{"id":272119,"date":"1993-05-12T00:00:00","date_gmt":"1993-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/navalshankar-ishwarlal-dave-and-vs-state-of-gujarat-and-ors-on-12-may-1993"},"modified":"2015-11-17T02:05:02","modified_gmt":"2015-11-16T20:35:02","slug":"navalshankar-ishwarlal-dave-and-vs-state-of-gujarat-and-ors-on-12-may-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/navalshankar-ishwarlal-dave-and-vs-state-of-gujarat-and-ors-on-12-may-1993","title":{"rendered":"Navalshankar Ishwarlal Dave And … vs State Of Gujarat And Ors on 12 May, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Navalshankar Ishwarlal Dave And … vs State Of Gujarat And Ors on 12 May, 1993<\/div>\n
Equivalent citations: 1994 AIR 1496, 1993 SCR (3) 676<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: Ramaswamy, K.<\/div>\n
           PETITIONER:\nNAVALSHANKAR ISHWARLAL DAVE AND ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT AND ORS.\n\nDATE OF JUDGMENT12\/05\/1993\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nMOHAN, S. (J)\n\nCITATION:\n 1994 AIR 1496\t\t  1993 SCR  (3) 676\n 1993 SCC  Supl.  (3) 754 JT 1993 (3)\t421\n 1993 SCALE  (2)813\n\n\nACT:\nConstitution of India, 1950-7th Schedule, List III-Entry  3-\nGujarat\t Prevention  of Anti-Social  Activities\t Act,  1985-\nLegislative validity and intention of.\nGujarat\t prevention  of Anti-Social  Activities\t Act,  1985:\nSection\t  3-Power  of  detention-Delegation-Legality.\t of-\nIllegal\t possession  of\t public\t or  private   lands-Whether\ndisturbs public order.\nGujarat\t Prevention  of Anti-Social  Activities\t Act.  1985-\nSection\t 3-Indulgence  of  detenues  in\t property  grabbing-\nSubjective  satisfaction  of District Magistrate  that\tsuch\nacts  of  detenues affecting maintenance  of  public  order-\nDetention order-Validity of.\nGujarat\t prevention  of Anti-Social  Activities\t Act,  1985-\nSections 3, 11, 15 read with Section 21, General Clauses Act<\/a>\nand  article 22 (5)<\/a> of the Constitution\t of  India-Detention\norder  by  authorised officer- Approval by Board  and  State\nGovernment-Procedure-Nor  approved  within  12\tdays-Effect-\nPower to revoke or rescind by detaining authority and  State\nGovernment-Scope of.\nConstitution of India, 1950-Articles 21,22 read with section\n3<\/a>,  Gujarat prevention of Anti-Social Activities Act,  1985-\nRepresentation of detenue-Consideration by State Government-\nDelay-Effect\"Forthwith \"-Meaning of.\nGujarat\t Prevention  of Anti-Social  Activities\t Act,  1985-\nSections  2(h)<\/a>,\t 2<\/a>  (i)--\"Property  grabber\",  \"unauthorised\nstructure\"-Meaning of.\nWords\tand   Phrases-\"Property\t  grabber\",    \"unauthorised\nstructure\", 'forthwith \"-Meaning of.\nMutation-Revenue  Record-Names\trecorded-Evidentiary  value-\nWhether evidence to title-Title whether follows possession.\nEvidence Act<\/a>, 1872- Sections 3<\/a>, 61-Appreciation<\/a> of evidence-\nMutation\n677\nof  names in Revenue Record-Whether evidence to\t title-Title\nwhether follows possession.\n\n\n\nHEADNOTE:\nThe  detention\tof  the\t appellants  were  ordered  by\t the\nMagistrate  on\this satisfaction in exercise of\t the  powers\nunder Section 3(1)<\/a>and (2) of the Gujarat Prevention of Anti-\nSocial Activities Act, 1985.\nWhen  the appellants challenged the detention order and\t the\nAct before the High Court filing the writ petitions in\tpre-\ndetention execution stage, the High Court dismissed the writ\npetitions and upheld the validity of the detention order and\nthe Act.\nThe appellants filed SLPS against the High Court judgment.\nThis Court, when the SLPS came up for admission, directed to\nlist the cases after the proof of surrender of the  detenues\npetitioners was filed.\tThe appellants produced the proof of\nsurrender.  As one Pratt, petitioner in SLP (Crl) No. 110 of\n1993 did not file the proof, his SLP was dismissed.\nThe   appellants  contended  that  the\tblanket\t  power\t  of\ndelegation  by the State Government under section 3 of\tPASA\nwas  a\tnegation of satisfaction on the part  of  the  State\nGovt. and likely to be abused by the District Magistrate  or\nthe  Commissioner  of Police; that the order  of  delegation\nmade  by  the State Govt. without application  of  mind\t was\nillegal\t and invalid; that the appellants could not be\tsaid\nto be property grabbers of their own land, because they,  as\npartners  of Jaya Prabha Traders, whose name was mutated  in\nthe revenue records since 26.4.1969, were owners of the land\nand  lawfully in possession, when suo motu revisional  order\nillegally passed by the District Collector was suspended  by\nthe Revenue Tribunal; that PASA could not be made applicable\nretrospectively from 1969 and that the exercise of the power\nunder section 3(2)<\/a> by the District Magistrate was illegal.\nAllowing the appeals of the detenues, this Court,\nHELD: 1.1.Gujarat Prevention of Anti-Social Activities, Act,\n1985  was  made in exercise of the power under\tentry  3  of\nconcurrent  list  III  of  7th\tSchedule  and  reserved\t for\nconsideration of the President and received his assent.\t  So\nit is a valid law. (686-B)\n1.2.It envisages that the State Govt. under s. 3<\/a> (1)  would\nexercise the\n678\npower of detention or authorise an officer under s. 3(2)<\/a>  to\ndetain bootlegger, dangerous person, drug offender,  immoral\ntraffic\t offender and property grabber.The PASA was made  to\nprovide\t for  preventive detention  of\taforestated  persons\nwhose  activities  were satisfied to be prejudicial  to\t the\nmaintenance of public order. (686-C)\n1.3.  The  Act<\/a> postulates satisfaction on the  part  of\t the\nState Govt. that the dangerous and anti social activities of\nany of the aforestated persons shall be deemed to be  acting\nprejudicial  to the maintenance of public order whether\t the\nperson\tis engaged in or is making preparation for  engaging\nin  any activities enumerated in the definition clauses\t and\nthe  public  order  shall be deemed to\thave  been  affected\nadversely or shall be deemed likely to be affected adversely\nif  the\t activities directly or indirectly,  causing  or  is\nlikely\tto  cause any harm, danger or alarm  or\t feeling  of\ninsecurity among the general public or any section therefore\na  grave  or widespread danger to life, property  or  public\nhealth. (686-F)\n1.4. Taking illegal possession of public or private lands or\nunauthorised  construction or structures thereon or  dealing\nwith   those   preposition  or\t threatening   or   criminal\nintimidation  of  slum dwellers cause or likely\t to  disturb\neven  public  tempo  disturbing\t public\t orders-To   prevent\ndangerous  person  or  persons\tindulging  in  anti   social\nactivities   like  land\t grabbing  or  dealing\t with\tsuch\nproperties  is\ta manage to even tempo and  the\t legislature\nintended to provide remedy by detention, be it by the  State\nGovt.  or the authorised officer on subjective\tsatisfaction\nthat such activity or activities adversely affect or  likely\nto adversely affect public order. (688-H, 689-A)\n1.5.  With  a view to have then effectively dealt  with,  to\nmove  swiftly where public order is affected or\t apprehended\nand   to  take\taction\texpeditiously  instead\t of   laying\ninformation  with  the Govt. on each  occasion\tand  eagerly\nawaiting action at State Govt. level, the State Govt  having\nexercised  the power under s. 3<\/a> (2)(conferred on the  Distt.\nMagistrate or the Commissioner the power to order  detention\nunder s. 3(1)<\/a> when he considers or deems necessary to detain\nany  person involved in any of the dangerous or anti  social\nactivities prejudicially affecting or \"likely to affect\t the\nmaintenance of public order\". (687-D-E)\n1.6.  