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SCA/14608/2011 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14608 of 2011
With
CIVIL
APPLICATION No. 10699 of 2011
In
SPECIAL
CIVIL APPLICATION No. 14608 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
SHANTILAL
PREMJIBHAI KOLI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT THRO THE ADDL.CHIEF SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
MR
BM MANGUKIYA for
Petitioner(s) : 1,MS BELA A PRAJAPATI for Petitioner(s) : 1,
MR KP
RAVAL, Assistant Government Pleader for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 14/10/2011
ORAL JUDGMENT
The
petitioner has filed this petition, under Article 226 of the
Constitution of India, challenging the proposed order of detention
dated 8.10.2011, which is alleged to have been passed by the
District Magistrate, Ahmedabad, in exercise of provisions of Section
3 of the Prevention of Antisocial Activities Act, 1985 (for short
“PASA”), with a view to preventing him from acting in
any manner prejudicial to the maintenance of public order by
District Magistrate, branding him to be “Dangerous person”,
as defined under Section 2(c) of PASA.
The case of the
petitioner is that the detention order is passed by the District
Magistrate, Ahmedabad dated 8.10.2011 against the petitioner
directing to detain him as “Dangerous person”. That FIR
was lodged against the petitioner on 29.7.2009 for the offences
punishable under Sections 332, 504, 323, 506(2) and 114 of the IPC
and under Section 3(1) and (10) of Prevention of Atrocity (Scheduled
Caste and Scheduled Tribe) Act, 1989 by one Manilal Nathalal Chavda
with Viramgam Rural Police Station being CR No.41 of 2009. In the
said case the petitioner has been acquitted by the learned Special
Judge, Viramgam by judgment and order dated 22.10.2010. Some other
offences were also registered against the petitioner. That an FIR
being CR No.I-14 of 2011 was lodged against the petitioner by one
Dilipbhai Babubhai Ramoliya with Viramgam Rural Police Station on
12.2.2011 for the offences punishable under Sections 406, 420, 467,
468, 571 and 114 of the IPC. The dispute disclosed in the said FIR
was settled in the year 2009 wherein money was in fact not received
by the petitioner as set out in the body of the FIR. In the said
settlement one Anwar Habiyani was the culprit in the entire
incident. Four cheques were given in pursuance of the said
settlement. The first informant misused the said cheques and filed
complaint under Section 138 of the N.I.Act.
Heard learned advocate
Mr.B.M.Mangukiya appearing on behalf of the petitioner –
detenue and learned Assistant Government Pleader Mr.K.P.Ravel,
appearing on behalf of the respondent – State. I have also
perused the papers produced before me.
Learned advocate for the
petitioner submitted that the offences against the petitioner are in
relation to property dispute which is within the realm of personal
dispute between the parties. No allegations can be made against the
petitioner in respect of disturbance of law and order, much less
public order. The petitioner having not indulged in any disturbance
of public order, there is no reason or occasion for exercise of
powers under Sub-section (2) of Section 3 of the PASA Act for
ordering preventive detention of the petitioner. It is, therefore,
submitted that detention order passed by the District Magistrate,
Ahmedabad – respondent No.2 is ex-facie illegal and,
therefore, the same requires to be quashed and set aside.
On the other hand,
learned AGP Mr. K.P.Raval has vehemently contended that the
petitioner is the habitual offender and, therefore, no leniency is
required to be shown against the petitioner. He has contended that
earlier also criminal cases have been filed against the petitioner.
The petitioner was avoiding the execution of the order dated
13.9.2011 passed by respondent No.2 under Section 3(1) of the PASA
Act wherein the grounds of detention were incorporated. The said
detention order was approved by the Home Department, State of
Gujarat under Section 3(3) of PASA Act. He, therefore, contended
that looking to the facts and circumstances of the case, petition
may be dismissed.
Heard
learned Counsel for both the sides. I have also perused the police
papers and other papers produced before me. I have also considered
the decision cited in the case of ALPESH NAVINCHANDRA SHAH v/s STATE
OF MAHARASHTRA, reported in AIR 2007 SC (supp) 570, in which it is
held that the order of detention of the brother of the detenu was
revoked, on the opinion of advisory board and the detenu was
similarly placed and, therefore, his detention order was revoked
before execution on the ground that he is also entitled to the same
treatment.
From
the record, it appears that in connection with FRI being CR No.
41/09 lodged against the petitioner, the petitioner was acquitted by
the learned Special Judge, Viramgam of all the charges levelled
against him. It further appears that in connection with criminal
complaint being CR No. M. Case No.3/09, there was a settlement
between the complainant and one Nitinbhai Bhaichand Shah and the
dispute was resolved on 25th August, 2010, wherein, the
petitioner had witnessed the said document. Another offence was
lodged against the petitioner by one Chothiben wd/o Manubhai on
February 21, 2011 in regard to the incident that had occurred in the
year 2008. Thus, the said FIR was lodged after the delay of four
years. Another FIR was lodged against the petitioner by one
Dilipbhai Babubhai Ramoliya with Viramgam Rural Police Station being
CR No. I-14/2011 for the offences punishable under Sections 406,
420, 467, 468, 471 and 114 of IPC. In said offence, dispute which
was disclosed was in fact settled in the year 2009 by exchange of
money which was not in fact received by the petitioner. Under the
said settlement, some cheques were given in pursuance of the
settlement and the said cheques were misused by the first informant
of the said offence and had filed a complaint under Section 138 of
the N.I. Act against the petitioners. The said cheques were in fact
in respect of purchase of gold in relation to settlement arrived at
between the parties on 21st February, 2009. In the said
offence also, there was a settlement arrived at on January 25,
2011. In pursuance to the said settlement, learned Metropolitan
Magistrate Court, Ahmedabad disposed of the said complaint. Thus,
the allegations against the petitioner are relating to property
dispute which is within the realm of personal dispute between the
parties and therefore, no allegations can be made against the
petitioner relating to disturbance of law and order, much less,
public order.
In
the case of Alka Subhas Gadia, reported in 1992 (Supply)(1) SCC 496,
where the Hon’ble Apex Court has observed, as under :
“…..The Courts
have the necessary power and they have used it in proper cases as has
been pointed out above, although such cases have been few and the
grounds on which the courts have interfered with them at the
pre-execution stage are necessarily very limited in scope and number,
viz. Where the courts are prima facie satisfied (i) that the impugned
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 person, (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 order 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 prevention of the law in question.”
From the above, it appears
that the case of the petitioner falls in exception (iv) as suggested
by the Hon’ble Apex Court in the said decision.
I
am of the opinion that the order of detention dated 8.10.2011 passed
against the petitioner is not passed in genuine exercise of the
powers of the Act, because, once the detention order passed in the
month of September, 2011, on the basis of some cases and the
petitioner could not be detained, the detaining Authority is enraged
and it has again resorted to powers to detain the petitioner again
under the same Act.
In
the present case, it clearly appears from the record that in most of
the cases, there has been settlement arrived at and the same were
within the realm of personal dispute between the parties and,
therefore, in my opinion, the order of detention dated 8.10.2011,
passed by the District Magistrate, Ahmedabad, against the petitioner
is required to be quashed and set aside.
In
view of above, this petition is allowed. The order of detention
dated 8.10.2011 passed by the District Magistrate, Ahmedabad,
against the petitioner, is quashed and set aside. Rule is made
absolute accordingly.
In view of above order
Civil Application No.10699 of 2011 does not survive and same stands
disposed of. Direct service is permitted.
(Z.K.SAIYED,
J.)
kks
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