BHANUBHAI NAGJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition quite an interesting question raised pertains to the interpretation of sub-Rules (10) and (11) of Rule 2 of the "Gujarat High Court Rules, 1993" (for short "the Rules"). The same is "Whether in matters pertaining to preventive detention, where the order of detention is challenged, and further wherein by amending, adding the prayer clause, issuance of the writ of habeas corpus is played for, the same should be heard and decided by the learned single Judge as warranted under sub-Rule (11) of the Rule 2 of the Rules or by the Division Bench taking up habeas corpus as required under Clause (2) of sub-Rule (10) of Rule 2 of the Rules?"

(2.) Few relevant facts : This matter has little chequered history. The petitioner who came to be detained as a 'property-grabber' as defined under Section 2(h) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short "PASA") by the order of detention dated 18-6-1995 passed by the District Magistrate, Ahmedabad, has challenged the same before this Court by filing petition under Article 226 of the Constitution of India inter alia praying for issuance of the writ of habeas corpus, quashing and setting aside the same and to set him at liberty forthwith. It appears from the record that much prior to this petition, initially the petitioner had challenged the impugned order of detention without surrendering to the authorities, by filing pre-detention petition, the same being SCA No. 4914 of 1995, which ultimately came to be unconditionally -withdrawn on 5-7- 1995 before Mr. Justice S. D. Shah. Thereafter the petitioner challenged the very same order of detention by filing SCA No. 6370 of 1995 before this Court Which was partly heard by Mr. Justice S. D. Shah, however since His Lordship could not take up the said matter further on medicial ground, the matter was posted for hearing by the order dated 9-10-1995 before the appropriate court. Thereafter this petition was placed before Mr. Justice J. M. Panchal. Before Mr. Justice Panchal, it appears that the petitioner requested to give priority to his petition over other matters however, since the court was not inclined to give such priority, the learned Counsel for the petitioner sought permission to withdraw the petition which was granted on 10-10-1995. Thereafter the petitioner challenged the very order of detention before the Supreme Court under Article 32 of the Constitution of India by filing Writ Petition (Criminal) No. 538 of 1995, which also ultimately came to be withdrawn on 12-12-1995. Thereafter once again the petitioner moved this 'Court by filing yet one more petition the present SCA No. 10610 of 1995. When this matter came up for hearing before Mr. Justice J. M. Panchal, the petitioner moved the court for amending the petition, adding prayer to the effect that of issuing a writ of habeas corpus. This was granted. Thereafter the controversy was raised before Panchal, J. that since the petition as amended stood in character as 'habeas corpus' petition, the same should be heard by the Division Bench as provided in Clause (2) of sub- Rale 10 of Rule 2 of the Rules. Thereupon, Mr. Justice Panchal, on 15-2-1996, passed the following order:

(3.) Heard learned Advocate Mr. P. M. Raval for the petitioner and Mr. D. C. Dave, learned AGP for the Respondents.