So  long as the activities  of  bootlegger,  dangerous\nperson, drug offender, immoral traffic offender and property\ngrabber persist within the local limits of the\tjurisdiction\nof the concerned Distt.\t Magistrate and Commis-\n679\nsioners\t of  Police, as the case may be and  being  directly\nresponsible  to\t maintain  public order\t and  to  deal\twith\ndepraved  person  to  prevent  anti  social  and   dangerous\nactivities  which affects adversely or are likely to  affect\nadversely  the\tmaintenance of public order,  the  necessity\nwould  exist.  Therefore, the question of periodical  review\nof delegation of the order does not appear to be  warranted.\nThe delegation to the authorised officer is legal or  valid.\n(687-FG)\nA.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Para 72,\ndistinguished.\n2.1.  If  an order of detention was made by  the  authorised\nofficer, he should report as early as possible from the date\nof the execution of the order of detention to the Govt.\t and\nthe  order remains valid and in force for 12 days  from\t the\ndate  of  execution.  If the order is not  approved  by\t the\nState  Govt.  within 12 days, the order of  detention  shall\nstand  lapsed.\t For continuance after 12 days\tapproval  is\nmandatory  and remains in force till it is approved  by\t the\nAdvisory  Board.  If the Board disapproves, the\t State\tGovt\nshall  release\tthe  define forthwith.\tIt  is\ta  condition\nprecedent.   If the Board approved it then the\tState  Govt.\nshall  confirm it.  However, its operation is for  one\tyear\nfrom the date of the execution under s, 3(3) (i).   However,\nwithin\tthree  weeks from the date of  detention  the  State\nGovt.  shall report to the Advisory Board and  within  seven\nweeks  from the date of detention the Board should give\t its\nopinion. (692-F-G)\n2.2. The detaining authority has no express power under PASA\nto revoke the order of detention after the approval given by\nthe State Govt. under sub-s. (3) of s. 3 of PASA.  The power\nto   rescind  the  detention  order,  therefore,  would\t  be\navailable  to  the  authorised officer under s.\t 21<\/a>  of\t the\nGeneral\t Clauses Act only during its operation for  12\tdays\nfrom  the  date\t of  execution of  the\tdetention  order  or\napproval by the State Govt. whichever is later. (692-H)\n2.3.  The general power of revocation was conferred only  on\nthe  State  Govt.,  that too in writing for  reasons  to  be\nrecorded in that behalf. (693-H)\n2.4.  The State Govt alone, has power to revoke\t or  rescind\nthe  order of detention either on representation under\tArt.\n22 (5)<\/a> or under s. 15 of PASA.\tThe representation should be\ndisposed of accordingly. (693-B)\n680\n2.5.  Once the order of detention was approved by the  State\nGovt.  within the aforestated 12days period or confirmed  by\nthe  Advisory  Board within the period of  seven  weeks\t the\nexercise  of  power  by the  authorised\t officer  would\t run\ncounter to or in conflict thereof.  The State Govt. has been\nexpressly  conferred  with  powers under s.  15<\/a>\t to  revoke,\nrescind or modify the order of detention at any time  during\none  year  from the date of making the order  of  detention.\n(693-C)\n3.1.  Mutation was got made fraudulently in  collusion\twith\nthe City Planning Superintendent.  The same was cancelled by\nthe  District Collector by exercising the revisional  power.\nThe  order of the Gujarat Revenue Tribunal was\tto  maintain\nstatus\tquo.  The appellants, instead of maintaining  status\nquo,  alienated\t the  major  part of  the  land\t to  various\npersons. (689-F)\n3.2.  From  the\t definition of 'property  grabber'  and\t the\nreasons\t in  the  impugned  order  it  is  clear  that\t the\nappellants are property grabbers of the government land\t and\nthat  they  created  sales  in\tfavour\tof  third   parties,\nviolating  the law and the order of status quo\tdirected  by\nthe  Gujarat Revenue Tribunal which led to create or  likely\nto  create disturbance to public order disturbing  the\teven\ntempo  in the locality.\t Therefore, the Distt..\t  Magistrate\nsubjectively  satisfied\t that  the  appellants\tindulged  in\nproperty  grabbing and for the maintenance of  public  order\nthe Distt.  Magistrate was satisfied that the activities  of\nthe appellants have affected adversely or deemed, likely  to\nbe  affected  adversely creating insecurity  or\t feeling  of\ninsecurity  among the general public of that  area.   Unless\nthe appellants are detained, it is not possible to  maintain\npublic\torder  and  tardy legal procedure does\tnot  aid  to\nmaintain public order.\tAccordingly the Distt.\t Magistrate,\nexercised power of detention under s.3(1) of PASA correctly,\njustifiably and legally. (690-C-D)\n3.3.  It  being a case of subjective  satisfaction,  Supreme\nCourt  cannot enter upon adjudicating the legality  of\tthat\nsatisfaction  when  it is found that the impugned  order  is\nbased  on sufficient material and the grounds  are  definite\nand  specific.\t The  impugned order was  made\ton  detailed\nconsideration  of the material on record.  The\tquestion  of\nretrospective operation of PASA is misconceived. (690-B)\n4.1.  The  expression forthwith would mean 'as soon  as\t may\nbe',  that the action should be performed by  the  authority\nwith reasonable speed and expedition with a sense of urgency\nwithout any unavoidable delay.\tNo hard and fast rule  could\nbe laid nor a particular period is prescribed.\tThere should\n681\nnot he any indifference or callousness is consideration\t and\ndisposal of the representation.\t It depends on the facts and\ncircumstances of each case. (693E)\n4.2.Any delay in consideration of the representation should\nbe satisfactorily explained.  If no satisfactory explanation\nhas  been  given or found to be wilful or wanton  or  supine\nindifferent,  it  would be in breach of\t the  constitutional\nmandate\t of Art. 22(5).<\/a>\t The liberty of a person  guaranteed\nunder  Art. 21<\/a> of the constitution is a cherished right\t and\nit can be deprived only in accordance with law. (693-F)\nJayanarayan  Sukul v. State of West Bengal<\/a>, [1970]3 SCR\t 225\nat  232; Haradham Saha & Anr. v. The State of West Bengal  &\nOrs<\/a>.,  [1975] 1 SCR 778; K.M. Abdulla Kunhi and\t B.L.  Abdul\nKnader v. Union of India & Ors<\/a>., [1991] 1 SCC 476 and  Moosa\nHusein\tSanghar v. The Slate of Gujarat & Ors., JT<\/a> 1993\t (1)\nSC 44, referred to.\n4.3.  Though  the representation was received by  the  State\nGovt on February 20 1993, the State Govt. decided to keep it\npending awaiting the opinion of the Board and on receipt  of\nthe  report on March 23, 1993, considered the case  and\t the\nrepresentation was rejected on the even date, namely,  March\n23, 1993. (695-B)\n4.4.   The  action  of\tthe  State  Govt.  in  keeping\t the\nrepresentation\twithout\t being considered  and\tdisposed  of\nexpeditiously, awaiting the decision of the Board till March\n23,1993\t and consideration of the representation  thereafter\nand rejection are illegal. (695-C)\n4.5.  There is no material placed before the Court that\t the\nState  Govt. has approved within 12 days after execution  of\nthe detention order i.e. Feb. 5, 1993.\tOn expiry of 12 days\nthe  order  of detention becomes nonest and  the  subsequent\nconfirmation  by  the Board or by the State Govt.  does\t not\nbelow  life  into the corpse.  