PETITIONER: NAVALSHANKAR ISHWARLAL DAVE AND ANR. Vs. RESPONDENT: STATE OF GUJARAT AND ORS. DATE OF JUDGMENT12/05/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MOHAN, S. (J) CITATION: 1994 AIR 1496 1993 SCR (3) 676 1993 SCC Supl. (3) 754 JT 1993 (3) 421 1993 SCALE (2)813 ACT: Constitution of India, 1950-7th Schedule, List III-Entry 3- Gujarat Prevention of Anti-Social Activities Act, 1985- Legislative validity and intention of. Gujarat prevention of Anti-Social Activities Act, 1985: Section 3-Power of detention-Delegation-Legality. of- Illegal possession of public or private lands-Whether disturbs public order. Gujarat Prevention of Anti-Social Activities Act. 1985- Section 3-Indulgence of detenues in property grabbing- Subjective satisfaction of District Magistrate that such acts of detenues affecting maintenance of public order- Detention order-Validity of. Gujarat prevention of Anti-Social Activities Act, 1985- Sections 3, 11, 15 read with Section 21, General Clauses Act and article 22 (5) of the Constitution of India-Detention order by authorised officer- Approval by Board and State Government-Procedure-Nor approved within 12 days-Effect- Power to revoke or rescind by detaining authority and State Government-Scope of. Constitution of India, 1950-Articles 21,22 read with section 3, Gujarat prevention of Anti-Social Activities Act, 1985- Representation of detenue-Consideration by State Government- Delay-Effect"Forthwith "-Meaning of. Gujarat Prevention of Anti-Social Activities Act, 1985- Sections 2(h), 2 (i)--"Property grabber", "unauthorised structure"-Meaning of. Words and Phrases-"Property grabber", "unauthorised structure", 'forthwith "-Meaning of. Mutation-Revenue Record-Names recorded-Evidentiary value- Whether evidence to title-Title whether follows possession. Evidence Act, 1872- Sections 3, 61-Appreciation of evidence- Mutation 677 of names in Revenue Record-Whether evidence to title-Title whether follows possession. HEADNOTE: The detention of the appellants were ordered by the Magistrate on his satisfaction in exercise of the powers under Section 3(1)and (2) of the Gujarat Prevention of Anti- Social Activities Act, 1985. When the appellants challenged the detention order and the Act before the High Court filing the writ petitions in pre- detention execution stage, the High Court dismissed the writ petitions and upheld the validity of the detention order and the Act. The appellants filed SLPS against the High Court judgment. This Court, when the SLPS came up for admission, directed to list the cases after the proof of surrender of the detenues petitioners was filed. The appellants produced the proof of surrender. As one Pratt, petitioner in SLP (Crl) No. 110 of 1993 did not file the proof, his SLP was dismissed. The appellants contended that the blanket power of delegation by the State Government under section 3 of PASA was a negation of satisfaction on the part of the State Govt. and likely to be abused by the District Magistrate or the Commissioner of Police; that the order of delegation made by the State Govt. without application of mind was illegal and invalid; that the appellants could not be said to be property grabbers of their own land, because they, as partners of Jaya Prabha Traders, whose name was mutated in the revenue records since 26.4.1969, were owners of the land and lawfully in possession, when suo motu revisional order illegally passed by the District Collector was suspended by the Revenue Tribunal; that PASA could not be made applicable retrospectively from 1969 and that the exercise of the power under section 3(2) by the District Magistrate was illegal. Allowing the appeals of the detenues, this Court, HELD: 1.1.Gujarat Prevention of Anti-Social Activities, Act, 1985 was made in exercise of the power under entry 3 of concurrent list III of 7th Schedule and reserved for consideration of the President and received his assent. So it is a valid law. (686-B) 1.2.It envisages that the State Govt. under s. 3 (1) would exercise the 678 power of detention or authorise an officer under s. 3(2) to detain bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber.The PASA was made to provide for preventive detention of aforestated persons whose activities were satisfied to be prejudicial to the maintenance of public order. (686-C) 1.3. The Act postulates satisfaction on the part of the State Govt. that the dangerous and anti social activities of any of the aforestated persons shall be deemed to be acting prejudicial to the maintenance of public order whether the person is engaged in or is making preparation for engaging in any activities enumerated in the definition clauses and the public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if the activities directly or indirectly, causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section therefore a grave or widespread danger to life, property or public health. (686-F) 1.4. Taking illegal possession of public or private lands or unauthorised construction or structures thereon or dealing with those preposition or threatening or criminal intimidation of slum dwellers cause or likely to disturb even public tempo disturbing public orders-To prevent dangerous person or persons indulging in anti social activities like land grabbing or dealing with such properties is a manage to even tempo and the legislature intended to provide remedy by detention, be it by the State Govt. or the authorised officer on subjective satisfaction that such activity or activities adversely affect or likely to adversely affect public order. (688-H, 689-A) 1.5. With a view to have then effectively dealt with, to move swiftly where public order is affected or apprehended and to take action expeditiously instead of laying information with the Govt. on each occasion and eagerly awaiting action at State Govt. level, the State Govt having exercised the power under s. 3 (2)(conferred on the Distt. Magistrate or the Commissioner the power to order detention under s. 3(1) when he considers or deems necessary to detain any person involved in any of the dangerous or anti social activities prejudicially affecting or "likely to affect the maintenance of public order". (687-D-E) 1.6. So long as the activities of bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber persist within the local limits of the jurisdiction of the concerned Distt. Magistrate and Commis- 679 sioners of Police, as the case may be and being directly responsible to maintain public order and to deal with depraved person to prevent anti social and dangerous activities which affects adversely or are likely to affect adversely the maintenance of public order, the necessity would exist. Therefore, the question of periodical review of delegation of the order does not appear to be warranted. The delegation to the authorised officer is legal or valid. (687-FG) A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Para 72, distinguished. 