Madras High Court
Nepc India Ltd vs The State Of Tamil Nadu on 4 February, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No.21048 of 2008 and M.P.Nos.1 & 2 of 2008 NEPC India Ltd., 36, Wallaja Road, Madras 600 002. Rep. by its Chairman, Mr.Ravi Prakash Khemka ..Petitioner. Vs. 1. The State of Tamil Nadu, Rep. by the Secretary to Government Home Department, Fort St.George, Madras-600 009. 2. The Director General of Police Madras-600 004. 3. The Commissioner of Police Madras-600 008. 4. The Joint Commissioner of Police, Central Zone, Madras 600 008. ..Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for the records in Rc.No.407/Camp/JC/(CZ)/08 dated 21.07.2008 / 01.08.2008 on the file of the 4th respondent herein and quash the same as ultra vires, unconstitutional, against the rule of law and against the principles of natural justice and consequently, direct the respondent police, viz. the Director General of Police to reinvestigate the entire episode, by entrusting the same to a special team of CBCID in the light of the directions issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008. For Petitioner : Mr.R.Shanmugam For R1 to R4 : Mr.B.Vijay Govt. Advocate O R D E R
M/s. NEPC India Limited, a company registered under companies Act, has invoked the writ jurisdiction of this Court with the prayer for issuance of a writ in the nature of Certiorari for quashing the order dated 21.07.2008, passed by the Joint Commissioner of Police, Central Zone, rejecting the representation of the petitioner dated 31.10.2007.
2. The impugned order reads as under:
"This has reference to your complaint dated 31.10.2007, alleging police officials have done mistake in investigating your complaint dated 25.07.2007.
Based on your representation dated 31.10.2007, an enquiry was conducted. The enquiry revealed that the officials had dealt with your complaint dated 25.07.2007 in a proper manner and in accordance with procedures. Consequently, no further action was required.
This is for your information.
sd../-
Joint Commissioner of Police Central Zone, Chennai-8"
3. The petitioner also prayed for a writ in the nature of Mandamus to direct the respondent police, i.e. the Director General of Police to reinvestigate the entire episode by entrusting it to to a special team of CBCID in the light of the directions, issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008.
4. The writ petition filed, on the face of it, is misconceived, as it has been filed by the company, registered under Companies Act, which has its own independent legal entity from that of its Chairman or Director, the possibility of alleged threat cannot be to a company.
5. The facts show that, in fact, complaint was filed by company by Thiru Ravi Prakash Khemka, its Chairman qua alleged wrong to him.
6. The facts leading to filing of the present writ petition, as disclosed in the affidavit in support of the writ petition, reads as under:
i) Mr.Ravi Prakash Khemka, filed a complaint against 19 accused on 14.12.2006, alleging therein that he had received two threatening calls on his mobile where somebody over the telephone talked in English in filthy language and threatened that Mr.Rajkumar and his family has been spotted in Mumbai and threatened to wipe out the full family at Mumbai itself.
ii) It was also stated on the mobile that city of Mumbai belongs to Dons and Dubai and Karchi people and in case, complaint against Mr.Rao, Mr.Amitabh, Mr.Khandelwal and others, was not withdrawn, then the family will not see the second day and filthy language was also used.
iii)Telephone number, from which, threatening calls were received, was also mentioned in the complaint. It was mentioned in the complaint that on the same day, his second son Mr.Tirupathi Kumar Khemka also received threatening call from the Mobile No.9312004441 in Hindi and English with lot of filthy languages.
iv) He was also threatened that in case his brother Mr.Rajkumar Khemka was not withdrawing the complaint against Mr.Rao, Mr.Amitah and Mr.Khandelwal, he would face dire consequences.
v) Request was made by the petitioner to investigate the matter and register an FIR and further prayer was also made for giving list of recognized security agencies, so that, their security could be protected. In addition, prayer was also made for necessary protection.
