AJAY BAJAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this common judgment, we propose to dispose of all the three petitions, as the issues raised are overlapping. The same are filed under Article 226 of the Constitution of India for quashing of detention order passed against the concerned proposed detenues, before execution of the detention order qua them.

(2.) The question, as to whether writ petition before execution of the detention order is maintainable, is no more res integra. The leading judgment on the point is of a three-Judge Bench of the Apex Court in the case of Additional Secretary to the Government of India & Ors. v. Smt.Alka Subhash Gadia & Anr., 1992 SCC(Cri) 301 = 1992 Supp (1) SCC 496. The legal position expounded in the said decision has been consistently followed in several other reported judgments. In this decision, the Apex Court has observed that the Courts have the necessary power and they have used it in proper cases, although such cases have been few and the grounds on which the Courts have interfered with the detention order at the pre-execution stage are necessarily very limited in scope and number, viz., where the Courts are, prima facie, satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against the wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so.

(3.) The question, whether the abovenoted five grounds adumbrated by the Apex Court in Gadia's case are illustrative or exhaustive, has also been answered by the Apex Court. That aspect has been elaborately considered as a preliminary question in along with other companion matters. This judgment is reported in in the case of Manish Purshottam Atmaramani v. State of Maharashtra & Ors., 2009 4 MhLJ 647 The Division Bench, after analysing all the relevant judgments of the Apex Court on the point, including the decision in Deepak Bajaj v. State of Maharashtra, 2008 16 SCC 14, on which strong reliance was placed by the petitioners, has held that the settled legal position is that the grounds adumbrated by a three-Judge Bench of the Supreme Court in Gadia's case were exhaustive and not illustrative. Further, the Division Bench of this Court, while answering the said issue, has noted that this Court would be bound by the opinion of the three-Judge Bench of the Supreme Court, in particular the decisions referred to therein. It chose to follow those decisions and not the dictum in the case of Deepak Bajaj (supra) or, for that matter, Rajinder Arora v. Union of India, 2006 4 SCC 796, and Maqsood Yusuf Merchant v. Union of India, 2008 16 SCC 31; as these decisions were of two-Judge Bench of the Apex Court. The Division Bench has noted that, on more than one occasion, this specific argument, that the five grounds articulated in Gadia's case were illustrative or exhaustive, has been directly answered by the Apex Court. Thus, it followed that opinion, as it was binding on it. After recording the above opinion, the Division Bench then directed to place the respective writ petitions for further hearing on merits. Insofar as the is concerned, he has allowed the said decision to become final. In that view of the matter, the opinion so recorded would not only bind the petitioner in the said Writ Petition but even us.