BHIKHA PANCHA AHER Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) The present petition is filed by the petitioner challenging the order of detention dated 10.12.2001 passed by the District Magistrate, Jamnagar, Annexure 'A' to the petition. The order under challenge is passed by the District Magistrate with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order in exercise of powers conferred by subsection (1) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act"). The grounds of detention dated 10.12.2001 are produced at Annexure 'C' to the petition. The case of the petitioner is that he is falsely implicated in the offence by the Police. The petitioner has not committed any offence and hence there was no reason for passing the order of detention, more particularly on the basis of the complaints and statements against which the detenu could not make an effective representation whereby his right to make effective representation guaranteed under Article 22(5) of the Constitution of India is violated.

(2.) Mr.Patel, the learned advocate appearing for the petitioner submitted that the subjective satisfaction of the detaining authority is vitiated on the ground that the detaining authority has taken into consideration as is mentioned in ground no.4, a fact to the effect that the land in question was sold by the petitioners to one Shri Devshi Alabhai Poshtaria keeping back from him the fact that the petitioner has no legal right of ownership and by creating an impression that the land is of independent possession, occupation and ownership of the petitioner detenu and that he executed a Power of Attorney on stamp paper of Rs.70.00, dated 2.11.2001 for a huge consideration, giving rights including that of sale. The detaining authority has referred to pages 23 to 27. Mr.Patel submitted that there are other points on which the order of detention is vitiated but first he will like to demonstrate that subjective satisfaction recorded by the detaining authority is vitiated inasmuch as in the document referred to, i.e. Power of Attorney dated 2.11.2001, a copy of which is produced at pages 23 to 27 along with the grounds of detention, it is stated that the petitioner has executed Power of Attorney in favour of Shri Devshi Alabhai Poshtaria for giving powers mentioned therein. In para 2 of the Power of Attorney it is stated that this land is given to run a hotel, to manage and to effect sale and purchase for the purpose, for engaging persons, for employing servants and for doing all relevant activities to manage this deed executed. In para 4 it is mentioned that for the regularisation of the land of the hotel, to make payment of necessary consideration, fees, taxes, the power is given. In para 7, it is mentioned that power is given to make application or submit report to the Government, Semi-Government or local self Government institutions, to deposit the amount and to withdraw the same. The learned advocate submitted that a bare reading of Power of Attorney will show that the person in whose favour it is executed, namely, Shri Devsi Ala Aher was made aware of the nature of possession and occupation of the petitioner detenu. He submitted that his contentions are further substantiated from the document, which is titled as, "sale of construction". It is a document executed on a stamp paper of Rs.50.00, on 2.11.2001 at page 15 of the compilation. The Power of Attorney is also executed on the same day. In that document it is specifically mentioned that, "I, the person (seller) executing the deed, is giving this writing to the person who is getting that writing executed (purchaser) that the Govt. land admeasuring 1000 sq. meters, bearing Survey No.574 of Village Dhunvav, Taluka Jamnagar is having NA assessment of 0.4 paise wherein a hotel and restaurant in the name of 'Radhekrishna' is situated. Said hotel with a running business, with superstructure is sold to the purchaser for a sum of Rs.1,25,000.00. Mr.Patel submitted that as the said document is supplied by the detaining authority along with the grounds of detention at page 15 the detaining authority was very much aware that the petitioner did not misrepresent to said Shri Devshi Alabhai Poshtaria about the real facts of the land in question. In fact it was mentioned in the aforesaid document in so many words that the land in question admeasuring 1000 sq. meters is Government land bearing Survey No.574 having NA assessment of 0.4 paise. Despite the specific contents of the document, the detaining authority has recorded his satisfaction as mentioned in the grounds at serial no.4 that the land was sold to Shri Devshi Alabhai Poshtaria by keeping him ignorant about the rights of the petitioner on the land in question. (emphasis supplied)

(3.) Mr.Patel submitted that this is a case wherein the detaining authority for extraneous reasons has recorded his subjective satisfaction about the sufficiency of grounds for issuing the order of detention, hence subjective satisfaction of the authority is vitiated and the order of detention is required to be quashed and set aside and the petitioner is required to be set at liberty forthwith.