7. The reading of complaint would show that it is full of vague allegations. The said alleged crime was in Mumbai. But, for the reasons best known to the petitioner, complaint was filed at Chennai. Though in the heading, complaint was said to be on behalf of Mr.Ravi Prakash Khemka, but it was signed on behalf of the petitioner company. Along with complaint, the petitioner also placed on record transcription of the threatening calls. The petitioner also attached with the complaint certain threats, received from Aligarh and Deobund, Uttar Pradesh.
8. The complaint was followed by another complaint dated 25.07.2007d, alleging therein that at about 3:00 p.m., six goondas entered into the office of the petitioner company. Names disclosed of the persons were Raja, Rajesh, Arun and Jay. But it was mentioned that real names of the accused were not known. These people were said to have threatened the company in Tamil.
9. The case of the petitioner set out in the second complaint was that on the complaint, Police reached the spot, but before that, six goondas ran away and that their statements were recorded by the Police.
10. Surprisingly, in the complaint, name of the complainant was not mentioned and it was signed on behalf of the petitioner company by some Director.
11. The case of the petitioner is that on the complaint, made on 25.07.2007, an FIR No. 2085 of 2007 was registered after two months, that too, after directions were issued by this Court in Crl.O.P.No.26530 of 2007. Allegations of the petitioner are that incorrect FIR was registered by leaving principal and prime accused, named in the complaint.
12. As observed above, in the complaint dated 25.07.2007, no names were disclosed rather it was mentioned that even disclosed names did not reflect correct name of the accused persons.
13. As already mentioned above, the petitioner had approached this Court by filing Crl.O.P.No.26530 of 2007, wherein, specific stand was taken that no complaint had been received by Police. The petitioner, in support of complaint, produced a copy of the receipt, showing despatch of complaint. This Court, without going into controversy, directed the petitioner to give a copy of the complaint dated 25.07.2007 to the respondent police and on receipt of the same, the respondent police was directed to register a case, as the complaint disclosed cognizable offences.
14. FIR registered on the basis of complaint has been enclosed in the typeset, which shows that it is the verbatim copy of complaint dated 25.07.2007.
15. The petitioner made another complaint of misconduct against Sub-Inspector of Police, D-1, Police Station, alleging therein that the Police had omitted to include prime accused M/s. Southern Wind Farms Limited. It is not understood, how a legal entity can be guilty of alleged offence.
16. Allegation in the complaint, on the face of it, was misconceived, as no criminal offence could be registered against M/s.Southern Wind Farms Limited being a legal entity, not committing crime, like the one alleged.
17. The petitioner, thereafter, being dissatisfied by the action of the Police, filed Crl.O.P.No.34549 of 2007 for directing the Police to re-investigate the case by including name of prime accused M/s. Southern Winds Farms Limited along with other accused persons named in the complaint dated 25.07.2007 and also to correct the relevant column in the first page of FIR in Crime No.2085 of 2007.
18. Criminal Original Petition, filed by the petitioner, was disposed of by this Court on 06.12.2007, by passing the following order:
"Heard the learned counsel on either side.
2. Learned Government Advocate (Crl.Side) submitted that after completing the investigation in Crime No.2085 of 2007, final report has been filed referring it as mistake of fact and R.C.S.No.14 of 2007 has also been filed before the XIII Metropolitan Magistrate, Chennai, on 28.11.2007 and the said R.C.S. Notice was also sent to the defacto complainant / the petitioner herein on 30.11.2007 but the same has been returned with the postal endorsement 'refused to receive'. He further submitted that the said R.C.S. notice has been again sent to the petitioner on 30.11.2007.
3. Hence, on receipt of the R.C.S. notice, the defacto complainant / the petitioner herein is at liberty to file a protest petition before the XIII Metropolitan Magistrate Court, Chennai, if so desires, and if such a petition is filed, the same shall be enquired into by the learned Magistrate in accordance with law.
