Rajasthan High Court - Jaipur
Baljeet Singh vs State (Home Department)Ors on 29 May, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Baljeet Singh Vs. The State of Raj. & ors. SB CIVIL WRIT PETITION NO.229/2013. Under Article 226 of the Constitution of India. DATE OF ORDER: 29th May, 2013. PRESENT HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. S.K. Gupta for the petitioner. Mr. Dinesh Yadav AAG ) Mr. S.C. Purohit ) for the respondents. Mr. Rajesh Choudhary for the respondent no.6. REPORTABLE: BY THE COURT:
The present writ petition has come up for consideration before this court in a unique situation where the grievance of the petitioner is that the respondent police personnels have, without any authority of law, inducted respondent no.6 in his residential house where he was residing along with his widow mother as a result of which he has been compelled to live in Hotel Raj Plaza, New Sanganer Road, Jaipur. The said act of the respondents is in excess of their jurisdiction/ authority and is an illustration of high handedness of the police authorities. Consequently, the petitioner has invoked the extraordinary jurisdiction of this court under the Constitution of India to seek redressal of his grievance in the term that possession in house no.540, Nemi Sagar Colony, Vaishali Nagar, Jaipur, be restored to him and his widow mother.
2. The respondent no.6, namely Rajesh, daughter of Laxmi Chand has claimed herself to be the wife of the petitioner whereas the said fact has been emphatically denied by the other side, namely; Baljeet Singh. According to the petitioner, the marriage between him and respondent no.6 was never solemnized. The petitioner had been living in the aforesaid house and the respondent no.6 was residing in plot no. 48, Behind Senapati House, Sain Colony, Prem Nagar, Jhotwara, Jaipur. According to respondent no.6, the marriage had been solemnized at Arya Samaj in Shastri Nagar, on 12.11.1994.
The respondent no.6 on the basis of the aforesaid claim of marriage initiated various proceedings, such as a criminal case by registering of FIR (399/2002) on 11.8.2002 at police station Sanganer, Jaipur, for the offence under section 498-A IPC; an application for maintenance under section 125 Cr.P.C. before the Learned Judge, Family Court no.1, Jaipur which was allowed on 22.11.2007 awarding maintenance @ Rs.3,000/- per month; a revision petition before the High Court against the said order of maintenance and thereafter a special leave to appeal before the Hon'ble Supreme Court. It is pertinent to note here that while deciding the said appeal (4247/2009), the Hon'ble Supreme Court had on 13.7.2009 passed the following order:
The special leave petition is dismissed with an observation that any observation made in this matter shall not come in the way of the concerned court where the matter is pending regarding status of respondent herein.
In other words, the status of the parties is still to be adjudicated. Subsequently, the petitioner had preferred an application under section 7(A) of the Family Court Act, 1984 before the learned Judge, Family Court, Jaipur seeking declaration about the merital status of the petitioner; that the marriage was never solemnized between the petitioner and respondent no.6 and they had never lived as husband and wife. The said proceedings are still pending.
3. It would not be out of place to mention here that prior to 12.12.2012, the respondent no.6 was residing at plot no. 48, Behind Senapati House, Sain Colony, Prem Nagar, Jhotwara, Jaipur. The said address was given by respondent no.6 in the application under section 127 Cr.P.C. and the notices issued by the learned Judge, Family Court as well as in criminal revision petition filed before the High Court, had been served on the said address. Therefore, it is amply clear that the respondent no.6 had been residing in the aforesaid house at Jhotwara, Jaipur.