In either case the  order  of\ndetention became illegal. (695D)\n5.1. Section 2(h)<\/a> defined \"property grabber\" means a  person\nwho illegally takes possession of any lands not belonging to\nhimself but belonging to Government, local authority or\t any\nother agreements in respect of such lands or who  constructs\nunauthorised structures thereon for sale or hire or\n682\ngives  such  lands  to any person on  rental  or  leave\t and\nlicence\t basis\tfor construction or use\t and  occupation  of\nunauthorised structures or who knowingly gives financial aid\nto any person for taking illegal possession of such lands or\nfor  construction of unathorised structures thereon  or\t who\ncollects  or attempts to collect from any occupiers of\tsuch\nlands  rent,  compensation  or\tother  charges\tby  criminal\nintimidation  or  who evicts or attempts to evict  any\tsuch\noccupier by force without resorting to the lawful  procedure\nor  who\t abets in any manner the doing of any of  the  above\nmentioned things. (687H, 688-A-B)\n5.2.  A persons who illegally takes possession of any  lands\nnot  belonging\tto  himself but belonging  to  Govt.,  local\nauthority  or under any other agreement in respect  of\tsuch\nlands  or who constructs unauthorised structures thereon  or\ninter into agreement for sale or gives on hire or gives such\nlands  or  structures to any person on rental  or  leave  or\nlicence basis for construction or for use and occupation  of\nunauthorised structures or who knowingly gives financial aid\nto any person for taking illegal possession of such lands or\nfor  construction of unauthorised structures thereon or\t who\ncollects  or attempts to collect from any occupiers of\tsuch\nlands  rent,  compensation,  or other  charges\tby  criminal\nintimidations  or who evicts or attempts to evict  any\tsuch\noccupier  by force without resorting to lawful procedure  or\nwho  abets  in\tany manner the doing or\t any  of  the  above\nmentioned acts or things is a property grabber. (688-C-D)\n5.3.  Sec. 2(1) defined \"unauthorised structure\"  means\t any\nstructure constructed in any area without express permission\nin  writing of the officer or authority concerned under\t the\nenumerated  provisions therein or except in accordance\twith\nthe law for the time being in force in such area. (688-C)\n6.Mutation  of\tthe names in the revenue record\t are  not\nevidence of tide though may be relevant for other  purposes.\nIn respect of open land tide follows possession. (689-D)\nNirman\tSingh v. Rudra Patrap Narain Singh<\/a>, 53 I.A.  200  at\n227; Nageshar baksh Singh v. Mt.  Ganesha, 47 I.A 57;  Durga\nPrasad\tv.  Ghansham  Das<\/a>,  AIR\t 1948  PC  210;\t Ramana\t  v.\nSambamoorthy, AIR 1961 A.P. 361; Mohinder Singh v. State  of\nPunjab and Ors<\/a>., [1978] 1 SCR 177 and Vatticherukuru Village\nPanchayat  and\tOrs., v. Nori Venkatarama  Deekshithula\t and\nOrs<\/a>. 11991] 2 SCR 531, referred to.\n 683\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 387388
\nof 1993.\n<\/p>\n
From the Judgment and Order dated 20.11.1992 of the  Gujarat
\nHigh  Court  in Special Criminal Application Nos.  1647\t and
\n1648 of 1992.\n<\/p>\n
S.  Ganesh, C.H. Patel, M.N. Shroff and Ms.  Reema  Bhandari
\nfor the Appellants.\n<\/p>\n
P.S.  Poti  Ms. Meenakshi Arora and Anip  Sachthey  for\t the
\nRespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nK.  RAMASWAMY, J. Since common questions of law\t arise\tfrom
\nthe  same  facts, the appeals are disposed of  by  a  common
\njudgment.\n<\/p>\n
In exercise of the powers under s.3(1) of Gujarat Prevention
\nof  Anti-Social Activities Act, 16 of 1985, for\t short\tPASA
\nand  the notification of the Govt. of Gujarat under  s.3.(2)
\ndated  May 20, 1985, the District Magistrate, Rajkot by\t his
\nproceedings  dated September 22, 1992 ordered  detention  of
\nthe  appellants\t on  his finding  that\t“from  the  evidence
\nproduced  before me I am satisfied as per the definition  of
\nproperty grabber under s.2 (h) of the’ PASA and\t considering
\nthe  seriousness  of your activities under  s.2(1)  for\t the
\nunauthorised  structures…… it clearly appears  that\t you
\nare  habitual  to  grab the Govt.  land\t by  creating  false
\npartnership  firm.  People are feeling insecurity  of  their
\nproperties.  The situation in this area is very tense and in
\nsuch circumstance if any actions are taken according to\t law
\nthen  there is great possibility of great blast\t and  public
\norders\tlikely\tto adversely affected.\t For  creating\tsuch
\nsituation your illegal activities are solely liable………
\nTherefore,  to\tprevent the other propels being\t grabbed  in
\nfuture\tby  you and also to prevent the\t Govt.\tlands  being
\ngrabbed in future and for the exigencies which have  arisen,
\nit  is necessary to detain you as per the provisions of\t the
\nGujarat\t Prevention of Anti-Social Activities Act, 1985\t and
\nan  order has been passed therefore.” With detailed  reasons
\nrunning\t into 31 pages, the detaining  authority  enumerated
\nthe circumstances under which the detention order came to be
\nmade.  It was stated that the land measuring 58,880 sq.yards
\nin  Survey No. 5004 belonging to the Govt. has been  grabbed
\nby Girdhar Joshi and Manu Bhai Vora.  Manu Bhai Vora created
\na  false partnership firms by name “Jayaprabha\tTraders”  to
\nwhich  the appellants and Prashant Manubhai  Vora  (Manubhai
\nVora’ s son) are
\n684<\/span>
\npartners.  The lands measuring 4,800 sq. yards in plot No. 4
\nknown as Madir of Sheet No. 226 City Survey No. 3959 in Ward
\nNo.7  of Rajkot originally belongs to the former state.\t  It
\nwas purchased by one gopalji D. Doshi from the former  ruler
\nfor residential purpose.  But within the prescribed time, as
\nper  the  then\texisting rules, no  construction  was  made.
\nConsequently the State had confiscated the said property  in
\norder  No.  8336  of  S.Y.  1995  i.e.\t1938-39.   Naginadas
\nLaxmichand  Doshi and Manu Bhai Vora in collusion with\tCity
\nSurvey Superintendent created forged documents mutating\t the
\naforesaid   lands   by\tthe  order  of\t the   City   Survey
\nSuperintendent,\t dated\tApril  28,  1968  in  the  name\t  of
\nJayaprabha  Traders.  On May 6, 1969 the  above\t partnership
\nwas created and was got registered on October 22, 1969.\t The
\nappellants  and\t Prashant  M. Vora  were  partners  therein.
\nManubhai Vora is the man behind the scheme.  The partnership
\nwas dissolved on February 28, 1974.  Yet in the name of\t the
\npartnership   the  Govt.  lands\t are  being  grabbed.\t The
\ndepartment  came  to know the collusive acts for  the  first
\ntime  on  August  26, 1986 and\tnecessary  particulars\twere
\ncollected to find whether it is a Govt. property or  belongs
\nto  the aforesaid persons.  The Record disclosed that it  is
\nthe  Govt. property and orders were issued on  December\t 14,
\n1987  cancelling  the  mutation\t and  also  confiscated\t the
\nproperty   to  the  Govt.   After  becoming  aware  of\t the
\nactivities Manubhai Vora and Naginadas Laxmichand Joshi were
\ndetained.  The appellants and Prashant M. Vora, though\twere
\ngiven show cause notice on August 28, 1986 to appear  before
\nhim for hearing, neither they availed of it nor produced any
\nevidence  in support of their claim.  After considering\t the
\nmaterial the Collector exercising suo motu revisional  power
\nunder  Bombay Revenue Code by order dated  December  14,1987
\nconcluded  that\t the property belongs to the Govt.  and\t was
\nconfiscated  to the State–The appellants and  P.M. Vora  as
\npartners  of  the dissolved partnership firm  and  in  their
\nindividual capacity filed appeal before the Gujarat  Revenue
\nTribunal  on  February 28, 1987, diving\t their\taddress\t CIO
\nEconomic  traders,  a firm of which Manu Bhai Vora  and\t his
\nbrothers  are partners.\t The Tribunal by orders\t on  January
\n30,  1988,  while  suspending  the  implementation  of\t the
\nCollector’s order directed that “till final disposal of this
\nappeal status quo in respect of the lands to be maintained”.
