Bombay High Court
Nagesh Laxman Tamoge vs The Commissioner Of Police And Ors on 11 July, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 759 OF 2017
Shri. Nagesh Laxman Takmoge .....Petitioner
V/s.
The Commissioner of Police, Solapur
and Ors. .......Respondents
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Mr. Udaynath Tripathi, Advocate for the petitioner.
Mr. J.P. Yagnik, APP for the respondent, State.
CORAM :- SMT. V.K. TAHILRAMANI, &
SANDEEP K. SHINDE, JJ.
DATE :- 11 th JULY, 2017.
ORAL JUDGMENT (PER :- SMT. V.K. TAHILRAMANI, J) :
1. Heard Learned Counsel for the petitioner and
Learned APP for State. The petitioner/detenue Nagesh
Laxman Takmoge has preferred this petition questioning
the preventive detention order passed against him on 30 th
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July, 2016 by respondent no.1 i.e. Commissioner of
Police, Solapur. The detention order has been passed in
exercise of powers under Section 3 of the Maharashtra
Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and persons engaged in Black-
marketing of essential Commodities Act, 1981 (for short
"the M.P.D.A. Act), as the detenue is a dangerous person,
as well as, a slumlord. The said order of detention is based
on one C.R. i.e. C.R. No. 311 of 2016 of Vijapur Naka Police
Station, Solapur and two in-camera statements of Witness
"A" and Witness "B". The order of detention, grounds of
detention alongwith accompanying documents were
served on the detenue on 29th January, 2017.
2. Though a number of grounds have been raised
in the present petition, whereby the detention order has
been assailed, however, the Learned Counsel appearing
for the petitioner has pressed only one ground before us
i.e. Ground-F. Briefly stated, in Ground-F, it is averred
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that the detaining authority has detained the detenue as
he is subjectively satisfied that the detenue is a
"dangerous person" and "slumlord". However, there is no
material disclosed in the grounds of detention to show
that the detenue can be detained as a slumlord. Learned
Counsel for the petitioner submitted that, though in the
grounds of detention, it is averred that the detenue is a
slumlord, there is nothing in the grounds of detention to
show that the activities of the detenue as a slumlord were
in any manner prejudicial to the maintenance of public
order. Mr. Tripathi, contended that under the provisions
of the M.P.D.A Act, the detaining authority must show,
firstly that the detenue is a slumlord as averred in the
grounds of detention and thereafter should show that the
activities of the detenue as a slumlord were prejudicial to
the maintenance of public order. Mr. Tripathi, thus
contended that only if it can be shown that the detenue is
a slumlord and in addition his activities are prejudicial to
the maintenance of public order, only then a person can
be detained under the M.P.D.A. Act as a slumlord.
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3. Mr. Tripathi, thus contended that, if there is no
material to show that the activities of the detenue as a
slumlord are prejudicial to the maintenance of public
order, then a detention order detaining the detenue as a
slumlord cannot be sustained. To support his contention,
Mr. Tripathi, placed reliance on the decision of this Court
in the case of Edvin Moses Palanna @ Palana V/s.
Commissioner of Police & Anr. (dated 10 th October,
1988 in Cri. Writ Petition NO. 957 of 1988)(Coram :-
Jahgirdar & Tipnis, JJ) . In the said decision, it is
observed that the detaining authority has to bear in
mind, the distinction between a person being a slumlord
and his activities as a slumlord being prejudicial to the
maintenance of public order. It was further observed as
under :-
"That a person is a slumlord itself is not
enough to attract exercise of the power under
Section 3 of the 1981 Act. Besides, being a
slumlord, in his capacity as a slumlord a
person must pose a threat to the maintenance
of the public order. It is only when his
activities as a slumlord affect adversely or are
likely to affect adversely the maintenance of
public order that a person can be detained
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under the said Act."
. In the above case, as there was no material to show
that the activities of the detenue therein as a slumlord
were prejudicial to the maintenance of public order, it was
held that the subjective satisfaction of the detaining
authority that, it is necessary to detain the detenue as he
is a slumlord, is not supported by any material. Hence,
the detention order was quashed.
4. Thus, it is seen that before taking action of
detaining a person as a slumlord, two conditions
precedent must exist. One is that, the proposed detenue
must be a slumlord, that is, he must be covered by the
definition of "slumlord" as stated in the MPDA Act and
secondly, his activities in that character must cause
harm, alarm, danger or a feeling of insecurity among the
general public or a section thereof.
5. On a perusal of the scheme of the said Act, it
therefore appears that to detain a person as a "slumlord"
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the Detaining Authority has to establish two premises in
order to arrive at his subjective satisfaction that it was
necessary to detain a person as a 'slumlord'; firstly, that
the said person was a slumlord and secondly, that his
activities in such character were prejudicial to the
maintenance of public order.