4. With the above direction, the Criminal Original Petition is closed."
19. For the reasons best known to the petitioner, it took no steps to file protest petition before learned XIII Metropolitan Magistrate Court, Chennai, but chose to file another W.P.No1332 of 2008, which was decided on 04.02.2008. It is interesting to note that the petitioner did not choose to implead the alleged accused in Crl.O.P.No.26530 of 2007 or in Crl.O.P.No.34549 of 2007. In the writ petition filed in this Court also the accused persons were not impleaded. The writ petition filed by the petitioner was disposed of on 04.02.2008. The operative part of the order reads as under:
4. Having regard to the averments contained in the affidavit filed in support of the writ petition and the nature of complaint made by the petitioner against the Inspector of Police, D-1, Police Station, Triplicane, Chennai, it is imperative that the respondents bestow their attention to the said complaint and take appropriate action if the allegations contained in the complaint dated 31.10.2007 turns out to be true. Since the third respondent is the authority under whose control the Inspector of Police, D1 Police Station, Triplicane, Chennai, is functioning, the third respondent is directed to consider the complaint dated 31.10.2007 in accordance with law, if necessary by giving an opportunity of hearing to the petitioner and pass appropriate orders expeditiously, preferably within four weeks from the date of receipt of this order copy.
5. With the above direction, the writ petition is allowed. No Costs."
20. The reading of order, passed by this Court, shows that the petitioner had chosen not to disclose the order, passed by this Court in Crl.O.P.No.34549 of 2007, decided on 06.12.2007.
21. The case of the petitioner, set up in the writ petition, is that he has not received Refer Charge Sheet from the Court of competent jurisdiction, therefore, the petitioner has been denied valuable opportunities to contest the matter before Competent Court having jurisdiction in the matter.
22. Nothing has been shown in the affidavit with regard to steps taken by the petitioner in approaching learned XIII Metropolitan Magistrate Court, Chennai.
23. It is disclosed in the affidavit that the petitioner moved this Court by filing W.P.No.12354 of 2007, praying for issuance of writ in the nature of Mandamus, directing the respondents 2 and 3 to communicate the final order, passed on the petitioner's complaint dated 31.10.2007. The writ petition filed by the petitioner was disposed of on the statement of learned Government Advocate that the respondents would pass final order within a period of one week from 18.07.2008. The petitioner complains that this order was also not complied with by the respondent police in letter and spirit.
24. The case of the petitioner is that impugned order has been passed without giving opportunity to the petitioner and without disclosing any reasons.
25. The order impugned has been challenged on the following grounds:
i) the order has been passed without giving opportunity of hearing
ii) that in the complaint dated 25.07.2007, principal and prime accused was named, but wrong and incorrect FIR was recorded by suppressing truth, state of affairs, by protecting and shielding the principal and prime accused,
iii) that Police have committed serious misconduct in investigating the petitioner's complaint dated 25.07.2007.
On the grounds referred to above, relief as prayed for be passed in favour of the petitioner and against police.
26. Before adverting to merit of the case, it would be appropriate to note that in exercise of powers, conferred under Article 225 of the Constitution of India, the Hon'ble High Court of Madras, has framed rules, regulating proceedings under Article 226 of the Constitution of India. In rules framed, it is provided that every petition is required to set out the provisions of law, under which. it is made.
27. The petitioner is also required to name and describe the accused and respondents, which is to be accompanied by an affidavit. The first part of rules has been complied with. The rules, however, provide that the affidavit, accompanying the writ, is to contain facts and grounds of relief sought. It has to be specifically disclosed whether other remedy is available to the petitioner and if not availed of, reasons thereof.
28. In the present writ petition, the petitioner has not disclosed the remedy available to the petitioner under provisions of Criminal Procedure Code, though he has chosen to mention that for want of notice, he has chosen not to approach learned XIII Metropolitan Magistrate in spite of direction by this Court.
29. The writ petition is opposed by the learned Government Advocate, appearing on behalf of respondents by contending that the order passed by this Court stands complied with. In support thereof, learned Government Advocate has placed on record a copy of the order dated 24.03.2008, which reads as under:
"Confidential / Most immediate Office of the Commissioner of Police, Chennai Police, Egmore, Chennai-600 008.
