Chandra Bai v. Special Deputy Commissioner, Bangalore District

Ramesh, J.:—

1. In this petition, petitioners have sought for issuance of a writ of certiorari to quash the order of the 1 respondent dated 8.10.1998 - annexure-E and to issue a writ in the nature of mandamus to direct respondents 1 to 4 to restore status quo ante in respect of the petitioners' property and to pay damages and also to direct the 7th respondent/CBI to take up investigation in the matter and to bring the guilty to books.

2. According to the 1 petitioner, they were said to be in possession of property bearing No. 174/2 measuring 30 × 40 ft. situate at Cottonpet Main Road, Bangalore exercising the act of ownership from the past several years. The said property was earlier in the possession of his predecessor in interest namely one Yelloji Rao and on his death, the petitioner continued with the possession and his father was carrying on the business in the name and style of Lakshmi Furniture Works and then as an electrical contractor and later, a provision stores.

3. Similarly, the 2nd petitioner also was in possession of the adjoining property at 174/3 measuring 30 × 40 ft. In that, 2 petitioner was carrying on the scrap business besides bottle cleaning and gunny bags dealing. By virtue of a notification 3.3.1989, 14 guntas of the Chaliha number 90 was declared as slum area exercising power under S. 3 of the Slum (Improvement and Clearance) Act, 1974. The notification was called in question by one Muniswamy & others in WP 20988/1989 and connected matters and this Court by order dated 8.10.1998, quashed the said notification and remanded the matter back to the 1 respondent with a direction to conduct a joint enquiry and to take appropriate action in respect of the entire extent of land including the 14¼ guntas of land. After the matter was remanded, the 1 respondent without ascertaining as to the actual possession and without notifying the occupants, having concluded the enquiry, declared 14¼ guntas out of 1 acre as slum area. Thereafter, the 2 and 3rd respondent colluding with each other, on 4.4.2001 employed the services of Policemen and without any prior notice, demolished the properties of the petitioners without even giving an opportunity for removing the articles and also petitioners were not permitted to take photos of the demolition process. Thereafter, on verification it was learnt that the 1st respondent in exercise of his powers had directed the eviction in respect of 25¾ guntas of land out of 1 acre in Chalta Number 90 and to hand over the same to the owners of the land. Hence, this petition challenging the order made at annexure-E and for such other relief as noted above.

4. The 1 respondent and others have filed objections resisting the petition.

The contesting respondents have stated that the petitioners have deliberately made a false and misleading statement to harass the contesting respondents and to knock off the valuable property belonging to respondents 8 to 20. It is stated, although the petitioners do not have such documents in support of the said allegation, they have not disclosed the nature of the alleged possession, the property belongs to respondents 8 to 20 and bears bid Corporation No. 143 & 144 (New No. 141 & 142) at Cottonpet Main Road having its boundaries and originally the property belonged to the ancestors of the respondents. The property mentioned by the petitioners in their schedule do not tally with the schedule of the property belonging to the respondents nor is it even part and parcel of the property of the respondents. The boundaries disclosed are totally different. As such, the property claimed by the petitioners has nothing to do with the property belonging to respondents 8 to 20. It is further submitted that neither the petitioners nor their predecessors were in possession of the property stated by them. As per the documents, in the order of the Court in execution proceedings at annexure-J, the petitioners were ordered to be removed and dispossessed through the process of court as such, the respondents are in possession since 16.7.1973 in Ex. Case No. 862/1973 arising out of HRC 323/ 1971 and also the Original Suit filed by the predecessor of the petitioners in OS 1761/1973 and 1757/73 came to be dismissed. Further, according to the objections filed by 1st respondent, by Government order dated 17.1.1997, One acre of land situate in Cottonpet Main Road in Municipal No. 141 & 142 is declared as slum area. Again by notification dated 30.12.1997, the aforesaid area which was covered under the notification was cancelled and a fresh notification came to the issued declaring 14½ acres as slum area out of 1 acre of land. This notification was challenged by the residents before this Court in WP 31898/1981. The petition was dismissed on 25.5.1982 holding that the slum dwellers have no locus standi and the writ appeal filed against the said order also came to be dismissed. However, in SLP before the Supreme Court, the matter was remanded back to provide an opportunity to the slum dwellers. However, another notification dated 3.3.1989 was issued by the Special Deputy Commissioner declaring 14¼ guntas of land in question as slum area. After further development, after hearing the slum dwellers, the Special Deputy Commissioner issued a notification dated 12.4.2000 reserving 14¼ guntas of land as slum area for rehabilitation of slum dwellers. Since the Slum Clearance Board has not taken any action to clear the slums, owners of the land in question made representation for taking action to evict the unauthorised occupants in the remaining area of 257¾ guntas. It is stated further, at the time of execution by the Task Force all the habitants were present except the petitioners as they were not in occupation of any portion of the aforesaid property. It is stated further, on 3.4.2001, the 1st respondent and others went to the spot and convinced the unauthorised occupants who voluntarily removed their materials from the said land on 4.4.2001 The temporary tents and sheds were demolished and the lands were handed over on 4.4.2001 to the owners of the land. Ever since, 4.4.2001, the owners are in occupation and enjoyment of the same.