2.1. If an order of detention was made by the authorised officer, he should report as early as possible from the date of the execution of the order of detention to the Govt. and the order remains valid and in force for 12 days from the date of execution. If the order is not approved by the State Govt. within 12 days, the order of detention shall stand lapsed. For continuance after 12 days approval is mandatory and remains in force till it is approved by the Advisory Board. If the Board disapproves, the State Govt shall release the define forthwith. It is a condition precedent. If the Board approved it then the State Govt. shall confirm it. However, its operation is for one year from the date of the execution under s, 3(3) (i). However, within three weeks from the date of detention the State Govt. shall report to the Advisory Board and within seven weeks from the date of detention the Board should give its opinion. (692-F-G) 2.2. The detaining authority has no express power under PASA to revoke the order of detention after the approval given by the State Govt. under sub-s. (3) of s. 3 of PASA. The power to rescind the detention order, therefore, would be available to the authorised officer under s. 21 of the General Clauses Act only during its operation for 12 days from the date of execution of the detention order or approval by the State Govt. whichever is later. (692-H) 2.3. The general power of revocation was conferred only on the State Govt., that too in writing for reasons to be recorded in that behalf. (693-H) 2.4. The State Govt alone, has power to revoke or rescind the order of detention either on representation under Art. 22 (5) or under s. 15 of PASA. The representation should be disposed of accordingly. (693-B) 680 2.5. Once the order of detention was approved by the State Govt. within the aforestated 12days period or confirmed by the Advisory Board within the period of seven weeks the exercise of power by the authorised officer would run counter to or in conflict thereof. The State Govt. has been expressly conferred with powers under s. 15 to revoke, rescind or modify the order of detention at any time during one year from the date of making the order of detention. (693-C) 3.1. Mutation was got made fraudulently in collusion with the City Planning Superintendent. The same was cancelled by the District Collector by exercising the revisional power. The order of the Gujarat Revenue Tribunal was to maintain status quo. The appellants, instead of maintaining status quo, alienated the major part of the land to various persons. (689-F) 3.2. From the definition of 'property grabber' and the reasons in the impugned order it is clear that the appellants are property grabbers of the government land and that they created sales in favour of third parties, violating the law and the order of status quo directed by the Gujarat Revenue Tribunal which led to create or likely to create disturbance to public order disturbing the even tempo in the locality. Therefore, the Distt.. Magistrate subjectively satisfied that the appellants indulged in property grabbing and for the maintenance of public order the Distt. Magistrate was satisfied that the activities of the appellants have affected adversely or deemed, likely to be affected adversely creating insecurity or feeling of insecurity among the general public of that area. Unless the appellants are detained, it is not possible to maintain public order and tardy legal procedure does not aid to maintain public order. Accordingly the Distt. Magistrate, exercised power of detention under s.3(1) of PASA correctly, justifiably and legally. (690-C-D) 3.3. It being a case of subjective satisfaction, Supreme Court cannot enter upon adjudicating the legality of that satisfaction when it is found that the impugned order is based on sufficient material and the grounds are definite and specific. The impugned order was made on detailed consideration of the material on record. The question of retrospective operation of PASA is misconceived. (690-B) 4.1. The expression forthwith would mean 'as soon as may be', that the action should be performed by the authority with reasonable speed and expedition with a sense of urgency without any unavoidable delay. No hard and fast rule could be laid nor a particular period is prescribed. There should 681 not he any indifference or callousness is consideration and disposal of the representation. It depends on the facts and circumstances of each case. (693E) 4.2.Any delay in consideration of the representation should be satisfactorily explained. If no satisfactory explanation has been given or found to be wilful or wanton or supine indifferent, it would be in breach of the constitutional mandate of Art. 22(5). The liberty of a person guaranteed under Art. 21 of the constitution is a cherished right and it can be deprived only in accordance with law. (693-F) Jayanarayan Sukul v. State of West Bengal, [1970]3 SCR 225 at 232; Haradham Saha & Anr. v. The State of West Bengal & Ors., [1975] 1 SCR 778; K.M. Abdulla Kunhi and B.L. Abdul Knader v. Union of India & Ors., [1991] 1 SCC 476 and Moosa Husein Sanghar v. The Slate of Gujarat & Ors., JT 1993 (1) SC 44, referred to. 4.3. Though the representation was received by the State Govt on February 20 1993, the State Govt. decided to keep it pending awaiting the opinion of the Board and on receipt of the report on March 23, 1993, considered the case and the representation was rejected on the even date, namely, March 23, 1993. (695-B) 4.4. The action of the State Govt. in keeping the representation without being considered and disposed of expeditiously, awaiting the decision of the Board till March 23,1993 and consideration of the representation thereafter and rejection are illegal. (695-C) 4.5. There is no material placed before the Court that the State Govt. has approved within 12 days after execution of the detention order i.e. Feb. 5, 1993. On expiry of 12 days the order of detention becomes nonest and the subsequent confirmation by the Board or by the State Govt. does not below life into the corpse. In either case the order of detention became illegal. (695D) 5.1. Section 2(h) defined "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 agreements in respect of such lands or who constructs unauthorised structures thereon for sale or hire or 682 gives such lands to any person on rental or leave 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 or for construction of unathorised 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 occupier by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things. (687H, 688-A-B) 5.2. A persons who illegally takes possession of any lands not belonging to himself but belonging to Govt., local authority or under any other agreement in respect of such lands or who constructs unauthorised structures thereon or inter into agreement for sale or gives on hire or gives such lands or structures to any person on rental or leave or licence basis for construction or for 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 unauthorised structures thereon or who collects or attempts to collect from any occupiers of such lands rent, compensation, or other charges by criminal intimidations or who evicts or attempts to evict any such occupier by force without resorting to lawful procedure or who abets in any manner the doing or any of the above mentioned acts or things is a property grabber. (688-C-D) 5.3. Sec. 2(1) defined "unauthorised structure" means any structure constructed in any area without express permission in writing of the officer or authority concerned under the enumerated provisions therein or except in accordance with the law for the time being in force in such area. (688-C) 6.Mutation of the names in the revenue record are not evidence of tide though may be relevant for other purposes. In respect of open land tide follows possession. (689-D) Nirman Singh v. Rudra Patrap Narain Singh, 53 I.A. 200 at 227; Nageshar baksh Singh v. Mt. Ganesha, 47 I.A 57; Durga Prasad v. Ghansham Das, AIR 1948 PC 210; Ramana v. Sambamoorthy, AIR 1961 A.P. 361; Mohinder Singh v. State of Punjab and Ors., [1978] 1 SCR 177 and Vatticherukuru Village Panchayat and Ors., v. Nori Venkatarama Deekshithula and Ors. 11991] 2 SCR 531, referred to. 683 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 387388
of 1993.
