1. This is an application for the issue of a writ of certiorari against; the Commissioner of the City Police, Hyderabad, complaining that; under his orders, the petitioner was dispossessed of the land in dispute which is adjacent to the Putlibavidi Police Station, the Police Authorities having held that the same is part of the Police Station premises.
2. Mr. B. Narayana Rao, learned Advocate for the petitioner contends that the title to the said property is in favour of his client and that even otherwise it was not within the competence of the Police Authorities to take the law into their own hands to dispossess the petitioner against his will making a departmental enquiry and deciding the issue in their own favour. He further Urges that if the Police have any el aim to the property, the matter should have been litigated in ordinary civil Courts as between party to party instead of recourse to such forcible possession. He contends that such action on the part of the Police amounts to infringement of the rights of property guaranteed by the Constitution.
3. We agree, The Constitution upholds the rule of law and guarantees fundamental rights. Article 31(1) of the Constitution protects the property rights of persons and lays down that no person shall be deprived of his property save by authority of law. The duty to abide by the Constitution and to maintain the rule of law is cast upon all the three branches of the State i.e., the legislature, executive and the judiciary, see Gesulal v. State of Hyderabad, A.I.R. (38) 1951 Hyd. 89 (F.B.) at p, 91 column 1 para 9) and if the first two in any way transgress the limits of the Constitution or violate any of the fundamental rights, it is the duty of the Courts to declare it so. Naturally, the High Court will be very reluctant to interfere with an order of the executive unless it is fully satisfied that the action of the executive cannot in any way be supported in view of the provisions of the Constitution. The High Court will exercise the utmost restraint in interfering with the acts of the executive. But where the High Court is satisfied that the fundamental rights guaranteed by the Constitution have been violated by any act or order of the executive it is the sacred duty of the High Court to set it aside-vide Mahboob Begum v. Hyderabad State A.I.R. (38) 1951 Hyd. 1 (F.B.). This, High Court has power to do this under Article 226 by issuing a writ or any appropriate order so that a wrong done by the order of the Government may be remedied. In this case, from the affidavits and the cross examination, it is clear that the petitioner was in possession of the property in dispute for a fairly long time and according to the petitioner from 1939 A.D. His statement is to the effect that he purchased the land in dispute in a court auction and got possession from the Court in execution proceedings. It is admitted by the opposite party who is represented by the Commissioner of City Police that the petitioner was in actual possession of the land in dispute till the 26th of February 1951. The case of the respondents is that a notice was issued to the petitioner by the Commissioner of City Police to vacate the land and give possession of the same on the 26th of February 1951 and that the petitioner agreed to go on the spot at 5 P.M. and hand over the possession to the Police when the Jamadar of Police on behalf of respondents went at 5 P.M. on that day to the spot to take possession, the petitioner was absent, but his tenant one M.H. Kasim consented to give possession that the said Kasim also reported that the petitioner had authorised him to hand over possession to the Jamadar Police, and thus it was with the consent of the tenant of the petitioner that possession was given to the Police and therefore it is lawful. We permitted the respondents to produce the tenant as their witness. But Mr. Vaidya, the learned Government Advocate reported that he cannot be produced. Even assuming that the tenant agreed to deliver possession it cannot in law amount to the consent of the landlord and the landlord is not estopped by such action of the tenant.
4. As against this, the case of the petitioner is that when he received the notice on behalf of the respondents to vacate the property and give vacant possession he went to his lawyer Mr. B. Narayana Rao and issued a notice through him to the respondents stating that he was the owner of the property and that he was not willing to give possession as per notice to the respondents and that if the respondents claim-ed any right they should have recourse to a Court of law. This notice, it is proved, was served on the respondents on the very day i.e. 26th February 1951 at about 12 noon. The petitioner in his affidavit states this. Mr. Vaidya, the learned Government Advocate admits that the notice was received by the respondents during office hours on that day. The petitioner also states that he never authorised his tenant to give possession of the land, nor did he consent, to give possession. Thus, without going into details it is proved to our satisfaction that the petitioner was dispossessed and deprived of his property without any authority of law. The respondents have not been able to prove that possession was taken by them with the consent of the petitioner; they have not been able to explain as to what action they took on the notice of the petitioner's lawer refusing to give possession to them and what instructions were issued to the lower officials with regard to same, We, therefore, hold that the fundamental rights guaranteed in Article 31(1) of the Constitution have been violated by the respondents and the respondents should therefore forthwith give back possession of the disputed property to the petitioner. If the respondents have any claim with regard to the ownership and possession of the property, they can file a suit for the same in a Court of law and the said question will be settled there.
5. We do not wish to express any opinion as to which of the parties is the owner of the property. That question will be decided in a regular civil suit by a proper Court. It seems clear from the proceedings that; the Jamadar of the Police has taken the law in his own hand and dispossessed the petitioner.