# if NA V ALSHANKAR ISHWARLAL DA VE AND ANR v. STATE OF GUJARAT AND ORS

- **Citation:** [1993] 3 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 1993-05-12
- **Bench:** K. Ramaswamy Ands. Mohan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/if-na-v-alshankar-ishwarlal-da-ve-and-anr-v-state-of-gujarat-and-ors-11810
- **Pages:** 20

## Headnote

Constitution of India, 1950-lth Schedule, list Ill-Entry 3-Gujarat
Prevention of Anti-Social Activities Act. 1985-Legislative validity and imention
of
Gujarat prevention of Anti-Social Activities Act, 1985: Section 3-Power
of detention-Delegation-Legality of-Illegal possession of public or private
lands-Whether disturbs public order . .
Gi1jarat Prevention of Anti-Social Activities Act. 1985-Section 3-Indulgence of-detenues in property grabbing-Subjective satisfaction of District
D
Magistrate that such acts of detenues affecting maintenance of public
·order-Detention order-\/alidit)' of
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F
G
H
Gujarat prevention of Anti .J. Social Activities Act, 1985-Sections 3, 11, I 5
read with Section 21, General Clauses Act and article 22 (5) of the Constitution
of India-Detention order.b)• authorised officer-Approval by Board and State
Government-Procedure.:__Norapproved within 12 da)'s-Ejfec1-Power to revoke or rescind by detaining authority and State Government-Scope of
Constitution of India, 1950-Articles 21,22 read with section 3, Gujarat
prevention of Anti-Social Activities Act, 1985-Representation of
detenue-Consideration
by
State
Government-Delay-Effect-
"Forthwith"-Meaning of
Gujarat Prevention of Anti+Social Activities Act, I985-Sections 2(h), 2
(i)--"Property grabber", "tinauiliorised structure"-Meaning of
Words and Phrases-"Property grabber", "unauthorised structure",
"forthwith" -Meanir,lg of
Mutation-Revenue
Recoril-Names
recorded-Evidentiary
value-Whetlter evidence to title-Title whether follows possession.
Evidence Act, 1872-Sections 3, ·6 J-Appreciation of evidence- Mutation
.676
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NAVALSHANKAR ISHWARLAL v. ~TAIBOFGUJARAT
677
of names in.Revenue Record-Whether evidence to title-Title whether follows
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possession.
The detention of the appellants were ordered by the Magistrate on his
satisfaction in exercise of the powers under Section 3(1)°and (2) of the Gujarat ·
Prevention of Anti-Social Activities Act, 1985.
When the appellants challenged the detention order and the Act before
the High Court filing the writ petitions in pre-detention execution stage, the
High Court dismissed the writ petitions and upheld the validity of the
detention order and the Act.
The appellants filed SLPS against the High Court judgment.
This Court, when the SLPS came up for admission, directed to list the
cases after the proof of surrender of the detenues-petitioners was filed. The
appellants produced the proof of surrender. As one Prasant, petitioner in SLP
B
c
(Crl) No. 110of1993 did not file the proof, his SLP was dismissed.
D
The appellants contended that the.blanket power of delegation ~y the
State Government under section 3 of PASA was a negation of satisfaction on
the part of the State Govt. and likely to be abused by the District Magistrate
or the Commissioner of Police; that the order of delegation made by the State
Govt. without application of mind was illegal and invalid; that the appellants
could not be said to be property grabbers of their own land, because they, as
partners of Jaya Prabha Traders, whose name was mutated in the revenue
records since 26.4.1969, were pwners of the land and lawfully in possession,
when suo motU revisional order illegally passed by the District Collector was
suspended by the Revenue Tribunal; that PASA could not be made applicable
retrospectively from 1969 and that the exercise of the power under section
3(2) by the District Magistrate was illegal.
Allowing the appeals of the detenues,this Court,
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HELD: 1.1.GujaratPreventiono~Anti-SocialActivities,Act,1985was G
made in exercise of tlie power under entry 3 of concurrent list III of 7th
Schedule and reserved for consideration of the President and received his
assent. So it is a valid law. (686-B)
1.2. It envisages that theState Govt. under s. 3 (1) would exercise the H
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SUPREME COURT REPORTS
[1993] 3 S.C.R.
power of detention or authorise an officer under s. 3(2) to detain bootlegger,
dangerous person, drug offender, immora

## Text

_Characters 0–39,989 of 53,341. This is a partial read: ask again with offset=39989 for what follows._

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NA V ALSHANKAR ISHWARLAL DA VE AND ANR.
v.
STATE OF GUJARAT AND ORS.
MAY 12, 1993
[K. RAMASWAMY ANDS. MOHAN,JJ.]
Constitution of India, 1950-lth Schedule, list Ill-Entry 3-Gujarat
Prevention of Anti-Social Activities Act. 1985-Legislative validity and imention
of
Gujarat prevention of Anti-Social Activities Act, 1985: Section 3-Power
of detention-Delegation-Legality of-Illegal possession of public or private
lands-Whether disturbs public order . .
