Allahabad High Court
Jasbir Maan vs State Of U.P. And 4 Others on 17 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 2331
Bench: Pankaj Mithal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 04.03.2020 Delivered on 17.04.2020 In Chamber Case :- HABEAS CORPUS WRIT PETITION No. - 1100 of 2019 Petitioner :- Jasbir Maan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jyoti Kumar Singh,Ishwar Chandra Tyagi,Rakesh Pande (Senior Adv.),Vishakha Pande Counsel for Respondent :- G.A.,Raj Kumari Devi Hon'ble Pankaj Mithal,J.
Hon'ble Pradeep Kumar Srivastava,J.
The petitioner Jasbir Maan through his wife Smt. Anila Maan has preferred this petition for the issuance of a writ of habeas corpus calling upon the respondents to produce the corpus of the petitioner and to release him from the alleged unlawful detention under the National Security Act (hereinafter referred to as "Act"). The petitioner has also prayed for the quashing of the detention order dated 15.10.2019 passed by the District Magistrate, Gautam Buddh Nagar for detaining the petitioner under Section 3 (2) of the Act.
The petitioner is a builder having its organisation Maan Properties and Developers. He had constructed multi-storied buildings consisting of 261 flats on Khasra No. 35/46/164 in village Shahberi, District Gautam Buddh Nagar sometime in the year 2017-18. He had transferred/sold about 169 of the said flats by registered deeds to the public at large.
It is alleged that his construction activities are illegal and that he had raised constructions of the above multi-storied buildings illegally on the land acquired by the Greater NOIDA Industrial Development Authority (hereinafter referred to "GNIDA") by unauthorizedly purchasing it from the tenure-holders by using substandard material in violation of the bye-laws without getting the layout/map sanctioned.
In connection with the aforesaid activities, it appears that various FIRs were lodged against the petitioner on 16.10.2018 registered as Case Crime No. 968 of 2018; on 23.11.2018 registered as Case Crime No. 1186 of 2018; on 30.09.2019 registered as Case Crime No. 1094 of 2019.
The petitioner when in jail in connection with one of the aforesaid cases i.e. Case Crime No. 1094 of 2019 was served with the impugned order of detention dated 15.10.2019 passed by the District Magistrate in exercise of powers under Section 3 (2) of the Act directing for detaining him in order to maintain public order.
The detention order was followed by the grounds of detention which were duly communicated to the petitioner as contemplated under Section 8 of the Act to enable him to represent.
The grounds of detention are very comprehensive and have been enclosed as Annexure-2 to the writ petition. The aforesaid grounds narrate in detail the facts leading to the passing of the above detention order. It clearly states that the GNIDA in the year 1994 in pursuance to its proclaimed activities started acquisition of land of village Shahberi. The acquisition so started on being challenged in the High Court was quashed on 12.05.2011 which order attained finality. Thus, GNIDA restarted fresh acquisition proceedings in the year 2013 whereupon again writ petitions were filed in the High Court and an interim order was passed in one of the writ petitions on 16.10.2014 directing for the maintenance of status-quo. The other writ petitions were tagged with it.
The aforesaid interim order was well publicized by putting notices but the petitioner illegally went on purchasing the said land from the villagers and raised constructions without getting the land use changed from the agricultural to residential or abadi. At least 431 flats in all were constructed by various builders including the petitioner with substandard material as a result, two of the building/towers of one of the other builders collapsed on 17.07.2018 and 9 people lost their lives. In connection with it, 72 FIRs were lodged against 262 persons. On account of the above incident, there was mass unrest leading to "dharna pradarshan" by the public. The builders provoked the people for such "dharna pradarshan" which disturbed the peace and tranquility of the area.
Insofar as the petitioner is concerned, it has been stated that he constructed 261 flats in village Shahberi on Khasra Nos. 45/40/64 in the year 2017-18. All the said constructions are illegal and substandard. The constructions were raised by him without any sanction and permission of the GNIDA. The petitioner has sold 169 flats without obtaining completion certificates. There is likelihood of these buildings falling down resulting in human casualties as had happened in the case of two other towers mentioned above.
It is alleged that in view of the aforesaid acts of the petitioner, the District Magistrate is satisfied that in case petitioner is released from jail, he would start selling the remaining flats and would provoke the buyers and the people to sit on "dharna pradarshan" causing disturbance to public order. Thus, in order to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary that he be detained under Section 3 (2) of the Act.
The State of U.P. has filed counter affidavit sworn by the Under Secretary (Home), Confidential Department, U.P. Civil Secretariat, Lucknow. It is stated that the detention order dated 15.10.2018 along with the ground of detention and other connected documents on being forwarded by the District Magistrate, Gautam Buddh Nagar, were received on 16.10.2019 by the State Government. The State Government after examining every aspect of the matter, approved the same on 24.10.2019 within 12 days and the approval was communicated to the petitioner on 25.10.2019 through the district authorities, both by letter and radiogram.