6. The question as to whether particular incidents
are such as to result in the subjective satisfaction of the
detaining authority to take action under the relevant
detention law cannot be gone into by the Court unless it is
demonstrated that the subjective satisfaction is clearly
unsupportable by the material relied upon by the
detaining authority. As far as the present case is
concerned, there are two conditions precedent before the
taking of action under Section 3 of the Act. As we have
already mentioned above, a person must firstly be a
slumlord, but this by itself is not sufficient to support an
action under Section 3 of the MPDA Act. In addition, the
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activities of a particular person as a "Slumlord" must
affect the maintenance of public order. If the detaining
authority decides to act under Section 3, then he must be
satisfied that considering the activities of the slumlord
which affect public order, it is necessary to detain him
with a view to preventing him from acting in any manner
prejudicial to the maintenance of the public order. 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 slumlord, is not a factor which has a bearing
upon the maintenance of public order. It is only when any
of his activities as a slumlord affect adversely or are likely
to affect adversely the maintenance of public order that
the subjective satisfaction mentioned in Section 3 can
legitimately be arrived at. These peculiar features of this
Act must, therefore, be clearly borne in mind.
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7. Therefore, it is necessary for the detaining
authority to satisfy himself not only that a particular
person is a slumlord but further that the activities of that
slumlord affect adversely or are likely to affect adversely
the maintenance of public order. It is then alone that the
subjective satisfaction mentioned in Section 3 of the said
Act can be legitimately arrived at by the Detaining
authority.
8. Turning to the facts of the instant case, we find
that the order of detention is based on one C.R. i.e. C.R.
No. 311 of 2016 of Vijapur Naka Police Station. The said
incident has nothing to do with the activities of the
detenue as a slumlord. This C.R. arises out of the fact that
the car of the detenue was stopped during nakabandhi.
The driver of the car told the police officers that, don't
they know that the car belongs to the petitioner.
However, the car driver was fined Rs.200/-. Thereafter,
the detenue came to the spot and abused the police
constable as to why his driver was made to pay fine.
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Hence, C.R. No. 311 of 2016 came to be registered against
the detenue. As far as the two incidents relating to
Witness "A" and Witness "B" are concerned, they also
have nothing to do with the activities of the detenue as a
slumlord. In relation to the incident pertaining to Witness
"A", Witness "A" has stated that in the third week of
February, 2016, five to six unknown persons came to his
shop. They told him, that they are the people of Nagesh
Takmoghe (detenue). These people told Witness "A" that
he had not paid the hafta for the month. The witness
informed them, that due to difficulties the shop was closed
for a month, hence, he would pay the amount in two days.
However, those persons pulled witness "A" out of the
shop and started assaulting him. When some persons
gathered at the spot, the detenue holding hockey sticks
ran towards them. Hence, the people ran helter-skelter.
It is pertinent to note that, it is not the case of Witness "A"
that his shop was an unauthorised structure or an illegal
tenancy created by the detenue or that his shop was on
any government land or that of local authority or any
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other person nor the detenue was seeking any money in
relation to the shop. Thus, it is seen that, this incident
had nothing to do with the activities of the detenue as a
slumlord.
9. As far as witness "B" is concerned, witness "B"
has stated that in the first week of February, 2016, six to
seven persons got down from a jeep holding hockey sticks
and lathis. The detenue was sitting in the front seat of the
jeep. Those persons entered into the house of witness "B"
and demanded Rs.3,000/- for Shiv Jayanti Utsav. Thus, it
is seen that, this incident also had nothing to do with the
activities of the detenue as a slumlord.
10. The question which is posed before us, is
whether in the three cases in which the detenue was
involved, his activities as a "slumlord" led to a
disturbance of the life of the community/society so as to
amount to disturbance of public order. On scrutinising
the three incidents, we are of the view that, none of these
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incidents relate to the activities of the detenue as a
slumlord. In other words, none of the incidents are such
that, they led to disturbance of public order by the
detenue in his capacity as a "slumlord". Thus, it can be
safely said that the subjective satisfaction of the detaining
authority that, it is necessary, to detain the detenue as a
slumlord is clearly unsupportable by any material relied
upon by the detaining authority to issue the order of
detention. As stated earlier, that a person is a slumlord is
by itself not enough to issue the order of detention against
a person as a slumlord but the activities of the person as a
slumlord must pose a threat to the maintenance of public
order. Assuming that the detenue is a slumlord, there is
no material in the present case to show that, the activities
of the detenue as a slumlord, are such as to affect the
maintenance of public order. Hence, we find considerable
merit in the submission of the Learned Counsel for the
petitioner, that no material is disclosed in the grounds of
detention to show that the activities of the detenue as a
slumlord caused disturbance of public order. On this
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count alone, we are inclined to allow the petition and to
set aside the order of detention passed against the
petitioner.
11. In the result, the petition must succeed. The
detention order is quashed. Rule is made absolute in
above terms.
(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)