Gi1jarat Prevention of Anti-Social Activities Act. 1985-Section 3-Indulgence of-detenues in property grabbing-Subjective satisfaction of District
D
Magistrate that such acts of detenues affecting maintenance of public
·order-Detention order-\/alidit)' of
E
F
G
H
Gujarat prevention of Anti .J. Social Activities Act, 1985-Sections 3, 11, I 5
read with Section 21, General Clauses Act and article 22 (5) of the Constitution
of India-Detention order.b)• authorised officer-Approval by Board and State
Government-Procedure.:__Norapproved within 12 da)'s-Ejfec1-Power to revoke or rescind by detaining authority and State Government-Scope of
Constitution of India, 1950-Articles 21,22 read with section 3, Gujarat
prevention of Anti-Social Activities Act, 1985-Representation of
detenue-Consideration
by
State
Government-Delay-Effect-
"Forthwith"-Meaning of
Gujarat Prevention of Anti+Social Activities Act, I985-Sections 2(h), 2
(i)--"Property grabber", "tinauiliorised structure"-Meaning of
Words and Phrases-"Property grabber", "unauthorised structure",
"forthwith" -Meanir,lg of
Mutation-Revenue
Recoril-Names
recorded-Evidentiary
value-Whetlter evidence to title-Title whether follows possession.
Evidence Act, 1872-Sections 3, ·6 J-Appreciation of evidence- Mutation
.676
•
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NAVALSHANKAR ISHWARLAL v. ~TAIBOFGUJARAT
677
of names in.Revenue Record-Whether evidence to title-Title whether follows
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.
.
possession.
The detention of the appellants were ordered by the Magistrate on his
satisfaction in exercise of the powers under Section 3(1)°and (2) of the Gujarat ·
Prevention of Anti-Social Activities Act, 1985.
When the appellants challenged the detention order and the Act before
the High Court filing the writ petitions in pre-detention execution stage, the
High Court dismissed the writ petitions and upheld the validity of the
detention order and the Act.
The appellants filed SLPS against the High Court judgment.
This Court, when the SLPS came up for admission, directed to list the
cases after the proof of surrender of the detenues-petitioners was filed. The
appellants produced the proof of surrender. As one Prasant, petitioner in SLP
B
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(Crl) No. 110of1993 did not file the proof, his SLP was dismissed.
D
The appellants contended that the.blanket power of delegation ~y the
State Government under section 3 of PASA was a negation of satisfaction on
the part of the State Govt. and likely to be abused by the District Magistrate
or the Commissioner of Police; that the order of delegation made by the State
Govt. without application of mind was illegal and invalid; that the appellants
could not be said to be property grabbers of their own land, because they, as
partners of Jaya Prabha Traders, whose name was mutated in the revenue
records since 26.4.1969, were pwners of the land and lawfully in possession,
when suo motU revisional order illegally passed by the District Collector was
suspended by the Revenue Tribunal; that PASA could not be made applicable
retrospectively from 1969 and that the exercise of the power under section
3(2) by the District Magistrate was illegal.
Allowing the appeals of the detenues,this Court,
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HELD: 1.1.GujaratPreventiono~Anti-SocialActivities,Act,1985was G
made in exercise of tlie power under entry 3 of concurrent list III of 7th
Schedule and reserved for consideration of the President and received his
assent. So it is a valid law. (686-B)
1.2. It envisages that theState Govt. under s. 3 (1) would exercise the H
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678
SUPREME COURT REPORTS
[1993] 3 S.C.R.