The copy of the detention order along with grounds of detention and connected documents were also sent to the Central Government by speed-post on 25.10.2019 within 7 days of receiving the approval of the State Government in accordance with Section 3 (5) of the Act.
The case of the petitioner was referred to the U.P. Advisory Board (Detention), Lucknow on 25.10.2019 within the stipulated period of three days as required under Section 10 the Act along with all necessary documents. The petitioner appeared for hearing on 08.11.2019 before the Advisory Board. The Advisory Board upon hearing the petitioner in person submitted his report opining that there is sufficient cause for the preventive detention of the petitioner under the Act and accordingly, confirmed the detention order.
The petitioner was given full and complete opportunity of making representation against his detention. He submitted his representation on 26.10.2019 which was duly received by the State Government with the covering letter of the District Magistrate. The representation with the comments was also sent to the Central Government. It was examined by the State Government without any delay and was finally rejected on 08.11.2019. The rejection was communicated to the petitioner through the district authorities.
In view of the aforesaid facts and circumstances, stated in the counter affidavit of the State, the detention order was passed by the District Magistrate on his satisfaction that the detention of the petitioner is necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. At the same time, the complete procedure specified not only for the passing detention order and in confirming it but in allowing opportunity to the petitioner to make representation and to deal with it swiftly without loss of any time was duly followed.
The counter affidavit filed on behalf of respondent No.4, Superintendent (Jail), Gautam Buddh Nagar states that the petitioner was in judicial custody in connection with the Case Crime No. 1094 of 2019 when the detention order dated 15.10.2019 was passed which along with the grounds of detention and relevant material was served upon him on the same day. He was given full opportunity to submit his representation which he submitted on 26.10.2019. The representation was rejected by the District Magistrate, State Government and Central Government and the petitioner was duly informed of it. The detention order was approved/confirmed by the State Government.
The aforesaid facts disclosed in the counter affidavit of respondent No.4 establishes that the entire procedure for approving and confirming the detention order and regarding affording of opportunity to the petitioner to make a representation and for its consideration were duly followed within time specified without causing unnecessary delay.
A counter affidavit has also been filed on behalf of Union of India. It apart from other things states that the representation of the petitioner was processed for consideration by the Union Home Secretary who was authorized by the Union Home Minister to decide such representations. Finally the representation was rejected on 20.11.2019 and a wireless message to that effect was sent to the State Government, Superintendent (Jail), Gautam Buddh Nagar and District Magistrate, Gautam Buddh Nagar and the petitioner. The second representation was also rejected and its rejection was also duly informed to petitioner.
It is in the above background that we have heard Sri Rakesh Pande, Senior Counsel assisted by Sri Jyoti Kumar Singh for the petitioner, learned A.G.A., Mrs. Raj Kumari Devi, learned counsel for Union of India, respondent No.6 and Ms. Anjali Upadhyay, learned counsel for GNIDA.
The primary argument raised by Sri Pande for assailing the detention order is that the detention stands completely vitiated as there is no threat to public order. The apprehension of the District Magistrate in the light of collapse of two towers earlier is baseless. The petitioner alone has been singled out in passing the detention order as despite 72 FIRs and involvement of 262 accused, no other person has been subjected to such preventive detention.
Ms. Anjali Upadhyay supporting the contentions put forth on behalf of the State authorities and the Union of India submitted that it is at the behest of the Greater NOIDA that such an action has been taken against the petitioner and that it is necessary to do so as despite all efforts of Greater NOIDA, the petitioner refused to stop his illegal activities and that his actions were likely to disturb the "public order".
The argument that the petitioner alone has been singled out has no legs to stand as there is no parity in illegality. If other persons with similar record or likelihood to disturb the public order, have been left out and have not been kept in preventive detention, it does not mean that the petitioner also cannot be detained and be allowed to rome about freely giving him a chance to act in a manner which is prejudicial to the maintenance of the public order.
Now, in the light of the respective submissions, the only aspect which requires consideration is whether the impugned order of preventive detention has been passed on the proper satisfaction of the detaining authority/State Government that it is necessary to prevent the petitioner from acting in any manner prejudicial to the maintenance of "public order" inasmuch as the submission is that the activities of the petitioner may be somewhat illegal but are not in any way affecting the maintenance of "public order".
