Madras High Court
P.Senthil Kumar vs State Rep By
Author: P.N.Prakash
Bench: P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 03.06.2015 Delivered on : 09.06.2015 CORAM THE HONOURABLE MR.JUSTICE P.N.PRAKASH CRL.OP.No.11559 of 2015 and M.P.No.2 of 2015, CRL.OP.No.11560 of 2015 and M.P.No.2 of 2015, CRL.OP.No.11761 of 2015 and M.P.No.1 of 2015 and CRL.OP.Nos.11802 of 2015 and M.P.No.1 of 2015 P.Senthil Kumar ... Petitioner in all Crl.OPs Versus 1.State rep by The Inspector of Police [Law & Order], K-10, Koyambedu Police Station, Koyambedu - Chennai. 2.P.M.Sebastian, Rep by Power of Attorney Holder K.Surendran ... Respondents in Crl.OP.Nos.11559 & 11560 of 2015 [Impleaded as 2nd respondent as per the orders of this Court dated 03.06.2015 in MP.Nos.1 and 1 of 2015] 1.The Commissioner of Police, Chennai City Police, Vepery, Chennai. 2.The Assistant Commissioner of Police, Koyambedu Range, Chennai. 3.The Inspector of Police, K-10, Koyambedu Police Station, Koyambedu, Chennai. 4.P.M.Sebastian ... Respondents in Crl.OP.Nos.11761 & 11802 of 2015 Prayer in Crl.OP.No.11559 of 2015 : Criminal Original petition filed under Section 482 of the Criminal Procedure Code praying to direct the respondent to provide police protection to the petitioner shop H-88 in Periyar vegetable market, Chennai-92. Prayer in Crl.OP.No.11560 of 2015 : Criminal Original petition filed under Section 482 of the Criminal Procedure Code praying to direct the respondent to register a case on the basis of the complaint dated 21.04.2015 given by the petitioner and investigate the matter in accordance with law. Prayer in Crl.OP.No.11761 of 2015 : Criminal Original petition filed under Section 482 of the Criminal Procedure Code praying to direct the respondents 1 to 3 not to harass the petitioner, a legal occupant, by misusing the order in Crl.OP.Nos.11047 and 11048 of 2015 dated 29.04.2015. Prayer in Crl.OP.No.11802 of 2015 : Criminal Original petition filed under Section 482 of the Criminal Procedure Code praying to direct the respondents 1 to 3 not to interfere with the possession of the petitioner in respect to the property at door No.H88, Periyar vegetable market, Koyambedu, Chennai. For Petitioner : Mr.V.Ragavachari in all Crl.OPs for M/s.GK Law Firm For Respondents : Mr.P.Govindarjan, in Crl.OP.Nos.11559 & Addl. Public Prosecutor [for R1] 11560 of 2015 For Respondents : Mr.P.Govindarjan, in Crl.OP.Nos.11761 & Addl. Public Prosecutor [for R1 to R3] 11802 of 2015 For Intervener : Mr.C.Rajan C O M M O N O R D E R
This litigation has a chequered history and therefore the facts require detailed narration. For the sake of convenience, the parties will be referred to by their name.
2. The dispute in this case is with regard to the possession of a vegetable shop bearing door No.H-88 measuring 4120 sq.ft. in Periyar vegetable market in Chennai.
3. For the sake of brevity, the property will be referred to as shop H-88. It is common knowledge that the Chennai Metropolitan Development Authority [CMDA] constructed a huge vegetable market complex in Koyambedu and allotted shops to various persons. Shop H-88 was initially allotted to one Muthazhagu who appears to have divided the shop into nine portions and had sublet the same to some persons including one Gnanasekaran and Senthil Kumar in violation of the allotment order. These persons were selling vegetables in the portions in their occupation since 1998. It is asserted by Senthil Kumar that he was a tenant under Muthazhagu and was paying him Rs.100/- per day as rent.
