Gujarat High Court
Hanskamal A. Grover vs State Of Gujarat on 4 May, 1999
Equivalent citations: (1999)3GLR634
Author: D.C. Srivastava
Bench: D.C. Srivastava
JUDGMENT D.C. Srivastava, J.
1. These three matters are proposed to be disposed of by common judgment and order.
2. Special Civil Application No.10033 of 1998 is a writ petition under Article 226 of the Constitution of India with prayer in the nature of certiorary to quash the detention order dated 23rd October 1998 passed by the Police Commissioner, Surat City under Section 3(2) of the Prevention of Anti-social Activities Act (for short "PASA") and in the nature of habeas corpus of immediate release of the petitioner from illegal detention.
3. The prayer in Civil Application No.180/99 is for suspension of detention order dated 23.10.1998 and for release of the petitioner during pendency of Special Civil Application No.10033 of 1998.
4. Civil Application No.2019 of 1999 is an application for submitting certain documents to be placed along with Special Civil Application No.10033 of 1998.
5. Brief facts giving risde to the writ petition are as under :
The detaining Authority, namely, Police Commissioner, Surat City, passed the impugned detention order on 23.10.1998 in the interest of public order being subjectively satisfied from three registered criminal cases as well as from the statements of the two witnesses that the petitioner is a property grabber within the meaning of Section 2(h) of the PASA and it was in the interest of public order to detain the petitioner under PASA.
6. Brief accounts of the three criminal cases registered against the petitioner are as under :
CR No. 357/98 was registered against the petitioner with the following brief allegations. Plot Nos.259/260, final plot No.292 situated on Ghod Dod Road, Surat city is owned by Sarvodaya Shikshan Mandal Trust. The property is in dilapidated condition. In the year 1988 resolution was passed in the meeting of Executive Committee that the said plots be given to Shri Bipinbhai Thakkar for development subject to permission from the Charity Commissioner. The permission of the Charity Commissioner was not obtained, hence the above resolution was cancelled. Inspite of cancellation of resolution of the trust the petitioner committed fraud with the aforesaid Trust and in conspiracy with Shri Bipinbhai Thakkar's wife and son by creating fake document of title with intention to grab the said property. The case under Section 384, 420, 465, 467, 120(B) read with Section 34 of the Indian Penal Code and under various sections of Atrocities Act was registered.
Plot No.4 of Survey No.62/1 of village Rundhh Magdalla measuring 1 Acre - 31 gunthas was purchased by Raghavji Vashrambhai Dhamelia in the year 1982 from Nanubhai and Rameshbhai. The case vide CR No.365/98 was registered against the petitioner under Sections 480, 465, 467, 468 and 384 of the Indian Penal Code with Umara Police Station in which the allegation was that the petitioner in conspiracy with his accomplices Vijay Babubhai and Mukesh Chandulal, etc. prepared fake sale deed on 4.7.1988 and power of attorney on 16.2.1998 from Mukesh Chandulal Patel to grab the aforesaid plot of the complainant and committed fraud.
The third case registered against the petitioner under Section 465, 468, 471, 406, 420, 506(2) of the Indian Penal Code with Mahidharpura Police Station indicates that with intention to commit fraud the petitioner launched plotting of land known as "Hare Krishna Group Housing Scheme over Survey No.3/1 and 5 of village Rundhh even though the same was reserved by Surat Urban Development Authority (for short "SUDA"). Plot No.40 was sold for Rs.49,950/- in the year 1990. The petitioner executed fake document in respect thereof on 30.5.1990. Physical possession could not be given to the purchaser many years thereafter. The complainant met the petitioner several times and on last visit of the complainant the petitioner threatened him that the document had been executed in his favour and he need not come to him any more and in case he would come he would be abducted and murdered by the petitioner's men.
7. In addition to above one confidential witness gave statement that three months before 5.8.1998 the petitioner in the company of three accomplices went to him and talked about vacating the land of the witness situated in Surat city area and thereafter for a continuous period of one week annonymous telephone calls were made in Hindi to the witness telling that he was man of Chhota Rajan Group calling to vacate the land in Hans Kamal's interest, otherwise the wife and children of the witness will be killed and threat was given to the witness that his land would be grabbed. The witness made compromise and did not file any complaint due to fear of the petitioner.