power of detention or authorise an officer under s. 3(2) to detain bootlegger,
dangerous person, drug offender, immoral traffic offender and property
grabber. The PASA was made to provide for preventive detention of aforestated
persons whose activities were satisfled to be prejudicial to the maintenance of
public order. (686-C)
1.3. The Act postulates satisfaction on the part of the State Govt. thatthe
dangerous and anti social activities of any of the aforestated persons shall be
deemed to be acting prejudicial to the maintenance of public order whether
the person is engaged in or is making prep1;tration for engaging in any
activities enumerated in the definition clauses and the public order shall be
,Jeemed to have been affec~d adversely or shall be deemed likely to be
affected adversely ifthe activities directly or indirectly, causing or is likely to
cause any harm, danger or alarm or feeling of insecurity among the general
public or any section thereof or a grave or widespread danger to life, property
or public health. (686-F)
1.4. Taking illegal posSession of public or private lands or u~authorised
construction or structures thereon or dealing with those pr•Jposition or
threatening or criminal intimidation of slum dwellers cause or likely to
diSturb even public tempo disturbing public order. To prevent dangerous
person or persons indulging in anti social activities like land grabbing or
dealing with such properties is a menage to even tempo and the legislature
intended to provide remedy by detention, be it by the State Govt. or the
authorised officer on subjective satisfaction that such activity or _activities
adversely affect or likely to adversely affect public order. (688-H, 689-A)
· · 1.S. With a view to have then effectively dealt with, to move swiftly where
public order is affected or apprehended and to take action expeditiously
instead of laying information with the Govt. on each occasion and eagerly
awaiting action at State Govt. level, tlie State Govt. having exercised the
power under s. 3 (2)( conferred on the lJistt. Magistrate or the Commissioner
the power to order detention under s. 3(1) when he considers or deems
necessary to detain ~my person involved in any of the dangerous or anti social
activities prejudicially affecting or ''likely to.affect the maintenance ofpublic
order". (687-D-E)
1.6. So long as tJi., activities of bootlegger, dangerous person, drug
offender, immoral tr.affic offender and pr6perty grabber persist within the
H . local limits of the jJ.irisdiction of the concernedDistt. Magistrate and Con_unis-
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NA VALSHANKAR ISHW ARLAL v. STA TE OF GUJARAT
.fJ79
sioners of Police, as the case may be and being directly responsible to maintain
public order and to deal with depraved person to prevent anti social and
dangerous activities which affects' adversely or ·are likely to affect adversely
the maintenance of public order, the necessity would exist. Therefore, the
question of periodical review of delegation of the order does not appear to be
warranted. The delegation to the authorised officer is legal or valid. (687-FG)
A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Para 72, distinguished.
2.l. If an order of detention was made by the authorised officer, he
should repon as early as possible from the date of the execution of the order
of detention to the Govt. and the order remains valid and in force for 12 days
from the date of execution. If the order is not approved by the State Govt.
within 12 days, the order of detention shall stand lapsed. For continuance
after 12 days approval is mandatory and remains in force till it is approved
by the Advisory Board. If the Board disapproves, the State Govt. shall release
the define forthw!th. It is a condition precedent. If the Board approved it then
the State Govt. shall confirm it. However, its operation is for one year from
the date of the execution under s. 3(3) (i). However, within three weeks from
the date of detention the State Govt. shall report to the Advisory Board and
within seven weeks from the date of detention the Board should give its
opinJon. (692-F-G)
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2.2. The detaining authority has no express power under PASA to
revoke the order of detention after the approval given by the State Govt.
under sub-s. (3) of s. 3 of PASA. The power to rescind the dete~tion order,
therefore, would be available to the authorised officer under s. 21 of the
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General Clauses Act only during its operation for 12 days from the date of
execution of the detention order or approval by the State Govt. whichever is
later. (692-H)
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2.3. The general power of revocation was· conferred only on the State
Govt., that too in writing for reasons to be recorded in that behalf. (693-H)
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2.4. The State Govt. alone, has power to revoke or rescind the order of
detention either on representation under Art. 22 (5) or under s.15 of PASA.
The representation should be disposed of accordingly. (693-B)
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SUPREME COURT REPORTS
(1993] 3. S.C.R.
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2.5. Once the order of detention was ·approved by the State G.ovt. within
the aforestated 12days period or confirmed by the Advisory Board within the
period of seven weeks the exercise of power by the authorised officer would
r.un counter to or in conflict thereof. The State Govt. has been expressly
conferred with powers under s. 15 to revoke, rescind or modify the order of
detention at any time during one year from the date of making the order of
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detention. (693-C)
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3.1. Mutation was got made fraudulently in collusion_ '"'.ith the City
Planning Superintendent. The same was cancelled by the District Collector
by exercising the revisional power. The order of the Gujarat Revenue
Tribunal was to maintain status quo. The appellants, instead of maintaining
status quo, alienated the major part of the land to various persons. (689-F)
3.2. From the definition of 'property grabber' and the reasons in the
impugned order it is clear that the appellants are property grabbers of the
government land and that they created sales in favour of third parties,
violating the. law and the order of status quo directed by the Gujarat Revenue
Tribunal which led to crl!ate or likely to.create disturbance to public order
disturbing the even tempo in the locality. Therefore, the Distt. Magistrate
subjectively satisfied ·that the.appellants indulged in property grabbing and
for the maintenance of public order the Distt. Magistrate was satisfied that the
activities of the appellants have affected adversely or dec;med .likely to be
affected adversely creating insecurity or feeling of insec~rity among the
general public of that area. Unless the appellants are detained, it is not
possible to maintain public order and tardy legal procedure does not aid to
maintain public order. Accordingly the Distt. Magistrate, exercised power of
detention under s.3(1) of PASA correctly, justifiably and legally. (690-C-D)
3.3. It being a case of subjective satisfaction, Supreme Court cannot
enter upon adjudicating the legality of that satisfaction when it is found that
the impugned order is based on sufficient material and the grounds are
definite and specific. The impugned order was made on detailed consideration of the material on record. The question of retrospective operation of
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PASA is misconceived. (690-B)
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4.1. The expression 'forthwith' would mean 'as soon a~ may be', that the
action should be performed by the authority with reasonable speed and
expedition with a sense of urgency without any unavoidable delay. No hard
and fast rule could be laid nor a particular period is prescribed. There should
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NA V ALSHANKAR ISHW ARLAL , .. STA TE OF GUJARAT
681
not be any indifference or callousness is consideration and disposal of the
representation. It depends on the facts and circumstances of each case. (693·
E)
4.2. Any delay in consideration of the representation should be satisfac·
torily explained. Jfno satisfactory explanation has been given or found to be
wilful or wanton or supine indifferent, it would be in breach of the constitutional mandate of Art. 22(5). The liberty of a person guaranteed under Art
21 of the constitution is a cherished right and it can be deprived only in
accordance with law. (693-F)
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Jayanarayan Sukul v. Srate Qf\Vest Bengal, [1970) ~ SCR 225 at 232; Haradham c
Saha & Anr. , .. The State of West Bengal & Ors., [1975) 1 SCR 778; K.M. Abdulla
Kunhi and B.L. Abdul Knader v. Union of India & Ors., [1991) 1 SCC 476 and
Moosa Husein Sanghar ''· The State of Gujarat & Ors., JT 1993 (1) SC 44,
referred to.
