SCA/22095/2005 1/60 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22095 of 2005 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ==================================================== MUKESH HIMATLAL SHETH - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ==================================================== Appearance : MR.MIHIR JOSHI, SR. ADVOCATE with MR.K.D.GANDHI for Nanavati Associates for the petitioner MR SIRAJ GORI, AGP for Respondent ================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 05/11/2005 SCA/22095/2005 2/60 JUDGMENT ORAL JUDGMENT 1. Mr.K.D.Gandhi, the learned advocate for the petitioner seeks permission to amend the cause title of the petition. Permission is granted. Amendment to be carried out immediately. 2. By this writ petition under Article 226 of the Constitution of India the petitioner/detenu-Mukesh Himatlal Sheth, residing at Kantilal House, 14, Mama Parmanand Marg, Mumbai, challenges the order of detention dated 18th October, 2005 passed by the District Magistrate, Patan, ordering the detention of the petitioner under Section 3(1) read with Section 3(H) and 3(I) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (the Act) on the said authority’s subjective satisfaction that such detention was necessary with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of the “public order”. (The learned Counsel appearing for the petitioner has drawn attention to the fact that there is an error in quoting the provisions of the Act in the order. The correct provisions are Section 2(h) and 2(i) and not Section 3(H) and 3(I) of the Act).) SCA/22095/2005 3/60 JUDGMENT 3. It appears that a similar order of detention under Section 3 read with Section 2(h) of the Act had been made against the petitioner’s brother Rajesh Himatlal Sheth which has been challenged by his brother before this Court by way of a writ petition being Special Civil Application No.21775 of 2005 wherein notice had been issued on 25th October 2005 which was made returnable on 28th October 2005. On the returnable date, it appears that the Court after perusing the order of detention had observed that no coercive measures would be taken against the petitioner’s brother since the matter is sub-judice. 4. It is the case of the petitioner that with a view to overreach the process of the Court, police personnel from Gujarat Police had come along with Maharashtra Police, to the residence of the petitioner and his brother on 30th October, 2005 at 3:00 p.m. to arrest both the SCA/22095/2005 4/60 JUDGMENT petitioner and his brother. However, since the petitioner’s brother was not available at his residence, the petitioner was taken away from his residence by the police personnel under the guise of recording his statement without serving a copy of the warrant or the order of detention. Whereas it is the case of the respondents, as stated in the return filed by the detaining authority, that the petitioner had refused to take the detention order and that the same was served upon the petitioner by pasting the same at the residence of the petitioner. It is also stated that for the purpose of executing the detention order the respondent authorities had taken the help of the Maharashtra authorities as the petitioner was staying at Bombay. Therefore, it is an admitted position that the detention order was executed at Bombay. 5. It is also stated on behalf of the respondents SCA/22095/2005 5/60 JUDGMENT that upon executing the detention order, the petitioner was taken to the Bharuch sub-jail and that the petitioner has accepted the detention order along with the grounds at Bharuch sub-jail on 31st October, 2005. The said statement has been refuted by the learned counsel for the petitioner. It is submitted that only the grounds of detention have been served on the petitioner and that the order of detention has not been served on the petitioner. It is submitted that the respondents be directed to place a copy of the detention order on record. The respondents have disputed the say of the petitioner. However, with a view to complete the record, a copy of the detention order has been placed on record. 6.This petition was moved for urgent circulation during the vacation and was heard on 1st November 2005. During the course of hearing, the learned Senior Advocate, Mr.K.S.Nanavati SCA/22095/2005 6/60 JUDGMENT appearing on behalf of the petitioner had vehemently pressed for grant of interim relief. However, applying the principles laid down by the Supreme Court in the case of State of Bihar v. Rambalak Singh, AIR 1966 SC 1441, wherein it has been held as follows: “[10]. Having thus rejected the main argument urged by the learned Advocate General, we must hasten to emphasize the fact that though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenue who has been detained under R.30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenue. There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not. The jurisdiction of the High Court to grant relief to the detenue in such proceedings is SCA/22095/2005 7/60 JUDGMENT very narrow and very limited. That being so, if the High Court takes the view that prima facie, the allegations made in the writ petitions disclose a serious defect in the order of detention which would justify the release of the detenue, the wiser and the most sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where malafides are alleged in respect of an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the malafides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed malafide, it is also not unlikely that allegations of malafides are made light heartedly or without justification; and so, a judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to malafides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasizes the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed malafide, it would not be safe, sound or reasonable to make an interim order on the prima facie SCA/22095/2005 8/60 JUDGMENT provisional conclusion that there may be some substance in the allegations of malafides. What is true about malafides is equally true about other infirmities on which an order of detention may be challenged by the detenue. That is why, the limitation of jurisdiction of the Court to grant relief to the detenues who have been detained under R.30 of the Rules inevitably introduces a corresponding limitation on the power of the court to grant interim relief.” it was deemed appropriate to give the respondents an opportunity to file their return and to expedite the hearing of the writ petition. The aforesaid course of action was resisted by the learned Assistant Government Pleader and it was submitted that the matter be taken up in its turn in the regular course. However, considering the peculiar facts of the case, as well as the fact that in the case of a similar order of detention made against Shri Rajesh Himmatlal Sheth, the brother of the petitioner, this Court had at the pre- execution stage thought it fit to intervene and direct the respondents not to take any coercive action, the request made by the learned Assistant government Pleader was SCA/22095/2005 9/60 JUDGMENT turned down. Accordingly, Rule was issued which was made returnable on 4th November 2005 with the express understanding that the matter would be taken up for final hearing on that day. Mr.Nanavati had also submitted that the petitioner was suffering from serious health problems, and requested that the petitioner be shifted to the Sterling Hospital, at Ahmedabad, at his own cost. The learned Assistant Government Pleader, after taking instructions, acceded to the said request, but submitted that the doctor treating the petitioner be directed to submit a report regarding the health of the petitioner on the returnable date. It was directed accordingly. In compliance with the aforesaid directions, a certificate dated 4th November 2005, has been submitted by the Dy. Medical Administrator of the Sterling Hospital, which has been taken on record. 7.On the returnable date, i.e. 4th November 2005, an affidavit-in-reply dated 3rd November 2005, made by Shri J.D.Bhad, the District Magistrate, Patan who is the detaining authority was tendered. The pleadings being complete, the matter was SCA/22095/2005 10/60 JUDGMENT taken up for hearing and final disposal. 8.Heard, Mr. Mihir H. Joshi, learned Senior Advocate with Mr. Keyur Gandhi, learned Advocate on behalf of the petitioner and Mr. Siraj Gori, learned Assistant Government Pleader on behalf of the respondents. 9.The learned Senior Counsel referred to the averments made in paragraph 8 of the petition wherein the family background of the petitioner has been described, to point out that the petitioner belongs to a respectable family and has never been involved in any offence so far. 9.1. It was submitted that the impugned order of detention is ultra vires the Act as the same has been passed for the purported breach of condition of N.A. permission, which is totally without authority of law and dehors the Act. It was submitted that Section 3(1) read with Section 2(h) and (i) of the Act do not authorize preventive detention of a citizen for breach of conditions of N.A. permission. It was submitted that the petitioner had been detained under Section SCA/22095/2005 11/60 JUDGMENT 3(1) read with Section 2(h) and 2(i) of the Act on the ground that the petitioner is a property grabber carrying on unauthorized constructions and as such, is required to be prevented from carrying on such activities which are prejudicial to the maintenance of public order. It was contended that the petitioner could not in any manner be said to be a property grabber as defined under the Act inasmuch as the petitioner had not illegally or otherwise taken over the possession of Government land or any other person’s land. 9.2. It was submitted that Section 3 of the Act provides for detention of any person with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. That, under sub-section (4) of Section 3 of the Act, a person is deemed to be acting in a manner prejudicial to the maintenance of public order when such person is engaged in or is making preparation for engaging in the activities narrated in the sub-section, which includes activities as property grabber. It was further submitted that the SCA/22095/2005 12/60 JUDGMENT definition of “property grabber” as defined under Section 2(h) of the Act contemplates a person who has no title to the property and has been involved in the activities mentioned therein in respect of land to which he has no title or is not the owner. It was further submitted that the words “who constructs unauthorized structures thereon for sale or hire” in Section 2(h) also refers to these activities in respect of land to which the person alleged to be “property grabber” is not the owner and has no title. 