8. The second confidential witness has stated that about six months before 5.8.1998 the witness approached the petitioner for demanding his dues. The petitioner in the company of 3 to 4 associates forced the witness to sit in car and he was taken to one office where the petitioner beat the witness by kicks and fists and pistol was pointed out and kept on the chest of the witness and the witness was threatened that the petitioner is a man of Chhota Rajan and in case he would come again to collect money he would be killed.
9. From the above materials the detaining Authority was satisfied that the petitioner is a property grabber within the meaning of Section 2(h) of the PASA. Alternative remedies were also considered which were found ineffective, hence the impugned order of detention was passed.
10. Before dealing with the writ petition, it would be appropriate to deal with the two civil Applications first.
11. In Civil Application No.180 of 1999 the prayer is for suspension of detention order dated 23.10.1998 and for release of the petitioner from detention. Alternative prayer was to give priority to the hearing of Special Civil Application No.10033 of 1998. This priority was already granted on the ground of illness. Since the main writ petition has been heard and judgment has been reserved there arises no occasion to suspend the order of detention or to release the petitioner from detention. Thus, the first part of relief claimed in this Civil Application is rejected. The second part has already been allowed earlier and priority for hearing of main Special Civil Application was not only granted but it was heard on priority basis. With this observation this Civil Application is disposed of.
12. The second Civil Application No.2019 of 1999 can be allowed and is hereby allowed because the prayer is for placing on record of Special Civil Application No.10033 of 1998 certain documents with this Civil Application. After examining those documents it is found that they may throw some light on the real controversy involved in the main petition. Accordingly this Civil Application is allowed. The documents tendered along with this Civil Application are taken on record of the main Special Civil Application No.10033 of 1998.
13. Coming to the main writ petition the learned Counsel for the petitioner has challenged the detention order on several grounds.
14. One of the attacks against the detention order has been that the detaining Authority has claimed privilege under Section 9(2) of the PASA very lightly and not properly. I have gone through the detention order as well as the grounds of detention. The witnesses apprehended fear from the petitioner, hence they requested that their names, addresses, business particulars, etc. be not disclosed. The Detaining Authority did not blindly accept the report of the Sponsoring Authority on this point, rather he himself examined the witnesses before him and gave them opportunity of hearing. Upon personal verification he was satisfied that the apprehension and fear expressed by the witnesses was true. Consequentially it cannot be said that the privilege was either improperly or lightly claimed by the detaining Authority.
15. Another attack against the detention order has been that the petitiner was already in judicial custody in three cases and no bail application was moved by him in any of the criminal cases, hence there was no chance or likelihood of the petitioner coming out of judicial custody and repeating his criminal activities. Consequentially the detention order was hardly required. I do not find any substance in this attack also. If the petitioner was in judicial custody and no bail application was moved by him this could not be a ground preventing the detaining Authority from passing the detention order. On the other hand the requirement of law is that the detaining Authority should have been aware while passing the detention order that the detenu was in judicial custody in some other cases. Merely because no bail application was moved by the petitioner it was no ground prohibiting the detaining Authority from passing the detention order. On the other hand if the detaining Authority from the material on record was satisfied that there was possibility that the petitioner may repeat his activities after getting released on bail he could have passed the detention order. In the grounds of detention the detaining Authority has observed that in two criminal cases the petitioner was in judicial custody and in one case he was on police remand and there were all possibilities that the petitioner may indulge and repeat his activities by getting released on bail. If there was material before the detaining Authority to satisfy his conscious that on being released on bail the petitioner may indulge in similar activities he could have passed the detention order. Since these possibilities were taken into consideration by the detaining Authority, the detention order cannot be said to be invalid.
16. The next attack is that the impugned order was passed malafide and to show malafide certain allegations have been made in the writ petition against the Police Officers. However, those allegations cannot be examined in this writ petition behind the back of those Police Officers against whom such allegations have been made. Unless they were impleaded as parties and opportunity of hearing was given to them to explain the allegations made against them it cannot be a ground for quashing the detention order. Thus, this attack is also without any merit.
17. The next attack has been that legible copies of all the documents referred to and relied upon by the detaining Authority were not supplied to the detenu as a result of which his right to make effective representation was adversely affected. This allegation has been suitably replied in Para : 17 of the Counter Affidavit of the detaining Authority where he has specifically mentioned that legible copies of documents, details whereof are given in this para, were supplied to the detenu. Those documents were not produced before me to enable me to ascertain that these copies were illegible copies. Consequently on this ornamental contention also the detention order cannot be quashed.