\nYet  the appellants and P.M. Vora sold the lands to  several
\npersons\t in  their individual capacity.\t  The  resident\t Dy.
\nCollector.   Rajkot  made an enquiry on June  29,  1992\t and
\nrecorded  the statements of the purchasers  which  discloses
\nthat  instead  of  maintaining status  quo,  the  appellants
\nindividually sold away the entire 4,800 sq. yards except 500
\nto  600\t sq. yards to diverse persons.\t The  statements  of
\npurchasers  show that the appellants assured them clear\t and
\nmarketable  title to the lands without any  encumbrance\t and
\ncollected  about  Rs.  15  lacs\t from  the  purchasers\t and
\nunauthorised  constructions were made.\tWhile recording\t the
\ninstatement  and thereafter the purchasers  became  panicky.
\nThe  acts of petitioners created tension in the area.\tEven
\non notices given
\n 685<\/span>
\nto  the purchasers on July 2, 1992 to produce the  proof  of
\ntheir title, many of them made admission that they  believed
\nthe  s\tstatement made by the appellants and P.M.  vora\t and
\nthat they have been missed.  They have also stated that\t the
\nappellants  had\t taken signatures on blank papers  and\tthey
\nwere  fabricated.   By notice dated July 8,  1992  when\t the
\nappellant were called upon to appear on July 13, 1992 before
\nthe District Collector, instead of appearing before him\t and
\nshowing\t cause,\t they approached the Civil Court  and  filed
\nO.S.  No.  719 of 1992 and obtained injunction\tagainst\t the
\nDistt.\tCollector, From those facts the detaining  authority
\nconcluded  that\t “you are not possessing any proof  of\tyour
\nownership in respect of the disputed land.  Still,  however,
\nyou have sold the disputed land and you have remained active
\nin such scandals.  You have cheated the buyers of the  plots
\nand  in such conspiracy you have created  baseless  evidence
\nwhereby more and more people would be cheated you have given
\nfalse  assurance to the people regarding clear title of\t the
\nplots.\t  Thus\t the  people  have   purchased\t lands\t for
\nconstruction.\tThe poor people have purchased the shops  by
\nspending their hard earned money and have purchased shops by
\nmaking\tdebts.\tYou have played game with the lives of\tpoor
\npeople\tand  taking advantage of their-\t ignorance,  and  on
\ncoming\tto  know  that they have  been\tcheated,  they\tfeel
\ndisappointed  and disheartened and the atmosphere  of  grief
\nhas  spread  all  over\tthe said area  and  they  made\toral
\nrepresentations\t and  requests\tto  punish  the\t responsible
\npersons…….\t The  detaining\t authority  also   referred,
\nwherever  necessary  to\t the documentary  evidence  in\tthat
\nbehalf.\t  On  subjective satisfaction from those  facts\t the
\ndetention order came to be made.  The appellants  approached
\nthe Gujarat High Court in pre-detention execution stage\t and
\nHigh  Court upheld the validity of delegation order and\t the
\nAct  in its judgment dated 20th November, 1992;\t dealt\twith
\nthe  scope  of pre-detention order and\tdismissed  the\twrit
\npetitions.   When  special  leave  petitions  came  up\t for
\nadmission by order dated Feb. 1, 1993 this court directed to
\nlist the cases after the proof of surrender was filed.\t The
\nappellants   Navalshanker  Ishwerlal  Dave   and   Shantilal
\nPrabhudas  Dhruv after surrendering before  the\t authorities
\nproduced its proof.  Prasant Manubhai Vora, son of  Manubhai
\nVora  did not surrender.  By order dated July 22,  1993\t the
\nspecial\t leave petition (Crl.) No. 110 of 1993\tof  Prashant
\nManubhai  Vora was dismissed and the  appellants’  petitions
\nwere  taken up for admission.  The state filed\tits  counter
\nand  an additional affidavit and we have heard\tthe  learned
\ncounsel on either side at length.\n<\/p>\n
Section\t 3(2) of PASA empowers the State Govt.\tThat  having
\nregard to the circumstances prevailing or likely to  prevail
\nin any area within the. local limits of the jurisdiction  of
\na District Magistrate and the Commissioners of Police, by an
\norder  in  writing  direct  that  District  Magistrate,\t the
\nCommissioner of Po lice may also, it satisfied the existence
\nof  conditions\tenvisaged  in  sub-section  (1)\t of  s.3  to
\nexercise the powers of the State Govt. to detain any person.
\nThe contention of Shri
\n686<\/span>
\nGanesh,\t the learned counsel for the appellants is that\t the
\nblanket power of delegation is a negation of satisfaction on
\nthe  part of the State Govt. and likely to be abused by\t the
\nDistrict  Magistrate  or the Commissioner  of  police.\t The
\nLegislature  entrusted the power to the State Govt.  and  if
\nneed  be  only\tselectively but not  blanket  delegation  is
\npermissible.  After the issue of the notification in 1985 no
\nreview thereafter was done.  The order of delegation made by
\nthe State Govt. without application of mind was,  therefore,
\nillegal\t and invalid and the sequitur detention made  became
\nillegal.  We find no force in the contention.  PASA was made
\nin  exercise of the power under entry 3 of  concurrent\tlist
\nIII  of 7th Schedule and reserved for consideration  of\t the
\nPresident  and received his assent.  So it is a\t valid\tlaw.
\nIt  envisages  that  the State Govt.  under  s.\t 3(1)<\/a>  would
\nexercise  the  power of detention of  authorise\t an  officer
\nunder  s. 3(2)<\/a> to detain bootlegger, dangerous person,\tdrug
\noffender,  immoral  traffic offender and  property  grabber.
\nThe  PASA  was made to provide for preventive  detention  of
\naforesaid  persons  whose activities were  satisfied  to  be
\nprejudicial  to the maintenance of public order.  Subs.\t (4)
\nof  Sec.3  declares  that a person shall  be  deemed  to  be
\n“acting\t in  any manner prejudicial to\tthe  maintenance  of
\npublic\torder” when such person is engaged in or  is  making
\npreparation  for  engaging in any activities, whether  as  a
\nbootlegger, dangerous person, drug offender, immoral traffic
\noffender and property grabber, which affect adversely or are
\nlikely to affect adversely the maintenance of public  order.
\nExplanation  thereto postulates that public order  shall  be
\ndeemed\tto have been affected adversely or shall  be  deemed
\nlikely\tto  be affected adversely inter alia if any  of\t the
\nactivities by any person referred to in the sub-section\t (4)
\ndirectly or indirectly, is causing or is likely to cause any
\nharm,  danger  or alarm or feeling of insecurity  among\t the
\ngeneral\t public\t or  any  action  thereof  or  a  grave\t  or
\nwidespread  danger  to\tlife,  property\t or  public  health.