No.218/S.B.XII/08 Dated: 24-3-2008 Memorandum A copy of representation dated 31.10.2007 of Tr.Ravi Prakash Khemka, NEPC India Ltd., is enclosed herewith.
2. In this connection, the Commissioner of Police has issued the following instructions:
As the petitioner alleges that the Inspector wantonly failed to include the main accused in the FIR and then closed the case immediately when he filed a case in the High Court, the allegation may be verified, the correctness or not of the investigation be scrutinised and if required corrective measures taken. The petitioner should also be heard. Details of action taken may be reported within a fortnight.
2. Please take necessary action and report within a fortnight.
Encl: For Commissioner of Police"
30. In pursuance to the order passed, a detailed enquiry was conducted by the Inspector of Police and translated copy of the report submitted, reads as under:
"On a complaint dated 31.10.2007 sent by Tr.Raviprakash Khemka of NEPC Limited to the Secretary to Government, Home Department, it is mentioned that on 23.07.2007 afternoon at about 15:00 hrs, henchmen engaged by Southern Wind Farm, came to the office of Tr.Raviprakash Khemka and threatened, on 25.07.2007 a complaint was given at D-1, Triplicane Police Station in this regard, there was no immediate action on the complaint, then received order to register a case on a complaint dated 25.07.2007 by the Madras High Court through Crl.O.P.No.26530 of 2007 dated 13.09.2007 dated 13.09.2007, then the case was registered belatedly on 20.10.2007 in D-1, Triplicane Police Station, in the FIR, names of persons belonging to Southern Wind Farm, prime accused in the case were not included, then without taking proper action the case was treated as 'mistake of facts', hence requests action against the Police.
As mentioned above by the petitioner in the petition no complaint was given at D-1, Triplicane Police Station on 25.07.2007 stating that henchmen belonging to Southern Wind Farm came to the office of the NEPC Limited situated at No.36, Walajah Road and threatened the petitioner and walked away. To take belated action, the petition Tr.Rajkumar Khemka sent the complaint through Registered Post on 13.09.2007 and based on this complaint, Sub-Inspector of Police of D-1, Triplicane Police Station registered a CSR No.137 of 2007 and conducted enquiry. But NEPC did not cooperate for enquiry. On the same day, the petitioner approached the Madras High Court and got a direction vide Crl.O.P.No.26530 of 2007 to register a case on a complaint sent by Registered Post to D-1, Triplicane Police Station. Tr.Radhakrishnan, Sub-Inspector of Plice, D-1, Triplicane Police Station received the above mentioned High Court order on 20.10.2007 and registered a case in D-1, Triplicane Police Station in Crime No. 2085 of 2007 under Section 147, 148, 452 and 506(ii) IPC and was enquiring the witnesses. The investigation carried on after registering the case could not enlighten any such occurrence as alleged by the petitioner and the complaint being untrue, the case referred as Mistake of Fact and the R.C.Notice was refused by petitioner thereby causing it through Registered Post. The final report was sent to Court and the petitioner being directed to be present informing him of the referring of the case, the petitioner did not respond. The final report was filed before the Hon'ble XIII Metropolitan Magistrate Court on 05.12.2007. The Court also sent a notice to the complainant on 27.12.2007 in this regard. The complainant did not attend the Court and was absent. But the petitioner filed Crl.O.P.No.34549 of 2007 for re-investigation which was closed by an order dated 06.12.2007 observing that a protest application to be filed before the Magistrate Court on the referred notice. The MF case file has been submitted to the High Court in a proper way.
As mentioned by the petitioner that six goondas barged in and threatened and since the names of four accused namely Raja, Rajesh, Arun and J were clearly mentioned in the complaint, their names were registered in the 7th column of the FIR and on the back side of the FIR all the details given in the complaint without any omission have been registered. It is submitted that no names are omitted in the FIR as alleged by the petitioner.
