception (iv) “that it is passed on vague extraneous and irrelevant grounds.” 8. Exception (ii): That it is sought to be executed on a wrong person: 8.1 The learned advocate for the petitioner submitted that the land in question bearing Survey No.466 paiki ad-measuring 3 Acre – 30 Gunthas by the Ashok Housing Society under the registered sale deed dated 20.10.1965 from its original owner on payment SCA/20563/2005 22 JUDGMENT of full consideration as a bona fide purchaser. The petitioner was not the office bearer much less a member of the said society nor was the petitioner in any manner connected with the society. The petitioner became member of the society in 1984 i.e., 19 years after the society had purchased the land. Thus, since the petitioner has not played any role and as the land was purchased by the then promoter and office bearers of the society in the year 1965. Thus, the detention order is sought to be executed against a wrong person. Thus, the case of the petitioner falls under Exception (ii) as stipulated in the case of Alka Subhash Gadia and another reported in 1992 Supp (1) SCC 496, therefore, this Court has necessary power to set aside the detention order at pre- detention stage. 8.2 Exception (iii): It is passed for a wrong purpose: 8.2A The learned advocate for the petitioner submitted that the petitioner was elected as Honorary SCA/20563/2005 23 JUDGMENT Secretary of the society only in 2002 and in discharge of his duties as Secretary the petitioner has been defending the dispute pending before revenue authorities i.e., District Collector, Rajkot and the same Collector, acting his powers as District Magistrate, Rajkot has passed the detention order against the petitioner. Thus, to harass and to pressurize the petitioner not to defend the society in the litigation against Government, the detaining authority has passed the detention order for wrong or incorrect purpose. Thus, the case of the petitioner falls in Exception (iii) as laid down in Alka Gadia's case (supra). 8.3 Exception (iv): That it is passed on vague, extraneous and irrelevant ground: 8.3A The learned advocate for the petitioner submitted that the dispute as to whether the land purchased by the society is a private land or a Government land is pending for adjudication before the revenue tribunal. As against that there is a positive finding given by the Mamlatdar, Rajkot City SCA/20563/2005 24 JUDGMENT vide an order dated 3.4.1999 as per Annexure “C” that from the revenue record it is not shown as a Government land and there is no evidence to establish the title of the Government for the land in question. Thus, it cannot be said that the land purchased by the society is a Government land and, therefore, the petitioner cannot be detained as a “property grabber” within the meaning of Sec.2(h) of the PASA Act. The learned advocate submitted that the detention order is passed by the detaining authority in exercise of power under Sub-section (1) of Sec.3 of the Act read with Sec.2(h) and 2(i) of the Act. Sec.3(1) of the Act confers the power to detain a person, if it is satisfied that such detention is necessary to prevent him from acting in any manner prejudicial to maintenance of public order. Sub-sec.(4) of Sec.3 provides that the persons shall be deemed to be “acting in a manner prejudicial to the maintenance of public order” when such person:- (a) is engaged in or; (b) is making preparation for engaging in SCA/20563/2005 25 JUDGMENT any activities whether as a (i) bootlegger or (ii) dangerous person or (iii) drug offender or, (iv) immoral traffic offender or, (v) property grabber, which affect adversely or is likely to affect adversely the maintenance of public order.” 8.4 The learned advocate for the petitioner submitted that in a plain reading of the aforesaid provision, it is apparent