\nTherefore,  the Act postulates satisfaction on the  part  of
\nthe   State  Govt.  that  the  dangerous  and  anti   social
\nactivities of any of the aforestated persons shall be deemed
\nto be acting prejudicial to the maintenance of public  order
\nwhether\t the person is engaged in or is\t making\t preparation
\nfor  unaging in any activities enumerated in the  definition
\nclauses\t and the public order shall be deemed to  have\tbeen
\naffected adversely or shall be deemed likely to be  affected
\nadversely if the activities directly or indirectly,  causing
\nor  is likely to cause any harm, danger or alarm or  feeling
\nof  insecurity\tamong  the general  public  or\tany  section
\nthereof of a grave or widespread danger to life,property  or
\npublic health.\tIn the counter affidavit filed on behalf  of
\nthe  State in the High Court and consideration\tthereof\t the
\nHigh Court held that “the situation was found prevailing  in
\nthe  State  in\tthe  year  1985\t where\tthe  impact  of\t the
\nactivities of various persons mentioned in the preamble with
\nreference  to  their respective, activities  has  heightened
\nfrom  being  anti-social  and  dangerous  activities  to  be
\nprejudicial  to\t the maintenance of public order”.   It\t is,
\nwith  a\t view,\tto  curb  those\t dangerous  or\tanti  social
\nactivities, the Govt. considered it appropriate to delegate
\n 687<\/span>
\nthe  power  under sub-s. (2) of sec. 3\tto  the\t “authorised
\nofficer”  and the Govt. has stated in the notification\tthat
\n“having regard to the circumstances prevailing or likely  to
\nprevail\t in  any  area\twithin\tthe  local  limits  of\t the
\njurisdiction of each of the District Magistrate specified in
\nthe  schedule  annexed\tthereto, the  Govt.  of\t Gujarat  is
\nsatisfied  that\t it is necessary so to do”  and\t accordingly
\nexercised  the power under sub-s.(2) of sec.3  and  directed
\nthe authorised officers i.e. the District Magistrate of each
\nDistrict  specified  in\t the schedule  and  also  the  three
\nCommissioners  of Police in the respective  Corporations  to
\nexercise  within  their local limits  of  jurisdiction,\t the
\npower conferred by sub-s. (1) of sec.3. It is seen that\t the
\ndangerous  or  anti  social  activities\t are   legislatively
\nrecognised  to be prejudicial to the maintenance  of  public
\norder.\t The enumerated activities hereinbefore referred  to
\nare  not  isolated but being indulged in from time  to\ttime
\nadversely  affecting the public order and even\ttempo.\t The
\nDist.\t Magistrate  concerned,\t being\tthe  highest   Dist.
\nOfficer\t on the spot and the Commissioner of Police  in\t the
\ncities\thave  statutory\t duty  to  maintain  public   order.
\nTherefore, with a view to have then effectively dealt  with,
\nto   move  swiftly  where  public  order  is   affected\t  or
\napprehended  and  to take action  expeditiously\t instead  of
\nlaying\tinformation  with  the Govt. on\t each  occasion\t and
\neagerly\t awaiting  action at State Govt.  level,  the  State
\nGovt. having exercised the power under s. 3<\/a> (2) conferred on
\nthe Dist.  Magistrate or the Commissioner the power to order
\ndetention under s.3(1) when he considers or deems  necessary
\nto  detain  any person involved in any of the  dangerous  or
\nanti\tsocial\t  activities\tenumerated     hereinbefore,
\nprejudicially affecting or “likely to affect the maintenance
\nof  public  order”.   The  later  clause  lay  emphasis\t  on
\nimmediacy and promptitude and the authorised officer on\t the
\nspot is the best Judge to subjectively satisfy himself\tfrom
\nthe  facts and ground situation and take preventive  measure
\nto  maintain public order.  The reliance by Shri  Ganesh  on
\nthe  decision of this Court reported in A.K Roy v. Union  of
\nIndia & Anr<\/a>.  AIR 1982 SC 710, para72 has no application  in
\nview of the factual background in this Act.  So long as\t the
\nactivities  of bootlegger, dangerous person, drug  offender,
\nimmoral traffic offender and property grabber persist within
\nthe local limits of the jurisdiction of the concerned  Dist.
\nMagistrate and Commissioners of Police, as the case may\t be,
\nand being directly responsible to maintain public order\t and
\nto  deal  with depraved person to prevent  anti\t social\t and
\ndangerous  activities which affects adversely or are  likely
\nto  affect  adversely the maintenance of public\t order,\t the
\nnecessity   would   exist.   Therefore,\t the   question\t  of
\nperiodical review of delegation of the order does not appear
\nto  be\twarranted.  Accordingly, we have  no  hesitation  to
\nreject the contention that the delegation to the  authorised
\nofficer is illegal or invalid.\n<\/p>\n
Section\t 2(h)<\/a> defend “property grabber” means a\t person\t who
\nillegally  takes  possession of any lands not  belonging  to
\nhimself but belonging to Government, local authority or\t any
\nother agreements in respect of such lands or who constructs
\n688<\/span>
\nunauthorised  structures thereon for sale or hire  or  gives
\nsuch  lands  to any person on rental or\t leave\tand  licence
\nbasis for construction or use and occupation of unauthorised
\nstructures  or\twho  knowingly gives financial\taid  to\t any
\nperson\tfor taking illegal possession of such lands  of\t for
\nconstruction  of  unauthorised\tstructures  thereon  of\t who
\ncollects  or attempts to collect from any occupiers of\tsuch
\nlands  rent,  compensation  or\tother  charges\tby  criminal
\nintimidation  or  who evicts or attempts to evict  any\tsuch
\noccupier by force without resorting to the lawful  procedure
\nor  who\t abets in any manner the doing of any of  the  above
\nmentioned things.  See 2(1) defined “unauthorised structure”
\nmeans any structure constructed in any area without  express
\npermission in writing of the officer of authority  concerned
\nunder  the  enumerated\tprovisions  therein  or\t except\t  in
\naccordance with the law for the time being in force in\tsuch
\narea.  Therefore, a person who illegally takes possession of
\nany  lands not belonging to himself but belonging to  Govt.,
\nlocal  authority or under any other agreement in respect  of
\nsuch lands or who constructs unauthorised structures thereon
\nor  enter into agreement for sale or gives on hire or  gives
\nsuch lands or structures to any person on rental or leave or
\nlicence basis for construction or for use and occupation  of
\nunauthorised structures or who knowingly gives financial aid
\nto any person for taking illegal possession of such lands or
\nfor  construction of unauthorised structures thereon or\t who
\ncollects  or attempts to collect from any occupiers of\tsuch
\nlands  rent,  compensation,  or other  charges\tby  criminal
\nintimidation  or  who evicts or attempts to evict  any\tsuch
\noccupier  by force without resorting to lawful procedure  or
\nwho  abets  in\tany manner the doing of\t any  of  the  above
\nmentioned  acts or things is a property grabber.  Para 4  of
\nthe statements and objects of the Act furnishes clue to make
\nthe  property  grabbing\t or  unauthorised  construction\t  or
\ndealing\t therewith  as\tprejudicial to\tthe  maintenance  of
\npublic order thus:\n<\/p>\n
“Acute shortage of housing accommodation in major cities  is
\nbeing  exploited by certain musclemen of some  means,  often
\nget from bootlegging, by taking illegal possession of public
\nor private lands and constructing or permitting construction
\nthereon\t of  unauthorised structure or selling,\t leasing  or
\ngiving\ton  leave  and licence\tsuch  land  or\tunauthorised
\nstructure after collecting heavy price, rents,\tcompensation
\nand  the  like,\t in  so\t collecting  the  charge  from\t the
\noccupiers,  the musclemen resort to  criminal  intimidation.
\nThe  entire community living in the slums is under the\tgrip
\nof perpetual fear of such land grabbers.  Such activities of
\nthese\tpersons\t  adversely  affect   the   public   order”.
