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Report No. 138

4.19. Reasoning in 1989 case.-

The heart of the reasoning in the Gujarat case of October 17, 1989 lies in the following passage, occurring towards the end of the judgment in paragraph 14:

"14. Would a citizen be not within his rights to assert that if a smuggler, a murderer or tax-evader is entitled under the provisions of the statute to say that his property be not attached without issuing seizure memo and without recording panchnama, I am an honest person doing lawful business and I am compelled to use public street out of sheer necessity and therefore please do not remove my property without making note thereof and without recording panchnama?

While doing so all that a citizen claims is equal treatment. In all earnestness his claim is that I am poor little Indian. Before you rob me of my belongings, treat me on par with smugglers, black marketeers, profiteers, tax-evaders, murderers and dacoits. We think that the claim is just and proper and no authority exercising powers under the Constitution and a valid statute would be justified in denying this, legitimate claim.

We are of the opinion that whenever there is no statutory provisions prescribing just, fair and reasonable procedure for removal of obstructions on public street, the procedure which is meant for effecting seizure and removal of property under the Criminal Procedure Code should as far as possible be made applicable to the removal of such alleged obstructions from the land of public street. Whenever it is shown that such procedure is not followed, the action of the authority will have to be labelled as unjust and arbitrary. Therefore, the submission that the petitioners have no right to occupy the land and therefore they could be removed has no merits and the same cannot be accepted."

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