SHIVAJI BAPU CHAVAN Vs. SHARWARI GOKHALE

JUDGEMENT

(1.) IN these and other companion writ petitions the validity of the Maharashtra Ordinance No. III of 1981 known as the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders Ordinance, 1981, hereinafter called as the Ordinance is challenged on various grounds.

(2.) SHRI Gumaste, learned Counsel appearing for the petitioner in Criminal Application No. 1254 of 1981 contended before us that the Ordinance is ultra vires of the powers of the State legislature, it being beyond legislative competence. He further contended that the Ordinance has been issued in colourable exercise of the powers and in substance amounts to a fraud on Constitution. According to the learned Counsel by enacting this Ordinance, the legislature wants to travel beyond the scope of the National Security Act and this Ordinance has been enacted with the sole intention to rope in the persons who cannot be detained under the said Act viz. National Security Act. The fiction incorporated in the explanation to Section 2 of the Ordinance travels beyond the scope of entry III of Schedule VII, viz. the concurrent list and by creating this artificial fiction the legislature wants to include in its import activities which have no nexus with the public order. Thus, it is contended by Shri Gumaste that by this explanation the scope of Section 2(a) of the Ordinance is being widened beyond the scope of entry III of Schedule VII. Be also contended that such an Ordinance could not have been issued by the Governor under the said entry. According to the learned Counsel from the statement of the aims and objects of the Ordinance and particularly part IV thereof it is quite clear that this Ordinance has been issued in colourable exercise of the powers to indirectly achieve the object which is directly forbidden by the National Security Act.

(3.) ON the other hand it is contended by Shri Sawant, learned Counsel appearing for the Advocate General that the Governor is competent to issue the said Ordinance under entry 3 of Schedule VII, List III, viz. the concurrent list. The ordinance only provides for detention of certain categories of persons and that too for the activities which adversely affect maintenance of public order and nothing more. This special law is limited to category of persons specified therein. He also contended that the legal fiction created in the explanation to Section 2 is a limited one and by the said deeming clause nothing is brought into the import of the legislation which is not otherwise affecting the maintenance of public order. According to Shri Sawant the explanation is incorporated by way of abundant caution and it does not travel beyond the scope of entry 3 of List III of Schedule VII. Shri Sawant also contended that by Section 9 of the Ordinance a specified class of persons for whom the present Ordinance is issued is treated equally and, therefore, it cannot be said that there is any hostile discrimination between the persons belonging to the same class.