Madras High Court
Mrs. Meera Nireshwalia vs State Of Tamil Nadu And Others on 20 November, 1990
Equivalent citations: 1991CRILJ2395
ORDER
1. The Petitioner Mrs. Meera Nireshwalia, who lived with her husband S. Nireshwalia (7th Respondent) in a house in Anna Nagar allotted under the Anna Nagar Housing Board L.I.G. Scheme, is the petitioner. A mother of two daughters already married, and a son settled in business, she, however, had to suffer first on account, as alleged, of non-payment of the instalments to the Housing Board by her husband, who, it is alleged, first had agreed to transfer the allotment of the house in her name, but later obtained the sale deed from the Housing Board in his name without her knowledge. She was threatened and harassed, by her husband, she has alleged, who threatened to sell the property, the ideas which she always opposed on the ground that she had made the major contribution towards the purchase of the house by pledging her jewellery and raising money. She filed O.S. No. 7325 of 1985 before the City Civil Court, Madras, for injunction restraining the seventh respondent (husband) and his transferee from in any manner interfering with her possession of the property. A memo of compromise was filed in the said suit on 21-7-1986 between the seventh respondent and the petitioner stating that the seventh respondent never had any intention to evict her from the premises except by due process of law and accordingly undertaking not to evict except under due process of law. In view of the said undertaking the suit was dismissed.
2. In April, 1989, the petitioner found that the door and the structures of her house were damaged by some miscreants unknown to her and that the seventh respondent had, in the meantime, already sold the house to respondents 8 and 9 under a sale deed dated 30-9-1988 followed by an agreement between the seventh respondent on the one hand and respondents 8 and 9 on the other, containing as one of the Clauses, "the first party (7th respondent) affirms and undertakes to try his best to persuade his wife to vacate the property. In the event of failure of his efforts the second party is at liberty to take all necessary and appropriate action lawfully permissible to obtain vacant possession of the said property. The first party on his part will render all necessary assistance, support and help required to achieve this abovesaid purpose."
3. On 7th of July, 1989, according to the petitioner, a constable from the Anna Nagar Police Station came to her house and informed her that she must meet Nandakumar, Inspector, K-4 Police Station, Anna Nagar (5th Respondent) with reference to her complaint with respect to the damages to the door and the structures of the house in April, 1989. She went to see the 5th respondent at about 10-30 a.m. on that day itself. When, however, she started telling him about her complaint, the 5th respondent called a woman constable Ms. Poonithai and told her to search her (Petitioner) and told her that there was a complaint against her. She wanted to know about the nature of the complaint and also to consult a lawyer or a Magistrate. It is alleged, ".......... I was immediately assaulted and severely dragged with the help of ten policemen (as I refused to get up and they had only one Woman constable). I was kept in the lock up for quite some time and then taken to the office of the 3rd respondent and kept in the van till evening. I submit that subsequently I was taken to the Kilpauk Mental Hospital the same evening. I was called insane and abused by the policemen en-route. As the office of the 6th respondent was closed in the evening, I was brought once again to the Anna Nagar Police Station. I submit that en route I underwent untold miseries with all the constables called me insane and insulting and humiliating me in the most brutal manner."
"I submit that in the meantime, when I was brought back to the Anna Nagar Police Station, I was spotted by two of my neighbour one Mr. Ramanathan who is a former staffer of "The Hindu" and his daughter Prema. They tried to come to my rescue and told the police to leave me alone but it was of no avail. I submit that I was nevertheless detained in the Police Station till 10 p.m. and was then taken to Arumbakkam Police Station. I submit the Arumbakkam Police Station refused to keep me in the station. So I was brought to a place called "Abhaya Nilayam" for the night. I am given to understand that the officers of "Abhaya Nilayam" refused to keep me as an inmate hence I was detained in their office itself."
4. The petitioner has further alleged that she was not given any food or water from 7-7-1989 itself. She was once again taken to Kilpauk Mental Hospital with two women police escort and a lorry full of men. After sometime one of the policemen came with certain certificates and took her to the General Ward (12) of the mental asylum. He also informed that she cannot be released without police permission. The petitioner was totally shocked to say the least and protested vehemently about this. She was forcibly given anaesthesia. The petitioner informed the concerned doctor by name Dr. Kasturi that she is a normal person. She also requested her to permit her to contact two of the petitioner's doctor friends Dr. Kamatchi Kabir and Dr. Seetha Ratna, who are retired Government Officials. The petitioner was informed by Dr. Kasturi that as she was admitted by the police, nothing can be done.
5. Subsequently, according to the petitioner, the fourth respondent, Deputy Commissioner of Police, Egmore, Madras, passed an order of detention K5/927/130574/89 dated 7-7-1989 against her, the contents whereof were not made known to her nor were they furnished to her or to her son. The next morning she found that the seventh respondent, i.e., her husband came to the hospital and took away all her belongings. In the meantime, respondents 8 and 9 filed O.S. No. 6388 of 1989 before the Second Assistant Judge, City Civil Court, Madras, seeking an injunction restraining her from interfering with their property (the house property sold to them by the seventh respondent with respect to which the aforementioned agreement and undertaking were invoked). In the suit, respondents 8 and 9 described the petitioner with her address for service of notices as if she was living with the seventh respondent. She was discharged from the mental asylum on 17-7-1989. According to the petitioner this was procured by her son and the discharge certificate categorically stated that she was not certifiably insane.
