Supreme Court of India
NAVALSHANKAR ISHWARLAL DAVE AND ANR.versusSTATE OF GUJARAT AND ORS.
- Citation
- 1993 INSC 193
- Decided
- 12 May 1993
- Disposal
- Appeal(s) allowed
- Bench
- K RAMASWAMY
Holding
The Gujarat Prevention of Anti‑Social Activities Act, 1985 is a valid law and the delegation of detention power under Section 3 is lawful, but the detention orders are invalid because the State Government did not approve them within the statutory 12‑day period and failed to consider the detainees' representations expeditiously, violating Section 3(3) of PASA and Article 22(5) of the Constitution.
Summary
The appellants were detained under the Gujarat Prevention of Anti‑Social Activities Act, 1985 (PASA) as "property grabbers" and challenged the detention orders. The High Court upheld the orders, but the Supreme Court examined the constitutional validity of PASA, the legality of delegating detention power to district magistrates, and the procedural compliance required under Section 3 and Article 22(5). While the Court affirmed that PASA is a valid law enacted under the concurrent list and that the delegation of power is lawful, it held that the detention orders were invalid because the State Government failed to approve the order within the statutory 12‑day period and the detainees' representations were not considered expeditiously, violating procedural safeguards. Consequently, the Court set aside the detention orders and ordered the release of the appellants.
Issues considered
- The legislative competence of the Gujarat Prevention of Anti‑Social Activities Act, 1985.
- The validity of the blanket delegation of detention power under Section 3 of PASA.
- Whether the detention order complied with the 12‑day approval requirement of Section 3(3).
- Whether the representation of the detainees under Article 22(5) was considered within a reasonable time.
- The applicability of the definition of "property grabber" to the appellants.
- The retrospective operation of PASA.
Legislation cited
- Constitution of Indias. Article 21, s. Article 22(5)
- General Clauses Act, 1904s. 21
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 11, s. 12, s. 13, s. 15, s. 2(h), s. 2(i), s. 3(1), s. 3(2), s. 3(3)
Subjects
preventive detentionlegislative competencedelegation of powerprocedural compliancerepresentationArticle 22(5)property grabberGujarat Prevention of Anti‑Social Activities Actdetention order invaliditypublic order
Judgment
if
A NA VALSHANKAR ISHWARLAL DA VE AND ANR.
v.
STATE OF GUJARAT AND ORS.
MAY 12, 1993
B
[K. RAMASWAMY ANDS. MOHAN,JJ.]
Constitution of India, 1950-lth Schedule, list Ill-Entry 3-Gujarat
Prevention ofAnti-Social Activities Act. 1985-Legislative validity and imention
of
c
•
Gujarat prevention ofAnti-Social Activities Act, 1985: Section 3-Power
of detention-Delegation-Legality of-Illegal possession of public or private
lands-Whether disturbs public order.
.
Gi1jarat Prevention ofAnti-Social Activities Act. 1985-Section 3-Indul-
gence of-detenues in property grabbing-Subjective satisfaction of District
D Magistrate that such acts of detenues affecting maintenance of public
·order-Detention order-\/alidit)' of
Gujarat prevention ofAnti .J. Social Activities Act, 1985-Sections 3, 11, I 5
read with Section 21, General Clauses Act and article 22 (5) of the Constitution
of India-Detention order.b)• authorised officer-Approval by Board and State
E
Government-Procedure.:__Norapproved within 12 da)'s-Ejfec1-Power to re-
voke 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
F detenue-Consideration by State Government-Delay-Effect-
"Forthwith"-Meaning of
Gujarat Prevention of Anti+Social Activities Act, I985-Sections 2(h), 2
(i)--"Property grabber", "tinauiliorised structure"-Meaning of
G
Words and Phrases- "Property grabber", "unauthorised structure",
"forthwith" -Meanir,lg of
Mutation-Revenue Recoril-Names recorded-Evidentiary
value-Whetlter evidence to title-Title whether follows possession.
Evidence Act, 1872-Sections 3, ·6 J-Appreciation ofevidence- Mutation
H
.676
NAVALSHANKAR ISHWARLAL v. ~TAIBOFGUJARAT 677
of names
.
in.Revenue
.
Record-Whether evidence
. to title-Title whether follows A·
possession.
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.
