M.R.CALLA - (1.) This Special Civil Application filed by the petitioner Shri Jinendrakumar Setulal Jain (detenu) is directed against the order dated 24th November 1999 issued under the signatures of the Jt. Secretary to the Govt., Food and Civil Supplies and Consumer Affairs Department of Govt. of Gujarat, whereby the petitioner has been ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which will be hereinafter referred to as the 'PBM Act', in pursuance of Conditions nos.3 and 5 of the Gujarat Condition of Detention (Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities) Order, 1980, which will be hereinafter referred to as the 'Order of 1980'. The order dated 24th November 1999 shows that the Govt. of Gujarat in Food and Civil Supplies and Consumer Affairs Department was satisfied with respect to the petitioner that he was operator of Maruti Adhesive and Chemicals, 14, Jaymangal Estate, Rakhial, Ahmedabad, residing at 78, Dhanlaxmi Society, Opp.C.M.C., Odhav, Ahmedabad and with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities like Petroleum products essential to the community, it was necessary to so to do forthwith and therefore, in exercise of powers conferred under sub-section (1) of Section 3 of the PBM Act, 1980, the petitioner was directed to be detained. The order shows that it has been issued by and in the name of the Governor of Gujarat, signed by one Shri Arvind Agarwal, Jt.Secretary to Government. In pursuance of the said order, the Jt.Secretary in the Food and Civil Supplies Department passed yet another order committing the petitioner to the Sabarmati Central Jail, Ahmedabad. The grounds of detention were also enclosed with the detention order as Annexure.B and on the basis of the said detention order, the petitioner was arrested by the police on 17th December 1999 and detained at Sabarmati Jail since that date.
(2.) The petitioner's case is that he is Proprietor of Namokar Roadlines and is dealing in the business of transport. He is maintaining about 25 heavy motor vehicles to run his business and he has engaged himself solely in the said business; that he is not directly or indirectly doing any business or attending the affairs of any business of any other party either in personal capacity or in any other capacity and his only business is of transport. The petitioner has come with a case that on receiving the ground of detention along with the compilation of the documents on 17th December 1999, he made a representation dated 24th December 1999 through his Advocate. This representation was addressed to respondent no.3, namely, Shri Arvind Agarwal as also to Shri Kamal Kishore, Economic Advisor, Govt. of India, Consumer Affair Department, New Delhi. These representations had been separately made. It has been submitted that the representation addressed to the respondent no.3 was served by Regd. Post A.D. which was received by the office of the respondent no.3 on 27th December 1999. According to the petitioner, this representation dated 24th December 1999, although received by the respondent no.3 on 27th December 1999, was not considered either by the respondent no.3 or by any other functionaries of the State Govt. and no reply with regard to the decision taken thereon was given to the petitioner till the date of filing of the petition i.e. 22.12.1999 and even thereafter. Similarly with regard to the representation dated 24th December 1999 which was sent to the Economic Advisor, Govt. of India, it has been submitted that it was sent to him by Speed Post and the same was received by the said authority on 27th December 1999 as per the acknowledgment card of the said Speed Post. Even this representation was not considered and no reply thereto was sent to the petitioner till the pleadings in this regard were made available by way of amendment dated 16th February 2000. It has been further stated that yet no reply was received for a period of more than one month by the petitioner on his representations dated 24th December 1999 and 27th December 1999 and that he had also submitted a representation through a special messenger on 1st February 2000. This representation dated 1st February 2000 was received by one Shri O.P.Sharma, authorised person on behalf of Economic Advisor, Consumer Affairs Department, New Delhi. Even this representation has not been decided by the Central Govt. and the decision thereof had not been communicated to the petitioner till the date on which the pleadings were amended on 16th February 2000. 