Kerala High Court
Abdul Azeez. K.T vs The Addl. Director General Of Police on 20 April, 2017
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939
WP(C).No. 15385 of 2017 (W)
PETITIONER(S):
ABDUL AZEEZ. K.T.,
AGED 57 YEARS, S/O.ABDU RAHIMAN, R C4/3D, KALPAKA ROAD,
MANKAVU, KOZHIKODE-673 007.
BY ADVS.SRI.NIRMAL. S
SMT.VEENA HARI
RESPONDENT(S):
1. THE ADDL. DIRECTOR GENERAL OF POLICE, KOZHIKODE,
(NORTH ZONE), KERALA 673 001.
2. THE COMMISSIONER OF POLICE,
KOZHIKODE-673 001.
3. THE SUB INSPECTOR,
KASABA POLICE STATION, KOZHIKODE-673 001.
4. MR.GOPAKUMAR,
SUB INSPECTOR, KASABA POLICE STATION, KOZHIKODE-673 001.
5. ROSHINA T.,
W/O.MUHAMMED ANWAR SAADATH, VENGALATH,
IRINGALUR AMSOM DESOM, GURUVAYURAPPAN COLLEGE P.O.,
KOZHIKODE-673 001.
6. HAMEED HAJI V.A.,
S/O.MUHAMMED, VENGALATH, IRINGALUR AMSOM DESOM,
GURUVAYURAPPAN COLLEGE P.O., KOZHIKODE-673 001.
7. T.V.ABDUL RAHIM,
S/O.KUNHAYIN HAJI, EVER GREEN COLONY,
VALAYANAD ASMOM DESOM, MANKAVU P.O., KOZHIKODE-673 001.
8. THE SUB INSPECTOR OF POLICE,
POLICE CONTROL ROOM, MANACHIRA, KOZHIKODE-673 001.
WP(C).No. 15385 of 2017 (W)
---------------------------- : 2 :
9. MR.MOHANAN K.,
THE SUB INSPECTOR OF POLICE, POLICE CONTROL ROOM,
MANANCHIRA, KOZHIKODE-673 001.
R5 BY ADV. SRI.K.MOHANAKANNAN
R5 BY ADV. SMT.A.R.PRAVITHA
R6 & R7 BY ADV. SRI.M.MUHAMMED SHAFI
R1-R3,R8 BY ADV. SRI. P.P. THAJUDEEN, SR. GOVERNMENT PLEADER
R4 & R9 BY ADV. SRI.I.V.PRAMOD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-07-2017, THE COURT ON 30.08.2017 DELIVERED THE FOLLOWING:
WP(C).No. 15385 of 2017 (W)
---------------------------- : 3 :
APPENDIX
PETITIONER(S)' EXHIBITS:
------------------------------
EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.NO.807/2014.
EXHIBIT P2- TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER.
EXHIBIT P3- TRUE COPY OF THE COMPLAINT TO THE COMMISSIONER OF POLICE,
KOZHIKDOE DATED 20/04/2017.
EXHIBIT P4- TRUE COPY OF THE DISCHARGE SUMMARY.
EXHIBIT P5- TRUE COPY OF THE COMPLAINT TO THE ADDITIONAL DIRECTOR
GENERAL OF POLICE DATED 21/04/2017.
EXHIBIT P6- TRUE COPY OF THE AADHAR CARD ISSUED TO THE PETITIONER.
EXHIBIT P7- TRUE COPY OF THE CERTIFICATE OF REGISTRATION.
EXT.P8 : TRUE COPY OF THE NOTARIZED AFFIDAVIT OF MR. RAMESH
P.R. DT. 30.05.2017.
EXT.P9 : TRUE COPY OF THE TRANSCRIPT CONVERSATION MADE
BETWEEN THE PETITIONER AND HIS WIFE CALLING OUT
FRANCTICALLY FOR HELP WHEN HER HOUSE WAS BESIEGED
BY THE VIOLENT GROUP BROUGHT BY RESPONDENTS 5 TO 7.
EXT.P10 : TRUE COPY OF THE TRANSCRIPT CONVERSATION MADE
BETWEEN THE PETITIONER AND THE SUB INSPECTOR OF
POLICE.
EXT.P11 : TRUE COPY OF THE TRANSCRIPT OF CONVERSATION MADE
BETWEEN THE PETITIONER AND THE OFFICER ON DUTY WHO
ATTENDED THE CALL AT KASABA POLICE STATION ON
28.05.2017.
EXT.P12 : TRUE COPY OF THE VARIOIUS BILLS AND RECEIPTS
EVIDENCING THAT THE PETITIONER WAS IN POSSESSION OF
THE FLAT TILL 20.04.2017.
EXT.P13 : TRUE COPY OF THE CD CONTAINING THE ENTIRE
CONVERSATION REFERRED TO IN PARA 5 AND 6.
WP(C).No. 15385 of 2017 (W)
---------------------------- : 4 :
RESPONDENTS' EXHIBITS:
EXT.R5(a) : TRUE COPY OF THE REGISTERED SALE DEED NO.1079/2014
DATED 12.05.2014 OF SRO, KOZHIKODE.
EXT.R5(b) : TRUE COPY OF THE RECEIPT ISSUED BY THE KOZHIKODE
CORPORATION DATED 16.01.2016.
EXT.R5(c) : TRUE COPY OF THE JUDGMENT DT. 04.11.2014 IN WRIT
PETITION 27190/2014.