From the Judgment and Order dated 20.11.1992 of the Gujarat
High Court in Special Criminal Application Nos. 1647 and
1648 of 1992.
S. Ganesh, C.H. Patel, M.N. Shroff and Ms. Reema Bhandari
for the Appellants.
P.S. Poti Ms. Meenakshi Arora and Anip Sachthey for the
Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Since common questions of law arise from
the same facts, the appeals are disposed of by a common
judgment.
In exercise of the powers under s.3(1) of Gujarat Prevention
of Anti-Social Activities Act, 16 of 1985, for short PASA
and the notification of the Govt. of Gujarat under s.3.(2)
dated May 20, 1985, the District Magistrate, Rajkot by his
proceedings dated September 22, 1992 ordered detention of
the appellants on his finding that “from the evidence
produced before me I am satisfied as per the definition of
property grabber under s.2 (h) of the’ PASA and considering
the seriousness of your activities under s.2(1) for the
unauthorised structures…… it clearly appears that you
are habitual to grab the Govt. land by creating false
partnership firm. People are feeling insecurity of their
properties. The situation in this area is very tense and in
such circumstance if any actions are taken according to law
then there is great possibility of great blast and public
orders likely to adversely affected. For creating such
situation your illegal activities are solely liable………
Therefore, to prevent the other propels being grabbed in
future by you and also to prevent the Govt. lands being
grabbed in future and for the exigencies which have arisen,
it is necessary to detain you as per the provisions of the
Gujarat Prevention of Anti-Social Activities Act, 1985 and
an order has been passed therefore.” With detailed reasons
running into 31 pages, the detaining authority enumerated
the circumstances under which the detention order came to be
made. It was stated that the land measuring 58,880 sq.yards
in Survey No. 5004 belonging to the Govt. has been grabbed
by Girdhar Joshi and Manu Bhai Vora. Manu Bhai Vora created
a false partnership firms by name “Jayaprabha Traders” to
which the appellants and Prashant Manubhai Vora (Manubhai
Vora’ s son) are
684
partners. The lands measuring 4,800 sq. yards in plot No. 4
known as Madir of Sheet No. 226 City Survey No. 3959 in Ward
No.7 of Rajkot originally belongs to the former state. It
was purchased by one gopalji D. Doshi from the former ruler
for residential purpose. But within the prescribed time, as
per the then existing rules, no construction was made.
Consequently the State had confiscated the said property in
order No. 8336 of S.Y. 1995 i.e. 1938-39. Naginadas
Laxmichand Doshi and Manu Bhai Vora in collusion with City
Survey Superintendent created forged documents mutating the
aforesaid lands by the order of the City Survey
Superintendent, dated April 28, 1968 in the name of
Jayaprabha Traders. On May 6, 1969 the above partnership
was created and was got registered on October 22, 1969. The
appellants and Prashant M. Vora were partners therein.
Manubhai Vora is the man behind the scheme. The partnership
was dissolved on February 28, 1974. Yet in the name of the
partnership the Govt. lands are being grabbed. The
department came to know the collusive acts for the first
time on August 26, 1986 and necessary particulars were
collected to find whether it is a Govt. property or belongs
to the aforesaid persons. The Record disclosed that it is
the Govt. property and orders were issued on December 14,
1987 cancelling the mutation and also confiscated the
property to the Govt. After becoming aware of the
activities Manubhai Vora and Naginadas Laxmichand Joshi were
detained. The appellants and Prashant M. Vora, though were
given show cause notice on August 28, 1986 to appear before
him for hearing, neither they availed of it nor produced any
evidence in support of their claim. After considering the
material the Collector exercising suo motu revisional power
under Bombay Revenue Code by order dated December 14,1987
concluded that the property belongs to the Govt. and was
confiscated to the State–The appellants and P.M. Vora as
partners of the dissolved partnership firm and in their
individual capacity filed appeal before the Gujarat Revenue
Tribunal on February 28, 1987, diving their address CIO
Economic traders, a firm of which Manu Bhai Vora and his
brothers are partners. The Tribunal by orders on January
30, 1988, while suspending the implementation of the
Collector’s order directed that “till final disposal of this
appeal status quo in respect of the lands to be maintained”.
