Gujarat High Court
Bharatkumar Ishwarbhai Mali vs State Of Gujarat & on 17 May, 2013
Author: C.L.Soni
Bench: C.L. Soni
BHARATKUMAR ISHWARBHAI MALI....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/8846/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8846 of 2013 ================================================================ BHARATKUMAR ISHWARBHAI MALI....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR PRAKASH G PANDYA, ADVOCATE for the Petitioner(s) No. 1 MS MEGHA CHITALIA AGP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 17/05/2013 ORAL ORDER
The petitioner by this petition under Article 226 of the Constitution of India has made following prayers in para 10 of the petition:
(A) YOUR LORDSHIPS be pleased to admit and allow this Special Civil Application.
(B) YOUR LORDSHIPS be pleased to direct Respondent No. 2 to produce the order of detention, grounds of detention, along with all materials, passed against the present petitioner under PASA Act and after hearing the parties, by excising powers under Article 226 of Constitution of India, the said order of detention passed against the present petitioner be quashed and set aside at pre-execution stage, pre-detention stage as the order of detention against the present petitioner is nothing but abuse of process of law, without jurisdiction and against the settled principals of law laid down by this Hon'ble Court as well as the Hon'ble Supreme Court of India and is against the provisions of Gujarat Prevention of Anti Social Activities Act, 1985 (PASA).
(C) Pending admission, hearing and final disposal of this petition your Lordships may be pleased to direct Respondent no. 2 to produce, before this Hon'ble Court, the order of detention, grounds for detention, along with all materials, passed against the present petitioner within a period of 10 days.
(D) Pending hearing and final disposal of this petition, your Lordships may be pleased to direct Respondent No. 2 and 3 not to execute the order of detention passed against the present petitioner under PASA Act and not to detain the present petitioner in respect of the said/such order.
(E) YOUR LORDSHIPS be pleased to grant any other appropriate relief deemed just, fit and proper in the interest of justice.
Learned AGP Ms. Megha Chitaliya appearing for the respondent has placed on record copy of the order dated 8/5/2013 passed by District Magistrate, Vadodara under section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, PASA ). This order of detention is passed on the ground that the petitioner is Property Grabber .
From the grounds of detention, it appears that the Detaining Authority has considered the statement of one Ritaben Kiritgiri Goswami, her husband viz. Vikrambhai @ Kiritgiri Mangiri Goswami, Ashokbhai Dharamsinhbhai Bhalgamiya, and Kefalbhai Bhurekhan Pathan.
Ritaben in her statement has stated that she is the owner of land bearing survey nos. 831 and 832, which is given final plot no. 155 and converted into non agriculture land, that one person viz. Shri Janardan Dube has filed bogus suit in respect of her lands with the help of the petitioner, that she has lodged FIR against Shri Janardan Dube, the petitioner and one Mr. Bupendrabhai Mali, which came to be registered as CR 34/2013 on 29/1/2013, that said Janardan Dube is threatening her by coming at her office situated on the said land, that non agriculture land of Gorwa is legally purchased by her.
Vikrambhai the husband of Ritaben has stated in his statement that he is in the business of construction and is partner of Laxmi enterprise having its office in S. No 831. Mr. Janardan Dube, the petitioner and Bhupendra Ishwar have been visiting his office for last one year. They have been threatening and blackmailing him and filing false suits and harassing him.
The 3rd person viz. Kefalbhai Bhurekhan Pathan has stated in his statement that forefathers of the petitioner though sold away their lands, the petitioner and Janardan Dube have been trying to snatch away the said lands by threating and by filing false cases. He has further stated that such antisocial elements like Janardan Dube and the petitioner have been acting high handedly with a view to snatch away the lands and therefore strict action against such person is required to be taken.
The 4th person viz. Ashokbhai Dharamsinhbhai Bhalgamia has stated in his statement that he has been doing business of selling Cota Stone/ Marbel and his business place is in Chhani area, Vadodara. He has stated that said Janardan Dube and also the petitioner have been coming to his place and threating him to get the godown vacated. It is further stated by him that the said godown was taken by him at monthly rent of Rs. 1000/- by paying Rs. 10,00,000/- as deposit money. He has further stated that maternal aunt of the petitioner viz. Kamlaben also came on the godown and abused him and threatened him to involve him in police case. He has further stated that against said Kamlaben, there are 8 to 10 complaints pending in the Fatehganj Police Station, Vadodara.