EXT.R5(d) : TRUE COPY OF THE COPIES OF THE RECEIPTS OF DEPOSITS.
EXT.R5(e) : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 5TH
RESPONDENT AND HER HUSBAND.
EXT.R5(f) : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
BUILDER IN OS 807/2014.
EXT.R5(g) : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE BANK
IN OS 807/2014.
EXT.R5(h) : TRUE COPY OF THE RECEIPT DATED 13.05.2014, 22.04.2017
AND 24.05.2017 ISSUED BY THE ACE SILVER SPRINGS
OWNERS ASSOCIATION.
EXT.R5(i) : TRUE COPY OF THE SUIT OS NO. 60/2017 AND IA 1198/2017.
EXT.R4(a) : TRUE COPY OF THE CALL DETAILS RECORD OF THE
PETITIONER.
True Copy/
P.A to Judge.
rv
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
-------------------------------------------
W.P.(C) No. 15385 of 2017 (W)
------------------------------------------
Dated this the 30th day of August 2017.
J U D G M E N T
Dama Seshadri Naidu, J Introduction:
A person is in settled possession of an immovable property: a flat in an apartment. That person in possession claims he has been inducted as a prospective purchaser under an agreement; the landlady, on the contrary, claims he is inducted for a limited period--given permissive possession. Apprehending eviction, he sues for an injunction but gets no interim protection. Later, a mob of people, believed to belong to the landlady, storms the house. The police intervene.
2. The police intervention leads to one thing: the person loses his possession. The person claims he is locked out by none other than the police. The police claim they have pacified the parties and left the W.P.(C) No. 15385/2017 -2- scene. The landlady claims the person in possession voluntarily vacated. Where does the truth lie?
3. The above controversy compels us to answer these questions:
(1) Has the person in possession been forcefully and illegally dispossessed? Have the police abetted the illegal dispossession? Or, has the person voluntarily vacated the flat? If the person has been forcefully thrown out, then these further questions need to be answered: (1) Must the dispossessed person be put back in possession of the flat? And (2) should the police account for their conduct?
The Controversy:
4. As pleaded by the petitioner, fifth respondent Roshina and her husband, both living abroad, are the owners of a flat in an apartment at Kozhikode. Hameed Haji and Abdul Rahim, the fifth and sixth respondents, being Roshina's father and father-in-law respectively, have been intermeddling with the property.
5. In course of time, Hameed Haji and Abdul Raheem, on behalf of Roshina and her husband, contracted with Abdul Azeez to sell the flat. By way of part performance, they put Azeez in possession W.P.(C) No. 15385/2017 -3- of the property. Azeez claims he has paid substantial amounts towards the sale consideration, but Hameed Haji and Abdul Raheem, or the true owners for that matter, have failed to execute "an assignment deed" in Azeez's favour despite his repeated demands.
6. When Hameed Haji and Abdul Raheem, as well as Roshina's husband, tried to evict Azeez unlawfully, he filed OS No. 807 of 2014 before the Munsiff Court, Kozhikode, seeking a perpetual injunction. The Advocate-Commissioner appointed in that suit filed Exhibit P2 report attesting to the fact that Azeez and his family had been residing in the flat.
7. When Azeez was away, attending to his daughter undergoing surgery, on 20th April 2017 Hameed Haji and Abdul Raheem, along with 20 persons "broke open" into the apartment and demanded Azeez's wife, then alone in the house, to vacate it immediately.
8. Helpless, Azeez's wife called him, and he, in turn, called the police control room at Kozhikode, which alerted the fourth respondent Sub- Inspector of Kasaba police station. Soon, the SI of Kasaba police station and also the SI of Police Control Room, along W.P.(C) No. 15385/2017 -4- with police force, including women constables and patrolling team, visited the scene.
9. Instead of preventing the illegal eviction, the police, it is alleged, facilitated the perpetrators: the SI of Police Control Room, the eight respondent, arrayed eo nominee as ninth respondent, asked Azeez's wife to leave the house, locked it with all the luggage inside, and took the key away to the controlling room. With this, Azeez's son studying standard XII missed his engineering entrance examination because even the hall ticket had been locked in.
10. After realising that the police had acted hand in glove with Hameed Haji and Abdul Raheem, Azeez's wife, on the same day, complained to the Commissioner of Police, Kozhikode. Despite all this, the police never registered a crime. Back in Kozhikode, the next day, Azeez further complained to the Additional Director General of Police (North Zone), Kozhikode. Though the police had summoned Azeez and his wife to the police station often, they never returned the key; it remained with Mohanan, the SI of Control Room. W.P.(C) No. 15385/2017 -5-
11. In the above factual backdrop, Azeez filed this writ petition complaining that the police stage-managed his eviction without due process. Besides placing certain material before us to prove his possession and his alleged eviction, he has also produced a compact disk containing his intermittent telephonic talks with the police. This Court through an order, dated 22nd June 2017, received the CD and kept it sealed.
Submissions Petitioner's
12. Sri Nirmal, the landed counsel for the petitioner, has taken us through the entire record, besides reading out portions of the transcript of Azeez's telephonic conversation with the police. He has also drawn our attention to the Ext.P2 report of the Advocate- Commissioner, the Ext.P3 complaint made to the Commissioner of Police, the Ext-P4 discharge summary of Azeez's daughter, and the Ext-P5 complaint, dated 24 April 2017, made to the Additional Dir General of Police.