Yet the appellants and P.M. Vora sold the lands to several
persons in their individual capacity. The resident Dy.
Collector. Rajkot made an enquiry on June 29, 1992 and
recorded the statements of the purchasers which discloses
that instead of maintaining status quo, the appellants
individually sold away the entire 4,800 sq. yards except 500
to 600 sq. yards to diverse persons. The statements of
purchasers show that the appellants assured them clear and
marketable title to the lands without any encumbrance and
collected about Rs. 15 lacs from the purchasers and
unauthorised constructions were made. While recording the
instatement and thereafter the purchasers became panicky.
The acts of petitioners created tension in the area. Even
on notices given
685
to the purchasers on July 2, 1992 to produce the proof of
their title, many of them made admission that they believed
the s statement made by the appellants and P.M. vora and
that they have been missed. They have also stated that the
appellants had taken signatures on blank papers and they
were fabricated. By notice dated July 8, 1992 when the
appellant were called upon to appear on July 13, 1992 before
the District Collector, instead of appearing before him and
showing cause, they approached the Civil Court and filed
O.S. No. 719 of 1992 and obtained injunction against the
Distt. Collector, From those facts the detaining authority
concluded that “you are not possessing any proof of your
ownership in respect of the disputed land. Still, however,
you have sold the disputed land and you have remained active
in such scandals. You have cheated the buyers of the plots
and in such conspiracy you have created baseless evidence
whereby more and more people would be cheated you have given
false assurance to the people regarding clear title of the
plots. Thus the people have purchased lands for
construction. The poor people have purchased the shops by
spending their hard earned money and have purchased shops by
making debts. You have played game with the lives of poor
people and taking advantage of their- ignorance, and on
coming to know that they have been cheated, they feel
disappointed and disheartened and the atmosphere of grief
has spread all over the said area and they made oral
representations and requests to punish the responsible
persons……. The detaining authority also referred,
wherever necessary to the documentary evidence in that
behalf. On subjective satisfaction from those facts the
detention order came to be made. The appellants approached
the Gujarat High Court in pre-detention execution stage and
High Court upheld the validity of delegation order and the
Act in its judgment dated 20th November, 1992; dealt with
the scope of pre-detention order and dismissed the writ
petitions. When special leave petitions came up for
admission by order dated Feb. 1, 1993 this court directed to
list the cases after the proof of surrender was filed. The
appellants Navalshanker Ishwerlal Dave and Shantilal
Prabhudas Dhruv after surrendering before the authorities
produced its proof. Prasant Manubhai Vora, son of Manubhai
Vora did not surrender. By order dated July 22, 1993 the
special leave petition (Crl.) No. 110 of 1993 of Prashant
Manubhai Vora was dismissed and the appellants’ petitions
were taken up for admission. The state filed its counter
and an additional affidavit and we have heard the learned
counsel on either side at length.
Section 3(2) of PASA empowers the State Govt. That having
regard to the circumstances prevailing or likely to prevail
in any area within the. local limits of the jurisdiction of
a District Magistrate and the Commissioners of Police, by an
order in writing direct that District Magistrate, the
Commissioner of Po lice may also, it satisfied the existence
of conditions envisaged in sub-section (1) of s.3 to
exercise the powers of the State Govt. to detain any person.
The contention of Shri
686
Ganesh, the learned counsel for the appellants is that the
blanket power of delegation is a negation of satisfaction on
the part of the State Govt. and likely to be abused by the
District Magistrate or the Commissioner of police. The
Legislature entrusted the power to the State Govt. and if
need be only selectively but not blanket delegation is
permissible. After the issue of the notification in 1985 no
review thereafter was done. The order of delegation made by
the State Govt. without application of mind was, therefore,
illegal and invalid and the sequitur detention made became
illegal. We find no force in the contention. PASA was made
in exercise of the power under entry 3 of concurrent list
III of 7th Schedule and reserved for consideration of the
President and received his assent. So it is a valid law.
It envisages that the State Govt. under s. 3(1) would
exercise the power of detention of authorise an officer
under s. 3(2) to detain bootlegger, dangerous person, drug
offender, immoral traffic offender and property grabber.
The PASA was made to provide for preventive detention of
aforesaid persons whose activities were satisfied to be
prejudicial to the maintenance of public order. Subs. (4)
of Sec.3 declares that 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, dangerous person, drug offender, immoral traffic
offender and property grabber, which affect adversely or are
likely to affect adversely the maintenance of public order.
Explanation thereto postulates that public order shall be
deemed to have been affected adversely or shall be deemed
likely to be affected adversely inter alia if any of the
activities by any person referred to in the sub-section (4)
directly or indirectly, is causing or is likely to cause any
harm, danger or alarm or feeling of insecurity among the
general public or any action thereof or a grave or
widespread danger to life, property or public health.