6. After her release from the mental asylum, the petitioner filed C.C. No. 14526 of 1989 before the Tenth Metropolitan Magistrate, Egmore, Madras, against respondents 5, 8 and 9 and others under sections 119, 357, 354 and 506, I.P.C. read with Sections 120B, 323,448 and 455 thereof Respondents 8 and 9 moved this Court, it is stated in Crl.M.P. No. 11002 of 1989, for quashing of the complaint. This Court stayed all further proceedings before the Tenth Metropolitan Magistrate (The said petition however, has since been dismissed by this Court and there is no impediment in the complaint case proceeding in accordance with law).
7. The petitioner has also filed a suit for recovery of possession, being C.S. No. 499 of 1990, before this Court, which is pending.
8. In the circumstances aforementioned, the petitioner has approached this Court for the issuance of a writ of mandamus directing the respondents to pay her a sum of two lakhs of rupees as compensation.
9. Counter-affidavits has been filed on behalf of respondents 1, 2, 3 and 4, 5, 7 and 8 and 9 respectively, besides the reply affidavit filed on behalf of the fifth respondent. Except the counter-affidavit filed on behalf of the seventh respondent, the other counter-affidavits however, have been filed only after this court took a strong exception to those respondents not responding to the notices issued by this Court, and keeping in view the tell tale facts, this Court observed, "........... It is indeed a case in which this Court's extraordinary jurisdiction should be exercised to remedy the injury which the respondents, appear to have caused to the petitioner. Courts in India have taken the view that in a case of any forcible eviction of a person in lawful occupation of a building at the hands of the policemen or with the help of the policemen a mandamus can issue. If the allegations aforementioned are established, it is a case in which this Court should issue a mandamus to the respondents to ensure restoration of possession of the house in question to the petitioner. True the petitioner has been released from the custody but the release alone cannot complete the legal remedy unless all those who are guilty of causing such suffering to the petitioner which were not inflicted in exercise of any legal power by anyone of them are suitably punished by being subjected to the departmental proceedings and such actions under the law for their prosecution which may be available as well as by orders under which suitable compensation is awarded to the petitioner".
The Court in the light of the observations above, on 2-11-1990 ordered for issue warrant of arrest (bailable) for appearance of the fifth respondent Nandakumar, the eighth respondent and the ninth respondent, to be executed from the office of the Director General of Police, Madras, who was directed to ensure execution of the warrant of arrest and production in Court of the fifth, eighth and ninth respondents on or before the next adjourned hearing date. Since the respondents aforementioned appeared before the execution of the warrant, the warrant was recalled. They have since filed their respective counter-affidavits.
10. The sixth respondent, however, has remained unrepresented and has not shown cause.
11. In the counter-affidavit filed on behalf of the first respondent, sworn by the Deputy Secretary to Government, Home Department, it is stated that the deponent had perused the record in K4 Crime No. 1114/89, which revealed that on 7-7-1989 at 13 hours one K. V. Unnithan of 43, 1st Main Road, 7th Cross street, West Shenoy Nagar lodged a complaint in k-4 Anna Nagar Police Station, that the petitioner, a resident of door No. 45, 1st Main Road, Shenoy Nagar (West) was a mad woman. She threw stones on the passers-by and used filthy language on them and was threatening all children, behaving very in decently and quarrelling with every one of them. As a result they were unable to live peacefully and she was a constant threat to all the children. On the said complaint a case in Anna Nagar K-4 Police Station in Crime No. 1114/89 was registered under section 13 of the Indian Lunacy Act by the Sub-Inspector of Police. The petitioner was brought to the police station by two women warders and woman constable 132. The fifth respondent took up further investigation and sent the petitioner to the sixth respondent with his report for observation. It is further stated in this counter, "It is revealed that as she was taken to the hospital after 5 p.m. she was not admitted in the hospital on the same date and was asked to be brought to the hospital on the morning of next date, i.e. 8-7-1989. It appears that the petitioner was kept under shadow along with female wardress and woman police constable 132 in accordance with law. Then on the next morning 8-7-1989 she was admitted in the mental hospital in I.P. No. 2494 as per the orders of the Deputy Commissioner of Police (Headquarters) for observation. On the prima facie allegation made in the complaint, and while in the discharge of the public duties, the fourth respondent is reported to have passed the order of detention."
With the said assertion and with certain further statement of facts, the allegations in the petition are denied and certain contentions raised to suggest that this Court should decline exercising its powers under Art. 226 of the Constitution of India.
12. The second respondent's counter affidavit is almost on the same lines as that of the first respondent.
13. Respondents 3 and 4 have filed a common counter-affidavit and thus appeared to answer the allegations against the Deputy Commissioner of Police, Egmore, who apparently was also responsible for the detention of the petitioner at the behest of the fifth respondent. It is curious, however, that the deponent is the Deputy Commissioner of Police, Law and Order, (North) incharge Head quarters, and not the Deputy Commissioner of Police, Egmore. He also has stated on perusal of the record in K-A Crime No. 1114/89 that he understood that on 7-7-1989 at 13 hours K. V. Unnithan of 43, 1st Main Road, 7th Cross street, West Shenoy Nagar, lodged a complaint with the police that the petitioner, a resident of Door No. 45, 1st Main Road, Shenoy Nagar, (West) was a mad woman, She threw stones on the passersby and used filthy language on them and threatened all children, behaved very in-decently quarrelling with every one of them as a result they were unable to live peacefully and she was a constant threat to all the children. There is nothing stated in this affidavit to show that the fourth respondent exercised either executive or judicial power under the Lunacy Act under which, it is stated, the petitioner had been taken in custody on being satisfied that she was found wandering at large within the limits of his station and that her case warranted the detention.
