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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, ASHUTOSH J. SHASTRI, JJ.
Poonamben @ Tasleem D/O Ajitsingh Rana – Appellant
Versus
State Of Gujarat – Respondent
R/Letters Patent Appeal No. 1606 of 2019 In R/Special Civil Application No. 20814 of 2018 With Civil Application (For Stay) No. 1 of 2019
Decided on : 06-03-2020
Gujarat Prevention of Anti Social Activities Act, 1985 - Section 3(2) Immoral Traffic (Prevention) Act 1956 - Sections 3, 4, 5 and 7 - Constitution of India,1950 - Article 226 - Appeal is filed against judgment and order giving rise to present Letters Patent Appeal is that appellant original petition is a resident - Appellant original petitioner was charged with offences punishable - Appellant has got herself released on bail - Apprehending an action of detention against her a petition was brought before this Court - Appeal prayer may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ order or directions quashing and setting aside order of detention prepared and sought to be served on petitioner by respondent - Petition appears to have been filed in month it came up for consideration before Judge on - After hearing both sides Judge was pleased to dismiss petition vide order of date since same is at stage of pre-execution - By assigning reasons order came to be passed which has been made subject matter of present Letters Patent Appeal before us - Held, Court has repeatedly held that where discretion is required to be exercised by a statutory authority must be permitted to do so -Court is not for to take over discretion available to a statutory authority and render a decision - By taking over functions of BDA in this regard High Court has given a complete go bye to procedural requirements and has mandated a particular course of action to be taken by BDA - Court is quite possible that if BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of lease but that was sought to be preempted by direction given by High Court which in our opinion acted beyond its jurisdiction in this regard - Court is of opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure it must give its reasons for coming to that conclusion - Reasons given by the court for disabling statutory authority from taking a decision can always be tested and if reasons are found to be inadequate decision of court to bypass statutory authority can always be set aside reasons are cogent then in an exceptional case court may take a decision without leaving it to statutory authority - Court must caution that if court were to take over decision taking power of statutory authority it must only be in exceptional not as a routine - Appeal dismissed (Paras 41 to 43)
Facts of the Case:
Appellant - original petitioner, is a resident of Vadodara. The appellant - original petitioner was charged with offences punishable under Sections 3, 4, 5 and 7 of The Immoral Traffic (Prevention) Act 1956. The said complaint was registered before the Pradhyumannagar Police Station, Rajkot City on 04.07.2008 which was registered as FIR being C.R. No.II-83 of 2008. Pursuant to the said First Information Report, the appellant has got herself released on bail.
Finding of the Court:
Court has repeatedly held that where discretion is required to be exercised by a statutory authority must be permitted to do so -Court is not for to take over discretion available to a statutory authority and render a decision - By taking over functions of BDA in this regard High Court has given a complete go bye to procedural requirements and has mandated a particular course of action to be taken by BDA - Court is quite possible that if BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of lease but that was sought to be preempted by direction given by High Court which in our opinion acted beyond its jurisdiction in this regard - Court is of opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure it must give its reasons for coming to that conclusion - Reasons given by the court for disabling statutory authority from taking a decision can always be tested and if reasons are found to be inadequate decision of court to bypass statutory authority can always be set aside reasons are cogent then in an exceptional case court may take a decision without leaving it to statutory authority - Court must caution that if court were to take over decision taking power of statutory authority it must only be in exceptional not as a routine - Appeal dismissed (Paras 41 to 43)
Result: Appeal dismissed
JUDGMENT
ASHUTOSH J. SHASTRI, J.
1. The present Letters Patent Appeal is filed under Clause 15 of the Letters Patent, against the judgment and order dated 29.08.2019.
2. The background of facts giving rise to the present Letters Patent Appeal is that the appellant – original petitioner, is a resident of Vadodara. The appellant – original petitioner was charged with offences punishable under Sections 3, 4, 5 and 7 of The Immoral Traffic (Prevention) Act 1956. The said complaint was registered before the Pradhyumannagar Police Station, Rajkot City on 04.07.2008 which was registered as FIR being C.R. No.II-83 of 2008. Pursuant to the said First Information Report, the appellant has got herself released on bail. Apprehending an action of detention against her, a petition was brought before this Court under Article 226 of the Constitution of India, claiming the following reliefs :
“18(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the order of detention prepared and sought to be served on the petitioner by respondent no. 2, under the provisions of Section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985;
(B) During pendency and final disposal of this petition, Your Lordships may be pleased to stay further operation, implementation and execution of the order of detention prepared by respondent no. 2 under the provisions of Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985;
(C) Pass any other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;”
3. This petition appears to have been filed in the month of December, 2018 and it came up for consideration before the learned Single Judge on 29.08.2019. After hearing both the sides, the learned Single Judge was pleased to dismiss the petition vide order of date since the same is at the stage of pre-execution. By assigning reasons, the order came to be passed, which has been made the subject matter of the present Letters Patent Appeal before us.
4. We have heard Shri Asim Pandya, learned Senior Counsel assisted by Shri Suraj Mateida, learned counsel for Shri A.R. Christian, learned counsel appearing for the appellant and Shri D.M. Devnani, learned Assistant Government Pleader representing the State – authorities.
5. Before dealing with the present controversy arraigned in Letters Patent Appeal, we may like to quote some preface.
6. The society is governed by the Rule of law and effect of it is to regulate orderly behaviour of a citizen. The appellant herein was offender of the provisions of the Immoral Traffic (Prevention) Act, 1956. The object of this enactment is to curb the activity of immoral traffic. In the past, prior to enactment, it was found that some States had legislation on the subject of immoral traffic but the provisions were not uniform and many of the States were not having even such legislation. In the process of thinking to uniform, the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and Exploitation of Prostitution of Others, which Convention was held at New York on 9th May 1950 and with a view to accelerate pace of achieving the said object, Immoral Traffic in Women and Girls Bill was introduced in the Parliament and then, gradually, through process, this Act 104 of 1956 came to be enacted in the name of “The Immoral Traffic (Prevention) Act, 1956”. Since a prostitution involves employment of human body for hire, stringent provisions have been made in the Act with rigorous consequences of its violation. Here is a litigant an appellant who deliberately and with impunity has come out with a plea of claiming parity in respect of pre-execution of an order of detention. A systematic attempt is made to evade the process of execution of detention. The appellant before us has been found to have indulged he
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