Therefore, the Act postulates satisfaction on the part of
the State Govt. that the dangerous and anti social
activities of any of the aforestated persons shall be deemed
to be acting prejudicial to the maintenance of public order
whether the person is engaged in or is making preparation
for unaging in any activities enumerated in the definition
clauses and the public order shall be deemed to have been
affected adversely or shall be deemed likely to be affected
adversely if the activities directly or indirectly, causing
or is likely to cause any harm, danger or alarm or feeling
of insecurity among the general public or any section
thereof of a grave or widespread danger to life,property or
public health. In the counter affidavit filed on behalf of
the State in the High Court and consideration thereof the
High Court held that “the situation was found prevailing in
the State in the year 1985 where the impact of the
activities of various persons mentioned in the preamble with
reference to their respective, activities has heightened
from being anti-social and dangerous activities to be
prejudicial to the maintenance of public order”. It is,
with a view, to curb those dangerous or anti social
activities, the Govt. considered it appropriate to delegate
687
the power under sub-s. (2) of sec. 3 to the “authorised
officer” and the Govt. has stated in the notification that
“having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the
jurisdiction of each of the District Magistrate specified in
the schedule annexed thereto, the Govt. of Gujarat is
satisfied that it is necessary so to do” and accordingly
exercised the power under sub-s.(2) of sec.3 and directed
the authorised officers i.e. the District Magistrate of each
District specified in the schedule and also the three
Commissioners of Police in the respective Corporations to
exercise within their local limits of jurisdiction, the
power conferred by sub-s. (1) of sec.3. It is seen that the
dangerous or anti social activities are legislatively
recognised to be prejudicial to the maintenance of public
order. The enumerated activities hereinbefore referred to
are not isolated but being indulged in from time to time
adversely affecting the public order and even tempo. The
Dist. Magistrate concerned, being the highest Dist.
Officer on the spot and the Commissioner of Police in the
cities have statutory duty to maintain public order.
Therefore, with a view to have then effectively dealt with,
to move swiftly where public order is affected or
apprehended and to take action expeditiously instead of
laying information with the Govt. on each occasion and
eagerly awaiting action at State Govt. level, the State
Govt. having exercised the power under s. 3 (2) conferred on
the Dist. Magistrate or the Commissioner the power to order
detention under s.3(1) when he considers or deems necessary
to detain any person involved in any of the dangerous or
anti social activities enumerated hereinbefore,
prejudicially affecting or “likely to affect the maintenance
of public order”. The later clause lay emphasis on
immediacy and promptitude and the authorised officer on the
spot is the best Judge to subjectively satisfy himself from
the facts and ground situation and take preventive measure
to maintain public order. The reliance by Shri Ganesh on
the decision of this Court reported in A.K Roy v. Union of
India & Anr. AIR 1982 SC 710, para72 has no application in
view of the factual background in this Act. So long as the
activities of bootlegger, dangerous person, drug offender,
immoral traffic offender and property grabber persist within
the local limits of the jurisdiction of the concerned Dist.
Magistrate and Commissioners of Police, as the case may be,
and being directly responsible to maintain public order and
to deal with depraved person to prevent anti social and
dangerous activities which affects adversely or are likely
to affect adversely the maintenance of public order, the
necessity would exist. Therefore, the question of
periodical review of delegation of the order does not appear
to be warranted. Accordingly, we have no hesitation to
reject the contention that the delegation to the authorised
officer is illegal or invalid.
Section 2(h) defend “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 agreements in respect of such lands or who constructs
688
unauthorised structures thereon for sale or hire or gives
such lands to any person on rental or leave 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 of for
construction of unauthorised structures thereon of 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
occupier by force without resorting to the lawful procedure
or who abets in any manner the doing of any of the above
mentioned things. See 2(1) defined “unauthorised structure”
means any structure constructed in any area without express
permission in writing of the officer of authority concerned
under the enumerated provisions therein or except in
accordance with the law for the time being in force in such
area. Therefore, a person who illegally takes possession of
any lands not belonging to himself but belonging to Govt.,
local authority or under any other agreement in respect of
such lands or who constructs unauthorised structures thereon
or enter into agreement for sale or gives on hire or gives
such lands or structures to any person on rental or leave or
licence basis for construction or for 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 unauthorised 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
occupier by force without resorting to lawful procedure or
who abets in any manner the doing of any of the above
mentioned acts or things is a property grabber. Para 4 of
the statements and objects of the Act furnishes clue to make
the property grabbing or unauthorised construction or
dealing therewith as prejudicial to the maintenance of
public order thus:
“Acute shortage of housing accommodation in major cities is
being exploited by certain musclemen of some means, often
get from bootlegging, by taking illegal possession of public
or private lands and constructing or permitting construction
thereon of unauthorised structure or selling, leasing or
giving on leave and licence such land or unauthorised
structure after collecting heavy price, rents, compensation
and the like, in so collecting the charge from the
occupiers, the musclemen resort to criminal intimidation.
The entire community living in the slums is under the grip
of perpetual fear of such land grabbers. Such activities of
these persons adversely affect the public order”.
Therefore, taking illegal possession of public or private
lands or unauthorised construction or structures thereon or
dealing with those properties or threatening or criminal
Intimidation of slum dwellers cause or likely to disturb
even public tempo disturbing public order. To prevent
dangerous person or persons indulging in anti social
activities like 1and
689
grabbing or dealing with such properties is a menace to even
tempo and the legislature intended to provide remedy by
detention, be it by the State Govt. or the authorised
officer on subjective satisfaction that such activity or
activities adversely affect or likely to adversely affect
public order.