14. The fifth respondent in his counter affidavit has chosen to state, "I submit it is false to say that a constable from K-4 Anna Nagar Police Station went to Petitioner's house and informed her that she should meet me with reference to her earlier complaint to 3rd respondent. I submit on that date (7-7-1989) she was not sent for in connection with the earlier complaint to the 3rd respondent and hence question of sending a constable as alleged by the petitioner in connection with that complaint is false. On that day there was a complaint from three persons, viz., (1) Thiru Unnithan and family (2) Chandrasekaran and family, (3) P. Radhakrishnan and family residing in the Same area against the petitioner alleging that she was behaving like a mad woman, using abusive words, throwing stones at children quarrelling with all and hence they are unable to live peacefully. This was registered by the Sub-Inspector of Police K-6, T. P. Chathiram Police Station holding additional charge of K-4 Anna Nagar Police Station in K-4, Anna Nagar Police Station Crime No. 1114 (complaint of neighbours is herewith enclosed). On the registration of case the Sub-Inspector went to the place of the residence of the petitioner for the enquiry and finding the petitioner was behaving in violent manner in the area and having been satisfied the allegation in the FIR are true, brought the petitioner to the police station. At that time I was present in the police station, the petitioner was found to be even in the police station in a violent manner. On observing her behaviour I was also satisfied that the petitioner was suffering from mental abnormality and it would not be safe for the petitioner herself and public to allow her to go free without immediate proper medical attention. It is false to say that the petitioner came to the police station with a cheque book, photos, electricity bill as stated in para 7 of the affidavit. It is equally, fair to say that when the met me, started telling me about her complaint I immediately called women constable Bonnuthai W.P.C. 132. In fact she was never searched. It is false to say that 1 very rudely informed the petitioner about the complaint against her and she in turn asked me about the nature of the complaint and that she also told me to allow her to meet her lawyer or the Magistrate. It is false to say that she was assaulted and severely dragged by 10 P.Cs as she refused to get up and that she was kept in the lock up for sometime and taken to the 3rd respondent and kept in the van till in the evening. I submit that as I found this petitioner to be suffering from some mental abnormality proving dangerous to be left alone, I wrote out a memo for the Deputy Commissioner of Police, Head Quarter and (sic) the petitioner along with the Sub-Inspector, women P.C. and other female wardress for further action in this matter. I understand that since the Deputy Commissioner came to the Office late in the evening the mental hospital authorities did not take the petitioners in as per the order of the Deputy Commissioner of Police and so she has to be taken to the General Section at Commissioner's Office, where there are women police guard provided. She was not taken back to Anna Nagar Police Station. I submit that the allegations made in para 8 are all false. As stated earlier, the petitioner was never taken back to Anna Nagar Police Station. Her version that she met two of her neighbours cannot be true, It is also submitted that it is not true she was taken to Arumbakkam Police Station or Abaya Nilayam."
15. In the reply affidavit of the fifth respondent nothing has been said with respect to the allegation of the petitioner. However, certain statements made it the counter-affidavit of the seventh respondent are disputed.
16. The seventh respondent in his counter-affidavit has given his own version of the dispute with the petitioner but not disputed the factum of the compromise in O.S. No. 7325 of 1989 before the City Civil Court, Madras and execution of the sale deed by him in favour of respondents 8 and 9 followed by an agreement as stated in the affidavit filed in support of the petition on behalf of the petitioner. He has, however, stated that when he learnt from a telephonic message from some one claiming to be one of his neighbours conveying the startling news that the petitioner has been even the previous day in the Anna Nagar Police Station from where she was taken and admitted to the Kilpauk Mental Hospital, asking both his daughters and his elder daughter's husband to accompany him the seventh respondent went to the Anna Nagar Police Station to verify the facts. He has then alleged that the individual on duty (a Sub-Inspector or Head Constable) was very evasive and unhelpful in volunteering information. All we learnt from him after much pressure from our side was that the petitioner had been called to the police station and later admitted to the Kilpauk mental hospital. The duty Inspector of the Police station whom we wanted to meet was out. We were told that he would be back after an hour. We waited for sometime and called again after an hour but the police Inspector had still not turned up. In fact he had become scarce and we were unable to meet him even for hours later. In the meantime all four of us mentioned above visited the Kilpauk Mental Hospital and found the petitioner lodged in the General Ward there in the most pitiable condition. She was in a dazed and highly sedated state. There were marks of contusions and abrasions on her arms and back indicative of having been roughed up. There were notings of these injuries on her case sheet. The duty doctors were far from co-operative despite disclosure of our relationship with the petitioner. The only information we could extract from them after much pressure on them, was that she was brought there by the police under orders from the Deputy Commissioner of Madras. We wanted to see the Superintendent of the hospital but he was not available at that time." The seventh respondent further states, "After providing the petitioner with food and other dire necessities we left for home and I came via the area in which the property is located. The main gate and the doors which were observed from outside were found locked as was done normally by the petitioner. On the following day we four mentioned above along with my legal counsel visited the hospital to see the petitioner. The petitioner narrated to my counsel the incidents leading up to her admission to the mental hospital and also showed him the injury marks on her person. We provided the petitioner with food and other needs of here, brought from my elder daughter's house. These personal services for her comfort we continued rendering right up to the time of her discharge when she was brought to my aforesaid daughter's house. I could not meet the Superintendent of the hospital even on 9-7-1989 since being a Sunday he did not attend the institution. On 10-7-1989 I met the Superintendent and asked him for the grounds on which the petitioner was admitted to his hospital. He did not shed any further light than what I had already had from the others in the hospital. I made an application for petitioner's transfer from the general ward to some special ward as I felt that she should not be exposed to the miseries faced in the general wards especially where even frank and severe mental cases were lodged. The petitioner was shifted I think on 12-7-1989".
