Madras High Court
A.S.V. Varadachariar vs The Commissioner Of Police And Ors. on 16 September, 1968
Author: P.S. Kailasam
Bench: P.S. Kailasam
ORDER P.S. Kailasam, J.
1. This petition is filed by a lessee of fifteen grounds of vacant land situate at No. 33, Mundakanni Amman Koil Street, Mylapore, Madras, belonging to T.R. V. Subbi Chetty's Family Charities, for the issue of a writ of mandamus directing the Commissioner of Police, Madras, to secure to him peaceful and quiet enjoyment of the property by removing the persons who are unlawfully remaining on the property.
2. The petitioner obtained a lease of the property from the trustees on 17th December, 1966 and took possession of the property on nth January, 1967. On or about 3rd July, 1967, there was a serious fire accident in Mundakanni Amman Koil Street and a number of dwellings were destroyed. The fence erected by the petitioner on the property and the thatched sheds erected for storing building materials were also destroyed. For the purpose of having free access to the burning spots, the fire fighting party broke the wooden doors put up by the petitioner on the property. Before the petitioner could repair the damage to the thatched sheds and the fence, some of the persons whose dwellings were destroyed by fire committed criminal trespass by entering into his property and occupied the same and put up structures thereon. On nth July, 1967 the petitioner addressed a memorial to the Chief Minister stating that the adjoining hut dwellers had occupied the land erecting thatched sheds without his knowledge and that on enquiry he was told by the Divisional Councillor that they would be temporarily accommodated there, and, as and when the tenements proposed by the Government are made ready, the dwellers would move to their allotted places and that his land would be vacated by them. The petitioner prayed for expeditious steps in repatriating the dwellers on the petitioner's property. On 21st October, 1967, the petitioner preferred a complaint to the Assistant Commissioner of Police, Egmore, complaining that the adjacent hut dwellers affected by the fire accident raised sheds in the property without his knowledge and were residing there. He stated that when he protested and asked them to remove themselves, as the occupation was unauthorised, they did not vacate. The petition stated that whatever may be the justification at the time of the accident, their determined continuance in the plot is illegal. Petitioner prayed that steps may be taken by the authorities for removing the huts and for clearing the unauthorised occupation of the hut dwellers. On 1st April, 1968, the petitioner reiterated his complaint to the Inspector, Police Station, Mylapore. On the same day, he gave a petition to the Commissioner of Police praying that action may be taken against the law-breakers and that immediate action may be taken against persons who continued in their unauthorised stay. Having failed to obtain any relief from the authorities, the petitioner has filed the present writ petition.
3. The contention of the petitioner is that the entry into his property by the hut dwellers was without his authority and permission and in open defiance and disregard of his rights as owner of property. His case is that when he called upon the persons in possession to remove themselves from the property, they stated that they were allowed to occupy the same by the Member of the Legislative Assembly of the locality. When the petitioner approached the Member of the Legislative Assembly, he was told that the dwellers would vacate as soon as alternative arrangements are made. The plea of the petitioner is that the occupation from the very commencement is illegal and that in any event their continued occupation would clearly be trespass, a cognizable offence, for which he is entitled to relief from the authorities.
4. In his counter-affidavit, the plea of the Commissioner of Police is that from the enquiry made by the Police, it appeared that persons in occupation of the property have entered the property only with the consent of the petitioner and that it would appear that the persons who lost their thatched huts due to fire appealed to the petitioner and on his permission occupied the Property. It is further stated that in view of the fact that the initial occupation was permissive, it was considered by the Police that it cannot be treated as a case of criminal trespass and therefore no action was taken. It is contended that unless this Court came to the conclusion that the persons now in occupation are persons who entered into the property without the permission and against the will of the owner of the property, the petitioner's prayer for a mandamus cannot be granted. According to the Commissioner of Police, the question whether police action is necessary in this regard or what action is to be taken is within the discretion of the Police and that the mandamus sought for by the petitioner cannot be issued.