The contention of Shri Ganesh that the appellants as
partners of Jaya Prabhu Traders whose name was mutated in
the revenue records as early as April 26, 1969 are owners of
the lands and lawfully in possession and suo motu revisional
order passed by the Dist. Collector cancelling the mutation
under Bombay Revenue Court on December 14,1987, was illegal
and so it was suspended by the Gujarat Revenue Tribunal on
January 30, 1988 which still subsists. Therefore, the
appellants cannot be said to be property grabbers of
their own land. The Act cannot be made applicable
retrospectively from 1969. The exercise of the power under
s.3(2) by the Dist. Magistrate, Rajkot is illegal. It is
settled law as laid down by the Privy Council in Nirman
Singh v. Rudra Patrab Narain Singh, 5 3 Indian Appeal 220 at
227 Nageshar Baksh Singh v. Mi. Ganesha, 47 Indian Appeals
57; Durga Prasad v. Ghansham Das. AIR 1948 PC 2 10-,
Ramanna v. Sambamoorthy AIR 1961 A.P. 361 by A.P. High Court
and by this Court in Mohinder Singh v. State of punjab and
Ors., [1978] 1 SCR 177 and Vatticherukuru Village Panchayat
and Ors. v. Nori Venkatarama Deek-shithulu and Ors. [1991] 2
SCR 531 that mutation of the names in the revenue record are
not evidence of title thou oh may be relevant for other
purposes. Equally it is settled law that in respect of open
land title follows possession. The detaining authority
stated in the impugned orders that for the first time the
Dist. Collector, Rajkot became aware in 1987 of the
grabbing of Govt. lands by the petitioners’ firm, a
fictitious one and that the enquiry caused in that behalf
revealed that the land is in confirmed list of the
government lands. Mutation was got made fraudulently in
collusion with the City planning Superintendent. Accordingly
the same was cancelled by exercising there visional power.
The order of the Gujarat Revenue Tribunal was to maintain
status quo. The appellants, instead of maintaining status
quo, alienated the major part of the land to various persons
who had averred in their statements recorded by the Resident
Dy. Collector and sale deeds would show that the appellants
sold the lands individually assuring clear title and non-
encumbrance thereof-, permitted many of the purchasers to
construct shops un-authorisedly. When questioned and
opportunity was given, the appellants did not make any
representation nor appeared before the Dist. Collector,
Instead they invoked the jurisdiction of the Civil Court for
injunction. The purchasers became panic when became aware
that they have no title to their purchased lands and their
construction are unauthorised. The Resident Dy. Collector
made elaborate enquiry and submitted the report. On
consideration of the record he was subjectively satisfied
that the activities. of the petitioner
690
constitute property grabbers and in its background the Dist.
Magistrate satisfied that their activities affected and
likely to affect adversely public order and passed the
impugned order. Therefore, it being a case of subjective
satisfaction, we cannot enter upon adjudicating the legality
of that satisfaction when we find that the impugned order is
based on sufficient material and the grounds are definite
and specific. The impugned order was made on detailed
consideration of the material on record. The question of
retrospective operation of PASA is misconceived. Therefore,
it is difficult to agree with Sri Ganesh that the appellants
are not property rabbits. From the definition of property
grabber and the reasons in the impugned order it is clear
that the appellants are property grabbers of the government
land and that they created sales in favour of third parties,
violating the law and the order of status quo directed by
the Gujarat Revenue Tribunal which led to create or was
likely to create disturbance to public order disturbing the
even tempo in the locality. Therefore, the Dist.
Magistrate subjectively satisfied that the appellants
indulged in property grabbing and for the maintenance of
public order the Dist. Magistrate was satisfied that the
activities of the appellants have affected adversely or were
likely to be affected adversely creating insecurity or
feeling of insecurity among the general public of that area.
Unless the appellants are detained, it is not possible to
maintain public order and tardy legal procedure does not aid
in maintaining public order. Accordingly the Dist.
Magistrate, Rajkot exercised power of detention under s.3(1)
of PASA correctly, justifiably and legally.
Though the detention orders were made on September 22, 1992
the appellants and Prashant Manubhai Vora avoided execution
thereof and till February 5, 1993 the detention orders
remained unexecuted. Manubhai Vora chose to remain
unsurrendered and obviously so far avoided execution of the
orders. Therefore, we are not called upon to consider the
legality of the detention order passed against him. The
appellants surrendered on Feb. 5, 1993 and so the detention
order was executed on Feb. 5, 1993. The dention orders
mention that “You have the right to make representation to
the detaining authority and also to the Govt. 1 on have also
right to make written representation to the Advisory Board.
You may send your representation through the Jail
Superintendent to the addresses given herein.” The
appellants submitted their representations on Feb. 18, 1993
to the detaining authority, respondent No. 2, the State
Govt., respondent No. 1, and the Advisory Board through Jail
authority. The State Govt. sent the representations to the
Advisory Board on Feb. 20,1993. On March 10, 1993 the
Advisory Board fixed its meeting for consideration on March
22, 1993 and the Board confirmed the detention order on
March 22, 1993. The State Govt. awaited the opinion of the
Advisory Board and on its receipt on March 23, 1993 it was
considered and the
691
Govt. rejected the representation on March 23, 1993. It was
despatched on March 29, 1993, It is stated in the written
submission of the appellants that till April 29, 1993 the
second appellant did not receive any reply from the State
Govt. The first appellant did not receive any reply till
that date from the detaining authority though the second
appellant received such a reply rejecting the representation
of Feb. 22, 1993. The first appellant received the reply
from the State Govt. On April 6, 1993 rejecting the
representation after 47 days from the date of his submitting
the representation. Sri J.M. Parmar, Under Secretary, Home
Department of Gujarat stated in his Addl. Affidavit that a
copy of the representation from the appellants was received
on Feb. 20, 1993 by which date, i.e. on Feb 18, 1993 the
State Govt. had already referred the case along with the
relevant material to the Advisory Board for review of the
case. “The Department of Home decided to keep the
representation in abeyance awaiting the opinion of the
Advisory Board”.