17. The seventh respondent has then narrated how he met the Secretary to the wealth Department, Government of Tamil Nadu in his office and informed him of everything that had taken place vis-a-vis the petitioner with special reference to her being admitted to the Kilpauk Mental Hospital, and added, "The Secretary was most concerned and compassionate and promised to immediately look into this serious matter." On 11-7-1989 accompanied by his son-in-law and legal counsel the seventh respondent met the Police Commissioner and briefly narrated all the events that took place from the time the petitioner was summoned to the police station until her admission to the Mental Hospital. He states, "He heard our complaint incredulously and asked "how is this possible ? He also presented a written complaint to him, a copy of which was also sent by registered post the same day. Incidentally we could not meet the Commissioner on an earlier date because he was fully pre-occupied during that time with security arrangements connected with an important public function. After meeting the Commissioner I paid a visit to the premises where the petitioner was staying prior to her being called to the police station and there, to my surprise I found some Muslim women within the house on the said premises. When asked who they were, one of them replied to me in Hindi "Hum log Dr. Saleem Ka admi hai (we are Dr. Saleem's people). It now became quite clear to me as to who we responsible for the reprehensible action the modus operandi of the plan executed achieve the forcible eviction of the petitioner."
17A. The reply of the fifth respondent these allegations in the counter filed by seventh respondent, however, is in the nature of denial only. Inasmuch as with respect to specific allegation that marks of violence seen on the person of the petitioner, the fifth respondent has said, "I do not know about the 7th respondent and his people visiting the Institute of Mental Health to see her in the general ward. It cannot be correct for the 7th respondent to state that there were marks contusions and abrasions on her arms and back indicative of having been roughed up. I do not also know about noting of any injury on case sheet. In fact according to the Standing Orders a woman is never called to a police station unless extraordinary circumstances require this. The investigation in respect of a woman is conducted in the place where she resides and that too, as far as possible, by woman police constables and woman police officials. In this case also there were women constables who were incharge of the petitioner. Therefore, it is not true for the 7th respondent to say that he saw any injury on the petitioner as she was treated with all care and caution".
18. The above being the fact-situation of the case, some admitted; some disputed, this court has to examine whether the petitioner was subjected as alleged by her to such maltreatment, which no law could ever permit, denied the liberty which every citizen of India is guaranteed under Art. 21 of the Constitution of India and forcibly evicted by such contrivance as alleged, of a house in which she lived until evicted. If these or any of these are found substantiated, it will have to be held that the petitioner, was deprived of her legal rights by the respondents who adopted unlawful means to do so and thus rendered themselves liable to compensate the petitioner.
19. A writ Court's jurisdiction in these matters is more ex debito justitiae than as a rule of law as Courts as sentinels of the peoples' rights cannot close their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to obey, observe and follow law, decide to violate. Even without recourse to the provisions like Art. 226 of the Constitution of India, Courts in India never allowed a straight case where it was found that somebody was dispossessed of a property illegally without following the prescribed procedure of and ordered for restoration of possession. As to what a Court of law in such a situation can do, is spelt out by a Division Bench of the Patna High Court in Indrasan Rai v. Enayat Khan, . When it was noting that in the garb of making prohibitory orders under section 144, Cr.P.C. a person in possession of property was removed and another was put in possession, the Court found that the law never envisaged any such power much less any such power in a magistrate or the police. The Court examined various authorities on the subject and found observations in this regard in some of the earlier judgments of the Court including Jai Berhama v. Kedar Nath (1923) ILR 2 Pat 10 : (AIR 1922 PC 269), Cairna, L.C. in Rodger v. Comptoir D'Escompte De Paris (1871) LR 3 PC 465 and Emperor v. Nazir Ahmed, AIR 1945 PC 18 : (1945 (46) Cri LJ 413). Quoting from Cairns, L.C. in Rodger v. Comptoir D'Escompte De Paris (1871) LR 3 PC 465, the Division Bench of the Court said, "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."
and thus held, that it was a case in which the Court must direct for restoration of possession. The said law has held the field uninterruptedly and it is not necessary to multiply this principle with Additional judgments. A Full Bench of the Patna High Court in Dipendra Nath Sarkar v. State of Bihar (FB) however, examined the scope of a writ of mandamus which has since been finally determined by the authorities of the Supreme Court and quoted with approval a passage from Ferrison Extraordinary Legal Remedies, page 329, dealing with the remedy of mandamus for compelling surrender of the properties a private corporation by the incumbent officer to his successor in office. The quotation runs, "Mandamus is generally recognized as the only speedy and adequate remedy to compel surrender of the insignia, records funds and other property of a private corporation by the incumbent officer who refused to deliver them to his successors in office, when it appears that he does not hold them under any colour of right to the office. The right is incidental to the right to compel surrender of the corporate office to the lawful successor. The same principles that govern the right in the case of public officers are applicable to officers of private corporations, while mandamus is not the proper remedy to try title to office, an incumbent holding under no colour of right cannot defeat his successor's right to mandamus by raising the question of the validity of the latter's title and thus deprive him of the right to possession of the corporate property belonging to the office, on the theory that mandamus is not the proper remedy to try title. As in the case of public officers, respondent, being without any colour of right, has no title to try. A prima facie right, a right de facto, and not de jure, is all that is necessary to such cases, of all that is involved. This a court may determine without deciding actual title. Actual title is only incidentally involved, if at all. The right to possession of the corporate property is incidental to the right to the office, not actual title, and when petitioner shows a prima facie right thereto, the court merely rests on such prima facie title for the time being, without adjudicating the actual title, which is left to a proceeding in quo warranto. Nor is it any defence to say that the property is not in the possession of the officer when it has been voluntarily turned over to some stranger, as it is the duty of the officer to have it in his custody, and if not, to regain it."