4. It is in the month of December, 2012, the roots of the grievance of the petitioner lies which has given rise to the filing of the present writ petition. This time, the respondent police authorities has come on the scene. On 12.12.2012, an application came to be submitted by respondent no. 6 to respondent no.2 praying therein that the petitioner wants to solemnize marriage with Shakti Dahiya and, therefore, appropriate proceedings may be initiated and he be restrained from solemnizing the marriage. On the said application, the respondent no.3 Rohit Mahajan, Superintendent of Police, Civil Rights, Police Head-quarter, Rajasthan, Jaipur, had put a note in the margin of the original application which reads as under:
Dy.S.P./Incharge, W.A. The applicant along with her sister Mrs. Anita met the DGP who has referred them to us for help. Following action be taken:-
1. Inform the concerned S.P./ DCP in Haryana by fax and phone.
2. Inform the concerned P.S. Sector 14, Gurgaon and request both offices for legal intervention in the matter.
3. The applicant plans to move into her house at Vaishali Nagar. Ask SHO/CO to provide protection, if needed by her.
5. The matter then proceeded with jet speed soon after filing of the aforesaid application on 12.12.2012, the respondent no.3 had issued a direction and respondent no.4 Dy. S.P., Civil Rights, wrote a letter to the respondent no.5, SHO police station Vaishali Nagar, on the same day. According to the petitioner, respondent no.6 was inducted in his house on the same day, i.e. at Nemi Sagar Colony, Jaipur where he was living along with his widow mother (Annexure- 4 and 5). Consequently, the petitioner along with widow mother had to take shelter in Hotel Raj Plaza, New Sanganer Road, Jaipur. Thereafter, the respondent no.6 had started threatening the petitioner that she is having relations with the police authorities and they would implicate him in frivolous cases. Ultimately, the petitioner gave a registered notice through his counsel on 28.12.2012 but the same was of no avail and the respondents did not pay any heed to it.
It was under the aforesaid facts and circumstances that the petitioner has approached this court by filing the present writ petition under the extraordinary jurisdiction of this court as envisaged under the Constitution of India.
6. Notices were then issued by the High Court to the respondents and on service having been effected, the respondents have contested the writ petition by way of filing a reply.
7. The thrust of the reply of the respondents is that the letter issued by respondent no.4 Dy.S.P., Civil Rights on 12.12.2012 to the SHO, police station Vaishali Nagar, Jaipur was received at its destination on 13.12.2012. Therefore, the police did not have the occasion to intervene as respondent no.6 had moved in the house on 12.12.2012 itself. It is also stated in the reply that the police station Vaishali Nagar, Jaipur received a telephonic call from the petitioner Baljeet Singh at 9.40 p.m. that his wife was quarrelling and trying to enter the house forcefully. Mahaveer Singh SI was then sent to do the needful and on his return at 10.00 p.m., it was informed that Smt. Rajesh was in the house and there was no quarrel. Thereafter, a complaint is said to have been made by the mother of the petitioner Baljeet Singh at police station Vaishali Nagar in respect of a dog which remained in her house and Smt. Rajesh was not giving it to her. Another complaint is said to have been received from the petitioner's mother, namely Smt. Santosh Devi on 14.12.2012.
It is also averred in the reply that since the receipt of telephonic report at police station on 12.12.2012 relating to entry of the respondent no.6; to a dispute between husband, wife and mother-in-law, the police was reluctant to interfere and to investigate rigorously as these are sensitive matters. Further, it has been averred that respondent no.6 had moved in the house on her own and sought no help from the police before entering it. The petitioner has wrongly potraited before the court that it was on a direction of the respondent no.3 that the police actively co-operated with respondent no.6 to help her and to gave access to the house. Innocuous directions on application (Annexure-4) to the subordinate officers to take action according to law have been twisted out of context by the petitioner. Further, it is averred, that the communication/instruction of the respondent no.3 had not reached the police station Vaishali Nagar at the time when respondent no.6 entered into the house. The respondent no.3 had no where stated to give police protection for intruding into the house and it was only on her asking that the protection of her life and limb was to be given. In the additional pleas, the respondents do accept the fact that the dispute between the parties was going on for last 10 years and there are many litigations pending between them.
8. The aforesaid facts and circumstances of the present case are no doubt extraordinary and a unique instance of working of the respondent officers without any authority of law which has not only given rise to the grievance of the petitioner where the dispute was already going on between him and respondent no.6 but also depriving him of the property with certain influence/ pressure at the hands of state and its authorities.