It may be made clear that the impugned order passed under Section 3 (2) of the Act is not punitive in nature but is only preventive so that the person may inter-alia be prevented to act in a manner prejudicial to the maintenance of public order. The order of preventive detention is liable to be passed under Section 3 of the Act inter-alia on three counts if the Central or the State Governments are satisfied that the activities of any person are (i) prejudicial to the security of the State; (ii) prejudicial to the maintenance of "public order"; and (iii) prejudicial to the maintenance of supplies and services essential to the needy.
In the case at hand, we are concerned with the preventive detention on the ground of activities of the petitioner prejudicial to the maintenance of the "public order" i.e. one of the three grounds specified under Section 3(2) of the Act.
The language used for making such a preventive detention is, if simply put after ignoring the unnecessary part would read as under-:
The State Government, if satisfied with respect to any person that with the view to prevent him from acting in any manner, prejudicial to the maintenance of the public order, if necessary, so to do, make an order that such person be detained.
Satisfaction of the State Government that it is necessary to detain a person in order to prevent him from acting in any manner prejudicial to the "public order" is an essential condition for passing such a preventive order. It is in the light of the above language used in Section 3 (2) of the Act that we have to examine if a case of preventive detention of the petitioner is made out from the grounds of detention so as to satisfy the State Government that it is necessary to detain him to prevent him from acting in any manner which may disturb the "public order".
Therefore, to invoke the provision of Section 3(2) of the Act, the satisfaction of the State Government so to prevent a person from acting in a manner prejudicial to the maintenance of "public order" are two essential conditions. The first issue therefore is as to whether the activities of the petitioner are within the realm of the "public order" or "law and order".
The "public order" has not been defined under the Act but it was a matter of consideration before the Apex Court in the case of Ashok Kumar1, which was also a case under the aforesaid Act. The Court therein made a distinction between the two concepts of "public order" and "law and order" and held that in the case of "law and order", it affects specific individuals only while in the case of "public order", it has the potentiality of disturbing the normal tempo of the life of the community. The Apex Court observed as under-:
"The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."
The meaning of "public order" again came up for consideration in Smt. Angoori Devi2 and it was opined that if the act is confined to individual without directly or indirectly affecting the life of the community, it may be a matter of "law and order" only but where the gravity of the act is otherwise and likely to endanger the public tranquillity, it may fall within the orbit of "public order".
In Ayya3, it was observed that what might be otherwise simple "law and order" situation, it might assume the gravity and mischief of "public order" by reason alone of the manner or circumstances in which it is carried out.
In other words, at times even simple acts of "law and order" problem on account of their gravity and the manner or circumstances in which they occur may result in disturbing the "public order" if they create a sense of insecurity in the public mind.
In view of the above, the distinction between "law and order" and "public order" is very fine and at times it may be overlapping.
It is in the light of the above legal position that we have been called upon to examine if the acts of the petitioner as disclosed in the grounds of detention are in context with the maintenance of "public order" or they relate to the maintenance of "law and order" situation.
The facts and the grounds stated in the grounds of detention communicated to the petitioner by an large may be in connection with the illegalities committed by the petitioner in purchasing the acquired land of the GNIDA, raising unauthorized constructions with substandard material and as such may fall within the ambit of the "law and order" situation but at the same time, the satisfaction of the District Magistrate as to the apprehension that on account of substandard unauthorized constructions, there may be a possibility of some similar incident as had happened in the past in connection with some other building causing some human casualty resulting in public outrage is certainly a matter concerning "public order", affecting the even tempo of public life.
Moreover, the likelihood of the petitioner indulging in illegal sale of the remaining flats and in provocating the buyers/public at large to agitate and sit on "dharna pradharshan" to get these illegal constructions regularized or compounded, would ultimately disturb the tranquillity and the peace of the locality, and is sufficient enough to make out a case of disturbance of "public order".
