Decided on February 02,1966



N.M.MIABHOY, N.K.VAKIL - (1.) These are writ petitions directed against the orders of detention of the petitioners passed under rule 30 of the Defence of India Rules by the District Magistrate Broach on 14-9-1965 praying for the issue of appropriate writs or for passing necessary orders quashing the impugned orders and to direct that they be set at liberty. Special Criminal Application No. 52 of 1965 is filed by Gulam Nabi Hussain Shaikh. Special Criminal Application No 53 of 1965 has been filed by his son Shaikh Mohammad Saeed Gulamnabi and Special Criminal Application No. 54 of 1965 has been filed by his daughter Kumari Munirabibi. Common questions of law and facts arise for consideration in all the three petitions and therefore all the three petitions are disposed of by this common judgment.
(2.) The petitioner Gulam Nabi is a resident of Broach and was employed since 1926 with the Local Board Broach as a clerk. Thereafter since the coming into force of the Gujarat Panchayats Act he has been serving in the District Panchayat Broach as Internal Auditor from the 1st of December 1964. His son petitioner Shaikh Mohammad Saeed is a matriculate and has a shop at Chhota Bazaar Ankleshwar since a number of years. Daughter Munirabibi passed her S. S. G. Examination and thereafter is serving as a teacher in M. A. Makuwala High School Hansot since 1960 and is earning a salary of Rs. 158/per month. She was on leave from the 23rd of August 1965 to the 17th of October 1965 and in September 1965 she was at her fathers place. On September 13 1965 it is alleged that the petitioner Gulam Nabis house was searched by Police Inspector Dave and without making any panchnama some articles were attached from the petitioners house. After the search was over the police party had left the premises without arresting either of the petitioners. On the 14th of September 1965 he was put under detention under the order dated the 14th of September 1965 passed by respondent No. 1 as the District Magistrate of Broach under rule 30 of the Defence of India Rules. His said son Mohammad Saeed and his said daughter Munirabibi were also put under detention by orders passed by the respondent on the same date.
(3.) The petitioners are challenging the impugned orders on the grounds that they are illegal void and ultra vires as they were passed mechanically without applying his mind by the District Magistrate and without having any basis for being satisfied as required by rule 30 of the Defence of India Rules. That the respondent No. 1 was not the District Magistrate. Even if he is held to be the District Magistrate the District Magistrate had no jurisdiction to pass the said orders. That the notification on which reliance was placed by the District Magistrate for passing the impugned order was void illegal and ultra vires. In any case the impugned order was passed mala fide. That the petitioners house was searched by C. I. D. Inspector Dave because he had a grudge against the petitioner. The Local Board has a Guest House at Shukla Tirth and Dave had stayed at the said guest house and had paid only Re. 1/instead of Rs. 5/which was the actual charge for such stay at the guest house. The petitioner as Internal Auditor had found this out and had made a report about him and Rs. 4/were recovered from Dave and since that time Dave had been annoyed with him. The petitioners allege in their petitions that Dave had considerable influence with the first respondent and had managed to see that the petitioners were illegally detained. The impugned orders were there. fore passed mala fide with a view to ruin the petitioner Gulam Nabi and his family members. That the impugned orders were passed not on the personal satisfaction by respondent No. 1 but on information wrongly given to him by the police officers concerned who were bent upon ruining the petitioners. It is further contended that the delegation of the power by the State Government under notification Annexure B was not according to law. That in any case respondent No. 1 had dot complied with the requirements of that notification inasmuch as he had not sent a copy of the order passed by him to the State Government as early as possible. The petitioners have tried to explain in the petition that the articles that were seized from the place of petitioner Gulam Nabi were not such as could be the basis for the orders of detention made. We shall refer to these when we discuss the specific contentions pressed before us by the petitioners. The petitioners on the 8th of November 1965 amended the petition and added one more ground to challenge the detention order. It is contended that the proclamation of emergency purported to have been made by the President of India under Article 352(1) of the Constitution of India was not in accordance with the requirements of Article 352(1) and consequently the notification Annexure B and the orders passed by the respondent No. 1 were illegal and void.;

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