9.3. The learned Counsel submitted that it is an admitted fact that in the revenue records the names of the petitioner and his family members are shown in respect of the lands in relation to which breach is alleged and that all the construction is within the said lands. It was submitted that the basis of the order of detention is the allegation that the petitioner has sold part of the common plot, which admittedly formed a part of the lands owned by the petitioner. It was contended that merely because a parcel of land is demarcated as a common plot in the lay out SCA/22095/2005 13/60 JUDGMENT plan, the owner does not lose his title over the said land. It was submitted that that the petitioner who had constructed upon his own property can in no manner be labelled as a property grabber. It was further submitted that even as per the Government resolution relied upon by the respondent authorities the owner is not divested of his ownership in the common plot, he merely ceases to have the power to exercise any rights over the said property. It was further submitted that this was not a case in which the common plot was done away with and the entire property was constructed upon leaving no scope for a common plot. It was pointed out that provision was made for a common plot of similar size elsewhere and that regularization had been sought for. It was further submitted that the detention order pertained to two survey numbers namely survey numbers 69 and 70. It was stated that the land admeasuring 322 sq. mts. forming part of common plot of survey number 69 as per the original lay out plan which totally admeasures of 2160 sq. mts had been sold, whereas the common plot of survey number 70 was open vacant land. It SCA/22095/2005 14/60 JUDGMENT was contended that the rights of the petitioner in respect of the land of the common plot may be truncated but he does not cease to be the owner thereof. That the petitioner had not taken over any one else’s land; that, none of the activities alleged against the petitioner in the order of detention can even be labelled as offences. It was vehemently urged that the main ground for making the order of detention was the sale of 322 sq. mts of land forming part of the common plot as per the N.A. permission lay-out plan, which could by no stretch of imagination be said to be an activity of property grabbing or an activity which has any nexus to the maintenance of public order, so as to warrant such drastic action like subjecting the petitioner to detention under the provisions of the Act. 9.4.The learned Counsel submitted that the term property grabber should take colour from the associated words mentioned in the sub-section, namely bootlegger, dangerous person, drug offender and immoral traffic offender and accordingly the word property grabber would be synonymous with a person SCA/22095/2005 15/60 JUDGMENT grabbing land using highhandedness or criminal intimidation like a slum lord, etc. The learned Counsel referred to the decision of the Supreme Court in the case of Navalshankar Ishwarlal Dave v. State of Gujarat, 1993 supp (3) SCC 754, with special reference to paragraph 4 thereof, wherein the Court has referred to para 4 of the statements and objects of the Act, to point out that the definition of ‘property grabber’ read with Section 3(1) of the Act contemplates taking illegal possession of public or private lands by musclemen of some means, often got from bootlegging, and constructing or permitting construction thereon of unauthorized structure or selling, leasing or giving on lease or licence such land or unauthorized structure after collecting heavy price, rents, compensation and the like, and in so collecting the charge from the occupiers, the musclemen resort to criminal intimidation. Due to such activities the entire community living in slums is under the grip of perpetual fear of such land grabber. That it is such activities that adversely affect the public order. SCA/22095/2005 16/60 JUDGMENT 9.5.The next contention raised on behalf of the petitioner was that in the present case the construction was over in 1993, the revised plotting had come to the notice of the City Survey Superintendent in April 1998, the sale deeds upon which reliance has been placed for making the impugned order have been executed in the year 2000, whereas the detention order has been made on 18th October 2005, hence there is no proximate or causal connection between the incidents forming the basis of the order of detention. Accordingly, it was urged that such remote incidents do not justify the making of the detention order. It was submitted that the detaining authority had not furnished any explanation as to why there was such a long delay in passing the order of the detention. Reliance was placed upon the decisions of the Apex Court in the case of Jagan Nath Biswas v. State of W.B., AIR 1975 SC 1516, Kamlakar Prasad Chaturvedi v. State of M.P., (1983)4 SCC 443, Lakshman Khatik v. State of W.B., AIR 1974 SC 1264 and Abdul Munnaf v. State of W.B., AIR 1974 SC 2066 for the proposition that SCA/22095/2005 17/60 JUDGMENT there has to be some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at; and that if in a given case there was a time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex-facie long, the detaining authority should explain the delay in making the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. 