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Judgment
Gh. Hasnain Massodi
The petitioner through medium of present petition, questioned the order No. 17/PSA of 2006 dated 22nd September, 2006 whereby District
Magistrate, Jammu-respondent No. 2 herein, ordered preventive detention of Shri Ravinder Gupta alias Gole Shah S/o Suraj Parkash Gupta R/o
H. No. 43/7 Greater Kailash, Tehsil and District, Jammu (hereinafter referred to as ""detenue"") under J&K Public Safety Act, 1978 and directed
his lodgment in Central Jail, Jammu.
The petitioner pleaded that the detenue was not furnished the documents relied upon by the Detaining Authority while manking the detention
order, that the grounds of detention did not constitute a case for preventive detention of the detenue; that the preventive detention of the detenue
was ordered for a period of two years when a person could be detained on the ground of his activities being prejudicial to ""public order"" for a
maximum period of one year; that the preventive detention was outcome of land dispute between the detenue and the respondent no. 6; that the
detenue had complained against the respondent no. 6 to his officers and the preventive detention order slapped on the detenue was to silence the
detenue and prevent him from prosecuting the complaint made against the respondent. The petitioner assailed the detention order as malafide
based on the grounds manipulated by the respondent no. 6 in connivance with respondent no. 7. The petitioner also claimed that the detenue had
made a representation against his preventive detention to the Government immediately after the detenue was detained in Central Jail, jammu. The
petitioner on the strength of grounds urged in the petition sought quashment of the detention order. The respondents 2 and 6 in their counter
affidavit controverted all the averments made in the petition. The respondents maintained that the detenue was notorious land grabber who had
grabbed Government and private land by resorting to shabby deals and that the detenue would sell the land grabbed by the detenue to innocent
buyers after managing fake documents. The respondents 2 and 7 maintained that the detenue was involved in a number of criminal cases registered
at Police Stations Gangyal and Channi Himmat.
The matter as required u/s 14 of J&K Public Safety Act, 1978 was placed before the State Advisory Board. The State Advisory Board on 2nd
November, 2006 held that the alleged activities of detenue fell within the arena of ""law and order"" and did not constitute a ground for preventive
detention of the detenue. The State Advisory Board declined to confirm the detention order about three weeks after the detention order was
made. The Government vide Order No. Home/PB-V/2416 of 2006 dated 15.11.2006 revoked the detention order and ordered release of the
detenue. The matter in wake of aforementioned Government Order ought to have come to an end. However, Shri Ravinder Gupta alias Gole Shah
on 11.12.2007, more than a year after his release from preventive detention made an application for his impleadment as petitioner in HC(W) No.
30/2006. The application was allowed vide order dated 03.09.2008 and Shri Ravinder Gupta impleaded as petitioner no. 2 in the Habeas Corpus
Petition.
The petitioner no. 2 sought an opportunity to seek damages and compensation for the respondents for what the petitioner called ""illegal
detention order"" and his unconstitutional detention. The petitioner also prayed for leave to file detailed statement to show the loss and damage to
the petitioner suffered due to his illegal and unconstitutional detention. The petitioner No. 2 on 11.11.2008 filed an affidavit detailing therein the
circumstances in which the petitioner no. 2 was placed under preventive detention and the grounds that made the detention order malafide and an
abuse of authority. The petitioner no. 2 asked for damages on account of loss to his property, business and reputation. The supplementary affidavit
has gone without any response.
Heard and considered.
The petitioners' case set out in HC (W) 30/2006 primarily was that the preventive detention slapped on petitioner no. 2 was unwarranted and
liable to be quashed and that the petitioner no. 2 be set at liberty. The petitioner is as an ancillary relief sought compensation on account of what
the petitioner called unlawful, malafide and illegal detention of her husband now arrayed as petitioner no. 2 in the petition.
The respondents vide order dated 15.11.2006 revoked the detention order and released the petitioner no. 2. The petition was rendered
inconsequential.
Should the Habeas Corpus Petition in the present circumstances be allowed to survive, so as to determine the damages that the petitioner no. 2
insists he is entitled to because his preventive detention has illegal, unwarranted, unconstitutional and malafide. Whether in the context of preventive
detention under Jammu and Kashmir Public Safety Act, 1978 and against the backdrop of factual averments made in the petition and thereafter the
supplementary affidavit dated 11.11.2008, the petition can continue as one for qualified Habeas Corpus Petition for determining entitlement of the
petitioner to compensation and the quantum of compensation payable to the petitioner no. 2 are the questions that need to be examined.
Section 8 Jammu and Kashmir Public Safety Act, 1978 empowers the State Government to order preventive detention, a person whose
activities are apprehended to be prejudicial to the ""security of the state"" or ""public order"". The maximum period for which a person can be put
under preventive detention, in case apprehend activities of the person detained under preventive detention are in the opinion of the Detaining
Authority prejudicial to the ""security of the state"" the maximum period for which such person may be put under preventive detention is two years.
In case preventive detention is ordered on the ground that the apprehend activities of the person detained(sic)e prejudicial to ""public order"", the
maximum period of detention is one year. Section 8 (2) confers power available to the Government in terms of section 8 (1) on the Divisional
Commissioner and District Magistrate. In terms of section 8 (4) of the Act the detention order made by the Detaining Authority is to survive for a
period of 12 days, unless it finds approval of the Government.
The legislature conscious of the mandate of Articles 21 and 22 Constitution of India has incorporated a number of inbuilt safeguards in Jammu and
Kashmir Public Safety Act, 1978, so that the powers confer u/s 8 of the Act on the Government and its officers are not misused. In the first place,
as already pointed out, the detention order made by the Divisional Commissioner or a District Magistrate has a limited life span of 12 days.