5. Similarly, the 2 respondent has also filed object on statement.

Heard the counsel for the respective parties and the learned Government Advocate.

It is the submission of the Learned Senior Counsel appearing for the petitioners that the 1 respondent has no right to pass an order to evict the petitioners much less he cannot act on behalf of the owners of the land and the order passed by the 1 respondent directing the 2 respondent and others to evict the petitioners was illegal as he has no authority nor the area in question is covered under the declared area of Slum. As such, it is submitted that without authority of law, only to help the owners, such an act has been done which is illegal and the said act cannot be sustained.

6. Further, learned Sr. counsel also submitted that after the execution of decree and taking possession of the property by the owners of the land as is observed by the order of the Civil Court, once again the petitioners have occupied the property and though it is illegal, the 1st respondent has no authority to pass the order directing the other respondents to remove the petitioners and it has to be done under due process of law. Accordingly, he sought for quashinf annexure-E the order passed by the 1 respondent and to restore status-quo ante.

7. Per contra, Government Advocate has justified the order passed by the 1 respondent and submitted that the order passed by the respondent authority is in consonance with the directions of the Government in removing the unauthorised/unlawful occupation and creating slums and further submitted that a detailed order has been passed after joint inspection of the land in question along with the authorities of the Karnataka Slum Clearance Board. The petitioners were in wrongful possession and unauthorised occupation adjacent to the area which is declared as slum area and the authorities have exercised power as per the entitlement of the land owners following due procedure and the same cannot be found fault with. When once the petitioners were evicted under due process of law, if the 1 respondent authority has passed such an order to remove the unauthorised occupation of the petitioners by virtue of the special power vested in it as a legal obligation in the interest of law and order, the same cannot be found fault with.

8. Learned Counsel for the contesting owners/respondents vehemently submitted that under due process of law the property was taken in execution of the decree. Thereafter, once again the petitioners have unlawfully occupied the property belonging to the respondents and it is nothing but lawlessness on the part of the petitioners and they have not approached the court with clean hands and they have no locus-standi to maintain the petition. It is further submitted that mere illegal possession after they have been duly evicted in execution of the decree will not confer any right or title to the petitioners. The petitioners are duly evicted from the property under the authority of law as per the order passed by the Deputy Commissioner in exercise of his powers to maintain law and order and the same cannot be found fault with as it was for the respondents to approach the Deputy Commissioner who being the head of the District, exercising legal and quasi judicial powers, has passed an appropriate order. It is also contended that by virtue of the execution of the order at annexure-E he respondents have taken possession since 4.1.2001 wherein hey are in possession and occupation of the same, and the question of considering the case of the petitioners or for grant of status-quo ante does not arise. Accordingly, it was vehemently contended that it is the highhandedness of the petitioners that led to the deprival of legitimate right of the respondents in enjoying their property for all these days and there is no illegality in the order passed by the Special Deputy Commissioner at annexure-E. Further, it is submitted that the property in question is not at all the property on which the petitioners have right. As there is a dispute as to the title, the extent and the boundary thereof, the same cannot be gone into in the writ proceedings as it involves disputed question of facts.

9. Having heard the respective counsel, let me consider whether the impugned order at annexure-E requires to be interfered with.