20. In Somal Lal v. Union of India, , the Supreme Court made certain observations, which in my opinion, are relevant for understanding scope of a writ of mandamus. In a situation like this one Jagan Nath had been evicted from a premises contravention of the law. His eviction was, therefore, illegal. The Supreme Court found that his eviction was illegal and therefore, a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted. The property, however, was not in the hands of the Union of India; instead, it had passed on to a private individual. Whether a mandamus could issue such a situation or not was the issue before the Supreme Court. The Supreme Court observed, "there is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England, Vol. II, Lord Simonds Edition, P. 84). If it had been proved that the union of India and the appellant has colluded and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court." The observations thus make it amply clear that if the petitioner's dispossession of the house was a result of collusion or something colourable entered into with a view to deprive her of possession of the property between the respondent-officials and respondents 8 and 9, this Court, therefore shall have jurisdiction to issue a writ of mandamus or make an order in the nature of a writ of mandamus. In the instant case, I have not yet referred to the counter-affidavit of respondents 8 and 9. According to their affidavit the seventh respondent was allotted a housing site at Shenoy Nagar area on lease-cum-sale basis by the Tamil Nadu Housing Board (at the relevant time known as City Improvement Trust) and he put up a dwelling unit on the land allotted to him in the year 1956. In September, 1988 he offered the property for sale". At the relevant time he was in occupation of the property and his wife was also residing with him". On being satisfied that he had a good and marketable title to the property, respondents 8 and 9 obtained a sale deed from him on 30-9-1988. Then they say, "On the day, when the property was sold, i.e., on the 30th September, 1988, Mr. Nireshwalia at the time of sale, delivered possession of the property to me. It is also evidenced by the sale deed. At the time when we went to take possession of the property, the petitioner was in occupation of one room, where she was not residing. In that one room, she had stocked all her articles and she was residing in daughter's house in the near by area. While the husband of the petitioner, the seventh respondent herein delivered possession of the house on the property, the petitioner's husband requested that she may be allowed some time to vacate the said room by removing all articles as promised by the petitioner. She also made the similar request in our presence".
Allegations of collusion or in any manner their connection with the arrest and detention of the petitioner the mental hospital have been denied. Any knowledge about O.S. No. 7325 of 1985 or the claim of the petitioner that she had any legal right ...... to stay in the house is denied and disputed. In short, it is asserted on behalf of respondents 8 and 9 that they have every right to enjoy possession and deal with the house in any manner they liked because they have acquired a valid title. What has been, however, conveniently suppressed in this counter-affidavit is the execution of a deed of agreement between the seventh respondent on the one hand and themselves on the other with respect to the eviction of the petitioner from the house in question. Instead, what is stated in this counter-affidavit is that she was in occupation of one room by fiction only as she had been living not in the house but with her daughter and only her belongings were kept in one of the rooms. This runs contrary to their statement the agreement which was executed following the sale deed in which they accepted that the petitioner was in occupation of the house in question and that she would be removed only in accordance with law. They thus tried stand midway conceding on the one hand that she occupied one room and that one room still continues to be in her possession and on the other hand, that they have obtained possession of the house, with respect to which their case is that, they took delivery of possession of the house on execution of the sale deed itself. Such being the state of their counter-affidavit and the fact being that they were not delivered possession as alleged by them with the execution of the sale deed, otherwise, no agreement as indicated above would have been executed by them admitting therein that the petitioner was in possession of the house and that she would be evicted only in accordance with law, this leads to one conclusion only that if respondents 8 and 9 as alleged by them have assumed possession of the house they have done so without following any prescribed procedure of law, but in some other manner and sometime after th execution of the aforesaid agreement in which they acknowledged that the petitioner was residing in the house in question. I shall advert to a further discussion of the alleged dispossession of the petitioner and the consequences thereof later for, at this stage it is necessary also to examine whether there was any occasion for the fifth respondent to make any report to the fourth respondent and to the fourth respondent to make an order for any preventive detention of the petitioner or not because, if it is found that the fifth respondent had any such reason to report and the fourth respondent had any authority and exercised such authority in accordance with law under which the petitioner was detained, respondents 8 and 9 who do not say anywhere that they took advantage of the connivance of the police personnel like respondent No. 5 to assume possession of the house during the period the petitioner was dispossessed during that period of her detention, one may have to hestitate in inferring that the petitioner's dispossession was a result of collusion and thus respondents 8 and 9 assumed possession on the basis of the benefit bestowed upon them by the colluding police.
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21. The fifth respondent has come out with a story of his own. I have already noticed what he has stated in the counter-affidavit. According to him he arrived at the scene when petitioner had already been brought at the police station and received a copy of the complaint upon which the Sub-Inspector had already acted. He then says, "The petitioner was found to be even in the police station in a violent manner. On observing her behaviour I was also satisfied that the petitioner was suffering from mental abnormality and it would not be safe for the petitioner herself and public to allow her to go free without immediate proper medical attention".
a statement, according to the learned counsel for the fifth respondent, enough to attract the powers and duties of a police officer under section 13 of the Lunacy Act, 1912.
22. Section 13 of the Lunacy Act states, "(1) Every Officer-in-charge of a police station may arrest or cause to be arrested all persons found wandering at large within the limits of his station whom he has reason to believe to be lunatics and shall arrest or cause to be arrested all persons within the limits of his station whom he has reason to believe to be dangerous by reason of lunacy. Any person so arrested shall be taken forthwith before the Magistrate.
(2) Every officer-in-charge of a police station who has reason to believe that any person within the limits of his station is deemed to be a lunatic and is not under proper care and control, or is cruelly treated or neglected by any relative or other person having the charge of him, shall immediately report the fact to the Magistrate."
