LATIFA MISGAR Vs. STATE OF J&K

JUDGEMENT

(1.) BY this petition filed under Section 103 of the Constitution of Jammu and Kashmir and Art. 226 of the Constitution of India, the petitioner. Latifa Misgar, has challenged the validity of the order of detention dated 11 -7 -1977 passed against her father, Ghulam Nabi Misgar, (who will hereinafter be referred to as the detenue) by the District Magistrate, Srinagar, under Section 3(2) read with Section 5 of the Maintenance of Internal Security Act, 1971. (hereinafter referred to as the MISA).

(2.) IT is alleged in the writ petition that the detenue was a strong supporter and an active worker of the Janta Party in the state and was also the head of the organisation of private motor drivers known as the Kashmir Motors Drivers Association which organisation was also a supporter of the Janata Party. It is further alleged that in the recent elections held to the Jammu and Kashmir Legislative Assembly, the detenue, and the organisation of the Motor Drivers of which he was the head wholeheartedly worked for the success of the Janata Party and for the defeat of the National Conference. During the elections, it is further alleged that the leaders and the workers of the National Conference tried to over -awe the detenue and his organisation and after the elections in which the National Conference secured a majority and formed the Government, the impugned order of detention was passed by the District Magistrate, Srinagar, respondent No. 2. at the direction of the State Government with a view to victimize and pressurise the detenue for his political activities and for the part he played during the elections. The order of detention, was, therefore, vitiated by malice. The petitioner further alleges that the grounds of detention on the basis of which the order of detention was passed against the detenue and which were communicated to the detenue under Section 8 of the MISA, were vague, non -existent, irrelevant, and false. The grounds were such that the detenue was prevented from making an effective representation to the Government against the order of detention. The grounds also indicated that the order of detention was passed mechanically by the District Magistrate without application of mind by him. Finally, it is alleged that the facts stated in the grounds of detention have no connection with the object sought to be achieved by passing the order of detention, namely, the maintenance of public order.

(3.) TWO affidavits have been filed on behalf of the respondents, one by Shri G. N. Ahanger, Deputy Secretary to Government of Jammu and Kashmir, Home Department, and the other by Shri Wajahat Habibullah, District Magistrate. Srinagar, who passed the impugned order of detention. In the affidavit of Shri Ahanger, it is merely stated that the order of detention passed by the District Magistrate was approved by the Government and a report was made to the Central Government in accordance with the provisions of Section 3(4) of the MISA. The allegation of mala -fides made against the Government was denied. With regard to the rest of the avernments made in the writ petition, the deponent merely sought to rely upon the affidavit of the District Magistrate.