4. In the year 2003, the CMDA officials sealed the shop H-88 as Muthazhagu has failed to pay the monthly charges to the CMDA. Aggrieved by the sealing of the shop, Senthil Kumar, Gnanasekaran and others made representations in the year 2003 to the CMDA for allotting the shop H-88 to them.
5. While so, the CMDA issued a public notice for the sale of shop H-88 via open auction. Challenging the auction notice, Senthil Kumar and others filed WP.No.10288 of 2003 which was disposed of by this Court on 03.04.2003 upholding the auction notice, but directing the CMDA to consider the representation of Senthil Kumar and others if it is possible to accede to their request. P.M.Sebastian participated in the auction and purchased shop H-88 for a total cost of Rs.91,67,000/- and the CMDA confirmed the bid by order dated 08.04.2013. According to P.M.Sebastian, there are nine portions in shop H-88 and eight were in occupation of various persons including the said Gnanasekaran.
6. It is the allegation of P.M.Sebastian that after he purchased shop H-88, Senthil Kumar was not in occupation of any portion and that, he is a very close friend of Gnanasekaran who was using the telephone connection bearing No.044-247956471, that is in the name of Senthil Kumar. On the contrary, it is the assertion of Senthil Kumar that he has been continuously in occupation of one portion of shop H-88, even after P.M.Sebastian had purchased it. Even though, P.M.Sebastian was a successful bidder, the CMDA did not issue him license and registration certificate and also did not execute the sale deed for shop H-88, on the ground that the shop H-88 was earmarked as godown and that P.M.Sebastian is using it as shop for selling vegetables in retail. Therefore, P.M.Sebastian filed WP.No.36689 of 2006 contending that shop H-88 was already divided into nine portions and eight portions were in occupation of various persons when CMDA had auctioned it and therefore, he had not divided the property into portions for the purpose of retail sale of vegetables as alleged by CMDA. In other words, the shop was auctioned in as is where is condition by the CMDA for which, P.M.Sebastian cannot be faulted.
7. This Court considered the rival submissions and by order dated 21.03.2007 in WP.No.36689 of 2006 directed the CMDA to issue the necessary license and registration certificate and also to execute the sale deed in favour of P.M.Sebastian. Pursuant to the order passed by this Court, CMDA executed the Sale Deed in favour of P.M.Sebastian and thus, he became the lawful owner of shop H-88. Thereafter, P.M.Sebastian filed eight suits namely, OS.Nos.13390 to 13397 of 2009 before the City Civil Court, Chennai, for eviction of eight persons in occupation of the eight portions in shop H-88. In the said eight suits filed by P.M.Sebastian, Gnanasekaran is a defendant in one of the suits as he is in occupation of one portion in shop H-88. It must be necessary to state here that no suit was filed by P.M.Sebastian against Senthil Kumar, because, according to P.M.Sebastian, Senthil Kumar had vacated and gone before the purchase.
8. Since the shop was not being used as a godown, the CMDA once again sealed the shop on 09.03.2012. P.M.Sebastian approached the CMDA for permission to use the shop H-88 for retail vegetable sale, which was permitted. Challenging the permission granted by the CMDA, Gnanasekaran filed WP.No.28262 of 2013 before this Court, on account of the pendency of which, the shop could not be de-sealed. Therefore, P.M.Sebastian had to prefer WP.No.29583 of 2013 before this Court, for a direction to the CMDA to remove the lock and seal. After a protracted legal battle, P.M.Sebastian succeeded and Gnanasekaran lost. This Court passed the following order in WP.Nos.28262 and 29583 of 2013:
In the light of the decision taken by the authority permitting conversion necessarily the seals affixed in respect of the premises H-88, have to be removed and the premises has to be de-sealed and unlocked by the CMDA. Accordingly, WP.No.29583 of 2013, is liable to be allowed.