The grounds of detention further records that Ritaben has also produced certain documents in respect of the land bearing survey nos. 945 and 946, which are restricted tenure land and such lands were sold by agreement dated 1/4/1990 to one Ibrahim Mohmed Shaikh on the stamp paper of Rs. 10/- for the amount of Rs. 12,500/-. It is further recorded that for selling this restricted tenure land, prior permission of the Government was not obtained. The petitioner and other persons sold 2700 Sq.ft of land from survey no. 946 on the stamp of Rs. 100/- for Rs. 6,00,000/- to Mr. Kehfulhashan Bhurekhan Pathan. FIR being CR No. 282/2012 is registered with Fatehganj Police Station, Vadodara. Mr. Janardan Dube and the petitioner were called to give their statements. The petitioner stated in his statement that the land bearing survey no. 945 and 946 are with them under tenancy law. He is in possession of his house on the land bearing survey no. 946. On the said land his hotel building was given on the rent at Rs. 8000/- per month. He has further stated that since last 2½ years he has been running this hotel and he has also got license from the Health Officer, Ward No. 7 Fateh Ganj, Vadodara on 22/2/2012.
The detaining authority then further recorded that restricted tenure land under Tenancy Act of S. No. 945 and 946 were sold by the petitioner and his family member without paying premium and without prior permission of Government. It is further stated that as per the present Jantri, the value of the land would come to Rs. 9,36,84,000/- and by not depositing 40% of the said amount, the petitioner has caused financial loss of Rs. 3,74,73,600/- to Government.
On the basis of what is stated above, the Detaining Authority has branded the petitioner as Property Grabber and passed order of detention against him. The said order has still not been executed against the petitioner.
Learned advocate for the petitioner Shri P.G.Pandya submitted that so far as the land bearing survey no. 86, 831 and 832 (final Plot No. 155) is concerned, the petitioner had tenancy rights in the said land and since the name of the petitioner was not entered into revenue record, the petitioner has initiated proceeding before the Competent Authority Deputy Collector against the original owners and said Ritaben, who claims to be the owner of the said land. The said appeal is pending. He submitted that the above appeal was filed on 29/11/2012 and thereafter Ritaben lodged FIR on 29/1/2013 being CR No. 34/2013, which is relied on by the Detaining Authority to pass order of detention against the petitioner as land grabber. He submitted that the petitioner has not snatched away the possession of the said land nor it is the case of Ritaben that the petitioner has unauthorizedly taken land from her. He further submitted that said FIR has been registered under sections 447, 431, 433, 323, 294, 506(2) and 114 of the I.P.Code alleging that the petitioner and other accused went to the office of Ritaben situated on the land and tried to stop the tractor and when her husband resisted, the accused started beating her husband. He submitted that from the contents of the FIR lodged by Ritaben, it is clear that the FIR is nothing but counter blast to the proceeding initiated by the petitioner before the Revenue Authority and it is not the case of Ritaben that the petitioner has snatched away the possession of the land. He submitted that so far as two other lands bearing survey nos. 945 and 946 are concerned, the petitioner and his other relatives possessed the said land under the Tenancy Law and even if the petitioner has committed breach of the condition of such restricted tenure lands then also the petitioner could not be branded as Property Grabber . He submitted that above said lands are of the petitioner and his family members. He submitted that even if the petitioner was alleged to have sold the part of the land without paying premium and without prior permission, it was open to the Government to proceed against the petitioner under the relevant laws but the petitioner could not have been branded as Property grabber . He, thus, submitted that since the petitioner does not fall within the definition of Property Grabber , the order of detention passed against him is illegal and if such order is permitted to be executed, the petitioner would be deprived of his liberty, and therefore, this Court may entertain the petition and grant interim relief, as prayed for, in the petition.
As against above arguments, learned AGP Ms. Megha Chitaliya submitted that the petitioner and Janardan Dube have been indulging into antisocial activities and their main purpose is to snatch away the lands of innocent persons. She submitted that against Mr. Janardan Dube, the order of detention is already passed and executed and presently he is in jail. She submitted that the petitioner is closely associated to said Mr. Janardan Dube and therefore, the order of detention against the petitioner may be permitted to be executed and thereafter this Court may examine the legality or otherwise of such detention order.