23. It is conceded that it is not a case of arrest of a person wandering at large within the limits of the police station of which the fifth respondent was officer-in-charge. She (petitioner) was brought from her house, according to her, on a pretext that she had to see the fifth respondent in connection with a complaint which she had filed and according to fifth respondent as well as respondents 1 to 4 that a complaint had been filed by one Unnithan (fifth respondent has more complainants to name). Thus if at all any provision is attracted on such facts is one where it says, "shall arrest or cause to be arrested all persons within the limits of his station whom he has reason to believe to be dangerous by reason of lunacy". Thus there has to be a reason of lunacy followed by a reason to believe to be dangerous. The fifth respondent inferred lunacy, according to his counter-affidavit, "on observing her behaviour I was also satisfied that the petitioner was suffering from mental abnormality". He inferred that she was dangerous in the same breath as he sates, "and it would not be safe for the petitioner herself and public to allow her to go free without immediate proper medical attention". A person, who was later on being sent to the medical asylum and was found sound of mental health was observed to be suffering from mental abnormality; a person who lived in the house until the complaint so-called, and no complaint of any kind against her behaviour ever made, on receipt of a complaint aforesaid was brought to the police station and pronounced dangerous. And by whom ? By the fifth respondent. If the words 'reason to believe to be dangerous by reason of lunacy' have to be understood in the manner the fifth respondent wants this Court to understand, no person shall ever be safe because one complaint will be enough to extend jurisdiction in the hands of the officer-in-charge of a police station to arrest and detain such a person. The law's safeguards should not be allowed to be removed by an officer-in-charge of a police station, to make such arrest of a person and thus deprive him/her of the cherished right of life and liberty under Art. 21 of the Constitution of India. 'Reason to believe' thus must be under stood to be based on hard facts and objective conclusions drawn from them. One cannot forget that petitioner had already made some complaint and the police was expected to act but it is nowhere stated by any of the respondents including the fifth respondent that any action was taken upon her complaint. According to the petitioner as well as the fifth respondent a constable had been sent to her residence on the fateful day and she responded to the call. Had she been violent of the type the law under section 13 of the Indian Lunacy Act has contemplated, was she expected to respond to the call and report at the police station ? If she would have been arrested at her residence and was found in the abnormal state of mind there was something to say that her abnormality had compelled the police to arrest her and thereafter to produce her before the Magistrate. But no, she was called at the police station and she came and while she was at the police station the fifth respondent, according to his affidavit, arrived and it was enough, according to him, where he saw her, to conclude that she was abnormal and that she deserved detention. This is how he reasonably believed the petitioner to be dangerous by reason of lunacy. This, according to the respondents (except respondent No. 7 and respondent No. 6 who has not entered appearance) was the satisfaction of the officer-in-charge to decide to forward her to a magistrate.
24. And who then is the magistrate ? The fourth respondent the Deputy Commissioner of Police, Egmore. Section 16 of the Lunacy Act states, "(1) When any person alleged to be a lunatic is brought before a Magistrate under the provisions of Section 13 or Section 15, the Magistrate may, by an order in writing, authorise the detention of the alleged lunatic in suitable custody for such time not exceeding ten days as may be in his opinion, necessary to enable the medical officer to determine whether such alleged lunatic is a person in respect of whom a medical certificate may be properly given.
(2) The Magistrate may, from time to time, for the same purpose by order in writing, authorise such further detention of the alleged lunatic for periods not exceeding ten days at a time he thinks necessary.
Provided that no person shall be detained in accordance with the provisions of this section for a total period exceeding thirty days from the date on which he was first brought before the Magistrate.
25. A glance of this provision is enough to convince that a Magistrate is required to make an order in writing for detention for a period not exceeding ten days at a time, if in his opinion, it is necessary to enable the medical officer to determine whether such alleged lunatic is a person in respect of whom a medical certificate may be properly given. Making on order for it is a judicial act because it has got the effect of depriving a person of his liberty. The record has been produced. Now the Deputy Commissioner (fourth respondent) has exercised his judicial discretion is a sight in itself. The total application of mind is reflected in the margin of the note of the Inspector of Police (fifth respondent) "lunatic". And with this excuse of a judicial order the petitioner was sent to a mental asylum. To a question how the Deputy Commissioner could come to exercise magistrate's power, my attention has been drawn to Section 17 of the Lunacy Act. It states, "All acts which the Magistrate is authorised or required to do by sections 14, 15 or 16 may be done in the Presidency towns by the Commissioner of Police, and all duties which an officer-in-charge of a police station is authorised or required to perform may be performed in any of the presidency town by an officer of the police force not below the rank of an Inspector."
26. The law has thus recognised the equivalence of a Magistrate in the Commissioner of Police in a Presidency Town. The Lunacy Act has nowhere contemplated delegation of the power of a Magistrate by the Commissioner of Police to any other officer. It has however been contended before me on behalf of the first respondent-State that a Deputy Commissioner of Police by dint of his appointment is a person exercising the powers of the Commissioner of Police and, therefore, he by dint of his appointment alone will be deemed to be the Commissioner of Police for the purpose of Section 17 of the Indian Lunacy Act. It has also alternatively been argued before me that the Commissioner of Police himself delegated the power under section 17 of the Indian Lunacy Act to the Deputy Commissioner of Police.
27. It is well settled, however, that no statutory authority can delegate his power and so in the absence of any provision in the Lunacy Act authorising a Policy Commissioner to delegate his power to the Deputy Commissioner of Police, any so-called delegation of power to the Deputy Commissioner by him will be wholly without jurisdiction. However, no such de facto delegation also, in spite of demand by the Court, has been produced and thus, it seems, the story of delegation of power to the Deputy Commissioner by the Commissioner of Police is nothing but an excuse for the purpose of this case.