\nTherefore,  taking illegal possession of public\t or  private
\nlands or unauthorised construction or structures thereon  or
\ndealing\t with  those properties or threatening\tor  criminal
\nIntimidation  of  slum dwellers cause or likely\t to  disturb
\neven  public  tempo  disturbing public\torder.\t To  prevent
\ndangerous  person  or  persons\tindulging  in  anti   social
\nactivities like 1and
\n 689<\/span>
\ngrabbing or dealing with such properties is a menace to even
\ntempo  and  the legislature intended to\t provide  remedy  by
\ndetention,  be\tit  by the State  Govt.\t or  the  authorised
\nofficer\t on  subjective satisfaction that such\tactivity  or
\nactivities  adversely affect or likely to  adversely  affect
\npublic order.\n<\/p>\n
The  contention\t of  Shri  Ganesh  that\t the  appellants  as
\npartners  of Jaya Prabhu Traders whose name was\t mutated  in
\nthe revenue records as early as April 26, 1969 are owners of
\nthe lands and lawfully in possession and suo motu revisional
\norder passed by the Dist.  Collector cancelling the mutation
\nunder Bombay Revenue Court on December 14,1987, was  illegal
\nand  so it was suspended by the Gujarat Revenue Tribunal  on
\nJanuary\t 30,  1988  which still\t subsists.   Therefore,\t the
\nappellants  cannot  be\tsaid  to  be  property\tgrabbers  of
\ntheir\town  land.   The  Act<\/a>  cannot  be  made\t  applicable
\nretrospectively from 1969.  The exercise of the power  under
\ns.3(2)\tby the Dist.  Magistrate, Rajkot is illegal.  It  is
\nsettled\t law  as laid down by the Privy\t Council  in  Nirman
\nSingh v. Rudra Patrab Narain Singh<\/a>, 5 3 Indian Appeal 220 at
\n227 Nageshar Baksh Singh v. Mi.\t Ganesha<\/a>, 47 Indian  Appeals
\n57;  Durga  Prasad  v. Ghansham Das<\/a>.  AIR  1948\t PC  2\t10-,
\nRamanna v. Sambamoorthy<\/a> AIR 1961 A.P. 361 by A.P. High Court
\nand  by this Court in Mohinder Singh v. State<\/a> of punjab\t and
\nOrs., [1978] 1 SCR 177 and Vatticherukuru Village  Panchayat
\nand Ors. v. Nori Venkatarama Deek-shithulu and Ors<\/a>. [1991] 2
\nSCR 531 that mutation of the names in the revenue record are
\nnot  evidence  of title thou oh may be\trelevant  for  other
\npurposes.  Equally it is settled law that in respect of open
\nland  title  follows possession.   The\tdetaining  authority
\nstated\tin the impugned orders that for the first  time\t the
\nDist.\tCollector,  Rajkot  became  aware  in  1987  of\t the
\ngrabbing  of  Govt.  lands  by\tthe  petitioners’  firm,   a
\nfictitious  one and that the enquiry caused in\tthat  behalf
\nrevealed  that\tthe  land  is  in  confirmed  list  of\t the
\ngovernment  lands.   Mutation was got made  fraudulently  in
\ncollusion with the City planning Superintendent. Accordingly
\nthe  same was cancelled by exercising there visional  power.
\nThe  order of the Gujarat Revenue Tribunal was\tto  maintain
\nstatus\tquo.  The appellants, instead of maintaining  status
\nquo, alienated the major part of the land to various persons
\nwho had averred in their statements recorded by the Resident
\nDy.  Collector and sale deeds would show that the appellants
\nsold  the lands individually assuring clear title  and\tnon-
\nencumbrance  thereof-, permitted many of the  purchasers  to
\nconstruct   shops  un-authorisedly.   When  questioned\t and
\nopportunity  was  given,  the appellants did  not  make\t any
\nrepresentation\tnor  appeared before the  Dist.\t  Collector,
\nInstead they invoked the jurisdiction of the Civil Court for
\ninjunction.   The purchasers became panic when became  aware
\nthat  they have no title to their purchased lands and  their
\nconstruction are unauthorised.\tThe Resident Dy.   Collector
\nmade  elaborate\t enquiry  and  submitted  the  report.\t  On
\nconsideration  of the record he was  subjectively  satisfied
\nthat the activities. of the petitioner
\n690<\/span>
\nconstitute property grabbers and in its background the Dist.
\nMagistrate  satisfied  that their  activities  affected\t and
\nlikely\tto  affect  adversely public order  and\t passed\t the
\nimpugned  order.  Therefore, it being a case  of  subjective
\nsatisfaction, we cannot enter upon adjudicating the legality
\nof that satisfaction when we find that the impugned order is
\nbased  on sufficient material and the grounds  are  definite
\nand  specific.\t The  impugned order was  made\ton  detailed
\nconsideration  of the material on record.  The\tquestion  of
\nretrospective operation of PASA is misconceived.  Therefore,
\nit is difficult to agree with Sri Ganesh that the appellants
\nare  not property rabbits.  From the definition of  property
\ngrabber\t and the reasons in the impugned order it  is  clear
\nthat the appellants are property grabbers of the  government
\nland and that they created sales in favour of third parties,
\nviolating  the law and the order of status quo\tdirected  by
\nthe  Gujarat  Revenue Tribunal which led to  create  or\t was
\nlikely to create disturbance to public order disturbing\t the
\neven   tempo   in  the\tlocality.   Therefore,\t the   Dist.
\nMagistrate   subjectively  satisfied  that  the\t  appellants
\nindulged  in  property grabbing and for the  maintenance  of
\npublic\torder the Dist.\t Magistrate was satisfied  that\t the
\nactivities of the appellants have affected adversely or were
\nlikely\tto  be\taffected adversely  creating  insecurity  or
\nfeeling of insecurity among the general public of that area.
\nUnless\tthe appellants are detained, it is not\tpossible  to
\nmaintain public order and tardy legal procedure does not aid
\nin   maintaining  public  order.   Accordingly\t the   Dist.
\nMagistrate, Rajkot exercised power of detention under s.3(1)
\nof PASA correctly, justifiably and legally.
\nThough the detention orders were made on September 22,\t1992
\nthe appellants and Prashant Manubhai Vora avoided  execution
\nthereof\t and  till  February 5, 1993  the  detention  orders
\nremained   unexecuted.\t Manubhai  Vora\t chose\t to   remain
\nunsurrendered and obviously so far avoided execution of\t the
\norders.\t  Therefore, we are not called upon to consider\t the
\nlegality  of  the detention order passed against  him.\t The
\nappellants surrendered on Feb. 5, 1993 and so the  detention
\norder  was  executed on Feb. 5, 1993.\tThe  dention  orders
\nmention\t that “You have the right to make representation  to
\nthe detaining authority and also to the Govt. 1 on have also
\nright to make written representation to the Advisory  Board.
\nYou   may   send  your\trepresentation\tthrough\t  the\tJail
\nSuperintendent\t to   the  addresses  given   herein.”\t The
\nappellants submitted their representations on Feb. 18,\t1993
\nto  the\t detaining authority, respondent No.  2,  the  State
\nGovt., respondent No. 1, and the Advisory Board through Jail
\nauthority.  The State Govt. sent the representations to\t the
\nAdvisory  Board\t on  Feb. 20,1993.  On March  10,  1993\t the
\nAdvisory Board fixed its meeting for consideration on  March
\n22,  1993  and the Board confirmed the\tdetention  order  on
\nMarch 22, 1993.\t The State Govt. awaited the opinion of\t the
\nAdvisory  Board and on its receipt on March 23, 1993 it\t was
\nconsidered and the
\n 691<\/span>
\nGovt. rejected the representation on March 23, 1993.  It was
\ndespatched  on March 29, 1993, It is stated in\tthe  written
\nsubmission  of the appellants that till April 29,  1993\t the
\nsecond\tappellant did not receive any reply from  the  State
\nGovt.\tThe first appellant did not receive any\t reply\ttill
\nthat  date  from the detaining authority though\t the  second
\nappellant received such a reply rejecting the representation
\nof  Feb. 22, 1993.  The first appellant received  the  reply
\nfrom  the  State  Govt.\t  On April  6,\t1993  rejecting\t the
\nrepresentation after 47 days from the date of his submitting
\nthe representation.  Sri J.M. Parmar, Under Secretary,\tHome
\nDepartment of Gujarat stated in his Addl.  Affidavit that  a
\ncopy of the representation from the appellants was  received
\non  Feb.  20, 1993 by which date, i.e. on Feb 18,  1993\t the
\nState  Govt.  had already referred the case along  with\t the
\nrelevant  material to the Advisory Board for review  of\t the
\ncase.\t “The  Department  of  Home  decided  to  keep\t the
\nrepresentation\tin  abeyance  awaiting the  opinion  of\t the
\nAdvisory Board”.\n<\/p>\n
sub-s.\t(1)  thereof  by any authorised\t officer,  he  shall
\nforthwith  report the fact to the State Govt. together\twith
\nthe grounds on which the order has been made and such  other
\nparticulars  as in his opinion have a bearing on the  matter
\nand  no\t such order shall remain in force for more  than  12
\ndays  after  making thereof, unless in the meantime  it\t has
\nbeen  approved by the State Govt.  The detaining  authority,
\nthe  second respondent, did not file any  counter  affidavit
\nand  the counter affidavit and Add]. affidavit filed by\t Sri
\nJ.M.  Parmar, did not mention as to when the 2nd  respondent
\nreported  to them of the order of detention and the  grounds
\nor  any\t other particulars deemed relevant  as\tmandated  in
\ns.3(3). We assume that the 2nd respondent sent them and were
\nreceived by February 20, 1993 and immediately thereafter  it
\nwas referred to the Advisory Board for its opinion.  It\t was
\nnot  stated  in the counter affidavit that the\tState  Govt.