In the result for the reasons assigned, WP.No.28262 of 2013, is dismissed and WP.No.29583 of 2013 is allowed and the respondent CMDA is directed to de-seal and unlock the premises forthwith on receipt of the copy of the order. No costs. Armed with the order passed by this Court in WP.No.29583 of 2013, P.M.Sebastian made a representation to the CMDA to remove the lock and seal of shop H-88 and the Chief Executive Officer, CMDA passed the following order on 10.03.2015:
... Hence it is requested to de-seal the unlock the Godown No.H-88 and the shop may be handed over to Thiru. P.M.Sebastian who is the allottee of Godown No.H-88 in Vegetable Market.
9. It may be relevant to state whether the suits in OS.Nos.13390 to 13397 of 2009 field by P.M.Sebastian was decreed in his favour. Except Gnanasekaran, the other seven occupants did not challenge the judgment and decree. Gnanasekaran filed an appeal in AS.No.34 of 2013 against the decree and the same was dismissed by the XVI Additional Judge, City Civil Court, Chennai.
10. The travails of P.M.Sebastian did not end with the removal of seal and lock by the CMDA. It reincarnated in the form of Senthil Kumar, a stooge of Gnanasekaran. When the seal and lock were removed, Senthil Kumar and his gang attempted to forcibly take possession of the shop H-88, which prompted P.M.Sebastian to lodge a complaint to the local police on 21.04.2015 for taking appropriate action. The police did not register regular FIR, but merely registered CSR.No.135/2015 and were prevaricating.
11. It is alleged by P.M.Sebastian that Senthil Kumar broke open the lock and police had to be summoned by contacting 100. P.M.Sebastian rushed to this Court for a direction in Crl.OP.Nos.11047 and 11048 of 2015 to direct the police to register a FIR on the complaint dated 21.04.2015 given by him and take action against the trespassers and evict them from shop H-88 and also for police protection for safeguarding his possession of shop H-88. When the matter came up for hearing in the forenoon of 29.04.2015, this Court directed the police to afford sufficient protection to P.M.Sebastian. In the afternoon, learned counsel Mr.Seetharaman made a special mention before this Court stating that he is appearing for Senthil Kumar and wanted a rehearing of the case. Since the order was not signed, this Court reheard the matter at 2.30p.m. and passed the following order on the same day:
Seeking a direction to the respondent police to register the complaint dated 21.04.2015 and investigate the same and also for providing police protection to H-88 shop in Koyambedu Market, Chennai - 600 092 in the interest of justice, the petitioner has come up with these petitions.
2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent police.
3. On reading of the complaint, it is seen that the opposite parties are trying to forcibly take possession of the petitioner's shop, Godown H-88 in Vegetable Market, Koyamebdu. The allegations made in the complaint are very serious.
4. Hence, the respondent police is directed to enquire into the complaint dated 21.4.2015 lodged by the petitioner and take action in accordance with the law laid down by the Honourable Apex Court in Lalita Kumari vs. Govt. of U.P. & others [2013 (4) Crimes 243 (SC)]., and also afford sufficient protection to the petitioner's properties.
5. After the above order was dictated in the open Court and before it was signed, Mr.Seetharaman, learned counsel appearing for the Intervener submitted that the matter should be re-heard. Therefore, this Court directed the matter to be called at 02.15 p.m. today.
6. The matter was re-heard at 2.15 p.m. today. It is brought to my notice that Godown/Shop H88 was earlier sealed by the Chennai Metropolitan Development Authority (CMDA) and thereafter on the directions of this Court made in W.P.No.29583 of 2013, which was filed by the petitioner herein, the seals were removed and the CMDA handedover the property after de-sealing, to the petitioner herein by order dated 10.03.2015. Now, after the property has been handed over, the opposite parties, with the help of Goondas and rowdy elements are trying to forcibly take possession of the property from the petitioner. It has become endemic these days for antisocial elements to take forcible possession of properties which are under lock and key.