W.P.(C) No. 15385/2017 -6-
13. Azeez family's residing in the flat, according to Sri Nirmal, is indisputable; in fact, the party respondents admitted it. According to him, OS No. 807 of 2014 further confirms that Azeez had been in possession of the property legitimately. Given the admitted telephonic conversation Azeez had with the police, the police had indisputably connived with Hameed Haji and Abdul Raheem to unlawfully evict Azeez. And they succeeded in their nefarious act, contends Sri Nirmal.
14. As a matter of further development, Azeez, according to Sri Nirmal, filed OS No. 60 of 2017 before Sub-Court, Kozhikode, for specific performance, too.
15. Summing up his submissions, Sri Nirmal urges this Court to view the illegal eviction seriously, especially what is said to be the deplorable conduct of the police in aiding that illegality. Sri Nirmal repeatedly, drawing our attention to the transcript, asserts that the police are the main culprits and the Court should take judicial note of their conduct. He further urges this Court to direct the SI of Kasaba police station and the SI of Control Room to hand over the keys of the flat to Azeez, apart from directing the Additional Director-General W.P.(C) No. 15385/2017 -7- of Police and the Commissioner of Police to take immediate steps to ensure that Azeez and his family are not harassed by the police. Respondents' Third & Fourth Respondents':
16. The third and fourth respondents are the same person: the SI of Police is the third respondent; eo nominee, he is the fourth respondent: Gopakumar.
17. The SI of Kasaba police station, the third respondent, pleads that, after receiving information, he visited the apartment, found many people in and out of the flat, pacified them, and left the place after advising Hameed Haji to seek judicial redressal of his grievances, if any.
18. As the fourth respondent, Gopakumar filed a separate counter affidavit. He pleads substantially on the same lines as he did in his previous counter affidavit.
19. As Gopakumar's counter affidavit contained no reference to the telephone conversation, the Court directed him to file an W.P.(C) No. 15385/2017 -8- additional affidavit. In the additional counter affidavit, dated 18th July 2017, Gopakumar averred that the CD does not contain his voice. Fifth Respondent's:
20. Roshina denies all the allegations. She pleads that she and her husband purchased the property after taking a housing loan from a bank. She maintains that they have never executed any document, not even an agreement of sale, in Azeez's favour. Nor have they authorised anybody to deal with the property on their behalf. Roshina further pleads that her father and father-in-law may have allowed Azeez's family to stay in the flat while Azeez was performing his daughter's wedding. While staying in the flat, Azeez may have, Roshina alleges, created certain documents and initiated false litigation.
21. Roshina also states that with the mediators' intervention, Azeez agreed to vacate the flat, and he did it on 20th April 2017. On that day, while vacating, Azeez raised a financial dispute. Though the police asked all the parties to be present at the police station at W.P.(C) No. 15385/2017 -9- 3 o'clock in the afternoon, Roshina further maintains, Azeez did not turn up.
22. In her additional counter affidavit, Roshina acknowledges that Azeez has filed OS No. 60 of 2017 before the Sub Court, Kozhikode, for specific performance. According to her, in that suit Azeez has specifically pleaded that after 20th April 2017 he has never possessed the property.
Sixth and Seventh Respondents':
23. Both Hameed Haji and Abdul Raheem filed a joint counter affidavit. They both contend they have never been authorised by Roshina and her husband to act on their behalf. But they submitted that Azeez initially had permissive possession, stayed illegally beyond the period permitted, and eventually vacated the flat. Ninth Respondent:
24. Mohanan, the SI of police of the Control Room, as the 8th and 9th respondent, pleads that he has tried to pacify the people but could not. Therefore, he informed Kasaba police station about the matter. He does deny that the police ever collected the key. W.P.(C) No. 15385/2017 -10-
25. As Mohanan's counter affidavit, too, was silent about the telephonic conversation, we directed him to file an additional affidavit on that issue. He filed. He admits that the composition contains his voice but tries to explain it away.
Azeez's Reply:
26. In reply, Azeez pleads that the police made light of criminal trespass, illegal dispossession, and wanton destruction of the property. According to him, the police, even as per their own version, interfered in a civil dispute, took away the key, and thus facilitated illegal dispossession. In sum and substance, Azeez alleges that the police took the law into their hands, ignored a cognizable offence, and committed gross illegality.
27. Heard Sri Nirmal S, the learned counsel for the petitioner, the learned Government Pleader, Sri I.V. Pramod, the learned counsel for the fourth and ninth respondents, Sri K. Mohanakannan, the learned counsel for the fifth respondent, and Sri Muhammed Shafi, the learned counsel for the respondents six and seven, besides perusing the record.
W.P.(C) No. 15385/2017 -11- Issues:
(1) Has the person in possession been forcefully and illegally dispossessed? Have the police abetted the illegal dispossession? Or, has the person voluntarily vacated the flat?
If the person has been forcefully thrown out, then these further questions need to be answered: (1) Must the dispossessed person be put back in possession of the flat? And (2) should the police account for their conduct?