B
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.
c
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 proofofsurrender. As one Prasant, petitioner in SLP
(Crl) No. 110of1993 did not file the proof, his SLP was dismissed. D
The appellants contended that the.blanket power of delegation ~y 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
E
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 pwners 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 F
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.GujaratPreventiono~Anti-SocialActivities,Act,1985was G
made in exercise of tlie 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 theState Govt. under s. 3 (1) would exercise the H
678 SUPREME COURT REPORTS [1993] 3 S.C.R.
A 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 ofaforestated
persons whose activities were satisfled to be prejudicial to the maintenance of
public order. (686-C)
B 1.3. The Act postulates satisfaction on the part of the State Govt. thatthe
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 prep1;tration for engaging in any
activities enumerated in the definition clauses and the public order shall be
,Jeemed to have been affec~d adversely or shall be deemed likely to be
c
affected adversely ifthe 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 or a grave or widespread danger to life, property
or public health. (686-F)
D 1.4. Taking illegal posSession of public or private lands or u~authorised
construction or structures thereon or dealing with those pr•Jposition 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 land grabbing or
dealing with such properties is a menage to even tempo and the legislature
E 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.S. With a view to have then effectively dealt with, to move swiftly where
-
F 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, tlie State Govt. having exercised the
power under s. 3 (2)( conferred on the lJistt. Magistrate or the Commissioner
the power to order detention under s. 3(1) when he considers or deems
necessary to detain ~my person involved in any of the dangerous or anti social
G activities prejudicially affecting or ''likely to.affect the maintenance ofpublic
order". (687-D-E)
1.6. So long as tJi., activities of bootlegger, dangerous person, drug
offender, immoral tr.affic offender and pr6perty grabber persist within the
H .local limits of the jJ.irisdiction of the concernedDistt. Magistrate and Con_unis-
NA VALSHANKAR ISHWARLAL v. STA TE OF GUJARAT .fJ79
sioners of Police, as the case may be and being directly responsible to maintain A
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-F-
G) B
A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Para 72, distin-
guished.
2.l. If an order of detention was made by the authorised officer, he c
should repon 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 D
the define forthw!th. It is a condition precedent. Ifthe 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
opinJon. (692-F-G) E
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 dete~tion order,
therefore, would be available to the authorised officer under s. 21 of the F
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) G
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)
H
680 SUPREME COURT REPORTS (1993] 3. S.C.R.
A. 2.5. Once the order of detention was ·approved by the State G.ovt. 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
r.un 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
B detention. (693-C)
3.1. Mutation was got made fraudulently in collusion_ '"'.ith 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
c
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,
D violating the. law and the order of status quo directed by the Gujarat Revenue
Tribunal which led to crl!ate 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 dec;med .likely to be
E affected adversely creating insecurity or feeling of insec~rity 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)
F
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 consider-
ation of the material on record. The question of retrospective operation of
G PASA is misconceived. (690-B) .
4.1. The expression 'forthwith' would mean 'as soon a~ 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
H
NA V ALSHANKAR ISHW ARLAL , .. STA TE OF GUJARAT 681
not be any indifference or callousness is consideration and disposal of the A
representation. It depends on the facts and circumstances of each case. (693·
E)
4.2. Any delay in consideration of the representation should be satisfac·
torily explained. Jfno satisfactory explanation has been given or found to be
wilful or wanton or supine indifferent, it would be in breach of the constitu- B
tional 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. Srate Qf\Vest Bengal, [1970) ~ SCR 225 at 232; Haradham
Saha & Anr. , .. 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 ''· The State of Gujarat & Ors., JT 1993 (1) SC 44,
c
referred to.
4.3. Though fhe representation was received by the State Govt. on D
Februar~· 20 1993, the State Govt decided to keep it pend:ng awaiting the
opinion of the Board an~ on receipt of the report on March 23, l993,
considered the case and the representation was rejected on the even date,
namely, March 23, 1993. (695-B)
E
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 F
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. (695-
00 . .
