Commissioner of Police and Others vs Faruk Ibrahim Shangar

K.A. Puj, J.—The Appellants - original Respondents have filed this Letters Patent Appeal under Clause 15 of the Letters Patent challenging

the judgment and order passed by the Learned Single Judge of this Court on 23.01.2001 in Special Civil Application No. 10274 of 2000 quashing

and setting aside the detention order dated 08.09.2000 passed by the Commissioner of Police Surat City, Surat under the provisions of the

Prevention of Anti Social Activities Act, 1985 and also awarding compensatory cost of Rs. 10,000/-to the Petitioner and further directing the State

Government to hold an inquiry through the Chief Secretary in the matter and whosoever was found responsible for not filing the reply in the matter,

in the said inquiry, the said amount of cost was to be recovered from him.

The Appellants have also filed Civil Application No. 8281 of 2001 praying for stay of operation, implementation and execution of the order

passed by the Learned Single Judge in Special Civil Application No. 10274 of 2000 on 23.01.2001.

The appeal was admitted on 02.07.2002 and interim relief was granted in terms of paragraph 4 (B) of the Civil Application.

Heard Ms. Monali Bhatt, learned Assistant Government Pleader appearing for the Appellants. Despite service of notice of admission of appeal

as well as notice of rule in Civil Application, nobody appears on behalf of the Respondent - original Petitioner.

The brief facts giving rise to the present Letters Patent Appeal is that the detenue i.e. the original Petitioner -Respondent herein was detained u/s

3(2) of the Prevention of Anti Social Activities Act, 1985 as Bootlegger vide order dated 08.09.2000 passed by the Commissioner of Police,

Surat. The detenue has challenged the said order by way of Special Civil Application No. 10274 of 2000. This Court issued rule on 27.09.2000

which was served to the Appellants on 21.10.2000. Rule was made returnable on 18.10.2000. The matter came up for hearing on 23.01.2001

and the Learned Single Judge of this Court had allowed the petition awarding cost to the tune of Rs. 10,000/-as compensatory cost to be paid by

the State Government to the Petitioner for fees paid by him to the advocate concerned. The said amount was also to be recovered by the State

Government after apportioning the responsibilities on the concerned persons for not having filed the affidavit-in-reply.

It is this order which is under challenge in the present Letters Patent Appeal.

Ms. Monali Bhatt, learned Assistant Government Pleader appearing for the Appellants has submitted that the petition was admitted and allowed

by the Learned Single Judge only on the solitary ground that the statement of witness u/s 161 of the Code of Criminal Procedure sought for by the

Petitioner have not been duly furnished to him. She has further submitted that even on record of the case, the representation of the Petitioner has

been duly replied to vide communication dated 23.10.2000, wherein it is specifically pointed out that all the relevant documents sought for by the

Petitioner has been duly supplied to him. The said communication has also been received by the detenue and the same bears his signature of

receipt. She has further submitted that awarding exemplary cost as the compensatory measure to the Petitioner i.e. the detenue is not justified

looking to the facts of the case as the basis of the order of detention is the exercise of discretion vested in the Commissioner of Police after

recording his subjective satisfaction that it was incumbent to detain the detenue in the larger interest of the public in order to ensure peace and

tranquility in the Society and in order to maintain public order. It was the apprehension of the Commissioner of Police that the detenue was likely to

breach the public law and order that necessitated him to pass such order of detention. She has further submitted that the impugned order passed

by the Learned Single Judge by awarding exorbitant compensatory cost to the tune of Rs. 10,000/-merely on the statement made by the learned

advocate appearing for the Petitioner that such amount had been charged by him from the detenue, is not justified. There was no evidence with

regard to the amount of fees paid. Though the Learned Single Judge has held that no cost may be awarded for expenses like Court fees, typing

charges etc. incurred by the detenue as no proof of the same has been provided. The Learned Single Judge should not have, in that case, awarded

the cost to the tune of Rs. 10,000/-merely on the statement made by the learned advocate as there was no documentary evidence on record just

as expenses incurred for typing charges, Court fees and other miscellaneous expenses were not awarded by the Learned Single Judge on the

ground that the same was not established by any bill of expenses produced before the Court. She has further submitted that it was the first date on

which the petition was notified for hearing and the Court should not have rejected the request for time and even if such a request was rejected, the

Court should not have awarded the cost of Rs. 10,000/-. She has, therefore, submitted that the impugned order passed by the Learned Single

Judge awarding the cost of Rs. 10,000/-and directing the State Government to make an inquiry in this regard is required to be quashed and set

aside. She has further submitted that pursuant to the order of the Learned Single Judge quashing and setting aside the detention order, the detenue

has already been released and since the said order has already been implemented, the Appellants confine their relief only to the extent of quashing

and setting aside the order awarding cost as well as issuing direction to make an inquiry in the matter.

Since nobody appears on behalf of the Respondent - original Petitioner, we consider the matter on merits.