sub-s. (1) thereof by any authorised officer, he shall
forthwith report the fact to the State Govt. together with
the grounds on which the order has been made and such other
particulars as in his opinion have a bearing on the matter
and no such order shall remain in force for more than 12
days after making thereof, unless in the meantime it has
been approved by the State Govt. The detaining authority,
the second respondent, did not file any counter affidavit
and the counter affidavit and Add]. affidavit filed by Sri
J.M. Parmar, did not mention as to when the 2nd respondent
reported to them of the order of detention and the grounds
or any other particulars deemed relevant as mandated in
s.3(3). We assume that the 2nd respondent sent them and were
received by February 20, 1993 and immediately thereafter it
was referred to the Advisory Board for its opinion. It was
not stated in the counter affidavit that the State Govt.
approved the order of detention, within 12 days from the
date of receipt by the State Govt. i.e. February 20, 1993.
The mandate of s.3(3) is that the action of the authorised
officer would be legal only when the State Govt. approves of
it and in its absence on expiry of 12 days detention order
should stand lapsed. Section 15 postulates that without
prejudice to the Bombay General Clause Act, 1904 a detention
order May at any time, for reasons to be recorded in the
order, be revoked or modified by the State Govt.,
notwithstanding that the order has been made by an
authorised officer. Sub-section (2) is not material for the
purpose of this case. Hence omitted. Section 21 of the
General Clause Act envisages that where, by any Gujarat Act,
a power to issue notification, orders, rules or bye-laws is
conferred, then that power includes a power, exercisable in
the like manner and subject to the like sanction and
conditions if any, to add to, amend, very or rescind any
notification, order, rules or bye-laws are issued. Article
22(5) of the Constitution accords constitutional
692
right of representation to the detenue against any order
made in pursuance of any law. The mandatory duty on the
authority making such order, “shall as soon as may be”
communicated to such person, the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order. Section II of
PASA provides that within three weeks from the date of
detention of a person tinder the order the State Govt. shall
place before the Advisory Board the grounds on which the
order has been made, etc. as well as the report made by the
authorised officer under sub-s. (3) of s. 3 and the
representation, if any. The Board under s. 12 shall submit
its report, after considering the material placed before it
and the representation of the dentenue and if the detenue
desires to be heard, after hearing him in person, within 7
weeks from the date of the detention of the detenue. If the
Advisory Board reports that in its opinion there is no
sufficient cause for the detention, the State Govt. shall
revoke the detention order and cause the detenue to be
released forthwith. Under s. 13 the State Govt. may confirm
the order of detention for a period of one year from the
date of detention. In other words, from the date of
execution of the order of detention as provided under s. 14
The reappears to be a seeming over-lap in consideration of
the representation of the detenue and its effect on the
orders by the authorities concerned. It is seen that under
sub-s. (1) of s.3 the State Govt. is empowered to pass an
order of detention in which event it has to report to the
Advisory Board as envisaged in s. 11. If an order of
detention was made by the authorised officer, he shall
report the same as early as possible without any delay and
the State Govt. shall approve the same within 12 days from
the date of its making. In other words, the effect would be
that the authorised officer should report as early as
possible from the date of the execution of the order of
detention to the Govt. and the order remains valid and in
force for 12 days from the date of execution. If the order
is not approved by the State Govt. Within 12 days, the
order of detention shall stand lapsed. For continuance
after 12 days approval is mandatory and remains in force
till it is approved by the Advisory Board. If the Board
disapproves, the State Govt. shall release the detenue
forthwith. It is a condition precedent. If the Board
approves it then the State Govt. Shall confirm it.
However, its operation is for one year from the date of the
execution under s.3(3) (i). However, within three weeks
from the date of detention the State Govt. shall report to
the Advisory Board and within seven weeks from the date of
detention the Board should give its opinion. The detaining
authority has no express power under PASA to revoke the
order of detention after the approval given by the State
Govt. under sub-s. (3) of s.3 of PASA. The power to rescind
the detention order, therefore would be available to the
authorised officer under s.21 of the General Clauses Act
only during its operation for 12 days from the date of
693
execution of the detention order or approval by the State
Govt. whichever is later. The general power of revocation
was conferred only on the State Govt., that too in writing
for reasons to be recorded in that behalf. By necessary
implication flowing from s.3(3) and concomitant result is
that the authorised officer has no express power or general
power under s. 21 of the General Clauses Act to revoke or
rescind or modify the order after the State Govt. approved
of it under sub-s. (3) of s.3 read with S.3(1). The State
Govt. alone, thereafter has power to revoke or rescind the
order of detention either on representation under Art. 22(5)
or under s. 15 of PASA. The representation should be
disposed of accordingly. The reason is obvious that once
the order of detention was approved by the State Govt.
Within the aforestated 12 days period or confirmed by the
Advisory Board within the period of seven weeks the exercise
of power by the authorised officer would run counter to or
in conflict thereof. The State Govt. has been expressly
conferred with powers under s. 15 to revoke rescind or
modify the order of detention at any time during one year
from the date of making the order of detention. Therefore,
the right of representation guaranteed under Art. 22(5)
would, thereafter i.e. after approval under s. 3(3) be
available to the detenue for consideration by the State
Govt.
The word ‘forthwith’ has been interpreted by this court by
plethora of precedents and it is not necessary to burden the
judgment by referring them once over copiously though the
counsel for the appellants has relied on them. This court
held that the expression ‘forthwith would mean as soon as
may be’, that the action should be performed by the
authority with reasonable speed and expedition with a sense
of urgency without any unavoidable delay. No hard and fast
rule could be laid nor a particular period is prescribed.