18. The next point argued was that the petitioner is not a property grabber and subjective satisfaction of the detaining Authority on this point is against the material on record as well as against the definition of property grabber as contained in Section 2(h) of the PASA. Section 2(h) of the PASA defines property grabber as under :
"Property grabber" means a person who illegally takes possession of any lands not belonging to himself but belonging to Government, Local Authority or any other person or enters into or creates illegal tenancies or leave and licence agreements or any other agreements in respect of such lands or who constructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental or leave and licence basis for construction or use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupiers of such lands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things."
19. Thus, according to this definition a person can be said to be property grabber when -
i) he illegally takes possession of any land not belonging to himself, but belonging to Government, local Authority or any other person;
ii) he enters into such land; or
iii) he creats illegal tenancy over such land; or
iv) he creats leave and licence agreement or any other agreement in respect of such land; or
v) he constructs unauthorised structures thereon for sale or hire; or
vi) gives such land to any person on rental or leave and licence basis for construction; or
vii) gives such land for use and occupation of unauthorised structures; or
viii) who knowingly gives financial aid to any person for taking illegal possession of such land; or
ix) he gives such land for construction of unauthorised structures thereon; or
x) he collects or attempts to collect from any occupier of such land, rent, compensation or other charges by criminal intimidation; or
xi) he evcits or attempts to evict any such occupier by force, without resorting to lawful procedure; or
xii) he abets in any manner the doing of any of the above mentioned things.
20. The definition of property grabber under Section 2(h) of PASA is thus quite wide. From the material on record it appears that none of these ingredients are satisfied to declare the petitioner as property grabber. The detaining Authority reached subjective satisfaction that the petitioner is a property grabber from three criminal cases registered against him and from the statements of two confidential witnesses. So far as the criminal cases are concerned I have already narrated the brief allegations against the petitioner. At the most it can be said that the allegation is that he committed fraud and in conspiracy with the wife and son of Shri Bipin Thakker with intention to defraud Sarvodaya Shikshan Mandal by creating false document. It is not alleged against the petitioner that he actually entered in possession or took possession of the property of the said Trust, viz. Sarvodaya Sikshan Mandal. Assuming for a moment that there was allegation of conspiracy and fraud in creating false document of title, it cannot be said that it was an act falling within one of above criteria laid down in Section 2(h) of the PASA to declare the petitioner as property grabber. It cannot be said that the property was actually grabbed by the petitioner.
21. So far as the second criminal case is concerned, here also the allegation is that the petitioner in conspiracy with his companion prepared false Sale Deed dated 4.7.1988 and Power of Attorney on 16.2.1998. Creation of these fake documents also cannot be said to be an act on which the petitioner could be branded as property grabber.
22. The third criminal case against the petitioner makes certain allegations of plotting of the land bearing Survey No.3/1 and 5. Even if it is assumed that this land was reserved for SUDA it cannot be said that the said land was acquired and the petitioner was paid compensation for the said land. So long as he remained owner of the said land and plot he could have sold the same to other persons and if one of such persons purchased one plot but was unsuccessful in getting possession of the same for several years it cannot be said that it was an act of property grabbibg by the petitioner. The property grabbing in the strict sense means grabbing of property by taking possession of land belonging to somebody else or belonging to Government or Local Authority. It is not the allegation in the instant case that the petitioner illegally took possession of the property belonging to the State Government or the Local Authority or some other person. As such this criminal case also could not have furnished any material to the detaining Authority for reaching subjective satisfaction that the petitioner is a property grabber.
23. Coming to the statements of confidential witnesses, the statement of first witness reproduced in the forgoing portion of this judgment will simply indicate that once the petitioner allegedly approached the witness and talked about vacating the land of the witness and thereafter annonymous telephone calls were made to the witness that the speaker was a man of Chhota Rajan and that the land should be vacated by the petitioner. This was not an overt act on the part of the petitioner or his companion to grab the land belonging to the witness. At the most it could be said to be an attempt to grab the land, but such attempt to grab the land does not fall within any of the criteria mentioned aforesaid under Section 2(h) of the PASA. Thus, the statement of this witness also could not furnish any material to the detaining Authority for reaching subjective satisfaction that the petitioner is a property grabber.
24. The statement of the second confidential witnesses is wholly irrelevant and it has nothing to do with the allegation made against the petitioner that he is a property grabber.