In June 2007, the petitioner entered into Slum Sale Agreement with Southern Wind Farm to sell Wind Energy Division, a division of NEPC for Rs.400 crores. Southern Wind Farm paid Rs.250 crores to the NEPC and without paying the remaining Rs.150 crores the Southern Wind Farm has been cheating. In this regard, the petitioner lodged a complaint in CCB and based on the direction received from the High Court a case was registered on 07.02.2007 in CCB Crime No.59 of 2007 under Sections 406, 384 and 506(ii) IPC and the case was closed on the grounds of MF. Further, on 03.09.2007, on an order received from the High Court for the above incident, a case was registered in D-1 Triplicane Police Station in Crime No. 1877 of 2007 under Sections 406, 384 and 506(ii) IPC and the case was transferred to CCB. It is submitted that on enquiry, it is found that since the Southern Wind Farm has not paid the remaining Rs.150 crores to the NEPC, the petitioner has given a false complaint stating that on 23.07.2007 at about 3.00 p.m. hencemen of Kalanidhi Maran, engaged by the Southern Wind Farm barged into NEPC office and threatened.
Further, it is submitted that Tr.T.Radhakrishnan, Sub-Inspector of Police, D-1 Triplicane Police Station enquired the case properly not as mentioned by the petitioner, and filed the final report before the Hon'ble Court."
31. The maintainability of the writ was also challenged on the ground of suppression of material facts. In support of this contention, learned Government Advocate wanted to produce affidavit filed by the petitioner. The request was opposed by the petitioner on the plea that no documents can be handed over to the Court, in absence of affidavit filed, in support of the said documents.
32. This contention was upheld for the reason that writ rules, framed by this Court, stipulate filing of affidavit in support of the relief claimed in the writ petition, it would invariably mean that the documents sought to be produced in support of the case should also be included in the pleading to overcome objection, that the Court cannot look into the documents and evidence, which is beyond pleading.
33. This objection of the learned counsel for the petitioner was upheld and affidavit not taken on record.
34. Learned Government Advocate, however, submitted that reading of the order, passed by this Court in W.P.No.1332 of 2008, shows that factum of the petition, filed before this Court i.e. Crl.O.P.34549 of 2007, was not disclosed, vide which, this Court had directed the petitioner to avail its remedy under the provisions of Criminal Procedure Code.
35. On question asked, learned counsel for the petitioner vehemently contended that petitioner, in the present case, is only seeking relief for directing the respondents to take action against Police officials for dereliction of their duty.
36. However, this contention, on the face of it, is incorrect, as the prayer in the writ petition is as under:
"For the reasons stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of Certiorarified Mandamus to call for the records in Rc.No.407/Camp/JC/(CZ)/08 dated 21.07.2008 / 01.08.2008 on the file of the 4th respondent herein and quash the same as ultra vires, unconstitutional, against the rule of law and against the principles of natural justice and consequently, direct the respondent police, viz. the Director General of Police to reinvestigate the entire episode, by entrusting the same to a special team of CBCID in the light of the directions issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008 and thus render justice.
Date at Madras, this the 19th day of August, 2008."
37. Learned counsel for the petitioner contended that in spite of order, having been passed by this Court, directing the petitioner to avail his remedy before learned XIII Metropolitan Magistrate, Chennai, this writ petition would be competent.
38. In support of this contention, learned counsel for the petitioner has placed reliance on a judgment of the Hon'ble Allahabad High Court in Crl.M.W.P.No.3251 of 2008 (Ravi Prakash Khemka vs. State of U.P. and others) wherein, while deciding the question as to whether offence under Section 506 IPC is a cognizable offence or not. The objection of alternative remedy was rejected by recording as under:
"In such a view of the matter, the Full Bench judgment has to be followed and, therefore, we are of the opinion that once an FIR under Section 506 IPC, has been registered, which is a cognizable and non bailable offence than the Police has to investigate the said FIR under Section 156(1) Cr.P.C., unless it decides otherwise under Section 157(1) Cr.P.C.
