Hamid Guddubhai Shaikh vs State of Maharashtra

Mehta, J.—In this Criminal Writ Petition the Detenu, Hamid Guddubhai Shaikh, has challenged the Order of Detention passed against him by the Commissioner of Police, Greater Bombay, on 16-7-1987 under S. 3, sub-section (1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981 (Act LV of 1981).

Shri Lambay, the learned Advocate appearing on behalf of the Detenu amicus curiae, has made only one submission in this Petition impugning the Order of Detention. Shri Lambay contended that the grounds furnished to the Detenu established only one fact and that was that the Detenu was a slumlord. According to Shri Lambay, the grounds failed to show that the activities of Detenu as a slumlord were in any manner prejudicial to the maintenance of public order. On this ground alone, according to Shri Lambay, the Order of Detention deserved to be set aside and the Detenu deserved to be released.

Now, in order to appreciate the submission made by Shri Lambay, it will be pertinent to set out the four instances of criminal activity indulged in by the Detenu which, according to the Detaining Authority, adversely affected the maintenance of public order. In the grounds it was, firstly, stated that between September 1986 and January 1987, the Detenu had disposed of three huts to the following three persons :- (1) Shailesh Gopal Hadkar, (2) Suryakant Raghunath Jadhav and (3) Smt. Khatizabee Gulam Kadar. In the grounds the particulars of the area or the locality in which the three huts were situated, the dates on which the same were disposed of and the amount of the consideration, have been mentioned in detail. Thereafter it was stated in the grounds that in the month of April 1987 the above named three persons came to know that the huts sold by the Detenu to them were unauthorisedly constructed on Government land. When the Detenu approached them for more money, the three persons abovenamed refused to oblige the Detenu. Consequently, the Detenu indulged in threats and the further incidents have been mentioned involving the abovenamed three persons and the Detenu.

(a) In April 1987 Shailesh Gopal Hadkar and his sister Leela came to know that the huts sold to them by the Detenu in Sector No. 55, patch No. 70 had been constructed on Government land. They both thereupon approached the Detenu and demanded that the money paid by them be refunded. The Detenu thereupon abused both Hadkar and his sister Leela and threatened them with consequences if they did not vacate the room. The Detenu thereafter visited Hadkar and his sister Leela at their hut and again abused and threatened them. Out of fear the said Hadkar and his sister Leela abstained from reporting the matter to the Police.

(b) On 24-4-1987 at about 3.00 p.m. Suryakant Raghunath Jadhav, residing in a hut situated in Sector No. 61, patch No. 51, in the Collector''s Compound at Malvani, approached the Police Station at Malvani and reported that the Detenu had rented out a hut to him by accepting a deposit of Rs. 500/- on a monthly rent of Rs. 50/-. The said Jadhav complained that he had paid the rent regularly to the Detenu. Despite this, the Detenu abused him and called upon him to vacate the said hut. The Complaint given by Jadhav was recorded as an N.C. Complaint.

(c) On 28-4-1987 at about 3.00 p.m. Smt. Anusaya Suryakant Jadhav, wife of the abovenamed Suryakant Jadhav, reported at the Malvani Police Station that she had rented a hut from the Detenu after paying a cash deposit of Rs. 500/-. On 28-4-1987 at about 9.00 a.m. the Detenu had threatened her and called upon her and her family to vacate the hut or else he would evict them from the said hut. The complaint of Anusaya Jadhav was recorded as an N.C. Complaint.

(d) In the month of September 1986 one Khatizabee Gulam Kadar rented a hut constructed by the Detenu and paid a sum of Rs. 650/- as deposit. The hut was constructed in Sector No. 62, patch No. 20. A few days later the Detenu again approached the said Khatizabee and demanded from her an additional amount of Rs. 500/- which the lady refused to pay. Her refusal annoyed the Detenu and he abused and threatened her that he would evict and drive her away from the hut. The said Khatizabee refrained from reporting the matter to the Police out of fear. In the month of April 1987 Khatizabee came to learn that the Detenu was not the legal landlord of the hut occupied by her and that the same had been constructed illegally on Government land. She thereupon demanded from the Detenu the return of the deposit amount of Rs. 650/-. The Detenu thereupon abused her and threatened her with dire consequences.

On the basis of these four incidents the Detaining Authority came to the conclusion that the detenu was a slumlord and that the activities of the Detenu were prejudicial to the maintenance of public order and passed the Order of Detention under S. 3, sub-section (1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act.

According to Shri Lambay, the four incidents recited heretofore established only one fact and that was that the Detenu was a slumlord. According to the learned Advocate, they did not go to prove that the activities of the Detenu were prejudicial to the maintenance of public order. Shri Lambay, therefore, contended that the Order of Detention was invalid and defective and the same ought to be struck down.

Now, it will be pertinent at this stage to note certain relevant features and provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981, hereinafter referred to as "the said Act". In the Object and Reasons of the said Act it has been mentioned that having regard to the resources and influence of the persons by whom, the large scale on which, and the manner in which, the dangerous activities were being clandestinely organised and carried on in violation of law by them, as Slumlords, Bootleggers or Drug-offenders in the State of Maharashtra, and particularly in the urban areas, the Governor of Maharashtra was satisfied that the circumstances existed which rendered it necessary for him to take immediate action to have a special law in the State to provide for preventive detention of these three classes of persons and for matters connected therewith.

Section 3 sub-section (1) of the said Act empowered the State Government that if the State Government was satisfied with respect to any person, being a slumlord, bootlegger or a drug-offender, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, if it was necessary so to do, make an order directing that such person be detained.