4.3. Though fhe representation was received by the State Govt. on
Februar~· 20 1993, the State Govt decided to keep it pend:ng awaiting the
opinion of the Board an~ on receipt of the report on March 23, l993,
considered the case and the representation was rejected on the even date,
namely, March 23, 1993. (695-B)
4.4. The action of the State Govt. in keeping the representation without
being considered and disposed of expeditiously, awaiting the decision of the
Board till March 23, 1993 and consideration of the representation thereafter
and rejection are illegal. (695-C)
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4.5. There is no material placed before the Court that the State Govt. has
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approved within 12 days after execution of the detention order i.e. Feb. 5,
1993. On expiry of 12 days the order of detention becomes nonest and the
subsequent confirmation by the Board or by the State Govt. does not below
life into the corpse. In either case the order of detention became illegal. (69500
.
.
5.1. Section 2(h) defitled "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
· 1ands or who constructs unauthorised structures thereon for sale or hire or
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682
SUPREME COURT REPORTS
(1993] 3 S.C.R.
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gives such lands to any person on rental or leave and licence basis for
construction or use and occupation of unauthorised structures or who
knowingly gives financial aid to any person for taking illegal possession of
such lands or for construction of unathorised structures thereon or who
collects or attempts to collect from any occupiers of such lands-rent, compen·
B
sation 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. (687 •
H,688-A-B)
5.2. A persons who illegally ~kes possession of any lands not belonging ·
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to himself but belonging to Govt., local authority or under any other agreement in respect of such lands or who constructs unauthorised structures
thereon or inter into agreement for sale or gives on hire or gives such lands .
or structures to any person on rental or leave or licence basis for construction
or for use and occupation of unauthorised structures or who knowingly gives
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financial aid to any person for taking illegal possession of 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 intimidations or who evicts or attempts to evict any such
occupier by force without resorting to lawful procedure ~r who abets in any
manner the doing of any of the above mentioned acts or things is a property
grabber. (688-C-D)
5.3. Sec. 2(i) defined "unauthorised structure" means any structure
constructed in any area without express permission in writing of the officer
or authority concerned under the enumerated provisions therein or except in
accordance with the law for the time being in force in such area. (688-C)
6. Mutation of the names in the revenue record are not evidence of title
though may be relevant for other purposes. In respect of open land title
follows possession. (689-D)
Ninnan Singh v. Rudra Pat rap Narain Singh, 53 I.A. 200 at 227; Nagesharbaksh
Singh v. Mt. Ganes ha, 47 I.A 57; Durga Prasad v. Ghansham Das, AIR 1948 PC
210; Ramana v. Sambamoorrhy, AIR 1961A.P.361; Mohinder Singh v. State of
Punjab and Ors., [1978] 1SCR177 and Vatticherukuru Village Panchayat and
Ors., v: Nori Venkatarama Deekshithula and Ors. [1991] 2 SCR 531, referred to.'
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NA V ALSHANKAR ISHW ARLAL , .. STA TE OF GUJARAT [K. RAMASWAMY.].] 683
CRIMINAL APPELLATB ruRISDICTION: Criminal Appeal Nos. 387A
388of1993.
From the Judgment and Order dated 20.11.1992 of the Gujarat High Court
in Special Criminal Application Nos. 1647 and'l648of1992.
S. Ganesh, C.H. Patel, M.N. Shroff and Ms. Reema Bhandari for the
Appellants.
P.S. Poli.Ms. Meenakshi Arora and Anip Sachthey for the Responc)ents.