It was also argued before us that the petitioner has an alternative remedy of approaching the Magistrate concerned. But since all the 3 petitions arise out of different districts, therefore, we have not relegated petitioner to seek remedy before the concerned Magistrate as he had to run from pillar to post to seek same kind of relief based on purely legal question. Further, alternative remedy in the present case is neither efficacious nor speedy. Over and above since the same question of law is involved and since the petitioner is seeking the same relief in respect of 3 different cases in 3 different districts, it would have been inappropriate to relegate him before the Magistrate on the question of alternative remedy to seek redressel of his grievance which are identical in nature.
In such a view, all the 3 writ petitions are allowed with the direction that the Investigating officer in the respective crime numbers are directed to investigate the offences registered by them and conclude the same expeditiously and submit their report to the concerned Magistrates."
39. The reading of order of the Hon'ble Alllahabad High Court shows that reason for not relegating the petitioner, in the said writ petition to alternative remedy, was that 3 petitions arose out of 3 different Districts. The Hon'ble Allahabad High Court, nowhere, laid down that the party can approach the Court by way of writ by ignoring alternative statutory remedy.
40. As a matter of fact, in the present case, this Court had directed the petitioner to avail his remedy before learned XIII Metropolitan Magistrate, Chennai, therefore, the judgment of the Hon'ble Allahabad High Court would have no application.
41. Learned counsel for the petitioner, thereafter, placed reliance on a judgement of the Hon'ble Supreme Court in the case of Smt.Naseem Bano vs. State of U.P. and others reported in AIR 1993 SC 2592 to contend that as no counter to the writ petition is filed, averments are to be taken to be correct. Therefore, writ petition deserves to be allowed on this ground alone.
42. This contention is again misconceived. The Hon'ble Supreme Court, in the case of Smt.Naseem Bano vs. State of U.P. and others (supra) reiterated the well settled principle of law, that averments which are not controverted by respondent, are deemed to be admitted. The Hon'ble Supreme Court, nowhere, laid down that the relief be granted to the petitioner, even if uncontroverted averments do not make out a case, for issuance of such direction, as prayed for by the petitioner. The judgment, therefore, has no application to the facts of the present case.
43. Learned counsel for the petitioner also placed reliance on a judgment of the Hon'ble Supreme Court in the case of Union of India vs. W.N.Chadha reported in AIR 1993 SC 1082 to contend that rule of audi alteram partem is applicable even to administrative decision.
44. However, this contention is not borne out from judgment relied upon by the petitioner, as the Hon'ble Supreme Court in the case Union of India vs. W.N.Chadha (supra), was pleased to lay down as under:
"The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. There is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands. There are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram partem is not attracted.
It is no doubt true that the fact that a decision, whether a prime facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant."
45. Rather, the Hon'ble Supreme Court has been pleased to lay down that rule of audi alteram partem is not attracted, unless impugned order is shown to deprive a person of his liberty or his property, that is to say that before claiming right of audi alteram partem, the petitioner has to show the loss or damage by impugned order. In this case, petitioner wants relief against a party, who is not before this Court.
46. The impugned order has been passed on the basis of representation having no statutory force of law. The petitioner, in fact, had remedy before criminal Court in accordance with law. On the face of it, prayer made in the writ petition is not maintainable, as it is not possible to hold afresh investigation into a closed criminal case on the same allegation, as this would be hit by the principles of double jeopardy, thus, will be violative of Article 20 of the Constitution of India.
47. Learned counsel for the petitioner, thereafter, placed reliance on a judgment in the case of National Sample Survey Organisation and another vs. Champa Properties Limited and another reported in (2009) 14 SCC 451 to contend that alternative remedy cannot be a bar to exercise of writ jurisdiction.