25. In such state of affairs there was little material before the detaining Authority which could have enabled him to reach subjective satisfaction that the petitioner is a property grabber. The subjective satisfaction of the detaining Authority on this point, therefore, seems to be non-existent and in any case it was imaginary subjective satisfaction of the detaining Authority which cannot be up-held. Thus, if the petitioner can not legally be called as property grabber the order of detention passed against him has to be quashed without entering into further contentions raised by the learned Counsel for the petitioner.
26. Even if for a moment subjective satisfaction of the detaining Authority on this point is accepted yet it cannot be said that the petitioner could be detained under PASA being property grabber under Section 2(h) of the PASA. The scheme of PASA is that the detaining Authority can detain a person only with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Unless the activities of the petitioner were such which were prejudicial for maintenance of public order, the order of detention under the PASA could not be passed. Sub.Section 4 of Section 3 of the PASA makes deeming provision when a person shall be deemed to be acting in a manner prejudicial to the maintenance of public order. Under this sub.section it is clearly provided that even a property grabber cannot be preventively detained under PASA unless his activities are prejudicial for maintenance of public order.
27. Learned Counsel for the petitioner rightly contended that the subjective satisfaction of the detaining Authority on this point is not shown in the grounds of detention. I have gone through the grounds of detention and I was ashtonished to see that the detaining Authority has no where recorded subjective satisfaction in clear terms that the activities or any of the activities of the petitioners were prejudicial for maintenance of public order. All that is said by him in the grounds of detention is that the detention order has been passed against the petitioner being property grabber in the interest of public order. For this Para : 1 on Page : 7 of the English translation of grounds of detention can be referred. Except this there is no observation in the whole of the grounds of detention by the detaining Authority that the activities of the petitioner were prejudicial for maintenance of public order. Subsequently in the counter Affidavit the detaining Authority has deposed in several paragraphs repeatedly that the activities of the petitioner were prejudicial for maintenance of public order. However, initial lacuna in the grounds of detention or the detention order can not be cured subsequently by filing a counter affidavit which is nothing but an after-thought. If the detaining Authority entertained subjective satisfaction while formulating the grounds of detention that the activities of the petitioner were prejudicial for maintenance of public order he could have so disclosed in express words in the grounds of detention. That has not been done. Hence this defect cannot be cured by subsequently filing a counter affidavit.
28. Leaving aside the above technical aspect of the matter even if the grounds of detention are examined it can safely be said that there was no material on which the detaining Authority could have reached subjective satisfaction that the activities of the petitioner were prejudicial for maintenance of public order. There is settled distinction between activities being prejudicial for maintenance of public order and activities prejudicial for maintenance of law and order. If the activities are prejudicial for maintenance of law and order the person indulging in such activities should be dealt with under ordinary criminal law and not that he should be detained under preventive detention law. If the ordinary criminal law is sufficient to deal with such activities of the petitioner he should not have been dealt with in that manner. If on the other hand the activities are prejudicial for maintenance of public order certainly preventive detention is justified. A situation prejudicial for maintenance of public order arises when the activity of the detenu is such which has tendency to disturb even tempo of the life of the society or the locality or the community. However, if disturbance is called to single individual though on several occasions it can not be said that such activities amount to activities prejudicial for maintenance of public order. What is required for an activity being prejudicial for maintenance of public order is that its potential effect should be on public at large or section thereof or section of the persons residing in the locality or in the vicinity where such incident takes place. After examining the statements of the two confidential witnesses as well as the allegations in the three criminal cases it can safely be said that whatever was done by the petitioner was in private and not at public place and that too his activities were confined against individual and not against public at large or section of the public. In the first criminal case the activity of creating false and fake documents of title was confined against the registered society, though in conspiracy with two more persons, but here by such activity the society at large was not affected nor even tempo of the life of the society was not affected. Similar is the case with second incident in which the petitioner was involved in a criminal case. Here also creation of fake sale deed and fake power of attorney in conspiracy on a lonely place could not disturb even tempo of the life of the society because public at large or section of public in the locality was neither aware of such secret activity of the petitioner nor even tempo of the life of such member of public was disturbed. So far as the third incident is concerned this was also a threat to one individual and that too in the office of the petitioner and not in presence of any member of the public. The complainant was not even man handled nor he had any occasion to raise alarm whereupon the members of public collected there. As such registration of three criminal cases hardly furnish any material to conclude that the activities of the petitioner were prejudicial for maintenance of public order.