The Judgment of the Court was delivered by
K. RAMASWAMY,J. Since common questions oflaw arise from the same
facts, the appeals are disposed of by a common judgment.
In exercise of the powers under s.3(1) of Gujarat Prevention of An"ti-Social
Activities Act, 16 of 1985, for short PASA and the notification of the Govt. of
Gujarat under s.3.(2) dated May 20, 1985, the District Magistrate, Rajkot by his
proceedings dated September 22, 1992 ordered detention of the appellants on his
finding that ''from the evidence produced before me I am satisfied as per the
definition of property grabber under s.2 (h) of the PASA and considering the
seriousness of your activities under s-2(1) for the unauthorised structures ..... .it
clearly appears that you are habitual to grab the Govt. land by creating false
partnership firm .... People are feeling insecurity of their properties. The situation
in this area is very tense and in such circumstance if any actions -are t:lken
according to law then there is great possibility of great blast and public order"l.s
likely to adversely affected. For creating such situation your illegal activities are
solely liable ......... Therefore, to prevent the other proper,~s being grabbed in
future.by you and also to prevent the Govt. lands being grabbed in future and for
the exigencies which have arisen, it is necessary to detain you as perthe provisions
of the Gujarat Prevention of Anti-Social Activities Act, 1985 and an order has been
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passed therefor." With detailed reasons running into 31 pages, the detaining G .
authority enumerated the circumstances under which the detention order came to /
be made. It was stated that the land measuring 58,880 sq. yards in Survey No. 5004/
belonging to the Govt. has been grabbed by Girdhar Joshi and Manu Bhai Vor;i.'.
Manu Bhai Vora created a false partnership firms by name "Jayaprabha Traders"
to which the appellants and Prashant Manubhai Vora (Manubhai Vora's son) are
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SUPREME COURT REPORTS
[1993] 3 S.C.R.
partners. The lands measuring 4,800 sq. yards in plot No. 4 known as 'Madir' of
Sheet No. 226 City Survey No. 3959 .in Ward No. 7 of Rajkot originally belongs
to the former state. It was purchased hy one Gopalji D. Doshi from the former ruler
for residential purpose. But within the prescribed time, as per the then existing
rules, no construction was made. Consequently the State had confiscated the said
property in order No. 8336 of S~Y. 1995 i.e. 1938-39. Naginadas Laxmichand
Doshi and Manu Bhai Vora in collusion with City Survey Superintendent created
forged documents mutating the aforesaid lands by the order of the City Survey
Superintendent, dated April 28, 1968 in the name of J ayaprabha Traders. On May
6, 1969 the above partnership was created and was got registered on October 22,
1969. The appellants and Prashant M. Vora were partners therein. Manubhai Vora
is the man behind the scheme. The partnership was dissolved on February 28,
1974. Yet in the name of the partnership the Govt. lands are being grabbed. The
department came to know the c9llusive acts for the first time on August 26, 1986
and necessary particulars were collected to find whether it is a Govt. property or
belongs to the aforesaid persons. The Record disclosed that it is the Govt. prop_erty
and orders were issued on December 14, 1987 cancelling the mutation and· also
confiscated the property to the Govt. After becoming aware of the activities
Manubhai Vora and Naginadas Laxmichand Joshi were detained. The appellants
and Prashant M. Vora, though were given show cause notice on August 28, 1986
to appear before him for hearing, neither they availed of it nor produced any
evidence in support of their claim. After considering the material.the Collector
e,..:ercising suo motu revisional power under ·Bombay Revenue Code by order
dated December 14, 1987 concludc~~propen y belongs to the Govt. and was
confiscated to the State~11!i:::lPpe!lauls and P .M. Vora as partners of the dis sol vcd
partnership firm and in their individual capacity filed appeal before the Gujarat
Revenue Tribunal on February 28, 1987, giving their address C/O Economic
traders, a firm of which Manu Bhai Vora and his brothers are partners. The
Tribunal by orders on January 30, 1988, while suspending~e implementation of
the Collector"s order directed that "till final disposal of this appeal status quo in
respect of the lands to be maintained". Yet the appellants and P .M. Vora sold the
lands to several persons in their individual capacity. The resident Dy. Collector,
Rajkot made an enquiry on June 29, 1992 and recorded the statements of the
purchasers which discloses that instead of maintaining status quo, the appellants
individually sold away the entire 4,800 sq. yards except 500 to 600 sq. yards to
di verse persons. The statemen'ts of purchasers show that the appellants assured
them .clear and marketable title to the lands without any encumbrance and
collected about Rs. 15 lacs from the purchasers and unauthorised constructions
were ~ade. While recording their statements and thereafter the purchasers became
panicky. The acts of petitioners created tension in the area. Eve~ on notices given
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NA VALSHANKAR ISHW ARLAL v. STA TEOF GUJARAT [K. RAMASWAMY,J.]
685
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SUPREME COURT REPORTS
[1993] 3 S.C.R.