48. This contention is again misconceived. The Hon'ble Supreme Court in the case, referred to above, had entertained the writ petition by recording a finding that arbitration clause, which was said to be alternative remedy to govern the issue raised in the writ petition, did not cover the dispute raised in the writ. The finding of the Hon'ble Supreme Court reads as under:
"The appellant was the tenant under the first respondent in respect of the premises taken on lease on 01.06.1972 on a monthly rent of Rs.13,733 (at the rate of Rs.0.85 per square foot). On a request by the respondent for increase in rent, the appellant made a reference to the Hiring Committee for reassessment. Based on its recommendation, the rent was increased to Rs.74,645 per month with retrospective effect from 03.08.1983. The very next day the respondent wrote to the appellant again requesting for reassessment of the rent for the period commencing from 03.08.1988 by referring the matter to the Hiring Committee. The appellant again made a request to the Hiring Committee for reassessment of rent. The Hiring Committee by its proceedings dated 06.06.1989, reassessed and recommended a rent of Rs.13.10 per square foot of carpet area with effect from 03.08.1988. The appellant found the increase suggested by the Hiring Committee was unreasonably high and therefore, initiated correspondence with the Hiring Committee for reviewing the reassessment. When the matter was pending, the respondent requested the appellant to fix the rent at Rs.19 per square foot plus municipal taxes. In the meanwhile, the respondent landlord entered into lease agreements every year with the appellant on 11.04.1989, 10.05.1990 and 29.04.1991 each for a duration of one year, on a monthly rent of Rs.74,645.34. As the premises were old and lacking in amenities and as the respondent was not interested in carrying out repairs/improvements i view of its intention to demolish and reconstruct the building, and as the appellant was unwilling to pay a higher rent, the appellant notified the respondent of its intention to vacate the premises and vacated and delivered vacant possession of the premises to the respondent on 25.06.1992. The respondent however went on representing for revision of rent with effect from 03.08.1988. The appellant was not agreeable for the rent recommended by the Hiring Committee, and wrote to the Hiring Committee to review the reassessment of rent, and furnished several documents in support of its request. The Hiring Committee sent a reply stating that its recommendation in regard to rent will not be reviewed. The respondent thereafter filed a writ petition for directions to the respondents to reassess the rent giving effect to the decision of the Hiring Committee recommending Rs.13.10 per square foot with effect from 03.08.1988 by way of interim reassessment. The writ petition was allowed directing the appellant to pay the rent in regard to the period 03.08.1988 to 25.06.1992, to the respondent in accordance with the recommendations of the Hiring Committee. The appellant challenged the order of the Single Judge by appeal. The Division Bench stayed the operation of the order of the Single Judge, subject to the appellant depositing 50% of the rent calculated at the rate recommended by the Hiring Committee, with liberty to the respondent to withdraw the same. The Division Bench disposed of the appeal directing the appellant to deposit the balance 50% of the arrears calculated at the rate of Rs.13.10 per square foot with directions to the Hiring Committee to reconsider the matter (in the light of the observations of the High Court in Rabindra Nath Nandi) and take a final decision within three months and the appellant to take a decision on the recommendations thereafter."
49. The petitioner, thereafter, placed reliance on a judgment of the Hon'ble Supreme Court in the case of East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors reported in AIR 2010 SC 2794 to contend that impugned order cannot sustained, as reasons are required to be stated in the order or official file maintained and an order cannot be supported by reasons given in affidavit filed in Court.
50. This contention is again misconceived. Though the proposition raised cannot be disputed, as it is well settled that an order is required to be a speaking order when affecting the right of the parties, but the order impugned by petitioner is only a communication to the petitioner, conveying the result of enquiry on his representation. The communication has been sent to the petitioner after a detailed enquiry under orders of the Commissioner of Police. The reasons are contained in the official file maintained by department. This judgment, therefore, can be of no help to the petitioner.
51. The petitioner, thereafter, placed reliance on a judgment of the Hon'ble Supreme Court in the case of Eureka Forbes Limited vs. Allahabad Bank and others reported in (2010) 6 SCC 193 to contend that the dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex-facie discriminatory. This proposition cannot be disputed, as the decision is required to be the one showing nexus from the law, but how this proposition will apply to this case is not understood.