Because of the safeguard, the Detaining Authority, even where there is an intention to make use of the power available u/s 8 (3) to harass a person
cannot misuse the power because of its brief and limited life span. The detention order is to get approval of the Government within a period of 12
days. Even after, the detention order finds approval of the Government, the papers regarding the detention are in terms of section 17 of the Act to
be placed before the State Advisory Board constituted u/s 14 of the Act. The State Advisory Board is required to follow procedures laid down in
Sections 15 and 16 of the Act which include personal hearing of the detenue and thereafter return the finding on advisability of placing the detenue
under preventive detention. It is only after the State Advisory Board records its agreement with the conclusion arrived at by the Detaining Authority
and thereafter the Government; that the matter in terms of Section 17 of the Act is to be placed before the Government for confirmation of the
detention order. It is at this stage that the Government decides on the period of detention of the detenue.
The Detaining Authority at the time of making detention order has to arrive at subjective satisfaction on the basis of the material available
before it. While the court is under constitutional obligation to see that the safeguards guaranteed to the detenue under article 22(5) Constitution of
India and Section 13 of the Act are followed and adhered too and to quash the detention order where the detenue appears to have been deprived
of his constitutional and statutory rights and prevented from making a meaningful and effective representation against his detention, the court lacks
jurisdiction to look into the sufficiency grounds that led to the preventive detention of the detenue. In other words Court lacks power and
jurisdiction to sit in appeal over the order of the Detaining Authority, so as to see whether the grounds on which detention order is based are
sufficient and adequate.....
The very fact that the Jammu and Kashmir Public Safety Act, 1978 lays down a series of safeguards and screening stages, is by itself indicative
of the fact that errors and omissions made by the Detaining Authority at the time of making the detention order are taken note of with proper
dispatch and the detention ""order revoked, if grounds found not sufficient. This is what exactly has been done in the present case. The respondent
no. 1 immediately after the detention order was slapped on the petitioner no. 2 and a detailed representation received from the detenue placed the
matter before the State Advisory Board and the State Advisory Board promptly held the grounds set out in the grounds of detention not sufficient
to warrant preventive detention of the detenue. In the opinion of the State Advisory Board, the reasons detailed in the grounds of detention though
may lead to the conclusion that alleged activities of the detenue were likely to prejudice ""law and order"" but the alleged/apprehended activities did
not graduate/qualify to be treated as prejudicial to the ""public order"" as opined by the Detaining Authority.
The petitioner no. 2 by asking the Court to determine and award the damages on account of alleged illegal and unwarranted detention, in effect
requires the court to look into sufficiency and adequacy of the grounds relied upon by the Detaining Authority to put the petitioner no. 2 under
preventive detention. The petitioner no. 2, thereafter, asks the court to assess the loss to person, property and reputation of the petitioner to which
he was exposed because of his detention. I am of the opinion that the primary object of the petition having been fulfilled, they cannot be allowed to
continue for the purpose of working out the loss suffered by the petitioner no. 2 and awarding the damages. I hold so for two reasons. Firstly, the
Court cannot look into sufficiency and adequacy of the grounds that prompted the Detaining Authority to slap preventive detention on the
petitioner. The Detaining Authority as already pointed out has to arrive at subjective satisfaction and the Court lacks power to assess or evaluate
sufficiency of the grounds. In the second place, the plea raised by the petitioner no. 2 to build up a case of malafides and abuse of authority is
factual in character. The petitioner in the application as well as supplementary affidavit raises factual pleas, which may be formulated as following
issues:-
1) Whether the petitioner no. 2 had a dispute with respondent no. 6 over a plot of land situated at Village Chowadi, Greater Kailash, Jammu.
2) Whether the petitioner and the respondent no. 6 are entangled in civil litigation before the Civil Court in respect of said plot of land.
3) Whether the Civil Courts' have granted any ad-interim injunction in the civil suits between the parties in respect of said plot of land, awaiting
disposal before civil courts.
4) Whether the petitioner lodged a complaint against respondent no. 6 before his superior officers.
5) Whether FIRs No. 27/2002 and 61/2002 was ""virtually closed"" and reopened on 2nd September, 2006 and 6th September, 2006.
6) Whether the respondent no. 6 has encroached upon 7 kanals of land adjacent to the plot of land purchased by him in the name of his wife at
Village Chowadi, Greater Kailash, Jammu.
7) Whether the character certificate issued in favour of the petitioner 2, was issued after due verification are obtained by the petitioner no. 2 against
suits.
The list of issues is illustrative and not exhaustive and intended to help us understand nature of controversy. The issues being factual in
character cannot be determined without the parties having an opportunity to adduce evidence to prove and disprove the issues. The jurisdiction
exercised by this Court cannot be extended to determine the above issues and the issues that may crop up during the proceedings. The right forum
to deal with these issues is a Civil Court and right course for the petitioner is to bring a civil action and raise all these issues in civil suit:
The law laid down in Arvinder Singh Bagga v. State of U.P. and Ors. reported in 1995 Supp (3) SCC 716, does not extend support to the
petitioner's case for the reason that the facts of the case relied upon are markedly different from the facts of the present case. In the reported case,
the victim was detained by the Police officer on 22.09.2006 seemingly without any cause or lawful justification. In the present case, the petitioner
has been detained under the order passed by an Authority in exercise of powers under a statute and what is pleaded before the court is that the
order amounted to illegal and malafide exercise of the power. Otherwise available under the statute.
The petition for the reasons discussed is dismissed.