[1] This petition is directed against the order of detention dated 16.04.2012 passed by respondent No.2, in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short 'the Act') by detaining the detenu as a “property grabber” as defined under Section 2(h) of the Act. Along with the order of detention, the petitioner is also served with the grounds of detention. It is alleged that the petitioner tried to enter into transaction of government land and tried to grab the property.
[2] It is submitted by Mr. B.M. Mangukiya, learned Advocate for the petitioner that in the present case, no complaint has been lodged against the detenue under the provisions of the Indian Penal Code. It was argued that the petitioner was himself was shocked when he was detained pursuant to the impugned order on the ground that he has been treated as “land grabber” defined under Section 2(h) of the Act. He submitted that the authority itself has observed in the detention order that the petitioner detenue has purchased the property from original land owner, in spite of, the land was declared as excess land under the provisions of the Urban Land (Ceiling & Regulations) Act, 1976. He submitted that though he has paid the amount to the land owner pursuant to which an irrevocable power-of-attorney is executed in his favour, it cannot be said that he is a land grabber as defined under the Act. Therefore, the satisfaction recorded by the Detaining Authority about arriving to the conclusion that the petitioner – detenue was a “land grabber” is contrary to the provisions of Section 2(h) of the Act. He further submitted that he has been cheated since he was not aware about the order passed under the provisions of the ULC Act declaring the disputed land as excess and had been vested in the State of Gujarat, purchasing such land would not amounting to grabbing of land. He has further submitted that purchasing a property under the bona fide belief that the particular property is of a private property and if, ultimately, found that it is not private property, then, such act cannot be treated as prejudicial to the maintenance of public health and public order and, therefore, prayed that the detention is required to be quashed and set aside and the petitioner shall be released from the illegal detention forthwith.
Mr. Mangukiya, learned Advocate for the petitioner stated that the detention of co-detenue Bhupatbhai Nanjibhai Gajera has been quashed and set aside by an order dated 21.8.2012 passed by this Court in Special Civil Application No. 8838 of 2012. Similarly, the detention order of co-detenue Sureshbhai Ratibhai Sidpara, has been set aside by an order dated 28.8.2012 in Special Civil Application No. 8092 of 2012. It is therefore submitted that the detention order of the present petitioner also may kindly be quashed and set aside.
[3] Ms.Rekha Patel, Learned Assistant Government Pleader submitted that looking to the conduct of the detenue he is land grabber as per Section 2(h) of the Act and, therefore, the order of detention does not require any interference by this court.
[4] Having heard the rival submissions of the parties and perused the record of the case, I am of the view that executing an irrevocable power-of- attorney for the land which belongs to the State of Gujarat cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and considering the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police), I am of the view that the activities of the detenu cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside.
[5] The land grabbing incident would not be classified to be any danger or imminent danger to public order situation nor can it be so classified without their being any cogent material on record. In the instant case, there appears to be none. Hence, order appears to be passed without application of mind.
[6] In the result, this Special Civil Application is allowed. The impugned order of detention dated 16.04.2012 passed by respondent no.2 is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
[A.J. DESAI, J.] *kazi