G
5.1. Section 2(h) defitled "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
·1ands or who constructs unauthorised structures thereon for sale or hire or
H
682 SUPREME COURT REPORTS (1993] 3 S.C.R.
A 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, compen·
sation or other charges by criminal intimidation or who evicts or attempts to
B 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. (687•
H,688-A-B)
C
5.2. A persons who illegally ~kes possession of any lands not belonging ·
to himself but belonging to Govt., local authority or under any other agree-
....
ment 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
D 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 ~r who abets in any
manner the doing of any of the above mentioned acts or things is a property
grabber. (688-C-D)
E
5.3. Sec. 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. (688-C)
--
F
6. Mutation of the names in the revenue record are not evidence of title
though may be relevant for other purposes. In respect of open land title
follows possession. (689-D)
G Ninnan Singh v. Rudra Pat rap Narain Singh, 53 I.A. 200 at 227; Nagesharbaksh
Singh v. Mt. Ganes ha, 47 I.A 57; Durga Prasad v. Ghansham Das, AIR 1948 PC
210; Ramana v. Sambamoorrhy, AIR 1961A.P.361; Mohinder Singh v. State of
Punjab and Ors., [1978] 1SCR177 and Vatticherukuru Village Panchayat and
Ors., v: Nori Venkatarama Deekshithula and Ors. [1991] 2 SCR 531, referred to.'
H
NA VALSHANKAR ISHWARLAL , .. STATE OF GUJARAT [K. RAMASWAMY.].] 683
CRIMINAL APPELLATB ruRISDICTION: Criminal Appeal Nos. 387- A
388of1993.
From the Judgment and Order dated 20.11.1992 of the Gujarat High Court
in Special Criminal Application Nos. 1647 and'l648of1992.
B
S. Ganesh, C.H. Patel, M.N. Shroff and Ms. Reema Bhandari for the
Appellants.
P.S. Poli.Ms. Meenakshi Arora and Anip Sachthey for the Responc)ents.
c
The Judgment of the Court was delivered by
K. RAMASWAMY,J. Since common questions oflaw arise from the same
facts, the appeals are disposed of by a common judgment.
D
In exercise of the powers under s.3(1) of Gujarat Prevention of An"ti-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 E
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 t:lken
according to law then there is great possibility of great blast and public order"l.s F
likely to adversely affected. For creating such situation your illegal activities are
solely liable ......... Therefore, to prevent the other proper,~s 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 perthe provisions
of the Gujarat Prevention of Anti-Social Activities Act, 1985 and an order has been I
passed therefor." With detailed reasons running into 31 pages, the detaining G .
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 Vor;i.'.
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
H
684 SUPREME COURT REPORTS [1993] 3 S.C.R.
A 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 hy 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
c
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 c9llusive 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. prop_erty
and orders were issued on December 14, 1987 cancelling the mutation and· also
D 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
e,..:ercising suo motu revisional power under ·Bombay Revenue Code by order
E dated December 14, 1987 concludc~~propen y belongs to the Govt. and was
confiscated to the State~11!i:::lPpe!lauls and P.M. Vora as partners of the dis sol vcd
partnership firm and in their individual capacity filed appeal before the Gujarat '
Revenue Tribunal on February 28, 1987, giving their address C/O Economic
traders, a firm of which Manu Bhai Vora and his brothers are partners. The
Tribunal by orders on January 30, 1988, while suspending~e implementation of
F 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
G
di verse persons. The statemen'ts 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 ~ade. While recording their statements and thereafter the purchasers became
panicky. The acts of petitioners created tension in the area. Eve~ on notices given
H
NA VALSHANKAR ISHWARLAL v. STA TEOF GUJARAT [K. RAMASWAMY,J.] 685
686 SUPREME COURT REPORTS [1993] 3 S.C.R.
A 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 Legisla-
ture entrusted the power to the State Govt. and ifneed 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.
B witho~t 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
c 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. Sub-
s. (4) of Sec.3 declares that a person shall bedeemed to be "acting in any manner
prejudici,al to the maintenance of public order'' when such person is engaged in or
D is making preparation for engaging in any ac~vities, whether as a bootleggor,
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 b~. deemed to have
been affected adversely or shall be deemed likely to be-affected adversely inter
a/ia if any of the activities by any person refe~d to in the sub-section (4) directly
E 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 ~ealth. 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 prej.udicial
to the maintenance of public order whether the person is engaged in or is making
preparation for engaging in any ac.tivities 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
arnong 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
G
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
H dangerous or anti social activities, the Govt. considered ifappropriate to delegate
i
NA VALSHANKAR ISHWARLAL v. STA TE OF GUJARA'f [K. RAMASW AMY,J.] 687
!
the power under sub-s. (2) of sec. 3 to the "authorised officer" and the Govt. has A
stated in the notification that "having regard to t~e 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 powerunder .