Discussion
28. Without much ado, we can safely observe that Azeez, on the one hand, and Roshina along with Hameed Haji and Abdul Raheem, her father and father-in-law, on the other, have been engaged in a civil dispute concerning an immovable property--a flat in an apartment. Azeez initially filed OS No. 807 of 2014 for a prohibitory injunction. Later he is said to have sued for specific performance. It is inadvisable for us to probe deeper into the factual controversy about the rival claims on the property, for it will affect the pending civil proceedings, prejudicing either party. So we refrain from observing anything touching on the merits of the controversy. By abundant caution, we also place on record that the discussion we now undertake on Azeez's allegations will be confined only to the issues on hand: the alleged W.P.(C) No. 15385/2017 -12- dispossession, the equitable restoration, and the police interference, inaction, or illegal involvement in the dispute or crime. The Pleas & The Flaws:
The Property Owners' Version:
29. To appreciate the controversy, we must accept that certain foundational facts have been admitted by all the parties to this writ petition: (1) that Azeez had had the property until 20th April 2017; (2) that there was a law and order problem at the property on that day; (3) that Azeez made frantic calls to the police, who, in fact, responded to his calls; (4) that the police officers--Gopakumar and Mohanan-- admitted that many people barged into the property, and the situation was tense; (5) that despite their receiving a complaint, the police did not register any crime; and (6) that the police did not deny the recorded telephonic conversation.
30. The property, indisputably, belongs to Roshina and her husband; they both were living abroad, at least, when Azeez came to possess the property. Though Roshina denies that she ever permitted Hameed Haji and Abdul Raheem to intermeddle with the property, W.P.(C) No. 15385/2017 -13- the fact remains that Azeez had been put in possession of the flat. The pleadings examined, we can find an admission, loud and clear, by Hameed Haji and Abdul Raheem (`the relatives') about Azeez's gaining possession. Mealy-mouthed, they plead in the passive, hiding the agent who put Azeez in possession: "the petitioner was permitted to occupy the flat for a temporary period in connection with a marriage and they have unauthorisedly continued and surrendered possession to the fifth respondent on 28th April 2017."
31. Both Roshina and her relatives who intermeddled with the property assert that Azeez had permissive possession for a temporary period to have his daughter's wedding performed without difficulty. All of them also aver that, later, he refused to vacate. There was, according to them, mediation by certain elders and it resulted in Azeez's agreeing to vacate. And, as to the altercation, a last-minute dispute on 20th April about the arrears of rent and the money Azeez had spent on the flat was said to be the cause.
32. But the police, on their part, say that the dispute was about the sale of the property.
W.P.(C) No. 15385/2017 -14- The Chinks in Armour:
33. Plausible they may sound, but entirely illogical the excuses are. By 20th April 2017 the suit for injunction filed by Azeez was pending. Had there been any amicable settlement, any prudent party to a pending litigation would have ensured its closure by compromise or its dismissal by withdrawal. Neither happened. A writ petition being a summary proceeding, parties' pleadings cannot be in terms of Order 6 of CPC: they need to be more explicit with, if necessary, the evidence spelt out, besides the factual assertions. Roshina and her relatives have not even spelt out who those mediators were and whether there had been any written settlement.
34. Roshina asserts that she never authorised her relatives to intermeddle with the property, much less induct a stranger into it. But Azeez found his way into the property, and it stands admitted. We are forced to presume that during Roshina's absence, her relatives intermeddled with the property and inducted Azeez into possession. The only gray area is in what capacity Azeez gained possession:
whether as a prospective purchaser, whether as a tenant, or whether as W.P.(C) No. 15385/2017 -15- a mere licensee for a limited period. Indeed, these are the matters for the civil court to ascertain and to adjudicate upon.
35. Though Roshina alleges that Azeez at the eleventh hour on 20th April squabbled over the rents due from him and the money he had allegedly spent on the flat, undeniably Azeez was away on that day. The police and Roshina's own relatives testify to it. The Police Version:
The First Police Officer:
36. As the SI of Kasaba police station, Gopakumar pleads that after receiving information, he visited the apartment, found many people in and out of the flat, pacified them, and left the place after advising Hameed Haji to seek judicial redressal of his grievances, if any.
37. Gopakumar in his separate counter affidavit filed eo nominee pleads that on 20th April 2017 he found about 50 persons in and around the apartment. He realised that the dispute was about the sale of `the apartment.' As the people gathered there were in an W.P.(C) No. 15385/2017 -16- aggressive mood, engaged in an altercation; he disbursed them and advised them to come to the police station by 3 PM. Since only Hameed Haji turned up, he advised him to approach a civil court. Gopakumar also pleaded that he could hold no mediation talks because only Hameed Haji appeared.
38. Gopakumar did admit that on 27th April 2017 he received a complaint from Azeez's wife, enquired into the allegations, and found them to be baseless.
39. To sum up, Gopakumar concludes that the complaint contained no truth. Nevertheless, he has made no entry; at least, he has produced no proof that in the General Diary he did mention anything. On the other hand, he brazenly proclaims that he waited to mediate, but only one of the parties turned up. On the one hand, he declares there was a civil dispute and so concludes that no offence was made out. He eventually proclaims that his efforts to mediate could not bear fruit because Azeez was unwilling to appear before him. So much so for the officer's diligent discharge of duties. W.P.(C) No. 15385/2017 -17-
40. In the additional counter affidavit of 18th July 2017, Gopakumar averred that the CD does not contain his voice. Further, he files exhibit R4, said to be the call details he collected from the service provider, relating to the date of the incident. On the strength of those call details, Gopakumar asserts that Azeez, contrary to what he had claimed earlier, was found on that day at other places, talking to various other persons.