28. The Madras City Police Act has contemplated in Section 5, "The administration of the Police of the City of Madras shall be vested in an Officer to be styled the Commissioner of Police for Madras."
Section 6, however, states "Appointment of Deputies or Assistants to the Commissioner :- The Government may from time to time, appoint one or more Deputies or Assistants to the Commissioner, who shall be competent to perform any of the duties or exercise any of the powers assigned to that officer as Commissioner under his orders."
Section 7 of the said Act says "Commissioner's powers as Magistrate :-
The Commissioner shall by virtue of his office be a Presidency Magistrate, but shall exercise his powers as Magistrate subject to such orders as may from time to time be issued by the State Government : provided that he shall not exercise any powers under Chapter XVIII, XX or XXI of the Code of Criminal Procedure, 1882".
29. These provisions together thus show that Commissioner and any Deputy or Assistant to the Commissioner are two distinct entities. The Deputy or Assistant to the Commissioner can exercise the powers and perform any of the duties assigned to him as Commissioner under his orders and not otherwise. Thus for any Deputy or Assistant to the Commissioner to exercise the powers of the Commissioner it is necessary that the order appointing him as a Deputy Assistant Commissioner must disclose that he would exercise one or the other power of the Commission. Since however nothing of this sort has been shown it is clear that the Deputy Commissioner who acted in the matter had no power under section 17 of the Lunacy Act. In any case, no such power could be conferred upon him even by the State Govt. Because Lunacy Act has not recognized conferment of such power upon any Deputy or Asst. to the Commissioner.
30. I am supported in view in this behalf by a Bench decision of this Court in, in the matter of Mr. V. A. Nageswara Iyer, Advocate and Re : 1936 Mad WN (Crl) 204, where, in a short order, it is observed, "We must however observe that the reception order under which Mr. Nageswara Iyer is detained in the mental hospital is ultra vires of the Deputy Commissioner of Police who passed it under S. 17 of the Indian Lunacy Act. The Acts which the Magistrate is authorised or required to do by S. 14, 15 or 16 may be done in Presidency Towns by the Commissioner of Police. No authority is given in that Act to the Commissioner to delegate his powers to a Deputy Commissioner. The learned Crown Prosecutor refers us to S. 6 of the Madras City Police Act but it is clear to us that the local legislature cannot confer on the Commissioner of Police authority to delegate powers which are cenferred or him by an Act of the Imperial legislature."
The Lunacy Act, being an Act of Parliament, the Madras City Policy Act cannot in any manner empower the Commissioner of Police to delegate his power. That being the position, the very authority under which the Deputy Commissioner purportedly acted was absent.
31. It is a case, there, if not deliberately, but in complete disregard of the law, the fifth respondent acted and the fourth respondent also did not lag behind. They forgot altogether that they were guardians of law and that they were required to act within the framework of law. They forgot that they had a duty to protect and not to destroy. They forgot that they were friends and not enemies of the people. They forgot that they had to respect the liberty more than to act beyond the authority of law. They both together completed the fetter under which the petitioner had to suffer.
32. The role of the sixth respondent, however, is most intriguing. He is the Superintendent of a mental hospital. He has received the notice of the Court but he has not responded. In his case one has to accept the allegations made by the petitioner and supported by the seventh respondent, in his counter-affidavit. A hospital is a place of health care. A mental hospital is more than a home than any other hospital because those who stay in a mental hospital do not know about themselves. The Superintendent in such a mental health care hospital (sixth respondent) thus has to exercise a more onerous obligation than in ordinary health care hospital. He, it seems, was so indifferent that he never cared to certify until finally a certificate was given that petitioner was either ill or got ill until it seems the fifth respondent and the fourth respondent desired her detention to continue. The seventh respondent is categorical in the counter-affidavit that when he approached the hospital he was told that the petitioner would not be released unless the police gave orders to that effect. How could the sixth respondent forget that it was he who was required to certify and that any detention of the petitioner depended upon the certificate issued by him ? How could he thus deny to the petitioner a legitimate examination and a certificate at least to remove the sufferings to which she had been put by the fifth and the fourth respondent. It is indeed a matter of concern, but since the sixth respondent has not appeared and for the present it is not necessary to give any direction to him, I leave it at that.
33. Thus picking up the threads, what is intrinsically established in this case is :
(1) Petitioner was deprived of her liberty under a wholly without jurisdiction arrest the fifth respondent and the order for the detention passed by the fourth respondent;
(2) Respondents 8 and 9 had not received delivery of possession of the house in which the petitioner lived, as alleged by them at the execution of the sale deed and it was not one room of the house which was in the occupation of the petitioner but the whole of it as envisaged in the agreement between the 7th respondent on the one hand and respondents 8 & 9 on the other and (3) Petitioner was dispossessed of the house sometimes during the period she was put under detention after her arrest by the fifth respondent and thereafter was not allowed to enter into the house.
34. These being the conclusions I am now required to see what must follow, as course. Should Court order in exercise of its extraordinary jurisdiction under Article 226 of the Constitution that respondents restore possession of the property to the petitioner ? That course, as I have already noticed, can be adopted on a finding that respondents 8 and 9 had colluded with respondents 4 and 5 and managed possession of the house during the period the petitioner was under detention. I have already sufficient intrinsic evidence for such a conclusion. The petition shows that the petitioner is presently staying in a Working Women's Hostel. Respondents 8 and 9 admit that her belongings still lie in one of the rooms of the house. Yet, they contradict themselves by saying that they have otherwise taken possession of the house. It seems contrary to proceedings pending at the instance of the petitioner being C.S. No. 499 of 1990 in this Court for recovery of possession of the house and another, O.S. No. 6388 of 1988 in the City Civil Court, Madras, at the instance of respondents 8 and 9 for injunction to restrain the petitioner from entering into the house.