The relevant part of the impugned order recording the precise ground and satisfaction that the activities of the petitioner are prejudicial to the public order is reproduced hereinbelow for convenience-:
"उपरोक्त facts and circumstances से स्पस्ट है की मा० उच्च न्यायलय के द्वारा यथास्थिति के आदेश के उपरांत भी बिना ग्रेटर नॉएडा प्राधिकरण के ले-आउट प्लान पास कराये, बिना भवन का नक्शा पास कराये आपके द्वारा भवनों का निर्माण किया गया। अविधिक रूप से बनाये गए फ्लैट्स जो किसी प्रकार की structural stability का प्रमाण पत्र प्राप्त किये बिना इन कमजोर भवनों को वैध और मजबूत बताते हुए निर्दोष एवं आवास आवस्यक्ताओं के कारन विवश खरीदारों को व्यापक स्तर पर बेचे गए है। १७ जुलाई २०१८ जिसमे की इसी क्षेत्र में भवनों के गिरने से ०९ लोगो की मृत्यु हुई है की तरह कभी कोई दुर्घटना व्यापक स्तर पर घट सकती है। आपने लगभग ९२ फ्लैट्स अभिलेखों हिसाब से अभी तक विक्रय नहीं किये है, को जेल से छूटने के बाद इन्हे बेचने का पूरा प्रयास रहेगा। पिछले एक वर्ष से ग्राम शाहबेरी में ऐसी बिल्डिंगो को नियमित करने के लिए वहा के स्थानीय बायर्स द्वारा लगातार आंदोलन किया जा रहा है। यह आंदोलन कई प्रकार से पब्लिक आर्डर को पूरी तरह से डिस्टर्ब करने की स्थिति में भी परिवर्तित होता है। ऐसे भी तथ्य आ रहे है जिसमे आप जैसे बिल्डर्स स्थानीय बायर्स को उकसाकर इस तरह के आंदोलन करवा रहे है। हाल ही में ग्रेटर नॉएडा प्राधिकरण द्वारा आई० आई० टी० दिल्ली को इन भवनों के structural stability के बारे में शीघ्र ही स्टडी करने के लिए कार्य दिया गया है जो पूर्ण हो चूका है, अगले कुछ ही दिनों में यह स्टडी रिपोर्ट प्राप्त हो जाएगी परन्तु व्यापक स्तर पर विभिन्न माध्यमों से जनता के बीच में perception बना है, वह भवनों के काफी कमजोर होने के तथ्य की ओर इंगित कर रहे है इससे लोक जीवन में भय के वातावरण का संचार हो रहा है, ऐसी स्थिति में उपरोक्त facts and circumstances के आधार पर मेरा यह निश्चित मत है की यदि आप छूटकर बाहर आएंगे तो अपने बचे हुए भवनों/फ्लैट्स को बेचने का पूरा प्रयास करेंगे। आप स्थानीय बायर्स को इन भवनों के नियमित करने के वर्तमान आंदोलन को उकसाने का प्रयास भी करेंगे, आप आई० आई० टी० दिल्ली द्वारा की जा रही तथ्यात्मक स्टडी को influence करने का प्रयास करेंगे। इन सभी स्थितियों में लोक व्यवस्था व्यवधानित होने की व्यापक सम्भावना है। उपरोक्त परिस्थितियों में balance of convenience भी आपके पक्ष में नहीं है तथा आपके सभी कृत्य एवं संभावित कृत्य जैसा की उपरोक्त वर्णित किया गया है, सभी प्रकार से Maintenance of Public Order के prejudicial है, तथा लोक हित के एवं लोक व्यवस्था के सर्वधा प्रतिकूल है।"
Accordingly, in our opinion the grounds of detention disclose not only "law and order" problem but also the problem of "public order" which is likely to be caused by the activities of the petitioner.
The nature and gravity of the actions of the petitioner though in strict sense may be concerning "law and order" situation but ultimately would be affecting the "public order".
It is tirite to mention here that preventive detention is a device to offer protection to the society and the executive can always take recourse to it where it is satisfied that no other method would succeed in preventing a person from disturbing the "public order" situation.
The subjective satisfaction of the detaining authority with regard to the action of preventive detention has to be taken keeping in mind the danger to liberties of the people and if the actions or the activities of the person have serious repercussions not merely on "law and order" but on "public order", the satisfaction so recorded cannot be lightly interfered by the Court of Law unless it is arbitrary or unreasonable.
In the case at hand, the grounds of detention elaborately narrate the facts leading to the order of detention and the grounds are precise, pertinent, proximate and relevant for recording subjective satisfaction and thus, it cannot be said that the detaining authority has not applied its judicious mind in coming to the conclusion that the activities of the petitioner are prejudicial in nature to the maintenance of "public order".
It may not be out of context to remind that the Court in exercise of extraordinary jurisdiction does not normally interfere with the subjective satisfaction recorded by the detaining authority except in exceptional circumstances inasmuch as the Court is not empowered to substitute its own opinion for that of the detaining authority. No exceptional circumstances have been established to permit interference with the subjective satisfaction recorded by the District Magistrate in passing the order of preventive detention of the petitioner.
Accordingly, we do not find any scope for exercising our discretionary power in the matter at hand so as to disturb the impugned order of preventive detention. However, as primarily the satisfaction has been recorded on apprehension that the activities of the petitioner would affect the "public order", we leave it open for the petitioner to apply for the revocation of the order of preventive detention or for his temporary release in accordance with the provisions of Section 14 and 15 of the Act which may be considered expeditiously subject to conditions as permitted in law.
No other point was raised and argued before us.
The writ petition, accordingly, is devoid of merit and is dismissed.
Order Date-: 17.04.2020 Nirmal Sinha