52. On the complaint of the petitioner, FIR was registered and investigated. After investigation, a report was submitted to the learned XIII Metropolitan Magistrate in accordance with law. This Court gave liberty to the petitioner to file objection, so that, statutory authority under provisions of law could look into the grievance of the petitioner. But for the reasons best known to the petitioner, it has chosen not to avail the statutory remedy.
53. The prayer made by the petitioner in the present case for re-investigation cannot be ordered by this Court in view of availability of specific provisions under the Code of Criminal Procedure, as independent investigation again as prayed for would be hit by Article 20 of the Constitution.
54. Learned counsel finally placed reliance on a judgment of this Court in the case of A.K.Viswanathan vs. State of T.N. & Ors. Reported in 2010 CIJ 362 IPJ, wherein, this Court was pleased to lay down that High Court has jurisdiction to interfere in the investigation, conducted by the Police Officer, if the power of investigation is used by him malafide. There can be no dispute with proposition of law, but this power can be exercised during investigation, and not after the report is submitted to learned Magistrate as per provision of Code of Criminal Procedure. In that event, remedy is only to file objections, and in case the learned Magistrate so desires, further investigation can be ordered.
55. Even otherwise, in the present case, the petitioner has chosen not to implead any person against whom allegations of malafide are levelled. It is a well settled law that allegations of malafide cannot be looked into in absence of the party against whom malafides are alleged. Malafides are also required to be specific and not vague or general.
56. In the present case, allegations by the petitioner are against department in general and against local police. Such general allegations of malafide cannot be taken into consideration for deciding writ petition.
57. Even otherwise, this Court in the case of A.K.Viswanathan vs. State of T.N. & Ors.(supra), on which, reliance has been relied upon by the learned counsel for the petitioner, has held that burden of proving mala fides is very heavy on the person, who alleges it. Mere allegation is not enough. Party, making such allegations is under legal obligation to place specific material before the Court to substantiate such allegation. There has to be very strong and convincing evidence to establish allegations of malafide, which are required to be specifically and definitely pleaded in the petition, as these cannot be presumed. The presumption under law is in favour of the bona fides of the order unless contradicted by acceptable material.
58. Learned counsel for the petitioner, by placing reliance on the judgment of this Court in W.P.No.1332 of 2008, decided on 04.02.2008, vehemently contended that this Court directed the third respondent i.e. the Commissioner of Police to consider the complaint in accordance with law and if necessary, by giving an opportunity of hearing to the petitioner and pass appropriate orders expeditiously, which would mean that the order was required to be passed only by the Commissioner of Police, therefore, the order deserves to be set aside.
59. Though this contention looks attractive, on the face of it, but when seen in depth, it would show that in fact office of the Commissioner, in pursuance to the order, had got the matter reinvestigated and found that allegation made against irregularity of investigation were wrong, and accordingly, the decision was conveyed. The representation of the petitioner was not a statutory representation, which could only be decided by authority mentioned in the statute.
60. In view of the finding recorded above, no useful purpose would be served to direct the Commissioner of Police to pass an order afresh, as the file shows that decision was taken after a thorough investigation.
61. This may be noticed that the Commissioner of Police would also have no jurisdiction to reinvestigate the case, after a cancellation report is submitted to the Magistrate, stands accepted and the remedy under Code of Criminal Procedure is to be followed, which was also directed by this Court. But, the petitioner, for the reasons best known, has chosen not to avail that remedy. In absence of specific order by learned Magistrate, retrial, after filing of cancellation report before Magistrate, would otherwise be hit by principle of double jeopardi, being violative of Article 20 of the Constitution of India. It is a settled law that this Court cannot issue futile writ. The prayer made, therefore, cannot be granted.
For the reasons stated above, the writ petition is ordered to be dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
ar To
1. The Secretary to Government State of Tamil Nadu, Home Department, Fort St.George, Madras-600 009.
2. The Director General of Police Madras-600 004.
3. The Commissioner of Police Madras-600 008.
4. The Joint Commissioner of Police, Central Zone, Madras 600 008