Ganesh, the learned counsel for the appellants is that the blanket power of
delegation is a negation of satisfaction on the part of the State Govt. and likely to
be abused by the District Magistrate or the Commissioner of police. The Legislature entrusted the power to the State Govt. and ifneed be only selectively but not
blanket delegation is permissible. After the issue of the notification in 1985 no
review thereafter was done. The order of delegation made by the State Govt.
witho~t application of mind was. therefore, illegal and invalid and the sequitur
detention made became illegal. We find no force in the contention. PASA was
made in exercise of the power under entry 3 of concurrent list III of 7th Schedule
and reserved for consideration of the President and received his assent. So it is a
valid law. It envisages that the State Govt. under s. 3( 1) would exercise the power
of detention of authorise an officer under s. 3(2) to detain bootlegger, dangerous
person, drug offender, immoral traffic offender and property grabber. The P ASA
was made to provide for preventive detention of aforestated persons whose
activities were satisfied to be prejudicial to the maintenance of public order. Subs. (4) of Sec.3 declares that a person shall bedeemed to be "acting in any manner
prejudici,al to the maintenance of public order'' when such person is engaged in or
is making preparation for engaging in any ac~vities, whether as a bootleggor,
dangerous person, drug offender, immoral traffic offender and property grabber,
which affect adversely or are likely to affect adversely the maintenance of public
order. Explanation thereto postulates that public order shall b~. deemed to have
been affected adversely or shall be deemed likely to be-affected adversely inter
a/ia if any of the activities by any person refe~d to in the sub-section (4) directly
or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling
of insecurity among the general public or any action thereof or a grave or
widespread danger to life, property or public ~ealth. Therefore, the Act postulates
satisfaction on the part of the State Govt. that the dangerous and anti social
. activities of any of the aforestated persons shall be deemed to be acting prej.udicial
to the maintenance of public order whether the person is engaged in or is making
preparation for engaging in any ac.tivities enumerated in the definition clauses and
the public order shall be deemed to have been affected adversely or shall be
deemed likely to be affected adversely if the activities directly or indirectly,
causing or is likely to cause any harm, danger or alarm or feeling of insecurity
arnong the general public or any section thereof OF a grave or widespread danger
to life, property or public health. In the counter affidavit filed on behalf of the State
in the High Court and consideration thereof the High Court held that "the situation
was found prevailing in the State in the year 1985 where the impact of the activities
of various persons mentioned in the preamble with reference to their respective,
activities has heightened from being anti-social and dangerous activities to be
. prejudicial to the maintenance of public order''. It is, with a view; to curb those
dangerous or anti social activities, the Govt. considered ifappropriate to delegate
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NA VALSHANKAR ISHWARLAL v. STA TE OF GUJARA 'f [K. RAMASW AMY,J.] 687
!
the power under sub-s. (2) of sec. 3 to the "authorised officer" and the Govt. has
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stated in the notification that "having regard to t~e circumstances prevailing or
likely to prevail in any area within the local limits of the jurisdiction of each of the
District Magistrate specified in the schedule annexed thereto, the Govt. of Gujarat
is satisfied that it is necessary so to do" and accordingly exercised the powerunder
.
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sub-s.(2) of sec.3 and. directed the authorised officers i.e. the District Magistrate
of each District specified in the schedule and also the three Commissioners of B
Police in the respective Corporations to exercise within their local limits of
jurisdiction, the power conferred by sub-s. ( 1) of sec.3. It is seen that the dangerous
or anti social activities are legislatively recognised to be prejudicial to the
maintenance of public order. The enumerated activities hereinbefore referred to
are not isolated but being indulged in from time to time adversely affecting· the
public order and even tempo. The Dist. Magistrate concerned, being the highest
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Dist. Officer on the spot and the Commissioner of Police in the cities have s_tatutory
duty to maintain public order. Therefore, with a view to have then effectively dealt
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with, to move swiftly where public order is affected or apprehended and to take
action expeditiously instead oflaying information with the Govt. on each occasion
and eagerly awaiting action at State Govt. level, the State Govt. having exercised
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the power under s. 3 (2) conferred on the Dist. Magistrate or the Commissioner the
power to order detention under s.3(1) when he considers or deems necessary t<?
detain any person involved in any of the dangerous or anti social activities
enumerated hereinbefore, prejudicially affecting or "likely to affect the maintenance of public order". The later clause lay emphasis on immediacy and proptitude
and_the authorised officer on the spot is the best Judgt< to subjectively satisfy
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himself from the facts and ground situation and take preventive measure to
niaintain public order. The reliance by Shri Ganesh on the decision of this Omrt
reported in AK. Roy v. Union of India & Anr. AIR 1982 SC 710, para 72 has no
application in view of the factual background in this Act. So long as the activities
of bootleggor, dangerous person, drug offender, immoral traffic offender and
property grabber persist within the local limits of the jurisdiction of the concerned
Pist. Magistrate and Commissioners of Police, as the case may be, and being
directly responsible to maintain public order and to deal with depraved person to
prevent anti social and dangerous activities which affects adversely or are likely
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to affect adversely the maintenance of public order, the necessity would exist.