41. We wonder what relevance Azeez's call details have here. Indisputably, Azeez was away on the day and was attending on his daughter undergoing surgery, at that. Away from home, Azeez may have gone about a place or two. Azeez's lying, if at all, about his actual whereabouts on the day, unless he was at Kozhikode, would not improve Gopakumar's defence: that he responded to the situation and acted as per law. But admittedly Azeez was not in Kozhikode. The Second Police Officer:
42. Mohanan, the SI of police of the Control Room, pleads that when he went to the apartment, "there were five ladies and five men inside the house and several other persons gathered near that W.P.(C) No. 15385/2017 -18- apartment." To quote his words further: "I tried to pacify them but I could not. On my request the men inside the apartment went outside and the ladies did not come out. Therefore, I informed Kasaba police station about the matter." He does deny that the police ever collected the key.
43. From Mohanan's averments we can gather that the situation was not so simple or facile as Gopakumar had sought to project. People were agitating, the atmosphere was charged, and Mohanan, himself a police officer, could not contain the unruly conduct of the people gathered there. So, he called up the Kasaba police station to take charge of the situation.
44. In his additional counter affidavit, Mohanan admits that the CD contains his voice but tries to explain it away: I was "trying to arrive at a settlement. Moreover I said that we are ready to keep the key till 12 noon as a solution and will give you the same back. Immediately after that the Sub- Inspector and Party reached there and I went out of the house as I was having another call from some other place."
W.P.(C) No. 15385/2017 -19-
45. Now we will examine the recorded telephone conversations to see how the rival versions fare vis-`-vis the admitted proof. The Telephonic Conversations: the Transcript:
46. The conversation in the CD was in Malayalam. But Azeez's counsel provided the transcript of the conversation both in Malayalam and in English. We will refer to the English version.
47. On 20th April 2017, Jameela, Azeez's wife, calls him over phone complaining: "someone is stamping on the door heavily. Please come immediately I can't hold on." He advises her not to open the door. Then he calls the police. She pleads in desperation, "Will they come now. I am feeling weak. . . please call them. I am having chest pain." After a while, when Azeez enquires with his wife whether the police have come, she replies, "I don't know, I have not opened the door. Someone is banging the door. . . they have barged into the room. All of them. The police have expelled them and are talking to them. I have been asked to sit inside the room. Police have asked me what is the issue? I told them that I exactly don't know, but there is a problem about registration."
W.P.(C) No. 15385/2017 -20-
48. First, Azeez tells his wife to show to the police the court proceedings. In the meanwhile, it seems, as she has raised the alarm, someone--one Mr. Raju--comes on to the scene. He speaks to Azeez and reports that "there is a big commotion going on here. They have come with relatives and creating trouble." Azeez requests Raju to show to the police "the court document and papers."
49. Then a policeman comes on line. To his enquiry, Azeez says he is away attending to his daughter undergoing surgery. The police (identity unknown) asks him, "Why don't you solve these issues, Azeez." To Azeez's answer that the matter is pending before the civil court, the policeman first tells him there is no stay; he further says, "There is nothing in the case. Is it said anywhere that they can't have entry here. I don't see that the parties have signed in the documents. . . Aren't you staying here on rent?" Denying that he is a tenant, Azeez tells him there is an agreement. The policeman, perhaps briefed beforehand or informed by those present at the scene, tells Azees, "You have paid only 8 lakh. . . Are you intending to solve this issues. You have been called for mediation many times but you have W.P.(C) No. 15385/2017 -21- not turned up, isn't it? If you have someone on your side ask them to come here." When Azeez pleads his daughter's surgery as a reason for his inability to attend the proposed mediation, the policeman insists, "But your wife is not there. She can explain the matter." Azeez, then, agrees for mediation at noon to be attended by his wife.
50. The policeman further informs Azeez that "till then the house is in dispute, for there are almost 100 peoples gathered there; they must be dispersed, and the police need time up to 12 O' clock." Crucially, the policeman tells Azeez, "I will take the keys from her."
51. Azeez protests. But the policeman assures him, "We will take it from you and we will give it back to you. We will not give it to anybody else. We will give it back to you. And we will not take it." When Azeez repeatedly protests saying the matter is sub judice, the policeman retorts:
"Don't teach us law. When there are issues there are certain procedures and guidelines for police. The court also knows about such things, the court approves such things. When there are disputes there is a method to solve it. Give the keys till 12 O clock. At 12 O clock the keys will be returned to you. You have to cooperate. Don't say anything against it."W.P.(C) No. 15385/2017 -22-
52. Unrelenting, Azeez persists: "I am not objecting [to] it, but should you not act according to the law of the land?" Then, again, another assurance: "It is not about law. You give the keys till 12 O' clock as an interim arrangement to responsible police officers so as to disperse the crowd gathered there. You have to obey and cooperate."
53. Later, Raju intervenes and tells Azeez that the police officer present is the GD (General Diary Keeper), that the SI is coming, and that he will take a decision. Azeez, sensing trouble, tells Raju "not to give keys." Raju, present at the scene, knows the gravity of the situation and the might of the police. He responds to Azeez: "Are you telling me not to give the keys? The situation here is very grave. There are about 100 people gathered here. We have to part with the keys to expel them. The police are telling that if the keys are given to them that will be returned to us. I will give the phone to him( S.I.)."