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 B
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 C
Dist. Officer on the spot and the Commissioner of Police in the cities have s_tatutory
duty to maintain
I
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 oflaying information with the Govt. on each occasion
and eagerly awaiting action at State Govt. level, the State Govt. having exercised D
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 t<?
detain any person involved in any of the dangerous or anti social activities
enumerated hereinbefore, prejudicially affecting or "likely to affect the mainte-
nance of public order". The later clause lay emphasis on immediacy and proptitude
and_the authorised officer on the spot is the best Judgt< to subjectively satisfy E
- himself from the facts and ground situation and take preventive measure to
niaintain public order. The reliance by Shri Ganesh on the decision of this Omrt
reported in AK. Roy v. Union of India & Anr. AIR 1982 SC 710, para 72 has no
application in view of the factual background in this Act. So long as the activities
of bootleggor, dangerous person, drug offender, immoral traffic offender and
property grabber persist within the local limits of the jurisdiction of the concerned F
Pist. 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 deiegation of the order does not G
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) 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 H
688 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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
B 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. Sec 2(i) 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
c the law for the time being in force in such area. Therefore, a persbn 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
D 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 withoutresorting to lawful procedure or who abets in any
manner the doing of any of the above (ll~ntioned acts or things is a property
E · 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 ~hortage of housing accommodation in major cities is being ex-
F - ploited_by certain musclemen of some means, often get from bootlegging, by
· taking ni_eg~ession of public or private lands and constructing or permitting
- ---"constructicn there~ii 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 s0-.eollecting the charge from the occupiers,
the musclemen resort to criminal intimid~ilo!J. The entire community living in the
G slums is under the grip of perpetual fear of such land grabbers. Such activities of
--
these persons adversely affect the public order". Therffore, taking illegal posses-
sion of public or private lands or unauthorised constructtQp or structures thereon
or dealing with those properties or threatening or criminal~midation of slum
dwellers cause or likely to disturb even public tempo disturbing'm!blic order. To
prevent dangerous per~on or persons indulging in anti social acti~il·:e land
H
NA VALSHANKAR ISHWARLAL v. STATE OF GUJARAT [K. RAMASWAMY.I.] 689
grabbing or dealing with such properties is a menace to even tempo and the A
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 ad-
versely 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 B
are owners of the lands and lawfully in possession and suo molll revisional order
passed by the Dist. Collector cancelling the mutation under Bombay Revenue
Court on December 14, 1987, was illegal ai:ld so it was suspended by the Gujarat
ReY"nue· Tribunlil on Jan~ary 30, 1988 which still subsists. Therefore, the
.. appellants cannot be said to be property grabbers of their own land. The Act cannot c
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 lfinnan Singh v. Rudra Patrab Narain Singh, 53 Indian Appeal
220 at 221f Nageshar Baksh Singh v. Mr. Ganesha, 47 Indian Appeals 57; Durga
..
Prasad v. 6/Jansham Das, AIR 1948 PC 210; Ramanna v. Sambamoorrhy AIR
1961 .\.P. 361 by A.P. High Court and by this Court in Mohinder Singh v. State D
ofPunjab and Ors., [ 1978) 1 SCR 177 and Vatticherukuru Village Panchayat and
Ors. v. Nori l'enkatarama Deekshitlmlu and Ors. [1991] 2 SCR 531 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
possessiJn. 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. E
lands by the petitioners' firm, a fictitious one and that the enquiry caused in that
behatf 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 the revisional power. The order
of the Gujarat Revenue Tribunal was to maintain status quo. The appellants,
F
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 by.
Collector and sale deeds would show that the appellants sold the lands individually
assuring clear title and non-encumbrance thereof; permitted many of the purchas-
ers to construct shops unauthorisedly. When questioned and opportunity was
given, the appellants did not make anv representation nor appeared before the Dist. G
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 thefr .
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 ~tioners
H
690 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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 beirig 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 t~e material
B on record. The question of retrospective operation of PASA is misconceived.
