The Gujarat High Court has warned Gujarat Police against the misuse of the Prevention of Anti- Social Activities (PASA) Act to settle private scores of individuals. The bench of Justice Paresh Upadhyay quashed the detention orders against 4 persons who were deemed “property grabbers” under PASA and also found the affidavit filed by the detaining authority to be inadequate in justifying the detention.
The court was dealing with four applications filed against orders passed by District Magistrate Amreli whereby the petitioners were treated as ‘property grabbers’ and were detained under PASA. Since these were identical orders, the court heard them together and passed a common order.
Property grabber is defined under section 2(h):
(h) “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 suchlands 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;
The execution of the impugned orders was suspended by the high court in March 2021 and the petitioners were directed to be released.
The court quoted parts of the affidavit filed by the detaining authority and the court also observed that the affidavit does not provide any justification to invoke PASA in a private property dispute. In the affidavit, the reason for detaining the petitioners was that if they would have been granted regular bail and set free, then they would tamper records and act against maintenance of public order and continue their illegal activities. It further stated that if they were not detained, they would have taken help of their advocates for continuing illegal activities and state could file application for cancelling bail but that would be a time consuming procedure.
The court took seriously, this “apprehension” stated in the affidavit that the petitioner would have taken help of their advocates for continuing illegal activities. “If any citizen faces action from the State and if he resorts to the legal remedy available to him, and if the citizen is protected, any attempt to obstruct it, may be viewed very seriously and even the option of initiating proceedings under the Contempt of Court Act, can also be explored. The matter is not stretched that far,” the court said.
After conjointly considering the material on record, the affidavit in reply of the detaining authority as well as the FIR, the court observed that “the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order”. The court drew the distinction between law and order and public order as is being done by high courts lately when considering cases of validity of orders of preventive detention.
The court cited Supreme Court’s decision in Pushker Mukherjee v/s. State of West Bengal AIR 1970 SC 852 and observed that the detention orders in these petitions fail on the test laid out by the apex court. the court, thus found it appropriate to quash and set aside the impugned detention orders.
“It is noted that, in the grounds of the detention, the detaining authority has recorded to the effect that, according to him, the activities of the petitioner create a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record, this Court finds that, the citation of such words is more in the nature of rituals rather than with any significance to the alleged activities of the petitioner,” the court observed.
Thus, the court found the detention orders to be unsustainable and decided to quash the same.
The court pointed out that two detention orders are passed against women and the complainant in one of the FIRs resides in Mumbai. The court warned the authorities that private individuals may be throwing their weight around to meet their vested interest in private property disputes. The court said thus,
“The enthusiasm on the part of the State Authorities to throw the weight of the State in favour of one of the contesting parties, in the matters of private property disputes, may lend the State in embarrassing position one day. Further, in the property disputes – the financial stakes from both the sides may be very high. This may also lead to temptation to one of the parties, for soliciting help from the revenue and the police officers, for the considerations less known to law. These are the dangers which need to be kept in view by the Higher Authorities of the State.”
The court allowed all four petitions and set aside all detention orders passed on February 17, 2021.
The complete order may be read here:
A similar issue of misuse of PASA for settling financial disputes was highlighted by the Gujarat High Court in April. The same bench of Justice Upadhyay had observed, “Such tactics need to be nipped in the bud. Rampant misuse of PASA is noticed by this court. This is one of such examples, where it is the police authorities who take upon such responsibility to settle the financial transaction / disputes between the parties, with the aid / threat of PASA.” In this case, petitioner Shakeel Kureshi was deemed dangerous person under PASA and the bench had pre-emptively stalled the execution of detention order against him.