The said Act then proceeds to define a "slumlord" under S. 2(f) as follows :-

"2(f) ''slumlord'' means a person, who illegally takes possession of any lands (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or leave and license agreement 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 persons 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 abovementioned things;"

Section 2(a) of the said Act defines the expression "acting in any manner prejudicial to the maintenance of public order" -

"in the case of a slumlord, when he is engaged, or is making preparation for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order;"

In the Explanation annexed to Clause (a), it is stated :-

"For the purpose of this Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;"

Now, there does not appear to be any controversy with regard to the question that the Detenu is a slumlord. The controversy revolves round the question whether the activities of the Detenu could be stated to be prejudicial to the maintenance of public order or in other words, whether the Detenu''s activities directly or indirectly were causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof.

The expression "public order" as distinct from "law and order" was defined by the Supreme Court in the case of Arun Ghosh Vs. State of West Bengal, .

Their Lordships observed :-

"It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leasing the tranquillity of the society undisturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another."

The same test was reiterated by their Lordships of the Supreme Court in the case of Ajay Dixit Vs. State of U.P. and Others, , wherein their Lordships held :-

"As emphasised by the decisions of this Court, it is important to bear in mind the difference between law and order situation and maintenance of public order. The act itself is not determinate of its gravity. In its quality it may not differ from another but its potentiality may be very different. Therefore the question whether a man had only committed a breach of law and order or acted in a manner likely to cause disturbance of public order is a question of degree of the reach of the act upon society."

The issue which needs to be answered in the instant case is whether the activities of the Detenu led to a disturbance of the current of life of the community so as to amount to a disturbance of the public order or did it merely affect a few individuals leaving the tranquillity of the society undisturbed ? At this stage we should like to consider two authorities relied on by Shri Lambay, both of which are pronouncements of our Court.

Shri Lambay, firstly, relied on a ruling of this Court in the case of Ramesh Ganpat Ghanekar v. R. D. Tyagi, reported in 1986 Cri LJ 1421, wherein Jahagirdar J. speaking for the Court was pleased to observe (at p. 1423) :-

In order to be satisfied that it is necessary to detain a person with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order, naturally the authority will have to consider those incidents which have a bearing upon the maintenance of public order. To repeat, merely because a particular person is a bootlegger it not a factor which has a bearing upon the maintenance of public order. It is only when any of his activities as a bootlegger affects adversely or is likely to affect adversely the maintenance of public order that the subjective satisfaction mentioned in S. 3 can legitimately be arrived at. These peculiar features of this Act must, therefore, be clearly borne in mind."

We consider the quotation hereinabove as the correct interpretation of the law relating to the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act. We need only say that the facts of each case will influence the conclusion to be arrived at.

Shri Lambay has then relied on a ruling of this Court in the case of Megha Chanchaldas Jeswani v. Commr. of Police, Thane, reported in 1986 Mah LJ 561. A Criminal Writ Petition involving a bootlegger came up for decision before a Division Bench consisting of Jahagirdar and Tated JJ. It appears that there were as many as six incidents of criminal activity relied on by the Detaining Authority in that case. Both the learned Judges were of the view that the five first incidents clearly established that the activities of the Detenu in that case were prejudicial to the maintenance of public order. There was, however, a difference of opinion between the learned Judges with regard to the last incident, Jahagirdar J. holding that the incident involved merely a question of law and order and did not amount to public order while Tated J. holding the contrary view. The matter was then referred to a third learned Judge, Shah J. Shah J. whilst deciding the matter was pleased to observe :-

"Now, while considering the question as to whether a particular activity had a nexus with the bootlegging or with the maintenance of public order must obviously depend upon the facts and circumstances of each case. Whether a particular act will or will not create a problem of public order will depend upon various circumstances such as whether it is merely a clash between the individuals, the motivation for the assault, the magnitude and gravity of the incident and so on. In my opinion, having regard to all these factors and taking into consideration the nature of the incident and also bearing in mind the distinction between the disturbance of public order and law and order, it is not possible to hold that this incident can affect the even tempo of the life of the society so as to amount to a disturbance of public order. In my view, therefore, the ground 2(g) is irrelevant as far as the validity of the ground is concerned. Therefore, with respect I am in agreement with the view taken by Jahagirdar J. and unable to share the view by Tated J."

In arriving at the conclusion cited heretofore, Shah, J. took into consideration a number of authorities of the Supreme Court as well as this Court. From the passage cited above, it is clear that the learned Judge was deciding upon the facts of that particular case. We feel that the observations of the learned Judge cannot help Shri Lambay in the proposition which he canvasses in the instant case.

In the instant case, as pointed out heretofore, the Detaining Authority has set out four instances involving the Detenu in which he had constructed certain unauthorised structures on Government land. With regard to this aspect, as we have pointed out heretofore, there is not much dispute. Having constructed these structures, they were let out to different persons. When these persons became cognizant of the fact that the huts were unauthorised structures constructed on Government land, they demanded refund of the deposits paid by them, whereupon in every case the Detenu abused and threatened them. The Detaining Authority has specified four such cases of abuse, intimidation and threats. Shri Lambay has submitted with some emphasis that these were stray incidents which would not affect the even tempo of the society.

Now, it is true that an incident taken by itself may not amount to be prejudicial to the maintenance of public order. But where it is shown by the Detaining Authority that the Detenu had followed a consistent pattern of conduct, of abusing and threatening different persons at different times, can it be stated that such activity will not disturb the even tempo of the society in which these persons inhabited ? The answer, we think, must be in the affirmative. A consistent course of conduct of the Detenu in abusing, threatening and intimidating persons to whom he had rented out the unauthorised structures would ultimately cause alarm and a feeling of insecurity amongst the general public or the section or area in which they lived. That being our conclusion, we must reject the submission made by Shri Lambay. We see no reason for interfering with the Order of Detention in this matter.

In the result, the Rule stands discharged. The petition is dismissed.

Petition dismissed.