The litigation between the two individuals i.e. the petitioner and the respondent no.6 had been continuing for last 10 years. However, the same was in respect of matrimonial status and the right of maintenance etc. which accrues to spouses under the relevant law. But at no point of time there was any dispute between the said parties in respect of the house in which the petitioner was residing along with his widow mother. Prior to the month of December, 2012, the respondent was residing at her house in Jhotwara, Jaipur and there was no dispute with regard to respondent no.6 staying with the petitioner in his house. As a matter of fact, no such application was filed before any court of law or where the proceedings between the parties were pending. Even before the Director General of Police, in the application dated 12.12.2012 neither any reference has been made nor any relief has been sought in respect of the house of the petitioner. A bare reading of the said application goes to show that it only mentions the fact that the petitioner wants to solemnize marriage with one Shakti Dahiya and, therefore, appropriate steps be taken so as to restrain him from doing so. No noting or direction was given by the authority, namely; DGP, to whom the said application was addressed. But the application was then with respondent no.3, who only knows as to how the original had come to him without any noting from the DGP, who issued direction to Dy.S.P./Incharge WA to inform the concerned SP/DCP in Haryana by fax and phone and also to inform the concerned police station of Sector 14, Gurgaon for legal intervention in the matter, though he did not have any jurisdiction over the area of the said officer nor he had any authority to issue such directions. Apart from it, a more strange direction was issued by respondent no.3 that the applicant respondent no.1 plans to move into her house at Vaishali Nagar, Jaipur for which SHO/CO to provide protection. Despite of the fact that same was neither the subject matter of the application nor any such prayer was made therein. This itself speaks much about the action of respondent no.3 which is sheer abuse of the authority. Needless to say that even administrative action/orders issued by government functionaries require to have authority of law.
9. Further, it is to be noted that the respondent authorities, for the reasons best known to them, had taken a speedy action on their own in respect of inducting respondent no.6 in the house of the petitioner because there was no such request made in the application dated 12.12.2012. The application is addressed to DGP and is submitted on 12.12.2012, on the same day it is with respondent no.3- Superintendent of Police, Civil Rights. On that day itself, the aforesaid three directions were given and application in original was received by respondent no.4- Deputy Superintendent of Police, Civil Rights. She also issued order on 12.12.2012 to the SHO/PS, Vaishali Nagar. It is in the evening of 12.12.2012 that respondent no.6 forced her entry in the house of the petitioner which is apparent from Rapat no.872 at 9.40 p.m. in rojnamcha, police station Vaishali Nagar, Jaipur where it has been noted that the petitioner had made a complaint telephonically that the respondent no.6 is trying to make forced entry in his house and is quarrelling with him for which police help may be sent. Strangely enough, on receipt of the said information, Mahaveer Singh SI was sent to the house of the petitioner who does not enquire into the matter or take any action on the said complaint of the petitioner but returned to the police station and makes an entry immediately at rapat no.873 at 10.00 p.m. that the respondent no.6 is in the house of the petitioner. Therefore, respondent no.6 in collusion with other respondents achieved the object of entering in the house of the petitioner in one day i.e. 12.12.2012 whereas since long drawn litigation between the parties for last 10 years she could not achieve the same.
The aforesaid circumstances when looked into cumulatively, goes to show that the respondent police authorities had shown special interest in the matter and issued orders and took steps out of the way and without the authority of law to do favour to respondent no.6. The object of the conspiracy to induct respondent no.6 in the house of the petitioner is achieved in a wholly illegal manner through respondents who did not have any authority for the same and rights of life and liberty of the petitioner is thrown to the winds without the slightest care to be taken by them, particularly respondent no.3 who had equal responsibility to protect right of the petitioner, who is also a citizen of this country. The respondent police authorities ought to have asked respondent no.6 to obtain proper order from a competent court of law in respect of her entering the house of the petitioner. But the said authorities acted in a manner which is never heard of. Even the representations and requests made by the petitioner to the respondents were of no avail and he was compelled to leave his house on 12.12.2012 itself and take shelter along with his widow mother in a hotel.