It is worthwhile to mention here that before the interim relief was granted in Civil Application on 02.07.2002, the Division Bench has passed an

order on 08.01.2002 in Civil Application No. 8280 of 2001 which was filed by the present Appellants for condonation of delay. While condoning

the delay, the Court has directed the Appellants to place material about the compliance of the order passed by the Learned Single Judge regarding

holding an inquiry and the outcome of the same. The Court further observed that by filing affidavit, the State Government shall point out as to why

reply was not filed.

Pursuant to the above order, an affidavit was filed by Shri P.S. Shah, Additional Secretary, Home Department, Sachivalaya, Gandhinagar on

11.01.2002 wherein it is stated that the Learned Single Judge passed order on 23.01.2001 in Special Civil Application No. 10274 of 2000. At

that point of time, there were 40 cases decided by this Court and out of these 40 cases, in 24 cases, the State Government was directed to initiate

action against the erring Officers for recovering the cost. It is further stated in the said affidavit that relevant papers pertaining to all the cases were

verified and on 20.07.2001, the Additional Secretary (Law and Order), Home Department, Gandhinagar prepared a note with regard to inquiry

be entrusted to the Secretary (Legal department) regarding fixing the responsibility for not filing reply in 12 cases and file was placed before the

Additional Chief Secretary (Home department) and Additional Chief Secretary submitted the file to the Chief Secretary and Chief Secretary put a

note on the file on 13.08.2001 and directed to prepare a detailed report after fixing responsibility of the erring Officers in 15 cases and further

directed to submit the compliance report. It is further stated in the said affidavit that accordingly, the file was sent to the legal department and the

legal department returned the said file on 07.09.2001 to the Home department to prepare detailed report with regard to fixing the responsibility of

the erring Officers. The Home department initiated inquiry in two cases wherein parawise remarks were not sent to the office of the Government

Pleader by the Detaining Authority and with regard to other cases, xerox copy of the file was sent back to the legal department on 24.09.2001 to

take appropriate action. It is further stated that the Director General of Police after inquiry submitted a primary report on 05.11.2001 to the Home

department and the Home department directed the Director General of Police on 05.01.2002 to hold inquiry against the erring Officer and to

recover the amount of costs. It is further stated that in the meantime, the State of Gujarat preferred Letters Patent Appeal along with other appeals

challenging the order of the Learned Single Judge. The Division Bench of this Court passed an order on 04.12.2001 and directed the State

Government to examine whether there is any lapse on the part of the concerned Officers and to consider taking action in accordance with law and

the directions issued by the Learned Single Judge for holding inquiry and action against the erring Officers with regard to recovery of the amount of

costs would not operate. The order passed by the Division Bench was placed on the record of the said Civil Application.

The Division Bench while disposing of all these Letters Patent Appeals on 04.12.2001 has observed that in view of the fact that the State

Government has been ordered to incur costs of these petitions, it appears to be appropriate that the State Government itself should examine

whether there has been any lapse on the part of the concerned Officials in not preparing the affidavits-in-reply in these petitions and to consider

taking of action in accordance with law and Service Rules against the erring officials. Since the learned Advocate General has assured the Court in

those matters that the State Government itself would look into the matter and take appropriate action, if called for, the Court left the matter at that

stage and clarified that the direction issued by the Learned Single Judge for holding the inquiry and as regards taking action against the erring

officials for recovery of the amount of costs would not operate. The Court further observed that the Government Pleader''s office would be careful

in future, because, for the delay that occurred in the office of the Government Pleader, no explanation was forthcoming in the applications which

were filed for condonation of delay. All the appeals were accordingly disposed of without affecting the decision to the extent of setting aside the

orders of detention. The Court also disposed of Civil Applications for stay.

It is also important to note here that while passing the impugned order in Special Civil Application No. 10274 of 2000, the Learned Single

Judge has observed that this matter is squarely covered by the decision of this Court in Special Civil Application No. 10611 of 2000 decided on

23.01.2001. The State Government has challenged the said order in Letters Patent Appeal (Stamp) No. 1427 of 2001 with Civil Application No.

12060 of 2001. The said appeal is forming part of the group decided by the Division Bench of this Court on 04.12.2001 with the directions

referred to hereinabove. As a natural corollary, the order on which reliance is placed by the Learned Single Judge while passing the impugned

order, rendered in Special Civil Application No. 10611 of 2000 has already been quashed and set aside except to the extent of setting aside the

order of detention, the present order passed by the Learned Single Judge awarding compensatory cost of Rs. 10,000/-and directing the State

Government to hold an inquiry is required to be quashed and set aside and it is accordingly set aside. It is, however, made clear that the order

setting aside the detention order is not interfered with.

Since the directions to hold the inquiry by the State Government have already been issued by the Court while disposing of the similar matters

on 04.12.2001, no further direction is required to be issued in this regard. Even otherwise, pursuant to the order passed by the Division Bench on

04.12.2001 in the above referred group matters, certain effective steps are said to have been taken. The Home department has issued instructions

to all concerned on 24.12.2001 and 27.11.2002 to review the status of all the pending petitions against the detention order under PASA once in a

month so that affidavit-in-reply can be filed in the respective petition.

Accordingly, this appeal is allowed to the aforesaid extent with no order as to costs.

Since the appeal is disposed of, Civil Application for stay no longer survives and it is accordingly disposed of.