\napproved  the  order of detention, within 12 days  from\t the
\ndate  of receipt by the State Govt. i.e. February 20,  1993.
\nThe  mandate of s.3(3) is that the action of the  authorised
\nofficer would be legal only when the State Govt. approves of
\nit  and in its absence on expiry of 12 days detention  order
\nshould\tstand  lapsed.\tSection 15<\/a> postulates  that  without
\nprejudice to the Bombay General Clause Act, 1904 a detention
\norder  May  at any time, for reasons to be recorded  in\t the
\norder,\t be  revoked  or  modified  by\tthe   State   Govt.,
\nnotwithstanding\t  that\tthe  order  has\t been  made  by\t  an
\nauthorised officer.  Sub-section (2) is not material for the
\npurpose\t of  this case.\t Hence omitted.\t Section 21  of\t the
\nGeneral Clause Act envisages that where, by any Gujarat Act,
\na power to issue notification, orders, rules or bye-laws  is
\nconferred, then that power includes a power, exercisable  in
\nthe  like  manner  and\tsubject to  the\t like  sanction\t and
\nconditions  if\tany, to add to, amend, very or\trescind\t any
\nnotification, order, rules or bye-laws are issued.   Article
\n22(5)<\/a> of the Constitution accords constitutional
\n692<\/span>
\nright  of  representation to the detenue against  any  order
\nmade  in  pursuance of any law.\t The mandatory duty  on\t the
\nauthority  making  such\t order, “shall as soon\tas  may\t be”
\ncommunicated to such person, the grounds on which the  order
\nhas been made and shall afford him the earliest\t opportunity
\nof making a representation against the order.  Section II of
\nPASA  provides\tthat  within three weeks from  the  date  of
\ndetention of a person tinder the order the State Govt. shall
\nplace  before  the Advisory Board the grounds on  which\t the
\norder has been made, etc. as well as the report made by\t the
\nauthorised  officer  under  sub-s.  (3)\t of  s.\t 3<\/a>  and\t the
\nrepresentation, if any.\t The Board under s. 12<\/a> shall  submit
\nits report, after considering the material placed before  it
\nand  the representation of the dentenue and if\tthe  detenue
\ndesires\t to be heard, after hearing him in person, within  7
\nweeks from the date of the detention of the detenue.  If the
\nAdvisory  Board\t reports  that in its opinion  there  is  no
\nsufficient  cause for the detention, the State\tGovt.  shall
\nrevoke\tthe  detention\torder and cause the  detenue  to  be
\nreleased forthwith.  Under s. 13 the State Govt. may confirm
\nthe  order  of detention for a period of one year  from\t the
\ndate  of  detention.   In  other words,\t from  the  date  of
\nexecution of the order of detention as provided under s. 14
\nThe  reappears to be a seeming over-lap in consideration  of
\nthe  representation  of the detenue and its  effect  on\t the
\norders by the authorities concerned.  It is seen that  under
\nsub-s.\t(1) of s.3 the State Govt. is empowered to  pass  an
\norder  of detention in which event it has to report  to\t the
\nAdvisory  Board\t as  envisaged\tin s. 11<\/a>.  If  an  order  of
\ndetention  was\tmade  by the authorised\t officer,  he  shall
\nreport\tthe same as early as possible without any delay\t and
\nthe  State Govt. shall approve the same within 12 days\tfrom
\nthe date of its making.\t In other words, the effect would be
\nthat  the  authorised  officer should  report  as  early  as
\npossible  from\tthe date of the execution of  the  order  of
\ndetention  to the Govt. and the order remains valid  and  in
\nforce for 12 days from the date of execution.  If the  order
\nis  not\t approved by the State Govt.  Within  12  days,\t the
\norder  of  detention shall stand  lapsed.   For\t continuance
\nafter  12  days approval is mandatory and remains  in  force
\ntill  it  is approved by the Advisory Board.  If  the  Board
\ndisapproves,  the  State  Govt. shall  release\tthe  detenue
\nforthwith.   It\t is  a condition precedent.   If  the  Board
\napproves  it  then  the\t State\tGovt.\tShall  confirm\t it.
\nHowever, its operation is for one year from the date of\t the
\nexecution  under  s.3(3) (i).  However, within\tthree  weeks
\nfrom  the date of detention the State Govt. shall report  to
\nthe  Advisory Board and within seven weeks from the date  of
\ndetention the Board should give its opinion.  The  detaining
\nauthority  has\tno express power under PASA  to\t revoke\t the
\norder  of  detention after the approval given by  the  State
\nGovt. under sub-s. (3) of s.3 of PASA.\tThe power to rescind
\nthe  detention\torder, therefore would be available  to\t the
\nauthorised  officer  under s.21 of the General\tClauses\t Act<\/a>
\nonly during its operation for 12 days from the date of
\n 693<\/span>
\nexecution  of the detention order or approval by  the  State
\nGovt.  whichever is later.  The general power of  revocation
\nwas  conferred only on the State Govt., that too in  writing
\nfor  reasons  to be recorded in that behalf.   By  necessary
\nimplication  flowing from s.3(3) and concomitant  result  is
\nthat the authorised officer has no express power or  general
\npower  under s. 21<\/a> of the General Clauses Act to  revoke  or
\nrescind\t or modify the order after the State Govt.  approved
\nof  it under sub-s. (3) of s.3 read with S.3(1).  The  State
\nGovt.  alone, thereafter has power to revoke or rescind\t the
\norder of detention either on representation under Art. 22(5)<\/a>
\nor  under  s.  15 of PASA.   The  representation  should  be
\ndisposed  of accordingly.  The reason is obvious  that\tonce
\nthe  order  of\tdetention was approved by  the\tState  Govt.
\nWithin\tthe aforestated 12 days period or confirmed  by\t the
\nAdvisory Board within the period of seven weeks the exercise
\nof  power by the authorised officer would run counter to  or
\nin  conflict  thereof.\tThe State Govt. has  been  expressly
\nconferred  with\t powers\t under s. 15<\/a> to\t revoke\t rescind  or
\nmodify\tthe order of detention at any time during  one\tyear
\nfrom the date of making the order of detention.\t  Therefore,
\nthe  right  of representation guaranteed  under\t Art.  22(5)<\/a>
\nwould,\tthereafter  i.e.  after approval under\ts.  3(3)  be
\navailable  to  the detenue for consideration  by  the  State
\nGovt.\n<\/p>\n
The  word ‘forthwith’ has been interpreted by this court  by
\nplethora of precedents and it is not necessary to burden the
\njudgment  by referring them once over copiously\t though\t the
\ncounsel\t for the appellants has relied on them.\t This  court
\nheld  that the expression ‘forthwith would mean as  soon  as
\nmay  be’,  that\t the  action  should  be  performed  by\t the
\nauthority with reasonable speed and expedition with a  sense
\nof urgency without any unavoidable delay.  No hard and\tfast
\nrule  could be laid nor a particular period  is\t prescribed.