10. It was not a part of the duty of the respondent police authorities to issue directions or to see that the protection be given to respondent no.6 when she tries to enter the house of the petitioner. Such protection could have only be given after an order was passed, in this regard, by a competent court of law. The police protection or the police help is only to be given when such directions are issued by a court of law. On the contrary, the duty of the police was that when on 12.12.2012, a complaint was received from the petitioner that respondent no.6 was trying to make forceful entry in his house and is quarrelling with him then after reaching the spot, they should have restrained respondent no.6 from making entry in the house of the petitioner without a proper order from a court of law. Even if she was found in the house, it was the duty of the police to have enquired into the matter as to whether she was living there since earlier point of time or that she had just made a forceful entry, in an illegal manner, in the house of the petitioner. If it was so found, then the police ought to have taken steps for lodging a case against respondent no.6 and proceeded with the investigation in accordance to law.
11. The primary defence taken by the respondents in their reply is that the direction issued by the Dy.S.P. had reached at police station Vaishali Nagar only on 13.12.2012 and, therefore, the police was not involved in having respondent no.6 entered in the house of the petitioner. It appears to be an after-thought and is of no relevance for the simple reason that the police was very much aware and information had already reached at the police station in the night of 12.12.2012 through the complaint of the petitioner that respondent no.6 is making a forceful entry in the house for which Mahaveer Singh SI was sent on the spot but no action what-so-ever was taken by the police which further aided respondent no.6 to enter the house of the petitioner.
12. When there is interference with fundamental rights to property of a citizen by executive action without any authority of specific rule of law, the Constitution Bench of the Hon'ble Supreme Court had, as back as in the year 1961, laid down the principle of law in the case of Bishan Das and others Vs. State of Punjab & others- AIR 1961 SC 1570, which is as follows:
In these circumstances, the action of the Government in taking the law into their hands and dis-possessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of the property.
13. In the circumstances and on consideration of the directions issued by the respondent police authorities, this court is of the considered opinion that the same are wholly illegal and not sustainable in law, as a consequence of the same, the right of property of the petitioner has been infringed and the same deserves to be protected by way of restoration of his possession in the house no.540, Nemi Sagar Colony, Vaishali Nagar, Jaipur. The aforesaid directions issued by respondent no.3 are without any provisions of law nor under the directions issued by any senior officer or the authority with whom such powers are vested under any law. The said orders are not only illegal but glaring example of arbitrariness and high handedness so much so that the same were issued to the authorities in the State of Haryana which is not under its jurisdiction and also in respect of the house of the petitioner which was never the subject matter of the application dated 12.12.2012 nor any prayer in this regard was ever made therein by respondent no.6. Therefore, the said directions and the one issued by respondent no.4 in consequence thereof deserve to be declared illegal and nonest.
The respondent no.5- SHO police station Vaishali Nagar, Jaipur, and DCP (West) Jaipur are directed to take immediate steps for restoring the possession of house no.540, Nemi Sagar Colony, Vaishali Nagar, Jaipur to the petitioner within 30 days from today, with an intimation to this court. Office is directed to list this case before the court on 1.7.2013 for perusal of the report sent by the DCP, Jaipur (West).
14. Consequently, with the aforesaid directions, the writ petition stands disposed of.
15. Before parting with this order, it is to be noted that the orders passed in the instant case by senior officers of the police department as an executive fiat, issued to an authority of another State i.e. State of Haryana and on a matter, namely; about the house of the petitioner which was never a grievance of the applicant or redressal sought by her. It is certainly an act on the part of the authority concerned which clearly reflects the arbitrary manner in which he has acted during the course of his duty which has resulted in infringement of right of a citizen. Besides, respondent no.3 has also acted in a manner, during the course of duty, to do undue favour to the respondent no.6 which certainly deserves to be deprecated. Therefore, a copy of this order be sent to the Chief Secretary, State of Rajasthan; Special Secretary, DOP and the Principal Secretary, Department of Home, forthwith, with the direction to take appropriate steps for departmental enquiry in the matter against respondent no.3.
(RAGHUVENDRA S. RATHORE),J bblm All corrections made in the judgment/ order have been incorporated in the judgment/ order being e-mailed.
BBL Mathur Private Secretary