54. The policeman once again comes on line and tells Azeez that "if the issues are to be resolved there is only one way. These people are not going out of the room. There are about 10-25 ladies and 10-50 gents here. Apart from that, there are politicians also. They have W.P.(C) No. 15385/2017 -23- decided to reside here. Therefore, we have decided that all will have to come to the police station at 12 O' clock. We will keep the keys in our possession. It will be given back to you by the S.I. from the Police station. Isn't this your house? We don't have any authority to send you out. This is the only method to resolve the issue."
55. Azeez caves in.
56. A couple of days later, hopes alive with the police's promise that they would return the key, Azeez calls up the Kasaba police station. The GD (the General Diary Keeper) answers. Azeez tells him that he came on 26th along with his wife. He also tells him that on that day the police showed him the key. The policeman, on the other end of the line, immediately recognizes that the call is about the "flat at Mankavu?" The policeman further tells, "Haven't I shown you the keys? I told you that the S.I. is not here and it will be given tomorrow when he comes." But Azeez tells him that the police have reported that they have not taken the keys. The policeman is surprised. Azeez reminds him, "That day you told me that S.I. is not here and the keys will be given tomorrow when he comes. Come at 10'O clock in the ..." W.P.(C) No. 15385/2017 -24- The policeman again tells Azeez that he "can give [keys] only after the permission from the S.I. Sir." About the denial of their taking the keys, the policeman tells that "only the S.I. knows about it. I don't know exactly." After some more talk, the policeman accuses Azeez, "Not that. You have not come in spite of summoning you [being summoned]."
57. We have set out the excerpts somewhat in detail as the conversation stands admitted and as much turns upon it. Eviction & Due Process:
58. We have mentioned at the beginning that Azeez had had the property until 20th April 2017, though the nature of his possession has been disputed. Indeed, he lost his possession on that day: whether Azeez went out or was sent out is the question that begs an answer. Without prejudice to either party's contentions before the civil court, we may attempt to answer this question.
59. Given the nature of adjudication under article 226--that is, summary--we may arrive at what appears to be the truth by examining the defence offered by Roshina and her relatives on the one hand and W.P.(C) No. 15385/2017 -25- the police on the other. We have already referred extensively to the rival contentions and, especially, the incongruent, inconsistent defence--more a facade than a fact--put up by the police as well as Roshina and her relatives.
60. The facts in dispute, especially, about Azeez's eviction from the flat have no conclusory force, but the circumstances are unmistakable--speak eloquently. Fairness is a fundamental facet of the common law. And due process is the core of constitutional jurisprudence of any civilised nation. In most nations, a written constitution has a vertical application, affecting the State and its instrumentalities alone, India being no exception. But the rule of law, more particularly the due process of law, cuts across verticality and applies horizontally: it binds the non-State actors, too.
61. On the issues of negating the rule of law, on diluting the due process of law, and on illegally evicting a person in settled position of immovable property; we may examine the precedential position.
62. As early as in 1924, the Privy Council in Midnapur Zamindary Company Limited v. Naresh Narayan Roy1 has held that 1AIR 1924 PC 144 W.P.(C) No. 15385/2017 -26- in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. This proposition stands often repeated by courts at all levels. Law prescribes and insists upon a specified conduct in a human relationship or even otherwise; within the limits of the law, courts strive to take note of the moral fabric of the law. So holds the Supreme Court in M. C. Chockalingam v. V. Manickavasagam2.
63. Salmond states in Jurisprudence3, "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. . . . Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." 2(1974) 1 SCC 48, at p. 57 312th Ed. (at pp. 265, 266). as quoted in Rame Gowda vs M. Varadappa Naidu (2004) 1 SCC 769 W.P.(C) No. 15385/2017 -27-
64. Law respects possession, holds a Full Bench of Allahabad High Court4, even if there is no title to support it. It will permit no person to take the law into his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause. In Lallu Yeshwant Singh v. Rao Jagdish Singh5 the Supreme Court has held that a landlord commits trespass when he forcibly enters his own land in the possession of a tenant whose tenancy has expired.
65. It cannot be disputed that a person in possession of land, in the assumed character of owner and exercising peaceably the ordinary rights of ownership, observes the English Court of Appeal in Perry v. Clissold,6 has a good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. 4Yar Mohammad v. Lakshmi Das,AIR 1959All 1, at p.4 5AIR 1968 SC 620 6(1907) A.C. 73 W.P.(C) No. 15385/2017 -28-
66. Quoting the above proposition with approval, the Supreme Court in Nair Service Society Ltd. v. Rev. Father K.C. Alexander7 holds, on facts that, the plaintiff peaceably in possession could remain in possession and only the State could evict him. The Court, of course, acknowledges that this cannot aid the parties who "might imagine that they acquired some right by merely intruding upon the land in the night, running up a hut, and occupying it before morning".8 The law does not therefore countenance the doctrine of `findings keepings'.
67. In English law, possession is a good title of right against anyone who cannot show a better title. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the 7AIR 1968 SC 1165 8Erle, J. in Burling v. Read, (11 Q.B. 904) W.P.(C) No. 15385/2017 -29- true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law to recover the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession until deprived of it by a judgment according to law.9
68. In the same vein continues the judicial assertions: in Krishna Ram Mahale v. Mrs. Shobha Venkat Rao10, it was held that if a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. To conclude the discussion on this proposition, we may refer to Nagar Palika Jind v. Jagat Singh11, in which the Supreme Court has held that disputed questions of title are to be decided by due process of law, but the 9Salmond, id., pp.294-95, as quoted in Rane Gowda v. M. Veerappa Niadu, (2004) 1 SCC 769 10(1989) 4 SCC 131 11(1995) 3 SCC 426 W.P.(C) No. 15385/2017 -30- peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession.
