NAVALSHANKAR ISHWARLAL DAVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Since common questions of law arise from the same facts, the appeals are disposed of by a common judgment.

(2.) In exercise of the powers under S. 3(1) of Gujarat Prevention of Anti-social Activities Act, 16 of 1985, for short PASA and the notification of the Govt. of Gujarat under S. 3(2) dated May 20, 1985, the District Magistrate, Rajkot by his proceedings dated September 22, 1992 ordered detention of the appellants on his finding that "from the evidence produced before me I am satisfied as per the definition of property grabber under S. 2(h) of the PASA and considering the seriousness of your activities under S. 2(I) 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 case 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 be 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 garbbed in future and for the exigencies which have arisen, it is necessary to detain you as per the provisions of the Gujarat Prevention of Antisocial 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. 7 of Rajkot originally belongs to the former State. It was purchased by one Gopalji D. Doshi from the former ruler for residential purpose. But within the prescribed time, as per the then existing rules, no construction was made. Consequently the State had confiscated the said property in Order No. 8336 of S. Y. 1995 i.e. 1938-39. Naginadas Laxmichand Doshi and Manu Bhai Vora in collusion with City Survey Superintendent created forged documents mutating the aforesaid lands by the order of the City Survey Superintendent, dated April 28, 1968 in the name of Jayaprabha Traders. On May 6, 1969 the above partnership was created and was got registered on October 22, 1969. The appellants and Prashant M. Vora were partners therein. Manubhai Vora is the man behind the scheme. The partnership was dissolved on February 28, 1974. Yet in the name of the partnership the Govt. lands are being grabbed. The department came to know the collusive acts for the first time on August 26, 1986 and necessary particulars were collected to find whether it is a Govt. property or belongs to the aforesaid persons. The record disclosed that it is the Govt. property and orders were issued on December 14, 1987 cancelling the mutation and also confiscated the property to the Govt. After becoming aware of the activities Munabhai Vora and Naginadas Laxmichand Joshi were detained. The appellants and Prashant M. Vora, though were given show cause notice (sic) him for hearing, neither they availed of it nor produced any evidence in support of their claim. After considering the material the Collector exercising suo motu revisional power under Bombay Revenue Code by order dated December 14, 1987 concluded that the property belongs to the Govt. and was confiscated to the State. The appellants and P.M. Vora as partners of the dissolved partnership firm and in their individual capacity filed appeal before the Gujarat Revenue Tribunal on February 28, 1987, 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 the implementation of the Collector's order directed that "till final disposal of this appeal status quo in respect of the lands to be maintained." Yet the appellants and P. M. Vora sold the lands to several persons in their individual capacity. The resident Dy. Collector, Rajkot made an enquiry on June 29, 1992 and recorded the statements of the purchasers which discloses that instead of maintaining status quo, the appellants individually sold away the entire 4,800 sq. yards except 500 to 600 sq. yards to diverse persons. The statements of purchasers show that the appellants assured them clear and marketable title to the lands without any encumbrance and collected about Rs. 15/- lacs from the purchasers and unauthorised constructions were made. While recording 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 their 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 obtained injunction against the Dist. Collector. From those facts the detaining authority concluded that "you are not possessing any proof of your ownership in respect of the disputed land. Still, however, you have sold the disputed land and you have remained active in such scandals. You have cheated the buyers of the plots and in such conspiracy you have created baseless evidence whereby more and more people would be cheated. You have given false assurance to the people regarding clear title of the plots. Thus the people have purchased lands for construction. The poor people have purchased the shops by spending their hard earned money and have purchased shops by making debts. You have played game with the lives of poor people and taking advantage of their ignorance, and on coming to know that they have been cheated, they feel disappointed and disheartened and the atmosphere of grief has spread all over the said area and they made oral representations and requests to punish the responsible Persons...." The detaining authority also referred, wherever necessary to the documentary evidence in that behalf. On subjective satisfaction from those facts the detention order came to be made. The appellants approached the Gujarat High Court in pre-detention execution stage and High Court upheld the validity of delegation order and the Act in its judgment dated 20th November, 1992; dealt with the scope of pre-detention order and dismissed the writ petitions. When special leave petitions came up for admission by order dated Feb. 1, 1993 this Court directed to list the cases after the proof of surrender was filed. The appellants Naval shanker Ishwarlal Dave and Shantilal Prabhudas Dhruv after surrendering before the authorities produced its proof. Prasant Manubhai Vora, son of Manubhai Vora did not surrender. By order dated July 22, 1993 the Special Leave Petition (Cri.) No. 110 of 1993 of Prashant Manubhai Vora was dismissed and the appellant's petitions were taken up for admission. The State filed its counter and an additional affidavit and we have heard the learned counsel on either side at length.

(3.) Section 3(2) of PASA empowers the State Govt. that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate and the Commissioners of Police, by an order in writing direct that District Magistrate, the Commissioner of Police, may also, if satisfied the existence of conditions envisaged in sub-sec. (1) of S. 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 sequator 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 or authorise an officer under S. 3(2) to detain bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber. The PASA was made to provide for preventive detention of aforestated persons whose activities were satisfied to be prejudicial to the maintenance of public order. Sub-section (4) of S. 3 declares that a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Explanation thereto postulates that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities by any person referred to in the sub-section (4) directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Therefore, the Act postulates satisfaction on the part of the State Govt. that the dangerous and antisocial activities of any of the aforestated persons shall be deemed to be acting prejudicial to the maintenance of public order whether the person is engaged in or is making preparation for engaging in any activities enumerated in the definition clauses and the public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if the activities directly or indirectly, causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. In the counter affidavit filed on behalf of the State in the High Court and consideration thereof the High Court held that "the situation was found prevailing in the State in the year 1985 where the impact of the activities of various persons mentioned in the preamble with reference to their respective activities has heightened from being anti-social and dangerous activities to be prejudicial to the maintenance of public order." It is, with a view, to curb those dangerous or anti-social activities, the Govt. considered it appropriate to delegate the power under sub-sec. (2) of S. 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-sec. (2) of S. 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-see. (1) of S. 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 District Magistrate concerned, being the highest Dist. Officer on the spot and the Commissioner of Police in the cities have statutory duty to maintain public order. Therefore, with a view to have then effectively dealt with, to move swiftly where public order is affected or apprehended and to take action expeditiously instead of laying information with the Govt. on each occasion and eagerly awaiting action at State Govt. level, the State Govt. having exercised the power under S. 3(2) conferred on the District Magistrate or the Commissioner the power to order detention under S. 3(1) when he considers or deems necessary to detain any person involved in any of the dangerous or anti-social activities enumerated herein before, prejudicially affecting or "likely to affect the maintenance of public order." The later clause lay emphasis on immediacy and promptitude and the authorised officer on the spot is the best Judge to subjectively satisfy from the facts and ground situation and take preventive measure to maintain public order. The reliance by Shri Ganesh on the decision of this Court reported in A. K. Roy v. Union of India, AIR 1982 SC 710, para 72 has no application in view of the factual background in this Act. So long as the activities of bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber persist within the local limits of the jurisdiction of the concerned District Magistrate and Commissioners of Police, as the case may be, and being directly responsible to maintain public order and to deal with depraved person to prevent anti-social and dangerous activities which affects adversely or are likely to affect adversely the maintenance of public order, the necessity would exist. Therefore, the question of periodical review of delegation order does not appear to be warranted. Accordingly, we have no hesitation to reject the contention that the delegation to the authorised officer is illegal or invalid.