7. Under such circumstances, this Court directs the respondent police to afford full protection to the petitioner and see that the opposite party does not threaten and take forcibly the possession of Godown/Shop H-88, Vegetable Market from the petitioner. The police shall also remove if there are any encroachers squatting in the property.
12. This Court clearly found that Senthil Kumar and a gang of men are attempting to dispossess P.M.Sebastian from the property and they require to be dealt with an iron hand. To recapitulate, the afore said order was passed by this Court on 29.04.2015, i.e., on the eve of the summer vacation. If aggrieved, Senthil Kumar should have taken the matter to the Apex Court. Instead, Senthil Kumar moved the vacation Court by filing Crl.OP.Nos.11559, 11560, 11761 and 11802 of 2015 with various prayers which are extracted in the preamble portion of the order. The prayer in Crl.OP.No.11761 of 2015 is worth quoting:
To direct the respondents 1 to 3 not to harass the petitioner, a legal occupant, by misusing the order in Crl.OP.No.11047 and 11048 of 2015 dated 29.04.2015.
13. P.M.Sebastian somehow got scent of this petition and he made arrangements through his lawyer to intervene, when the Criminal Original Petitions were taken up for hearing by the vacation Judge on 06.05.2015. The learned vacation Judge has passed the following interim order in all the Criminal Original Petitions:
The petitioner claims to be in possession of the property. Status Quo as on date shall be maintained till 03.06.2015. Post on 03.06.2015.
14. Mr.V.Ragavachari, learned counsel appearing for Senthil Kumar vehemently submitted that Senthil Kumar was a tenant under Muthazhagu in respect of a portion in shop H-88 and after the shop was purchased by P.M.Sebastian, the tenancy continued even thereafter. In support of this contention, Mr.V.Ragavachari, learned counsel relied upon the telephone bills of BSNL in respect of the connection no. 044-247956471 which stands in the name of Senthil Kumar.
15. Mr.V.Ragavachari also contended that Senthil Kumar has filed a suit in OS.No.2473 of 2015 before the VI Assistant Judge, City Civil Court, Chennai on 23.04.2015 for injunction restraining P.M.Sebastian from interfering with Senthil Kumar's peaceful possession of shop H-88. The City Civil Court did not grant any interim injunction, but ordered notice to P.M.Sebastian returnable by 30.04.2015.
16. Mr.V.K.Sathyamoorthy, learned counsel appearing for P.M.Sebastian submitted that P.M.Sebastian was not aware of the suit in OS.No.2473 of 2015 said to have been filed by Senthil Kumar, when Crl.OP.Nos.11047 and 11048 of 2015 were filed by him. There seems to be much force in the submission of Mr.V.K.Sathyamoorthy in as much as, even the counsel Mr.Seetharaman who appeared before this Court on behalf of Senthil Kumar in Crl.OP.Nos.11047 and 11048 of 2015 on 29.04.2015 afternoon did not whisper anything about OS.No.2473 of 2015.
17. On a reading of the plaint in OS.No.2473 of 2015, Senthil Kumar has averred that he is a tenant under P.M.Sebastian from 08.10.2003 on a monthly rent of Rs.20,000/- and that he has also paid Rs.6lakhs as advance to P.M.Sebastian. This Court asked Mr.V.Ragavachari, learned counsel appearing for Senthil Kumar to produce any material to show that he has paid Rs.6lakhs as advance or that he has been paying the rent Rs.20,000/- to P.M.Sebastian for which, Mr.V.Ragavachari was not able to produce any shred of material even. Admittedly, shop H-88 was locked and sealed by the CMDA as early as on 09.03.2012 and it is ridiculous to believe that Senthil Kumar was paying rent of Rs.20,000/- per month to P.M.Sebastian during that period. It is the contention of Mr.V.Ragavachari that Senthil Kumar was a tenant under P.M.Sebastian, even from 2003 and therefore, it is the duty of P.M.Sebastian to put Senthil Kumar back into possession after the CMDA removed the lock and seal.