69. Indeed, this fundamental canon of equity--that a person in settled possession cannot be dispossessed without recourse to due process of law--received statutory recognition in Section 6 of the Specific Relief Act, 1963. The provision declares that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession, notwithstanding any other title that may be set up in such suit. This extraordinary relief, which requires no proof of title, becomes unavailable (a) after the expiry of six months from the date of dispossession; or (b) against the Government. The Court's Options:
70. Here, the Court has two options: (1) tell Azeez to go before a civil court under Section 6 of the Specific Relief Act; or (2) to grant relief under its extraordinary jurisdiction, which has all the facets of an equitable remedy. We have chosen the latter.
W.P.(C) No. 15385/2017 -31-
71. The first option, an obvious one, in this case, inflicts more pain Azeez. We have already seen the terror the property owners unleashed on the fateful day: 20th April 2017. And the situation stood further confounded by, of all the people, the police. So, it puts a premium on dishonesty to ask Azeez, a victim, to follow a due process of law against those who are precisely guilty of violating the due process of law. Even otherwise, the Court cannot countenance, much less approve of, jungle justice, if it were, that might is right and that force equates or substitutes due process.
72. Evicted summarily from an abode while Azeez was attending to his daughter undergoing surgery, Azeez must have immediate succor. He cannot be forced to take legally what has been taken away from him illegally. This assertion is not retributive, though. Having lost his shelter, Azeez cannot be dealt a double blow by our asking him to have an endless wait before a civil court, the summary adjudication under Section 6 of the Specific Relief Act being, practically, never summary. Those who have taken the law into their hands cannot be allowed to benefit. There can be no deterrence, then. W.P.(C) No. 15385/2017 -32- So, we view this problem from the perspective of property owners' conduct.
Restoration:
73. As a result, to meet the ends of justice and to uphold the rule of law, we direct Roshina to restore possession to Azeez within one month from the date of her receiving a copy of this Judgment. It goes without saying, she, as the true owner, can always have recourse to due process of law to recover her possession, with damages if any. The Police's Conduct:
74. The law's inevitable delays or, perhaps, the landlord's rapacity to regain possession forces him to cut corners: to bend or break the law. The usual practice he adopts is "lockout." The most common form of a lockout occurs when a landlord changes the locks or removes a tenant's possessions from the dwelling unit. Force or intimidation is often associated with lockouts, but neither force nor intimidation is necessary for a lockout to have occurred. There are many other ways to lock a tenant out. In the general sense, any action to deny the tenant from accessing or using the dwelling unit or other W.P.(C) No. 15385/2017 -33- rented unit in his possessions may be a lockout. Accompanied by force or achieved by violating a statutory or judicial mandate, the lockout amounts to "criminal lockout." Indeed, the lockout of either form is illegal.
75. A lockout combines both the civil and criminal elements, an offence in law and a breach in fact. Accessed on the net, the State of Connecticut, the USA, website provides guidelines in its Police Training Manual12. It approves of police intervention. Lockouts are an emergency in nature because a tenant illegally locked out may have no place to live and may have no access to his most basic personal property. A civil lockout action cannot ordinarily provide immediate relief. As a result, the police should always intervene. Police intervention is really a quick method of restoring the status quo while the parties litigate their rights in civil court.
76. Transient occupations, according to the Manual, lasting not more than 90 days, as is the case, for example, with hotels, may not have the protection. The rest will have. Indeed, with the tenant in 12http://www.ct.gov/cachm/lib/cachm/Police_manual_- _final_as_adopted_by_State's_Attorney.pdf, accessed on 27.08.2017 W.P.(C) No. 15385/2017 -34- settled possession, the landlord's forceful entry into his own tenement, without any emergency but with a view to evicting the tenant, amounts to criminal trespass. True, the Police Manual endorses police intervention--to restore possession, though. Here it is a case of converse consequences: the police, it seems, facilitated the eviction.
77. As to the police's conduct, Sri Nirmal draws our attention to Nilabati Behera v. State of Orissa,13 for the proposition that human rights and fundamental freedoms cannot be violated by the State or its agencies. If violated, it amounts to a constitutional tort, entitling the victim to compensation. The State cannot, in such an event, take the plea of sovereign immunity. He also relies on K. Ramajayam v. The Inspector of Police14 to hammer home his contention that the compact disk is a document, and an admissible piece of evidence, at that. Finally, he relies on State of MP v. Shyamsunder Trivedi15. Concerning the custodial torture, the Supreme Court has decried courts' exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, ignoring the 13AIR 1993 SC 1960 142016 CRL.L.J. 1542 15(1995) 4 SCC 262 W.P.(C) No. 15385/2017 -35- ground realities. It advocates adopting a realistic rather than a legalistic approach.