She further submitted that the case of the petitioner clearly falls within the definition of Property Grabber because on the basis of FIR lodged by Ritaben and on the basis of statements of two other persons, it clearly appears that though the petitioner was not owner of land bearing survey no. 831 and 832 he tried to snatch away the possession of the said land from Ritaben. She submitted that petitioner has also committed serious breach under the Tenancy Act by selling some portion of the land of S. No. 945 and 946 without permission of the Government and by not paying huge amount of premium. She, thus, submitted that there is no illegality in the order of detention passed against the petitioner and therefore, the petitioner is not entitled to any relief at pre-execution stage. She, thus, urged not to grant any interim relief in favour of the petitioner.
Having heard learned advocates for the parties and having perused the grounds of detention with documents in paper book, it appears that the petitioner has claimed some rights in the land bearing survey no. 831 and 832 and he has already initiated the proceeding before the Revenue Authorities against the original owners including Ritaben, who claims to be the owner of said two lands. The said proceedings are pending as on today. Ritaben filed FIR against the petitioner, Mr. Janardan Dube and other persons in the month of January. The complaint filed by the Ritaben does not reveal that the petitioner has forcibly acquired the possession of above said lands from Ritaben. The statement of other two persons also do not reveal that the petitioner has snatched away any of their properties. They just state that the petitioner and Mr. Janardan Dube are the headstrong persons. The another complaint being CR-282/2012 dtd 14/12/2012 under section 186, 294, 506 and 114 of I.P.Code against the petitioner and said Mr. Janardan Dube by one Fatabhai Punabhai Baria alleges that he has been serving as officer in Ward No. 7 Fatehganj, Vadodara, and the petitioner and Mr. Janardan Dube had come in the office and started taking quarrels with Recovery Clerk in respect of payment of taxes and thereafter, they also entered into chamber of the Revenue Officer and then, also they started taking quarrels with him, threatened the officer on the issue of non- payment of taxes. The complainant has, thus, alleged that the petitioner and Mr. Janardan attempted to interfere with their official duties.
From the above, it prima facie appears that there is no material before the Detaining Authority to reach to the satisfaction that the petitioner is property grabber.
Section 2 h of the PASA defines Property Grabber as under:
Property Grabber means a person who illegally takes possession of any lands not belonging to himself but belonging to Government, local authority or any other agreements in respect of such lands or who constructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental or leave and license basis for construction or use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession or such lands or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupiers of such lands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things;
Considering the grounds of detention against the petitioner, the petitioner does not fall within the definition of Property Grabber .
In case of Deepak Bajaj Vs. State of Maharashtra reported in 2008 (16) SCC 14, Honourable Supreme Court has held and observed in para 15 as under:
15. If a person against whom a preventive detention order has been passed comes to court at the pre-execution stage and satisfies the court that the detention order is clearly illegal, there is no reason why the court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be lightly transgressed.
Hence, in our opinion, Alka Subhash Gadia case cannot be constructed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhastive.
In case of Subhash Popatlal Dave Vs. Union of India and Another reported in 2012 (7) SCC 533, Honourable Supreme Court has observed in para 44, 45, 49 and 50 as under:
44. Consequently, in spite of upholding the jurisdiction of the Court to interfere with such orders even at the pre-execution stage, Their Lordships went on to observe as follows: (Alka Subhash Gadia case, SCC p. 521, para 30)
30. ...
The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them 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 a 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. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenue, but prevents their abuse and the perversion of the law in question.
45. Nowhere in Alka Subhash Gadia case has it been indicated that challenge to the detention order at the pre-execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By perfecting the five exceptions in which the courts could interfere with an order of detention at the pre-execution stage, with the expression viz . Their Lordships possibly never intended that the said five examples were to be exclusive (sic exhaustive). In common usage or parlance the expression viz . means in other words . There is no aura of finality attached to the said expression. The use of expression suggests that the five examples were intended to be exemplars and not exclusive (sic exhaustive). On the other hand, the Hon'ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power.
49. The law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any offence, but to prevent him from committing such offence. As we have often repeated, the most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land.
50. In light of the above, let the various special leave petitions and the writ petitions be listed for final hearing and disposal on 7/8/2012 at 3.00 p.m. This Bench be reconstituted on the said date, for the aforesaid purpose.
In light of above, I find that while admitting the petition, the petitioner deserves to be protected.
Hence, following order:
Rule returnable on 26th June, 2013. In the meantime, by way of ad interim relief, respondents are directed not to implement, execute and operate the order of detention dated 8/5/2013 passed by District Magistrate, Vadodara against the petitioner, which is produced on record of this case. Direct service is permitted.
(C.L.SONI, J.) *asma Page 14 of 14