9.6. The next contention raised by the learned Senior Counsel was that the impugned order suffers from non- application of mind as well as from non- consideration of relevant facts. Referring to the document at page 31 of the compilation supplied with the detention order, it was submitted that identical breaches on the very same plot have been regularized, which fact was germane to the present case, therefore the same should have been kept in mind by the detaining authority before making the detention order. The learned Counsel also referred SCA/22095/2005 18/60 JUDGMENT to the document annexed at page 80 to the petition whereby the very officer who as the detaining authority had passed the detention order had approved the revised lay out plan on an application made by a purchaser of lands forming part of Revenue Survey No.69 to point out that the alleged breach was not of such a nature as could not be regularized. It was contended that if such breach could be regularized, it could in no manner call for such drastic action like detention under the provisions of the PASA Act. It was submitted that the detaining authority had not applied his mind to the aforesaid facts; hence the order of detention is vitiated on account of non- application of mind. 9.7. The learned Counsel also referred to the sale deed executed by the petitioner in favour of one Patel Pankajbhai Ramjibhai, annexed as Annexure RIII to the affidavit in reply wherein part of the land forming common plot had been sold to the purchaser; as well as to the document at page 335 of the compilation, to point out that on an application by the purchaser, the municipality had granted SCA/22095/2005 19/60 JUDGMENT permission to construct on the said lands under Section 155 of the Gujarat Municipalities Act. It was submitted that the plots initially stood in the name of the petitioner and subsequently the names of the purchasers had been entered and that the authorities had approved their plans. 9.8. Referring to the sale deeds (Annexure RIII) it was pointed out that by virtue of the very sale deeds the purchasers were put to notice that they will have no right over the common plot, hence, there was no question of cheating the purchasers. The learned Counsel submitted that all the sale deeds were registered sale deeds; all the records of the City Survey Superintendent continue as on today; all the non-agricultural permissions etc. are operative today. It was urged that the detaining authority cannot go behind the documents and take action which is not in consonance with the record. It was submitted that the fact that various plots had been regularized ought to have been considered before making the impugned detention order. Reliance was placed upon SCA/22095/2005 20/60 JUDGMENT the decision of the Apex Court in the case of Ashadevi v. K. Shivraj, AIR 1979 SC 447 for the proposition that when material and vital facts which are likely to influence the mind of the authority are not considered, the subjective satisfaction of the authority is vitiated which renders the order of the detention invalid. 9.9. The next ground for assailing the impugned detention order was that irrelevant grounds had been taken into consideration. It was submitted that the order of detention is based on vague, extraneous, non-existent and irrelevant grounds and passed without application of mind to the true facts and circumstances. It was contended that loss to the Government, under-valuation of land and construction on margin land were irrelevant considerations for making the impugned order as the same had no nexus with the maintenance of public order and that the grounds for making the detention order are completely interwoven and cannot be separated and upheld. Reliance was placed upon the decision of the Apex Court SCA/22095/2005 21/60 JUDGMENT in the case of Jatindra Nath v. State of W.B., AIR 1975 SC 1215 for the proposition that even if one ground, out of two or more is found to vitiate the subjective satisfaction of the detaining authority, the order of detention falls. 9.10. The learned Counsel next contended that all the alleged irregularities relate to one plot of land namely common plot of revenue survey number 69, which is a solitary incident and that the nature of the said incident was not such as to justify detention as the said activity in no manner disturbed the even tempo of public life. It was submitted that even a solitary incident could be made the basis of any order of detention, however, the incident should be such as would disrupt the even tempo of public life. Reliance was placed upon the decision of the Apex Court in the case of Darpan Kumar Sharma v. State of T.N., (2003)2 SCC 313 and the decision of this Court in the case of Surajsinh L. Rajput v. State of Gujarat, (2004) 1 GLH 454 for the proposition that the reach and potentiality of the single incident should be so great as to disturb SCA/22095/2005 22/60 JUDGMENT the even tempo or normal life of the community in the locality so as to disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. 9.11. The learned Counsel submitted that the subjective satisfaction of the detaining authority while passing the detention order, stood completely vitiated. It was urged that except for the ground that the petitioner owns various parcels of land in Patan, and is likely to indulge in activities contrary to land laws, there is no other ground for making the detention order. It was contended that there is no material before the detaining authority to justify such apprehension. It was urged that the very ground stated in the detention order is contrary to the provisions of the Act, in that the definition of property grabber envisages taking possession of Government land or some other person's land, whereas the apprehension voiced in the detention order is in respect of lands owned by the petitioner himself,