Decided on June 20,1988

Pratapbhai Jibhai Mahida Appellant
District Magistrate, Kheda And Others Respondents


G.T.NANAVATI - (1.)The petitioner was detained under the Gujarat Prevention of Anti-Social Activities Act 1985 (hereafter referred to as `the PASA) by an order dated 24-5-1987. In order to enable him to contest the election and to enable him to attend the meeting of Nadiad Municipality as he was the Vice-President of that municipality he was granted parole from time to time. Parole was granted to the petitioner for two days on 16-7-1987. He was required to surrender at Sabarmati Central Prison on 18-7-1987. Instead of surrendering on that day the petitioner surrendered to the Jail authorities on 24-7-1987. As the petitioner thus committed breach of the bond on which he was released on parole the Government on 28-7-1987 directed the District Magistrate Kheda to take appropriate action against the petitioner under the provisions of the PASA. On the basis of this direction the District Magistrate wrote to the D.S.P. Kheda on 31-7-1987 to recover from the petitioner the amount payable under the bond. The petitioner informed the D.S.P. that he was sick during that period and it was for that reason that he could not surrender himself in time; and therefore it cannot be said that he committed a breach of the bond. Nothing happened till 20-1-1988. On that day the District Magistrate again wrote to the Government enquiring as to what had happened to the Government. The Government again decided on 25-1-1988 to direct the Magistrate to take action against the petitioner; and accordingly a letter dated 28-1-1988 was addressed to the District Magistrate for that purpose. The District Magistrate in his turn wrote to the D.S.P. Kheda on 1-2-1988 to recover from the petitioner the amount payable under the bond. As an attempt was made by the D.S.P. to recover that amount from the petitioner the petitioner filed Special Criminal Application No 190 of 1988 in this Court. The said petition came up for hearing before this Court on 3-4-1988 and this Court passed the following order:
"Mr. Divetia states that if the Court chooses to direct the authorities then the case of the petitioner will be reconsidered regarding the amount of Rs. 10 0 in question. Mr. H. L. Patel learned Advocate for the petitioner is agreeable to such a course and he further submits that on that basis be would like to withdraw the petition also. In the circumstances this petition is permitted to be withdrawn with directions as under

(i)Respondent No. 3 should reconsider the case of the petitioner regarding recovering the amount of Rs. 10 E00.00 from the petitioner in the light of the contentions raised by the petitioner in this petition. Respondent No. 3 should reconsider as above on or before 23-4-1988: and

(ii) In case the decision is against the petitioner then respondent No. 3 should not enforce the said decision till 3-5-1988."
The State Government reconsidered its earlier decision and confirmed the same by a fresh order dated 16-4-1988. Neither on the earlier occasion nor on the subsequent occasion the Government had passed a separate order. But on both the occasions the decision was taken on the file. The petitioner is now challenging the fresh order passed by the Government on 16 4-1988.
(2.)What is urged on behalf of the petitioner is that before passing the impugned order the State Government ought to have heard the petitioner. As the said order has been passed in breach of the principles of natural justice it deserves to be quashed and set aside. It is urged that on merits also the said order is bad as the same has been passed arbitrarily. It was submitted that in view of the facts and circumstances of the case it must be held that the power has been exercised arbitrarily as the petitioner could not present himself in Jail earlier because of the circumstances beyond his control. P. N. Roy Choudhary Deputy Secretary of the Home Department has filed an affidavit justifying the order passed by the Government. Therein it is stated that on reconsideration the Additional Chief Secretary found that the previous order did not require any modification as the petitioner had the tendency and habit of getting himself admitted in a hospital on the last day of the parole period.
(3.)It was not disputed that an order directing recovery of amount payable under a bond of this type is penal in nature. Principles of natural justice would therefore require that the person who is asked to pay should be given an opportunity to show cause why that amount should not be recovered from him. He may have a valid defence for not reporting in time. Such a person can point out to the State Government that he could not surrender because of the circumstances beyond his control. He can persuade the State Government by submitting that even if it is regarded as a breach whole amount should not be ordered to be recovered since he was not able to surrender in time because of the circumstances beyond his control. Therefore it will have to be held that an order to recover amount payable under such a bond cannot be passed without giving the person concerned an opportunity of showing cause against the proposed action. As that was not done in the present case impugned order must be regarded as illegal and void.

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