6th March 2000 It may be pointed out that in fact the Special Civil Application dated 18th December 1999 was filed in this Court on 22nd December 1999 and thereafter an amendment was sought which was allowed by the Court on 24th December 1999 and on the said date, the Rule returnable for 30th December 1999 along with notice as to interim relief returnable on the same date, i.e. 30th December 1999 was issued. While issuing Rule on 24th December 1999, the Court had made it returnable with the use of the word 'peremptorily'. Thereafter on 30th December 1999, time was granted to the respondents on their request and the matter was fixed for 10th January 2000. The matter was not notified on 10th January 2000 and it was notified on 11th January 2000. On 11th January 2000 when the matter came up before the Court, certain lawyers appearing in other detention matters objected to giving priority to this matter and on behalf of the petitioner an application dated 12th January 2000 addressed to the Registrar was moved. On 12th January 2000, it was again adjourned to 13th January 2000 and on 13th January 2000, the matter came up before the Court with Civil Application No. 70 of 2000 moved by the petitioner seeking amendment. The amendment was allowed in this Civil Application after hearing the other side and the Rule in this Civil Application was made absolute and in yet another Civil Application No.71 of 2000, an order was passed on 13th January 2000 granting time to file reply by 18th January 2000 and it was further recorded as under: "Rule. Heard ld. senior counsel Mr.Y.N.Oza for the applicant. Learned Government Pleader Mr.P.G.Desai, waives service of Rule on behalf of Respondents No.1, 2, & 3. Ms.Parinda Davawala appears and waives service of Rule on behalf of Respondent no.4. On request of learned Govt.Pleader Shri P.G.Desai, time granted till 18th January 2000 to file affidavit-in-reply. As per the discussions in the open Court between the counsels of both the sides before the Court, ld. Govt. Pleader is directed to convey to the appropriate authority to consider the petition as well as the rejoinder filed by the petitioner of S.C.A.No. 10284/99 by way of a representation and outcome of the same may be disclosed on 18.1.2000. It is clarified that hearing of C.A.No.71/2000 is peremptorily fixed on 18.1.2000 at 2.45 p.m. Sd/- (A.K.Trivedi,J." On 18th January 2000, the matter was yet made to stand over to 19th January 2000. On 18th January 2000, the order dated 17th January 2000 was produced rejecting the petitioner's request and the matter was posted for 19th January 2000 as recorded in Civil Application No.71 of 2000 and thereafter the matter was directed to be listed for final hearing on 27th January 2000 and the Rule to that extent was made absolute in Civil Application No.71 of 2000. Thereafter on 28th January 2000, a detailed order was passed to take up the matter as agreed between the parties and on 10th February 2000, the matter was directed to be sent back to the office for listing in the Board of final hearing to be distributed on 11th February 2000, irrespective of the order dated 28th January 2000. On 11th February 2000, the matter was adjourned to 18th February 2000 to be listed before the Court taking up such matters. In the meanwhile, Civil Application No.670 of 2000 had been moved again seeking amendment to include the additional grounds vide para 3(n) to 3(q) and this application was allowed on 16th February 2000. Thereafter, the matter came up before the Court on 25th February 2000 on which date, the matter could not be taken up because the witnesses who were present in an Election Petition listed before the Court were to be examined and the Court permitted the learned Counsel for the petitioner to move the Honourable Chief Justice for placing the matter before any other Court which could take up the matter for expeditious hearing. The matter was then assigned to this Bench by the Honourable Chief Justice on 26th February 2000 itself and it was fixed for 29th February 2000. The matter was argued on 29th February 2000 and again on 1st March 2000. The arguments went on, on 1st March 2000 and 2nd March 2000. The arguments were concluded on 2nd March 2000 and the dictation of the order was commenced on 3rd March 2000.
(3.) So far as the pleadings of the parties are concerned, besides the Special Civil Application with amendments in different Civil Applications, there is an affidavit-in-reply filed by the respondents nos.1 and 3 under the signature of Shri Arvind Agarwal on 7th January 2000 and an affidavit-in-rejoinder dated 11th January 2000, a counter by the Union of India on 6th January 2000 and an affidavit-in-reply filed by the respondent no.1 on 25th February 2000. During the course of arguments, Ms.P.J.Davawala, appearing on behalf of the Union of India has produced a Fax copy of the order dated 3rd March 2000 about the rejection of the petitioner's representation by the Govt. of India on 2nd March 2000, Mr.A.D.Oza, learned Govt. Pleader has produced a xerox copy of the Govt. of Gujarat Gazette Extraordinary Notification dated 2nd July 1987 with regard to the insertion of Section 4(3) in the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 along with a list of resume of the dates from 21st August 1999 to 22nd November 1999 and the learned Counsel for the petitioner produced a script of the audio cassette the copy of which was supplied to the learned Govt. Pleader. All these documents which have been produced during the course of hearing have also been taken on record.;