35. In such a situation Mr. Habibullah Badshe, learned senior counsel appearing for respondents 8 and 9, instead of resting on any technicality, chose to offer to the Court an alternative to this. That is, respondents 8 and 9 shall provide to the petitioner an alternative accommodation in the same very colony Shenoy Nagar with at least two bed rooms with all modern fittings and amenities at their cost until disposal of the suit for possession filed by the petitioner as well as the suit for injunction filed on their behalf. It may not for the acts of respondents 8 and 9 be enough ordinarily. Yet, since the two suits are pending I do not propose to pre-judge. The offer to some extent may compensate the petitioner for dispossession. Final compensation in this behalf, however, if any, shall be only in the suits aforementioned.
36. Coming to the question of compensation for deprivation of liberty, the first case which comes to my mind is Rudal Sah v. State of Bihar, . Dealing with the question as to how gross injustice of the denial of liberty in violation of all norms of law can be rectified, the Supreme Court considered the role of a court with reference to the writ jurisdiction under Article 32 of the Constitution of India. One of the arguments advanced was any compensation should be left to be determined by a Civil Court. Answering that contention, the Supreme Court observed. (Para 10) "......... But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of the Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant in fringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too-well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."
Taking into consideration the great harm done to Rudul Sah on account of his protracted detention, which was found to be illegal, the Supreme Court directed the State to pay a sum of Rs. 30,000/- in addition to the sum of Rs. 5,000/- already paid under an interim order passed by Court, thus a sum of Rs. 35,000/- in all. This was ordered without precluding the petitioner from bringing in a suit to recover appropriate damages from the State and its erring officials.
37. In the case of Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026 : (1984 Cri LJ 830) of course dealing with case in which it was found that a false statement was made before the court with respect to some persons who were allegedly missing, the Supreme Court observed (para 7) "Now, in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of fine but keeping in view the torture, the agony and the mental oppression through which Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs. C. Vangamala, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs. 1 lack to each of the aforementioned two women within a period of four weeks from to-day."
38. The best authority, however, nearest to the facts of this case is the case of Bhim Singh v. State of Jammu and Kashmir, . A Member of the Legislative Assembly was prevented by the police officer in a most high-handed authoritative way from attending the session of the Legislative Assembly. Because that deprived him of his liberty, the Supreme Court observed after taking notice of the facts of the case (at pp. 196-197 of Cri LJ).
"We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the application of the police officers without the production of Shri Bhim Singh before them. The manner in which the orders were obtained, i.e., at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th.
"There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22(2) ........"
"We can only say that the police officer acted in a most highhanded way. We do not wish to use stronger words to condemn the authoritarian acts of the police. In the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals : Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, and Sebastian N. Hongray v. Union of India, AIR 1984 SC 1026 (1984 Cri LJ 830). When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the Stale of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000 within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh".
39. Whereas the powers of the Supreme Court are confined to enforcement of the fundamental rights under Article 32 of the Constitution of India, powers of this Court under Articles 226 of the Constitution are wider. When the Supreme Court took notice of the invasion of the fundamental rights by policemen and other authorities, it took no time in deciding that in such cases mere release from the detention is not enough. The person deprived must also be compensated.
39A. I would have parted with this case by awarding a moetary compensation to the petitioner, about which I shall be making specific order a bit later, had I not taken notice of the indifference of the State of Tamil Nadu in making attempts to implement the laws and ensure that its police personnel behave as policemen should behave. I am making these observations not on the basis of what I have noticed in the conduct of the fourth or the fifth respondent only. I am compelled to make these observations because of the affidavits filed on behalf of respondents 1, 2 and 3. They appear to think that their duty is over by looking into the record and justifying the conduct of the fifth and fourth respondents. They forgot that as a welfare state they are duty bound to see that their officials do not transgress laws but act as custodians of law as they are expected to act and not as those who use law as a weapon to deprive a citizen of his/her liberty. Why did they not take care to hold an inquiry into the matter and satisfy themselves before filing an affidavit before this Court justifying the actions of the respondents 4 and 5 is a matter of greater concern to the Court. It is still not late for the first respondent-State of Tamil Nadu and its superior officials to see that if they do not check such transgressions of law in time, a day will come when their writ will fail and administration will be the first casualty. In such a situation I am constrained to observe that the first respondent-State of Tamil Nadu shall discharge its obligation only by instituting a high-level inquiry into the conduct of the fourth and fifth respondents in the matter and suitably punishing them before it is too late.
40. For the reasons as above, to conclude, I hereby direct respondents 8 and 9, in view if their undertaking before this Court, to make available the accommodation as indicated above (in paragraph 35) to the petitioner within a forthnight from to-day with intimation to the learned counsel for the petitioner in Court; direct the first respondent to pay a compensation of Rs. 50,000/- (Rupees fifty thousand) to the petitioner for the loss of liberty as aforesaid, subject to its action to realise the said amount from respondents 4 and 5 and also direct the first respondent State to institute a high-level inquiry into the conduct of fourth and fifth respondents with in a period of one month from to-day with a time schedule to complete the inquiry within a period of six months with notice to the petitioner to bring such evidence as she may deem fit and proper in connection with their conduct confined to her arrest by the fifth respondent and remand to the mental asylum by the fourth respondent only. The compensation must be paid within a period of one month from to-day.
41. The writ petition is accordingly allowed with costs. Hearing fee Rs. 5,000/-.
42. Petition allowed.