In the instant case it is noticed that the contesting respondents having established their rights in the civil court are said to have taken possession of the property from the persons who have originally occupied the property either legally or illegally, under due execution of the decree of the Court. It appears thereafter, the petitioners have also moved the Civil Court seeking for an order of injunction by filing original suits in OS 1761 & 1757/1973 for a declaration and injunction. The Civil Court having observed that after the premises was taken back by the owners under due process of law, these petitioners have forcibly occupied the suit premises held that the possession of the plaintiffs in respect of the premises/property is unlawful. Of course, despite the fact of the petitioners continuing in occupation of the property as stated by them and also in the suit filed by them before the civil court, the Civil Court has categorically stated that once they have been evicted under due process of law, question of either granting declaration or injunction to them does not arise. Accordingly, the suit filed by the petitioners or their predecessors were dismissed during the year 1976. Thereafter, it appears, having failed in their attempt the petitioners in a high handed manner, sought to continue in possession of the property illegally. When they approach the court of law seeking for appropriate relief, they must approach with clean hands. Normally, as a matter of fact in case of civil disputes when once some illegal occupation is there, under the due process of law as law contemplates, people are required to take shelter to establish their right and obtain an appropriate order. Accordingly, the contesting respondents have made their efforts to establish their right and title over the property. The petitioners being neither the owners nor having title to the property have attempted to establish their right despite they were removed from the property under due execution of law.

10. What the law contemplates is to protect the interests of the person. Whenever there is wrong it will be redressed by the Courts on establishing such right and also under the assistance of the court, the possession would be given back to the holder of right and title over the property. Despite the same, when such repeated wrongful act is done, the question that would arise would be whether on every such attempt, the aggrieved person has to move the court helplessly and obtain a paper decree which of course will be futile if it is not properly implemented. Allowing such subsequent illegal acts as is in the case of the petitioners amount to supporting the case of perpetuating illegality which is not expected when we resort to the rule of law. Might be that the contesting respondents would have approached the Deputy Commissioner who is the head of the Executive of the District who can also protect the right of the persons as in the case of establishing a civil right and in case of unlawful acts/criminal acts to extend remedy to maintain law and order, by using police force which has to act according to the situation. In the case on hand, when the Deputy Commissioner being the person concerned with maintenance of law and order and he also being concerned with the right to exercise the power to protect the interest of the citizens on such complaining of the illegal acts and if some orders are being passed, and may be the same has been recognised under law or not, but, as long as there would be some justification for such acts, such acts cannot be interfered with unless the acts are shown to be either motivated or prejudicial. It appears by directing the 2 respondent or some other authorities, the 1 respondent ordered for removal of the petitioners from the property on the ground of unauthorised occupation. Although the said act is not supported by any specific law, he being an authority of the Government, supported the cause of the persons to take possession of the same as per the Government Notifications, the same cannot be held to be bad. Allowing such unauthorised occupation either by the persons with might or under the guise of pleading the need under the guise of seeking protection amounts to recognising some illegal acts and extending misplaced sympathy. Even after exercising due procedure when a person is ordered to be removed from the property, unless that order is set aside by the superior courts and also when in execution of the decree, possession was taken, once again asking the owners or title holders to go to court of law is nothing but abuse of process of law.

11. In the present case, although the order passed at annexure E by the 1 respondent to some extent seems to be irregular, but while exercising power under the authority of law, such an act cannot be held to be illegal and the same does not require interference as the said act has been done in furtherance of exercising lawful duty in protecting the interest and rights of the citizens.

Further, it has to be noted that there is said to be dispute as to the identity of the property and the boundaries mentioned therein which involves question of disputed facts and cannot be gone into in exercising writ jurisdiction more so, when the petitioners have not approached the court with clean hands and as early as on 4.4.2001, the contesting respondents were put back in possession. In the event if any such order is passed, it leads to multiplicity of litigation much less depriving the right and title of the holders.

It appears the Government order dated 17.1.1977 declares total one acre of land inclusive of the area in question at Cottonpet Main Road in Municipal No. 141 & 142, as slum having regard to the condition and to take positive steps to remove the slum and to effect improvements to maintain cleanliness. However, due to some resistance and developments, out of 1 acre, 14¼ guntas was only notified as slum and the remaining 25¾ guntas was excluded. According to petitioners, the act of 1 respondent in directing the 2 respondent - Board to take steps to remove the slum should have been only in respect of 14¼ guntas. However, even in the remaining area wherein petitioners were said to be in occupation, were removed which is illegal. However, as noted above, as contended by the contesting respondents, the extent and boundaries of the alleged possession by the petitioners vary with the boundary mentioned by the respondents. Further, petitioners are shown to have illegally occupied the place in a high handed manner though they were once evicted by execution of the court decree. The Civil Court also dismissed the case of the petitioners for an injunction and declaration. Even though there is little irregularity in the order of the 1 respondent, the same cannot be adjudicated in the writ proceedings having regard to the facts and circumstances of the case.

For the foregoing reasons, petition is dismissed. No costs.