\nThere  should  not  be any indifference\t or  callousness  in
\nconsideration  and  disposal  of  the  representation.\t  It
\ndepends\t on the facts and circumstances of each\t case.\t Any
\ndelay  in  consideration  of the  representation  should  be
\nsatisfactorily\texplained.  If no  satisfactory\t explanation
\nhas  been  given  or  is found to be  wilful  or  wanton  or
\nsupinely   indifferent\tit  would  be  in  breach   of\t the
\nconstitutional\tmandate\t of Art. 22(5).<\/a>\t The  liberty  of  a
\nperson\tguaranteed  under Art. 21<\/a> of the constitution  is  a
\ncherished  right and it can be deprived only  in  accordance
\nwith law.\n<\/p>\n
In  Jayanarayan Sukul v. State of West Bengal<\/a> [1970]  3\t SCR
\n225  at\t 232, the facts were that the detenue had  made\t his
\nrepresentation to the State Govt. on June 23, 1969.  On July
\n1, 1969, the Govt. forwarded to the Advisory Board his\tcase
\ntogether  with his representation.  On August 13, 1969,\t the
\nBoard  sent  its report and based thereon  the\tState  Govt.
\nrejected the representation of the detenue.  A\tconstitution
\nbench of this Court laid four principles, one of which being
\nthat the consideration of the representation of the  detenue
\nby  the\t State\tGovt. is independent of any  action  by\t the
\nAdvisory Board including its consideration of the represen-\n<\/p>\n
694<\/span><\/p>\n
tation.\t  The  appropriate  Government is  to  exercise\t its
\nopinion\t and judgment on the representation  before  sending
\nthe  case  along with the detenue’s  representation  to\t the
\nAdvisory  Board.   If  the  appropriate\t government   itself
\nreleases  the detenue the case need not be sent\t along\twith
\ndetenue’s  representation  to the Advisory  Board.   It\t the
\nAdvisory Board expresses an opinion in favour of the release
\nof the detenue the release of the detenue thereafter by\t the
\nappropriate  government\t will be  independent. Even  if\t the
\nAdvisory  Board express any opinion against the\t release  of
\nthe  detenue still the government may exercise its power  to
\nrelease the detenue.In Haradhan Saha & Anr. v. The State  of
\nWest Bengal & Ors<\/a>. [1975] 1 SCR 778, if another constitution
\nbench reiterated the same view holding that the presentation
\nis  made after the matter has been referred to the  Advisory
\nBoard,\tthe detaining authority will consider it  before  it
\nwill  send  representation  to the Advisory  Board.  In\t KM.
\nAbdulla Kunhi and B. L Abdul Khader v. Union of India & Ors<\/a>.
\n[1991]\t1  SCC 476 reviewing the case law  the\tconstitution
\nbench held that the representation relates to the liberty of
\nthe  individual;, it is enshrined under Art. 2 1;<\/a>  therefore
\nCl.(5) of Art. 22<\/a> cast a legal obligation on the  government
\nto  consider representation as early as possible and  should
\nbe expeditiously considered and disposed of with a sense  of
\nurgency without an unavoidable delay. However, there can  be
\nno  hard and fast rule in this regard. It depends  upon\t the
\nfacts  and  circumstances of each case. There is  no  period
\nprescribed  in this behalf within which\t the  representation
\nshould\tbe  dealt  with but the requirement  is\t that  there
\nshould\tnot  be\t any indifference  or  callous\tattitude  in
\nconsidering   the  representation.  Unexplained\t  delay\t  in
\ndisposing  of  the representation would be a breach  of\t the
\nconstitutional mandate rendering the detention impermissible
\nand illegal. Therein the representation was received by\t the
\nGovt. on April 17, 1989, The Advisory Board was\t constituted
\nthereafter and held its meeting on April 20, 1989. After its
\nsubmitting  the report the Govt. on April 27, 1989  affirmed
\nthe  order of detention and held that there was a breach  of
\nconstitutional\tmandate\t of  Art.  22(5).<\/a>  In  Moosa  Husein
\nSanghar\t v. The State of Gujarat & Ors. JT<\/a> (1993) 1  SC\t 44,
\nthe detention order was served on the appellant on  February
\n21, 199 1. On March 22, 1991 the declaration was made  under
\ns.  9 of COFEPOSA by the Central Govt. The appellant  handed
\nover  the  representation  dated  March\t 15,  1991  to\tjail
\nauthorities for onward transmission. It was addressed to the
\nAdvisory  Board. It was received by the detaining  authority
\non March 18, 1991 who returned it to the appellant on  March
\n27,1991 to follow the manner of service representation meant
\nfor  Advisory  Board.On March 25, 1991\tthe  Advisory  Board
\nconsidered the representation. On March 30, 1991 again other
\nrepresentation\twas  sent to the Advisory Board.  The  Zerox
\ncopies\tof the representation were sent to the\tChairman  of
\nthe  Advisory  Board.  On May 6, 1991  the  Board  sent\t its
\nopinion\t to  the  State\t Govt. On May  13,  1991  the  Govt.
\nconfirmed  the\torder  of  detention and  on  the  same\t day
\nrejected the represen-\n<\/p>\n
695<\/span><\/p>\n
tation\tof the appellant.  When the writ petition was  filed
\nthe  Hi\t oh Court dismissed the petition.  On  appeal,\tthis
\nCourt  held that though the representation was addressed  to
\nthe  Advisory Board, the communication was meant to  be\t the
\nrepresentation under Art. 22(5)<\/a> and the Govt. must  consider
\nand  dispose it of.  The failure to do so and its  rejection
\non receipt of the opinion of the Advisory Board was held  to
\nbe in breach of the constitutional mandate under Art. 22(5).<\/a>
\nAccordingly  this  court  declared that\t the  detention\t was
\nillegal and set them at liberty.\n<\/p>\n
It  is seen that though the representation was\treceived  by
\nthe  State  Govt.  on February 20,  1993,  the\tState  Govt.
\ndecided to keep it pending awaiting the opinion of the Board
\nand  on receipt of the report on March 23, 1993,  considered
\nthe  case  and the representation was rejected on  the\teven
\ndate,  namely, March 23, 1993.\tIn view of  this  consistent
\nsettled\t law  the action of the State Govt. in\tkeeping\t the
\nrepresentation\twithout\t being considered  and\tdisposed  of
\nexpeditiously, awaiting the decision of the Board till March
\n23, 1993 and consideration of the representation  thereafter
\nand  rejection are illegal.  In addition we have  on  record
\nthat detaining authority had not filed its counter as to how
\nthe representation of the second appellant was dealt with or
\nrejected.   That apart, there is no material  placed  before
\nthe  Court that the State Govt. has approved within 12\tdays
\nafter  execution of the detention order i.e. Feb.  5,  1993.
\nOn  expiry of 12 days the order of detention becomes  nonest
\nand the subsequent confirmation by the Board or by the State
\nGovt.  does not blow life into the corpse.  In\teither\tcase
\nthe  order of detention became illegal.\t Accordingly we\t had
\nallowed\t the appeals on May 3, 1993 and directed release  of
\nthe  detenus forthwith.\t The reasons now are as above.\t The
\nresult\tin this judgment does not enure to Prashant  Manubai
\nVora the absconding detenue.\n<\/p>\n
The appeals are accordingly allowed.\n<\/p>\n
V.P.R.\n<\/p>\n
\t\t\t      Appeals allowed.\n<\/p>\n
696<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Navalshankar Ishwarlal Dave And … vs State Of Gujarat And Ors on 12 May, 1993 Equivalent citations: 1994 AIR 1496, 1993 SCR (3) 676 Author: K Ramaswamy Bench: Ramaswamy, K. PETITIONER: NAVALSHANKAR ISHWARLAL DAVE AND ANR. Vs. RESPONDENT: STATE OF GUJARAT AND ORS. DATE OF JUDGMENT12\/05\/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-272119","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNavalshankar Ishwarlal Dave And ... vs State Of Gujarat And Ors on 12 May, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/navalshankar-ishwarlal-dave-and-vs-state-of-gujarat-and-ors-on-12-may-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Navalshankar Ishwarlal Dave And ... vs State Of Gujarat And Ors on 12 May, 1993 - 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