Zakaullah (In Jail) Vs. Superintendent, District Jail and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - as well as sri j.k.k. misra, j.1. both the above habeas corpus writ petitions have been filed challenging the impugned detention orders dated 4-3-2004 passed by the district magistrate, basti, respondent no. 2, under section 3(2) of the national security act, 1980. the impugned detention orders dated 4-3-2004 have been passed on the basis of the one and the same fir, hence both the petitions are disposed of by a common order.2. in the grounds of detention, annexure-2 to the petition, it is stated that on 21-2-2004 at about 9 p.m. in mohalla rahmatganj, p.s. kotwali, district basti when informant mohd. ashraf along with his brother akmal khan and some other persons of his mohalla was going to his house and reached near the house of the petitioner zaka ullah and his brother wasi ullah, they along with his associates were standing there and upon seeing them they began to hurl abuses on the corporator akmal khan. when the informant and his companions objected, wasi - ullah and inayat ullah fired upon akmal khan corporator. others exhorted that he was involved in the snatching of their mobile. the shot hit akmal khan and the case crime no. 200 of 2004 under section 302, ipc was registered against the petitioners and their associates at p.s. kotwali, district basti. it is further stated that due to the incident, atmosphere of terror and fear prevailed in the locality and the public order was completely disturbed. in the grounds of detention order passed in respect of inayatullah petitioner of h.c. petition no. 20878 of 2004, there is also mention of an incident involving him, which took place on 27-11-1996.3. counter and rejoinder-affidavits have been exchanged.we have heard sri chandra kesh misra, learned counsel for the petitioners and sri arvind tripathi, learned a.g.a. as well as sri j. lal, counsel for the union of india.4. the contention of the learned counsel for the petitioners is that the incident which has been made basis for passing the impugned detention order gives rise to maintenance of law and order only. he further argued that the incident took place in the night. only one person was done to death and it has come in the fir that the incident took place in connection with the snatching of a mobile. no passerby sustained any injury and the incident took place in a residential area. the crime was committed due to personal enmity. in support of the contention, learned counsel for the petitioners relied upon the case of mrs. t. devaki v. government of tamil nadu, (1990) 3 scj 303 : (air 1990 sc 1086) : (1990 cri lj 1140).5. the question for consideration in the present case is whether the incident in question, on the basis of which the petitioners have been detained by invoking the provisions of section 3(2) of the act, relates to disturbance of maintenance of public order or it is merely a case of breach of law and order. after going through the grounds of detention and the fir, we are of the opinion that the present incident related to the maintenance of law and order only and not public order. we find that the incident was the result of personal enmity committed against an individual only and it did not affect the public at large.6. it is settled position that if the act is restricted to particular individual(s) due to enmity, it breaches the law and order only. a solitary incident directed against a particular individual even if it may cause scare temporarily in the locality cannot be held to affect public order. the true distinction between the areas of 'public order' and 'law and order' lies not in nature and quality of the act, but in the degree and extent of its reach upon society. in the case of mrs. t. devaki (supra), the alleged incident occurred during a seminar. it was found in that case that the detenu's activity disturbed the proceedings of the seminar for a while but the same continued later on. it was held that the incident did not and could not affect public peace and tranquility, nor it had potential to create a sense of alarm and insecurity in the locality.7. in this case, the crime was allegedly committed by the petitioners and their associates due to enmity of mobile snatching. the incident did not take place on a busy road. the place of occurrence was near the house of the petitioners. the ratio of the decision in the case of mrs. t. devaki (supra) relied upon by the counsel for the petitioners is fully applicable to the facts of the present case.8. in view of what has been stated above, we find that it was a case of law and order only and the district magistrate, basti was not justified in passing the impugned detention order. consequently, the continued detention order of the petitioners is rendered illegal. we, therefore, allow the writ petitions and quash the impugned detention order dated 4-3-2004 passed by the district magistrate, basti. the respondents are directed to set the petitioners at liberty if their detention is not required in any other case.