18. I am unable to persuade myself to agree with this reasoning of Mr.V.Ragavachari. It is the specific case of P.M.Sebastian that even though he was a successful bidder and had paid a huge sum of Rs.91,67,000/- to the CMDA, he was put to continuous trouble both by the CMDA as well by the eight persons including Gnanasekaran who were in occupation of shop H-88. P.M.Sebastian had to file eight suits namely OS.Nos.13390 to 13397 of 2009 for evicting eight persons. Had Senthil Kumar been one of the occupants, P.M.Sebastian would have definitely filed a suit against Senthil Kumar also. This itself clearly shows that Senthil Kumar is a rant trespasser and is a usurper. This Court can take judicial notice of the fact that in the city of Madras, landlords are unable to take possession of any property on account of rampant land grabbing by antisocial elements which prompted the State Government to even constitute a Special Police Cell and Special Court for dealing with land grabbing cases.
19. P.M.Sebastian has been running from pillar to post for enjoying the property which he has validly purchased in auction from CMDA and ultimately, after herculean efforts, when the seals were removed by the CMDA and possession was handed over to him as found in the letter dated 21.04.2015 given by CMDA, Senthil Kumar and his cohorts are attempting to take forcible possession of the property by illegal methods. Filing of a bare injunction suit is a well known method adopted by most of the land grabbers to give legitimacy to their misdeeds and in the opinion of this Court, the present suit by Senthil Kumar is one such endeavour.
20. Mr.V.Ragavachari, learned counsel relied upon the following judgments of the Hon'ble Supreme Court to drive home the point that the complaint given by Senthil Kumar against P.M.Sebastian should be investigated and action be taken against him.
i.ILR 2009 KAR 2248 [Dilip Deshmukh and Another Vs. The State of Karnataka, Department of Home Affairs and Others] ii.2012 [1] CTC 246 [K.Neelamegam Vs. Durgamoorthi, Revenue Divisional Officer, Sivagangai, Sivagangai District and Others] iii.[2008] 2 SCC 409 [Sakiri Vasu Vs. State of Uttar Pradesh and Others]
21. I have no quarrel with the propositions laid down in the afore said judgments. But the facts in this case are totally different from the facts in the said cases. This Court cannot be a mute spectator and threw its hands up in despair, when possession of a legitimate owner is being nakedly threatened by antisocial elements. Turning a blind eye to such rank aggression would make the judicial process inept and the power of this Court under Section 482 Cr.P.C and Article 226 of the Constitution of India otiose. As said by the Hon'ble Supreme Court in Prithipal Singh Vs State of Punjab reported in [2012] 1 SCC 10, extraordinary cases require extraordinary solutions.
22. In fine, Crl.OP.Nos.11559, 11560, 11761 and 11802 of 2015 are dismissed with cost of Rs.25,000/- [Rupees twenty five thousand only] payable by Senthil Kumar to the Tamil Nadu Legal Services Authority. Consequently, connected miscellaneous petitions are closed. The respondent police is directed to give police protection to P.M.Sebastian and eject Senthil Kumar and group of goondas from shop H-88 immediately by giving effect to the order dated 29.04.2015 passed by this Court in Crl.O.P.No.11047 and 11048 of 2015. The police shall provide sufficient protection to safeguard the possession of the shop H-88 by P.M.Sebastian.
09.06.2015 gya Note to Registry:
Issue today.
To
1.The Commissioner of Police, Chennai City Police, Vepery, Chennai.
2.The Assistant Commissioner of Police, Koyambedu Range, Chennai.
3.The Inspector of Police, K-10, Koyambedu Police Station, Koyambedu, Chennai.
4.The Public Prosecutor, High Court, Madras.
P.N.PRAKASH, J., gya Pre-Delivery Order in CRL.OP.Nos.11559,11560, 11761 and 11802 of 2015 09.06.2015