5. 'Criminal trespass' is defined as an entry by a person into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intention to commit an offence. It is the case of the petitioner that the occupation of the property was even at the outset unlawful and without his permission, and in any event, after his demand to vacate the premises, the continued occupation became criminal trespass. The question whether on the facts, the offence of criminal trespass is made out or not is for the Police to determine at this stage. It will be criminal trespass if the entry upon the property is without permission, or having lawfully entered into property, if a person remains there unlawfully with intent to intimidate, insult or annoy the person in possession of the property. The intention to intimidate or annoy can be presumed in the circumstances of the case. The question therefore for the Police to consider is whether the entry, to start with, was without the consent of the petitioner. If the Police is of the view that the entry originally was with the consent of the petitioner, they will have to decide the next question as to whether having entered upon the property lawfully, they continued to remain there unlawfully. While the affidavit of the Commissioner of Police indicates that on enquiry it appeared to him that the entry was with the consent of the petitioner, he has not considered the question whether having lawfully entered upon the property, they unlawfully continued to be in possession of the property. As the offence of criminal trespass could be committed by a person having lawfully entered upon the property by unlawfully remaining there, it is the duty of the Commissioner of Police to consider the question whether the continued possession of the property by the hut dwellers is unlawful. This admittedly the Commissioner of Police has not considered. The offence of criminal trespass is a cognizable offence and it is the duty of the Police to take action. The plea of the Commissioner of Police that this Court, unless it came to a conclusion that the persons now in occupation entered into the property without the permission and against the will of the owner of the property, cannot grant a writ of mandamus, is not correct, for, as already pointed out, this Court will be entitled to grant a writ if it is satisfied that the persons having entered upon the property lawfully, continued to be in possession unlawfully. The contention of the Commissioner of Police that whether police action is necessary in this -regard or what action is to be taken is within the discretion of the Police, is not in accordance with law. The duty of a Police Officer and the jurisdiction of the Court to issue a writ of mandamus have been considered by the Court of Appeal and very clearly stated in a recent decision reported in R. v. Metropolitan Police Commissioner (1968) 1 All E.R. 763, Lord Denning, M. R. in dealing with the duties of the Commissioner of Police observed at page 769 as follows:
I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land....In all these cases, he is not the servant of anyone, save of the law itself....The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.
In conclusion, the learned Judge stated that the law must be sensibly interpreted so as to give effect to the intentions of Parliament, and the Police must see that it is. enforced and that the Rule of Law must prevail. Salmon, L.J., in referring to the duties of the Police observed as follows:
In this Court it has been argued on behalf of the Commissioner that the Police are under no legal duty to anyone in regard to law enforcement. If this argument were correct, it would mean that in so far as their most important function is concerned, the Police are above the law and therefore immune from any control by the Court. I reject that argument. In my judgment, the Police owe the public a clear legal duty to enforce the law--a duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently....For example, if, as is quite unthinkable, the Chief Police Officer in any district were to issue an instruction that as a matter of policy the Police would take no steps to prosecute any house-breaker, I have little doubt but that any house-holder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn.
The same view was expressed by Edmund Davies, L.J., who repelled the proposition that the law enforcement officers of the country owe no duty to the public to enforce the law, and observed:
Carried to its logical limit, such a submission would mean that, however, brazen the failure of the Police to enforce the law, the public would be wholly without a remedy and would simply have to await some practical expression of the Court's displeasure. In particular, it would follow that the Commissioner would be under no duty to prosecute anyone for breaches of the Gaming Acts, no matter how flagrantly and persistently they were defied. Can that be right? Is our much-vaunted legal system in truth so anaemic that, in the last resort, it would be powerless against those who, having been appointed to enforce it, merely cocked a snook at it? The very idea is as repugnant as it is startling, and I consider it regrettable that it was ever advanced.
The learned Judge concluded that the law enforcement officers of the country certainly owe a legal duty to the public to perform those functions which are the raison d'etre of their existence.
6. The extracts from the three judgments as given above clearly defines the duties of the Commissioner of Police and the right of this Court to issue a writ of mandamus. In the present case, it is the duty of the Commissioner of Police to determine whether the continued presence of the hut dwellers amounts to criminal trespass. If he comes to that conclusion, it is clearly his duty to evict the trespassers and give protection to the petitioner. The plea of the Commissioner that it is within his discretion to take action or not has no basis in law. It is his duty to enforce the law of the land. As ruled by Edmund Davies, L.J., this plea should never have been advanced. The writ petition is allowed to the extent indicated. The Commissioner of Police will proceed to act in accordance with the directions indicated in this judgment. There will be no order as to costs.