MUKESHBHAI VERSIBHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India, the petitioner seeks writ of mandamus of this Court to hold and declare that the respondents have no power, authority or competence to pass an order of preventive detention against the petitioner, in view of the facts set out in the memo of petition.

(2.) The petitioner, though seeks declaration that the respondents have no power, authority or competence to pass an order of preventive detention against him, has not placed order of detention on record of this case. Still however, in paragraph-3 of the petition, it is stated that the petitioner begs to challenge legality, validity and propriety of action of the respondent No.2 of issuing order of preventive detention of the petitioner purported to have been recorded in exercise of powers under Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act") on the premise that the preventive detention of the petitioner is essential, since activities of the petitioner are such that it is prejudicial to the maintenance of the public order. The prayer and averments made in the petition primarily appear to be incongruous. The averments reflect that such an order of preventive detention is passed against the petitioner without producing the same before the Court. Whereas, prayer made in the petition seeks declaration that the respondents - authorities have no power, authority or competence to pass an order of preventive detention. In short, the petitioner is not sure about passing of the order of preventive detention and he seeks to challenge the same before it is executed upon him.

(3.) Mr. B. M. Mangukiya, learned advocate for the petitioner, vehemently submitted that the cases filed against him pertain to private disputes where Civil Suits are pending and the petitioner has been released on bail in those cases. It is further submitted that the petitioner had preferred Special Civil Application No.8568 of 2015, which also came to be disposed of as having become infructuous on a statement made by the learned AGP that there is no proposal pending against the petitioner to preventively detain him. It is further submitted that the petitioner had also preferred similar petition being Special Civil Application No.16706 of 2016 apprehending his preventive detention order wherein, on a communication addressed to the Office of Government Pleader that neither any proposal is received nor any detention order is passed against the petitioner, the said petition came to be withdrawn on 14.11.2016. It is further submitted that similarly in the year 2018, a petition being Special Civil Application No.89 of 2018 came to be filed again apprehending his preventive detention order where also there was a communication from the concerned Police Station, four in number, suggesting that in four different Police Stations of Ahmedabad City as also Ahmedabad Rural, there is no proposal to preventively detain him. Hence, again the said petition came to be withdrawn on 24.1.2018. Mr. B. M. Mangukiya, learned advocate further submitted that everyday police is visiting the house of the petitioner and therefore, there is an apprehension that he may be preventively detained. Thus, it is submitted that apprehension being genuine, this petition filed at pre-execution stage be entertained.