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TMI Blog1993 (5) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... The situation in this area is very tense and in such circumstances if any actions are taken according to law then there is great possibility of great blast and public order is likely to adversely affected. For creating such situation your illegal activities are solely liable- Therefore, to prevent the other properties 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 therefor. 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 admeasuring 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 partners. The lands admeasuring 4,800 sq. yards in Plot No. 4 known as 'Madir' of Sheet No. 226 City Survey No. 3959 in Ward No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their statements and thereafter the purchasers became panicky. The acts of petitioners created tension in the area. Even on the notices given to the purchasers on July 2, 1992 to produce the proof of the title, many of them made admission that they believed the statement made by the appellants and P.M. Vora and that they have been misled. 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 appellants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate, the Commissioner of Police, may also, if satisfied the existence of conditions envisaged in Sub-section (1) of Section 3 to exercise the powers of the State Govt. to detain any person. The contention of Shri 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 equator 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 HI 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 Section 3(1) would exercise the power of detention or authorise an officer under Section 3(2) to detain bootlegger, dangerous pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Section 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-section (2) of Section 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-section (1) of Section 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, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empts 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(i) 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. 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 lease or license 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade applicable retrospectively from 1969. The exercise of the power under Section 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 53 Indian Appeal 220 at 227 Nageshar Baksh Singh v. Mt. Ganesha 47 Indian Appeals 57, Durga Prasad v. Ghansham Das, Ramana v. Sambamoorthy AIR1961AP361 by A.P. High Court and by this Court in Mohinder Singh v. State of Punjab and Ors. [1978]1SCR177 and Vatticherukuru Village Panchayat and Ors. v. Nori Venkatarama Deekshithulu and Ors. [1991]2SCR531 that mutation of the names in the revenue record are not evidence of title though 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeling 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 Dist. Magistrate, Rajkot exercised power of detention under Section 3(1) of PASA correctly, justifiably and legally. 6. 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 un surrendered 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 detention orders mention that You have the right to make representation to the detaining authority and also to the Govt. You 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary 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 Section 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, vary or rescind any notification, order, rules or bye-laws are issued. . Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 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-section (3) of Section 3 of PASA. The power to rescind the detention order, therefore would be available to the authorised officer under Section 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. 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 Section 3(3) and concomitant result is that the authorised officer has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovt. 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 representation. 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 could release the detenue the case need not be sent along with detenue's representation to the Advisory Board. Even if the Advisory Board expresses an opinion in favour of the release of the detenue that the released person thereto by the appropriate government will be independent. Even if the Advisory Board express any opinion against the release of the detenue still the government have to exercise its power to release the detenue. In Haradhan Saha and Anr. v. The State of West Bengal and Ors.1974CriLJ1479 , ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 representation of the appellant. When the writ petition was filed the High 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 Article 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 Article 22(5). Accordingly this Court declared that the detention was illegal and set them at liberty. 11. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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