78. For effective policing, the support of citizenry is essential. And the police win this support in myriad ways. That support is always fragile and depends largely on the skilled use of discretion. As Ignatieff writes: To win this cooperation, the police manipulated their powers of discretion. . . . In each neighbourhood, and sometimes street by street, the police negotiated a complex, shifting, largely unspoken `contract'. They defined the activities they would turn a blind eye to, and those which they would suppress, harass or control. This `tacit contract' between normal neighbourhood activities and police objectives, was sometimes oiled by corruption, but more often sealed by favours and friendships. This was the microscopic basis of police legitimacy, and it was a fragile basis at best. A violent or unfair eviction by the police, for example, could bring a whole watching street together in a hostility to be visited on policeman afterwards, in the frozen silence which would descend when he stepped into the `local'.16 (emphasis added) 16Regulating Police, Edited by Ed Cape and Richard Young, Hart Publishing, 2008, at p.188 W.P.(C) No. 15385/2017 -36-
79. From the defence offered by the police officers read with the recorded conversation, we cannot but conclude that Azeez and his family had been forcefully evicted. The police, regrettably, witnessed this violation of the law. The material on record also leads to a tentative--we repeat, tentative--conclusion that they have an active role in it. The police officers did deny that they had taken the key, but the evidence on record is otherwise. They may have a role in this sordid saga. We, however, hasten to add that before blaming the police and making them answer for the blemish, we need to probe further. That probing must happen elsewhere.
80. Despite a case of criminal trespass getting established, and despite a complaint from the victim to that effect having been received, the police were insouciant in refusing to investigate. Though the police said that they had investigated but found no evidence, their conduct belies that assertion. The criminal trespass being a cognizable offence, the police ought to have registered a crime before investigating it, and they ought to have filed a report, as the law mandates, before the jurisdictional magistrate. A Constitution Bench W.P.(C) No. 15385/2017 -37- of the Supreme Court in Lalita Kumari v. State of UP17 has held that it is sine qua non for the police to register a crime before their investigating it, the exceptions not covering this case. That legal proposition, here, has been observed in its breach.
81. Although Section 154 of the Criminal Procedure Code has clearly stipulated that the Station House Officer should register a First Information Report (FIR) upon receipt of a complaint of a cognizable crime, this is rarely followed. Right from the beginning of the present criminal justice system, around 1861 onwards, the Indian police, according to Arvind Verma,18 have developed mechanisms to circumvent this legal imposition. A common strategy is not to record the FIR immediately as required by the law. Invariably, police officers hear the complaint, go to the place of incident, contact witnesses, and collect evidence before writing down the FIR. They try to incorporate as much evidence in the FIR as possible, since it helps to strengthen the case. This is contrary to law, but it is a common practice in the country, one that allows the prosecution and senior officers to turn a 17(2014) 2 SCC 1 18The New Khaki, The Evolving Nature of Policing in India, CRC Press, 2011, pp.129-30 W.P.(C) No. 15385/2017 -38- blind eye toward delayed registration of the crime. Unfortunately, this leaves the SHOs in a dominant position of determining when and which criminal incidents to register and which ones to ignore. All of these organizational practices lead to corruption and misuse of authority.19
82. Arvind Verma20 tellingly observes on the police role in building the social capital and the superior officers' role in guiding the force:
The police play an important role in building social capital and addressing the sources of conflict in the society. By enforcing the law and taking action against the offenders, the police reinforce the notions of equality and harmony. As described by Verma and Subramanian (2009, 305), "Direct help from senior officers by way of controlling and ensuring that local police acts fairly, takes prompt cognizance of their complaints specially those of Special Act provisions and swiftly bring the tormentors to task can make the so called weaker sections stand up for their rights." A shift in support from the exploiters' side to that of weaker section by the police will in itself curb the atrocities to a significant extent. The direct help of the local police to the landlords plays an important role in keeping the weaker sections suppressed. The role of senior officers is quite crucial, for not only must they understand the dynamics of social oppression, but they must also be able to control and use the police force for the benefit of weaker sections.
19Id. p.130 20Id. p.187 W.P.(C) No. 15385/2017 -39- (emphasis added)
83. Indeed, the police's complicity, or connivance, needs to be probed. There ought to be a deterrent: it is not in the interest of the police department, too, that they could remain unaccountable and explain away their conduct under all circumstances. The uniformed personnel, of all the public servants, are to be exemplary in their conduct. Police uniform must be a comforting, reassuring prospect, not a terrifying one. Among the people they should be engendering a sense of safety, not endanger that very sense. Mostly they live up to the expectations, but sometimes--to the relief of all concerned, only sometimes--they fail to measure up. Perhaps, this is one such instance. Conclusions:
84. The conclusions we arrive at are confined to the controversy only in this writ petition. They will not--we repeat, they will not-- affect the pending civil proceedings.
(1) Has Azeez been forcefully and illegally dispossessed?
Ans: Yes.
(2) Have the police facilitated the illegal dispossession? W.P.(C) No. 15385/2017 -40- Ans: Prima facie, yes.
(3) Has Azeez voluntarily vacated the flat?
Ans: No. (4) Must Azeez be put back in possession of the flat? Ans: Yes.
(5) Should the police account for their conduct? Ans: The complicity of the police and its consequences on them must be determined by a departmental enquiry.
85. So, in the institutional interest, we direct the disciplinary authority over the respondents three to nine to institute disciplinary proceedings against these officers and proceed further in accordance with law. Our observations, made for the limited purpose of adjudicating the petitioner's grievance, may not influence the proposed investigation. In other words, the disciplinary authority may proceed untrammeled by our observations. On completing the disciplinary proceedings, the department should file a report before the Court to be made part of the record.
W.P.(C) No. 15385/2017 -41-
The writ petition is allowed in the manner stated above. No order on costs.
Sd/- Antony Dominic, Judge sd/- Dama Seshadri Naidu, Judge css/