29. So far as the statements of two confidential witnesses are concerned, they are also confined between the petitioner and his associates on the one hand and the two witnesses on two different occasions on the other hand. In these incidents also public at large was not affected nor any member of public was present when such threat was given to the two witnesses. As such these two incidents also had no potential effect nor had disturbed even tempo of the life of the community or the locality where such threat was given.
30. Even within the extended meaning of disturbance of public order as contained in Explanation to sub.section 4 of Section 3 of PASA such activities could not be said to have created sense or feeling of insecurity or alarm or danger to the property of public at large. If some feeling of insecurity was entertained by the Educational Trust or complainant in two criminal cases or the two witnesses it can hardly be said that such feeling could be entertained by section of the public residing in the locality. Thus, by no stretch of imagination it can be said that the activities of the petitioner were prejudicial for maintenance of public order.
31. I do not find any merit in the contention that because Civil Suits were pending in respect of the property about which the two criminal cases were registered against the petitioner, the petitioner could not be called as property grabber. In those civil suits the petitioner was not a party. Consequently mere pendency of civil Suits can be no ground for holding that the petitioner is not a property grabber. More over this contention becomes ornamental in view of specific findings above that the petitioner is not a property grabber.
32. Likewise I do not find substance in the contention that the disputes are of civil nature, hence no detention order could be passed. The dispute of civil nature was never raised by the petitioner in any competent Court nor he filed any civil Suit supporting his actions and maintaining the validity of the documents of title, sale deed and power of attorney executed at his instance.
33. I do find force in other attack against the detention order that the continued detention of the petitioner is illegal. The contention was that representation dated 9.11.1998 (Paper No.26) was sent by the Advocate of the detenu which was received by the detaining Authority on 12.11.1998 and was rejected on the same day which could not be done by the detaining Authority because the detention order was passed on 23.10.1998 and it was approved by the State Government on 2.11.1998. Once the detention order was approved by the State Government on 2.11.1998 the detaining Authority became functus officio and lost jurisdiction to reject the representation on 12.11.1998. I have gone through the representation aforesaid. In this there was specific prayer that for rerasons contained in Para : 3 & 4 the detention order against the detenu be revoked. There was thus prayer for revocation of detention order and this prayer could not be rejected by the detaining Authority after the detention order was approved by the State Government. The proper course for the detaining Authority was to forward the representation to the State Government for necessary action. In view of this the detention and continued detention of the petitioner becomes illegal.
34. Another contention has been that necessary and material documents were suppressed by the Sponsoring Authority and were not produced before the detaining Authority, hence the subjective satisfaction of the detaining authority is vitiated. On this point it was contended that five FIRs were registered against the petitioner. He challenged all the five FIRs by filing petitions under Section 482 Cr.P.C. in this Court. Two such FIRs were quashed by this court which is evident from the additional documents filed by the petitioner through one of the Civil Applications which has been disposed of in the foregoing portion of this judgment. In the remaining three FIRs which relate to three criminal cases mentioned in the grounds of detention similar petitions under Section 482 Cr.P.C. were filed upon which this Court issued notice to the respondents on 20.8.1998. Learned Counsel for the petitioner contended that if these facts could have been brought to the notice of the detaining Authority his mind might have been influenced one way or the other that out of five FIRs lodged against the petitioner, two were quashed by this Court and against three FIRs notices were issued by this Court as to why those FIRs be not quashed. In view of pendency of these petitions in this Court, according to the learned Counsel for the petitioner, the detaining Authority might have been swayed away by the fact that since the matter is pending before this Court it was not expedient to pass the detention order. I find force in this contention also for the obvious reasons that once the petitions under Section 482 Cr.P.C. were filed in this Court and notices were ordered to be issued by this Court which were served on the State Government the proper course was that these materials should have also been placed before the detaining Authority as well as before the Sponsoring Authority. These materials were vital materials and suppression or non-production of these materials has certainly rendered the detention order illegal inasmuch as subjective satisfaction of the detaining Authority in the absence of these materials cannot be said to be perfect.
35. For the reasons stated above the detention order against the petitioner is found to be illegal and invalid. Consequently it cannot be sustained.
36. The result, therefore, is that the writ petition succeeds and is hereby allowed. The impugned order of detention dated 23.10.1998 passed against the petitioner is hereby quashed. The petitioner will be released only when he is no more required in Criminal cases being CR No.357/98 registered with Umara Police Station, CR No.365/98 registered with Umara Police Station and CR No.336/98 registered with Mahidharpura Police Station and is further not required in any other criminal case.