Therefore, the question of periodical review of deiegation of the order does not G
appear to be warranted. Accordingly, we have no hesitation to reject the contention
that the delegation to the authorised officer is illegal or invalid.
Section 2(h) defined "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 H
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SUPREME COURT REPORTS
[1993) 3 S.C.R.
unauthorised structures thereon for sale or hire or gives such lands to any person
on rental or leave and licence basis for construction or use and occupation of
unauthorised structures or who knowingly gives financial aid to any person for
taking illegal possession of such lands of for construction of unauthorised
structures thereon of 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. Sec 2(i) defined "unauthorised structure" means any structure constructed
in any area without express permission in writing of the officer of authority
concerned under the enumerated provisions therein or except in accordance with
the law for the time being in force in such area. Therefore, a persbn who illegally
takes possession of any lands not belonging to himself but belonging to Govt.,
local authority or under any other agreement in respect of such lands or who
constructs unauthorised structures thereon or enter into agreement for sale or gives
on hire or gives such lands or structures to any person on rental or leave or licence
basis for construction or for use and occupation of unauthorised structures or who
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knowingly gives financial aid to any person for taking illegal possession of 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 withoutresorting to lawful procedure or who abets in any
manner the doing of any of the above (ll~ntioned acts or things is a property
E · grabber. Para 4 of the statements and objects of the Act furnishes clue to make the
property grabbing or unauthorised construction or dealing therewith as prejudicial
to the maintenance of public order thus: . ·
"Acute ~hortage of housing accommodation in major cities is being exF - ploited_by certain musclemen of some means, often get from bootlegging, by
· taking ni_eg~ession of public or private lands and constructing or permitting
- ---"constructicn there~ii of unauthorised structure or selling, leasing or giving on
leave and licence such land or unauthorised structure after collecting heavy price,
rents, compensation and the like, in s0-.eollecting the charge from the occupiers,
the musclemen resort to criminal intimid~ilo!J. The entire community living in the
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slums is under the grip of perpetual fear of such land grabbers. Such activities of
these persons adversely affect the public order". Therffore, taking illegal possession of public or private lands or unauthorised constructtQp or structures thereon
or dealing with those properties or threatening or criminal~midation of slum
dwellers cause or likely to disturb even public tempo disturbing'm!blic order. To
prevent dangerous per~on or persons indulging in anti social acti~il·:e land
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NA VALSHANKAR ISHWARLAL v. STA TE OF GUJARAT [K. RAMASWAMY.I.]
689
grabbing or dealing with such properties is a menace to even tempo and the
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legislature intended to provide remedy by detention, be it by the State Govt. or the
authorised officer on subjective satisfaction that such activity or activities adversely affect or likely to adversely affect public order.
The contention of Shri Ganesh that the appellants as partners of Jaya Prabhu
Traders whose name was.mutated in the revenue records as early as April 26, 1969
are owners of the lands and lawfully in possession and suo molll revisional order
passed by the Dist. Collector cancelling the mutation under Bombay Revenue
Court on December 14, 1987, was illegal ai:ld so it was suspended by the Gujarat
ReY"nue· Tribunlil on Jan~ary 30, 1988 which still subsists. Therefore, the
appellants cannot be said to be property grabbers of their own land. The Act cannot
be made applicable retrospectively from 1969. The exercise of the power under
s.3(2) by the Dist. Magistrate, Rajkot is illegal. It is settled law as laid down by the
Privy Council in lfinnan Singh v. Rudra Patrab Narain Singh, 53 Indian Appeal
220 at 221f Nageshar Baksh Singh v. Mr. Ganesha, 47 Indian Appeals 57; Durga
Prasad v. 6/Jansham Das, AIR 1948 PC 210; Ramanna v. Sambamoorrhy AIR
1961 .\.P. 361 by A.P. High Court and by this Court in Mohinder Singh v. State
of Punjab and Ors., [ 1978) 1 SCR 177 and Vatticherukuru Village Panchayat and
Ors. v. Nori l'enkatarama Deekshitlmlu and Ors. [ 1991] 2 SCR 531 that mutation
of the names in the revenue record are not evidence of title though may be relevant
for other purposes. Equally it is settled law that in respect of open land title follows
possessiJn. The detaining authority stated in the impugned orders that for the first
time the: Dist. Collector, Rajkot became aware in 1987 of the grabbing of Govt.
lands by the petitioners' firm, a fictitious one and that the enquiry caused in that
behatf revealed that the land is in confirmed list of the government lands. Mutation
was got made fraudulently in collusion with the City planning Superintendent.
