RAVISHANKAR BHANWARLAL SHARMA vs STATE OF GUJARAT & ORS.

Rule. Learned AGP waives service of rule for the respondent - State.

Heard learned advocates for both the parties.

By filing present petition the petitioner, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of preventive detention at pre- execution stage against the petitioner by the respondent No.2, in exercise of power under subsection (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short PASA Act). The detenu is branded as property grabber.

It has been submitted by the learned Counsel for the petitioner that the allegations made against the detenu are not correct; and that based upon the material collected by the detaining authority and looking to the statements recorded by the detaining authority, it cannot be said that the alleged activities of the petitioner would fall within the purview of definition of ''property grabber'' as envisaged under section 2(h) of the PASA Act.

I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned AGP. It is quite clear that when several transactions have been entered into by different persons, it cannot be said that petitioner has tried to grab the lands illegally, because if at

all there is any mischief or cheating in such transactions, then, at the most it may amount to a civil dispute or may attract criminal liability for committing offences, if any, as alleged in different FIRs, but that may not be enough to identify the person as a property grabber.

Except a general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order. There are number of decisions of this Court as well as the Hon''ble Apex Court on such issue. In view of the ratio laid down by the Hon''ble Supreme Court in the case of (i) DISTRICT COLLECTOR, ANANTHAPUR V/S. V. LAXMANAN, reported in (2005) 3 SCC 663; (ii) AMA.NULLA KHAN KUDEATALLA KHAN PATHAN v/s. STATE OF GUJARAT, reported in AIR 1999 SC 2197; and (iii) MUSTAKMIYA JABBARMIYA SHAIKH v/s. M.M. MEHTA, reported in (1995) 3 SCC 237 the Court is of the opinion that the activities of the detenu cannot be said to be dangerous to the maintenance of pubic order. In the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI v/s. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393, having considered the decision of the Hon''ble Apex Court in the case of Ram Manohar Lohia v/s. State of Bihar, reported in AIR 1966 SC 740, this Court held that the cases wherein the detention orders are passed on the basis of the statements of such witness

fall under the purview of maintenance of law and order and not public Order.

Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite findings that there is threat to the ''public order'' and it is very clear that the present case would not fall within the category of threat to a public order.

In view of the above, the petition is allowed. The order of preventive detention at pre-execution stage passed by respondent No.2 is quashed and set-aside. Rule is made absolute accordingly. Direct service is permitted.