2006 Supreme(Guj) 221

Gujarat High Court
Judgename :K.M.MEHTA
RAJESH HIMATLAL SHETH - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 21775 Of 2005
Decided On : 03/27/2006

Headnote:Point in Issue :

       Detention order - Property grabber - Quashing of - Pre-execution stage - Sustainability - Finding of.

       Head Note :

       (a) Words and Phrases - Discretionary Power - When qualified by the word administrative - Meaning of - Indicated.

       Held :

       "Discretion in laymens language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. x x x x x x x x But the term "discretion" when qualified by the word "administrative" has somewhat different overtones. "Discretion" in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular. For Coke once said that discretion is a science or understanding to discern between falsity and truth, between right and wrong, and not to do according to will and private affection." [Para 34]

       Head Note :

       (b) Words and Phrases - Process of law - Abuse of - When amounts to - Stated.

       Held :

       "Certiorari will also lie to quash an action where the authority has jurisdiction but has abused it. An authority shall be deemed to have abused its jurisdiction when it exercises its power for an improper purpose or on extraneous considerations, or in bed faith, or leaves out a relevant consideration, or does not exercise the power by itself but at the instance and discretion of someone else." [Para 34]

       How the power is to be exercised and when it amounts to abuse of process of law.

       "The first requirement is the recognition that all power has legal limits. The next requirement, no less vital, is that the Courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the Courts refuse to countenance. They have woven a network of restrictive principles which require statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empower Act. They have also, as explained elsewhere, imposed stringent procedural requirements. Here we are concerned with the substance of administrative discretion." [Para 35]

       Head Note :

       (c) Gujarat Prevention of Anti Social Activities Act, 1985 (Guj. Act 16 of 1985) - Sections 3, 3(4) 2(h), 2(i) - Detention Order - Property grabber - Quashing of - Pre-execution stage - Sustainability - Finding of - Petitioner has made construction of shops in his own land after leaving marginal space between Nagarpalika road and the shops - There is no allegation of slightest encroachment on the public road or any other land - The petitioner has also produced documents right from 1990-1991 the map and the plan of shops before the City Survey Officer within the jurisdiction of Collector - The City Survey Officer took the measurements and gave separate city survey number to the shop and each shop keeper has been given separate sanad - Thus, it is within the knowledge of concerned authorities that shops are in existence since last 15 years - After the completion of the shops local taxes like cess, education tax, water tax and other taxes were assessed levied and collected by Patan Nagarpalika since last 15 years - It is on 01.06.2005 that notices have been issued to petitioner, his brother and his mother for breach of condition of NA permission for which petitioner has filed reply on 08.06.2005 - In the facts and circumstances merely on account of breach of NA permission even if accepted to be true, petitioner without any other activities cannot be held to be property grabber as alleged by the authority - There is no allegation against petitioner that he has taken illegal possession of public or private land by criminal intimidation or is indulging in any anti-social activities like land grabbing which is menace to even tempo of life - In view of this petitioner cannot be termed as property grabber as defined in the Act and no order of detention against him on that account be sustained - Government has statutory power to pass detention order but as it has been passed without statutory limit - The order is, therefore, liable to be quashed and set aside.

       Held :

       From the record it appears that the petitioner is the owner of the properties in Patan Town in Gungadipatti area bearing R.S. No. 69 and R.S. No. 70 which are adjacent to each other. The said lands were converted for non-agriculture after due process of law. The petitioner has obtained permission from the Collector, Patan also. [Para 30.1]

       Thereafter, the petitioner had constructed shops on the said land in the year 1991 after obtaining Raja Chiththi for starting construction from the Patan Nagar Palika as on one side of RS 69 there is public road and thus being unsuitable for residential purposes. The construction was completed in the year 1993. As per condition No. 17 of the conditions of grant of non-agricultural permission, necessary plans and maps of the shops on R.S. No. 69 were submitted to and sanctioned by the Local Authority of Patan Nagarpalika after which sanction of the plans and maps, Permission letter was granted to start construction by the Nagarpalika and the said shops were constructed as per the maps sanctioned.

       All these facts show that the said construction has been made by the petitioner in his own land after leaving the marginal space between the Nagarpalika road and the construction of shops. There is not slightest encroachment on the public road or any other land. In view of the documents produced by the petitioner i.e. right from 1990-91 the map and plan of shops before the City Survey Officer within the jurisdiction of the Collector, the City Survey Officer took the measurements of the site and gave separate City Survey Number to the shops and each shop-keepers has been given separate Sanad. Thus it is within the knowledge of the Superintendent of City Survey, Patan that the shops are in existence since last 15 years. After the completion of the shops, local taxes like cess, education tax, water tax and other taxes were assessed, levied and collected by the Patan Nagarpalika since last 15 years. The petitioner has not put up any further construction on the land after 1993-94. The petitioner has subsequently sold the shops and the buyers are running their business. The District Collector on 09.02.2005 issued notice to the petitioner. The petitioner filed reply. After the said reply, the Deputy Collector issued separate notices to the shop owners for breach of condition and on 01.06.2005 the Resident Deputy Collector issued notices to the petitioner, his brother and his mother for breach of condition of N.A. Permission and asked them to remain present personally on 09.06.2005. The petitioner again filed reply on 08.06.2005 and requested to issue revised N.A. Permission by regularizing the construction which was made in the year 1991 assuming there was technical breach of the N.A. Permission. [Para 30.3]

       The aforesaid facts show that the petitioner is not a "property grabber" as alleged by the authority, In view of the same, the action of the authority is not bona fide and the apprehension of his arrest expressed by the petitioner is well justified. [Para 30.4]

       In my considered view of the facts of the case, the case of the petitioner does not fall within the definition of "property grabber" as the petitioner has not been indulged into any activity which is prejudicial to maintenance of public order as there is no allegation against the petitioner that the petitioner has taken illegal possession of public or private land by criminal intimidation with the help of musclemen or is indulging in any anti-social activity like land grabbing which is menace to even tempo of life. In view of the same, the order of detention is also bad in law. [Para 30.5]

       Law Laid Down :

       Mere breach of NA permission cannot be said to be an activity falling within the definition of property grabber under the Act.

       Case Law Analysis :

       Navalshankar Ishwarlal Dave & Anr. vs. State of Gujarat & Ors., 1993 Supp. (3) SCC 754 [Para 30.6];; H.A. Grover vs. State, 1999 (3) GLR 2516 [Para 30.9];; Laxman Popatbhai vs. State of Gujarat, 1976 (17) GLR 370 [Para 33].-Relied on

       Conclusion :

       Petitioner is not a property grabber as defined in the Act, therefore, purported action of the respondent authorities is liable to be quashed and set aside.

       Cases Referred :

       Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia, 1992 (Suppl.) 1 SCC 496;; Union of India & Ors. vs. Prasmal Rampuria, 1998 (8) SCC 402;; Union of India vs. Vidya Bagaria, AIR 2004 SC 2220;; Union of India & Ors. vs. Muneesh Suneja, AIR 2001 SC 854;; Union of India vs. Amritlal, 2004 (3) SCC 75;; Mukesh Himatlal Sheth vs. State of Gujarat, 2006 (1) GLH 28;; Magan Gope vs. State of West Bengal, 1975 (1) SCC 415.

       Decided in Favour of :

       Petitioner