Accordingly the same was cancelled by exercising the revisional power. The order
of the Gujarat Revenue Tribunal was to maintain status quo. The appellants,
instead of maintaining status quo, alienated the major part of the land to various
persons who had averred in their statements recorded by- the Resident by.
Collector and sale deeds would show that the appellants sold the lands individually
assuring clear title and non-encumbrance thereof; permitted many of the purchasers to construct shops unauthorisedly. When questioned and opportunity was
given, the appellants did not make anv representation nor appeared before the Dist.
Collector, Instead they invoked the jurisdiction of the Civil Court for injunction.
The purchasers became panic when became aware that they have no title to thefr .
purchased lands and their construction are unauthorised. The Resident Dy.
Collector made elaborate enquiry and submitted the report., On consideration of
the record he was subjectively satisfied that the activities. of the ~tioners
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690
SUPREME COURT REPORTS
[1993) 3 S.C.R.
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constitute property grabbers and in its background the Dist. Magistrate satisfied
that their activities affected and likely to affect adversely public order and passed
the impugned order. Therefore, it beirig a case of subjective satisfaction, we cannot
enter upon adjudicating the legality of that satisfaction when we find that the
impugned order is based on sufficient material and the grounds are definite and
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specific. The impugned order was made on detailed consideration of t~e material
on record. The question of retrospective operation of PASA is misconceived.
Therefore, it is difficult to agree ·with Sri Ganesh that the appellan,.; are not
property grabbers. From the definition of property grabber and the reasons in the
impugned order it is clear that the appellants are property grabbers of the
government land and that they created sales in favour of third parties, violating the
law and the order of status quo directed by the Gujarat Revenue Tribunal which
led to create or was likely to create disturbance to public order disturbing the even
· tempo in the locality. Therefore, the Dist. Magistrate subjectively satisfied that the
appellants indulged in property grabbing and for the maintenance of public order
the Dist. Magistrate was satisfied that the activities of the appellants have affected
adversely cir were likely to be affected adversely creating insecurit~ or feeling of
insecurity among the general public of that area. Unless the appellants are
detained, it is not possible to maintain public order and tardy legal procedure does
not aid in maintaining public order. Accordingly the Dist. Magistrate, Rajkot
exercised power of detention under s.3(1) of PASA correctly, justifiably and
legally.
Though the detention orders were made on September 22, 1992 the appellants and Prashant Manubhai Vora avoided execution thereof and till February 5,
1993 the detention orders remained unexecuted. Ma'riubhai Vor~ chose to remai~
unsurrendered and obviously so far avoided execution of the orders. Therefore, we
are not called upon to consider the legality of the detention order passed against
him. The appellants surrendered on Feli. 5, 1993 and so the detention order was
C:xecuted on Feb. 5, 1993. The dention orders mention that "You have the right to
make representation to the detaining authority and also to the Govt. You have also
right to make written representation to the Advisory Board. You may send your
iepresentation through the Jail Superintendent to the addresses given herein." The
appellants submitted their representations on Feb. 18, 1993 to the detaining
authority, respondent No. 2, the State Govt., respondent No. 1, and the Advisory
Board through Jail authority. The State Govt. sent the representations to the
Advisory Board on Feb. 20, 1993. On March 10, 1993 the Advisory Board fixed
its meeting for consideration on March 22, 1993 and the Board confirmed the
detention order on March 22, 1993. The State Govt. awaited the opinion of the
Advisory Board and on its receipt on March 23, 1993 it was considered and the
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NA VALSHANKAR ISHWARLAL v. STA 1E OF GUJARA T[K. RAMASWAMY,].] 691
Govt. rejected the representation on March 23, 1993. It was despatched on March
29, 1993, It is stated in the written submission of the appellants that till April 29,
1993 the second appellant did not receive any reply from the State Govt. The first
appellant did not receive any reply till that date from the detaining authority though
the secon9 appellant received such a reply rejecting the representation of Feb. 22,
1993. The first appellant received the reply from the State Govt. On April 6, 1993
rejecting the representation after 47 days from the date of his submitting the
representation. Sri J.M. Parmar, Under Secretary, Home Department of Gujarat
stated in his Addi. Affidavit that a copy of the representation from the appellants
was received on Feb. 20, 1993 by which date, i.e. on Feb 18, 1993 the State Govt.
had already referred the case along with the relevant material to the Advisory
Board for review of the case. "The Department of Home decided to keep the
representation in abeyance awaiting the opinion of the Advisory Board".
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Sub-section (3) of s.3 says that when any order of detention was made under
sub-s. (1) thereof by any authorised officer, he shall forthwith report the factto the
State Govt. together with the grounds on which the order has been made and such
other particulars as in his opinion have a bearing on the matter and no such order
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shall remain in force for more than 12 days after making thereof, unless in the
meantime it has been approved by the State Govt. The detaining authority, the
second respondent, did not file any counter affidavit and the counter affidavit and
Addi. affidavit filed by Sri J.M.