There should not be any indifference or callousness in
consideration and disposal of the representation. It
depends on the facts and circumstances of each case. Any
delay in consideration of the representation should be
satisfactorily explained. If no satisfactory explanation
has been given or is found to be wilful or wanton or
supinely indifferent it would be in breach of the
constitutional mandate of Art. 22(5). The liberty of a
person guaranteed under Art. 21 of the constitution is a
cherished right and it can be deprived only in accordance
with law.
In Jayanarayan Sukul v. State of West Bengal [1970] 3 SCR
225 at 232, the facts were that the detenue had made his
representation to the State Govt. on June 23, 1969. On July
1, 1969, the Govt. forwarded to the Advisory Board his case
together with his representation. On August 13, 1969, the
Board sent its report and based thereon the State Govt.
rejected the representation of the detenue. A constitution
bench of this Court laid four principles, one of which being
that the consideration of the representation of the detenue
by the State Govt. is independent of any action by the
Advisory Board including its consideration of the represen-
694
tation. The appropriate Government is to exercise its
opinion and judgment on the representation before sending
the case along with the detenue’s representation to the
Advisory Board. If the appropriate government itself
releases the detenue the case need not be sent along with
detenue’s representation to the Advisory Board. It the
Advisory Board expresses an opinion in favour of the release
of the detenue the release of the detenue thereafter by the
appropriate government will be independent. Even if the
Advisory Board express any opinion against the release of
the detenue still the government may exercise its power to
release the detenue.In Haradhan Saha & Anr. v. The State of
West Bengal & Ors. [1975] 1 SCR 778, if another constitution
bench reiterated the same view holding that the presentation
is made after the matter has been referred to the Advisory
Board, the detaining authority will consider it before it
will send representation to the Advisory Board. In KM.
Abdulla Kunhi and B. L Abdul Khader v. Union of India & Ors.
[1991] 1 SCC 476 reviewing the case law the constitution
bench held that the representation relates to the liberty of
the individual;, it is enshrined under Art. 2 1; therefore
Cl.(5) of Art. 22 cast a legal obligation on the government
to consider representation as early as possible and should
be expeditiously considered and disposed of with a sense of
urgency without an unavoidable delay. However, there can be
no hard and fast rule in this regard. It depends upon the
facts and circumstances of each case. There is no period
prescribed in this behalf within which the representation
should be dealt with but the requirement is that there
should not be any indifference or callous attitude in
considering the representation. Unexplained delay in
disposing of the representation would be a breach of the
constitutional mandate rendering the detention impermissible
and illegal. Therein the representation was received by the
Govt. on April 17, 1989, The Advisory Board was constituted
thereafter and held its meeting on April 20, 1989. After its
submitting the report the Govt. on April 27, 1989 affirmed
the order of detention and held that there was a breach of
constitutional mandate of Art. 22(5). In Moosa Husein
Sanghar v. The State of Gujarat & Ors. JT (1993) 1 SC 44,
the detention order was served on the appellant on February
21, 199 1. On March 22, 1991 the declaration was made under
s. 9 of COFEPOSA by the Central Govt. The appellant handed
over the representation dated March 15, 1991 to jail
authorities for onward transmission. It was addressed to the
Advisory Board. It was received by the detaining authority
on March 18, 1991 who returned it to the appellant on March
27,1991 to follow the manner of service representation meant
for Advisory Board.On March 25, 1991 the Advisory Board
considered the representation. On March 30, 1991 again other
representation was sent to the Advisory Board. The Zerox
copies of the representation were sent to the Chairman of
the Advisory Board. On May 6, 1991 the Board sent its
opinion to the State Govt. On May 13, 1991 the Govt.
confirmed the order of detention and on the same day
rejected the represen-
695
tation of the appellant. When the writ petition was filed
the Hi oh Court dismissed the petition. On appeal, this
Court held that though the representation was addressed to
the Advisory Board, the communication was meant to be the
representation under Art. 22(5) and the Govt. must consider
and dispose it of. The failure to do so and its rejection
on receipt of the opinion of the Advisory Board was held to
be in breach of the constitutional mandate under Art. 22(5).
Accordingly this court declared that the detention was
illegal and set them at liberty.
It is seen that though the representation was received by
the State Govt. on February 20, 1993, the State Govt.
decided to keep it pending awaiting the opinion of the Board
and on receipt of the report on March 23, 1993, considered
the case and the representation was rejected on the even
date, namely, March 23, 1993. In view of this consistent
settled law the action of the State Govt. in keeping the
representation without being considered and disposed of
expeditiously, awaiting the decision of the Board till March
23, 1993 and consideration of the representation thereafter
and rejection are illegal. In addition we have on record
that detaining authority had not filed its counter as to how
the representation of the second appellant was dealt with or
rejected. That apart, there is no material placed before
the Court that the State Govt. has approved within 12 days
after execution of the detention order i.e. Feb. 5, 1993.
On expiry of 12 days the order of detention becomes nonest
and the subsequent confirmation by the Board or by the State
Govt. does not blow life into the corpse. In either case
the order of detention became illegal. Accordingly we had
allowed the appeals on May 3, 1993 and directed release of
the detenus forthwith. The reasons now are as above. The
result in this judgment does not enure to Prashant Manubai
Vora the absconding detenue.
The appeals are accordingly allowed.
V.P.R.
Appeals allowed.
696