Therefore, it is difficult to agree ·with Sri Ganesh that the appellan,.; are not
property grabbers. 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
c 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 cir were likely to be affected adversely creating insecurit~ or feeling of
D 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.
E Though the detention orders were made on September 22, 1992 the appel-
lants and Prashant Manubhai Vora avoided execution thereof and till February 5,
1993 the detention orders remained unexecuted. Ma'riubhai Vor~ chose to remai~
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 Feli. 5, 1993 and so the detention order was
F
C:xecuted 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. You have also
right to make written representation to the Advisory Board. You may send your
iepresentation through the Jail Superintendent to the addresses given herein." The
appellants submitted their representations on Feb. 18, 1993 to the detaining
G· 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
H
NA VALSHANKAR ISHWARLAL v. STA1E OF GUJARA T[K. RAMASWAMY,].] 691
•
Govt. rejected the representation on March 23, 1993. It was despatched on March A
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 secon9 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 B
representation. Sri J.M. Parmar, Under Secretary, Home Department of Gujarat
stated in his Addi. 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".
c
Sub-section (3) of s.3 says that when any order of detention was made under
sub-s. (1) thereof by any authorised officer, he shall forthwith report the factto 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 D
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
Addi. affidavit filed by Sri J.M. Parmar, did not mention a~ 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 E
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 detentmn, within
12 days from the date of i;eceipt 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
F
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. Secijon 21 of the G
General Clause Act envisages that where, by any Gujarat Act, a power to issue
_J 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 constitutionlli
H
692 SUPREME COURT REPORTS [1993] 3 S.C.R.
A 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 earliestopportunity of making a representation against the
order. Section 11 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
B 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
c 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
D
There appears to be a seeming over-lap in consideration of t'1e repre~entation
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 orderof detention was made by the authorised officer, he shall report the saine
· E 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
F . 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 conCtition 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 ~oder s.3(3) (i). However, within three weeks from the date of detention
G 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. un'der sub-s. (3) of s.3 of PASA. The powerto 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
H
NA VALSHANKAR ISHWARLAL v. STf..TE OF GUJARAT [K. RAMASWAMY,J.] 693
execution of the detention order or approval by the State Govt. whichever is later. A
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 ~s 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 B
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 w_ould rim
counter to or in conflict Uiereof. The State Govt. has been expressly conferred with
c
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.
D
The word 'forthwith' has been interpreted by this court by plethora of
precedents ~d 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 expressio!-1 '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 -E
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
. circumstances of each case. Any- delay in consideration of the represen-
facts and . _
tation 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
F
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 Sukulv. 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 G
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-
H
'
694 SUPREME COURT REPORTS [1993] 3 S.C.R.
A tation. "I:he 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
B 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 Seate of West Bengal & Ors. [1975] 1 SCR 778,
if another constitution bench reiterated the same view holding that the presentation
c
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.
~n K.M. Abdulla Kunhi and B.L AbdulKhaderv. Union of India & Ors. [1991] 1
sec 476 reviewing the case law the constitution bench held that the representation
-
relates to the liberty of the individual;, it is enshrined under Art. 21; 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
D 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 witb 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
E mandate rendering the detention impermissible and illegal. Therein the represen-
tation was received by the ~ovt. 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
considered the representati0n on May 7, 1989 and rejected the same. This Court
held that there was a breach·. of constitutional mandate of Art. 22(5). In Moosa
F Husein Sanghar v. The State ofGujarat & Ors. JT (1993) l SC 44, the detention
order was served on the appellant on February 21, 1991. On March 22, 1991 the
declaration was made under s. 9 ofCOFEPOSA 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
G
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
H Govt. confirmed the order of detention and on the same day rejected the represerip
~ NAVALSHANKARISHWARLALv. STATEOFGUJARAT[K. RAMASWAMY,J.] 695
I
tation of the appellant. When ttie writ petition was filed the High Court dismissed A
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). Accord-
B
ingly 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 c
representation without being considered and disposed of expeditiously, awaiting
the decision of the Board till March 23, 1993 and consideration of the represen-
tation thereafter and rejection are illegal. In addition we hwe 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 D
of the detention order i.e. Feb. 5, 1993. On expiry of 12 days theorderof 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
E
in this judgment does not enure to Prashant Manubai Vora the absconding detenue.
The appeals are accordingly allowed.
V.P.R. Appeals allowed.
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