| SooperKanoon Citation | sooperkanoon.com/727331 |
| Subject | Criminal |
| Court | Kerala High Court |
| Decided On | Jul-08-1987 |
| Judge | T.L. Viswanatha Iyer, J. |
| Reported in | 1988CriLJ816 |
| Appellant | T.H. Mustaffa |
| Respondent | State of Kerala and ors. |
| Cases Referred | Deo Kuer v. Sheo Prasad Singh |
T.L. Viswanatha Iyer, J.
1. The District Magistrate, Ernakulam, (District Collector, Ernakulam) by his proceedings Ext. P4 dated June 28, 1987 revoked an order issued under Section 27 of the Kerala Police Act 1960 (Act 5 of 1961) (hereinafter referred to as the Act), and ordered release of possession of the building and premises bearing door No. 36/183, of the Cochin Corporation, situate in Hospital Road, Ernakulam, to the 3rd respondent, Sri. T.P. Peethambaran, described as the President, District Congress Committee (S). The Commissioner of Police, Ernakulam was directed to implement this order. The building in question is described in the order as the 'District Congress Committee Office, Ernakulam'. The petitioner, and M.LA. and the Vice President of the Kerala Pradesh Congress Committee (I), 'the Kerala State Unit of the. Indian National Congress,' has filed this original petition, challenging the order Ext. 24.
2. The dispute, that has led to this original petition has its origin in the split that took place in the Indian National Congress in the year, 1978. The petitioner has described this split, the exits, the returns back to the fold, as also the formation of new groups (parties) in paragraphs 2 to 6 of the original petition. Though it may not be absolutely necessary for the purpose of disposal of this original petition, I shall briefly set forth the same for the purpose of understanding the background of the events leading to this original petition.
3. 1974 was a year in which the petitioner and the 3rd respondent were members of the same political party, namely the Indian National Congress. They were at that time the President and Vice President respectively of the District Congress Committee, Ernakulam. The building in question, named Chaithanya, situate on land 14.724 cents in extent abutting the Hospital Road, in Ernakulam in the City of Cochin, was purchased in the name of the petitioner and Sri. Ramankutty Achan, who was then the Treasurer of the District Congress Committee, for being owned and used as the office of the said Congress Committee.
4. The dawn of the year 1978 saw a major split in the Indian National Congress, which was then headed by Sri. Brahmananda Reddy as the President. Smt. Indira Gandhi was a member of the Working Committee of the party. At that time also, the petitioner was the President of the District Congress Committee at Ernakulam, and the 3rd respondent, its Vice-President. The party split vertically into two, with Smt. Indira Gandhi having the leadership of the vast majority of the Congressmen. The group led by her came to be known as Indian National Congress (I), which was recognised as the successor of the Indian National Congress by the Election Commission of India. The other 'faction' of the party was led by Sri. Brahmananda Reddy and went under the original appellation of Indian National Congress. This latter group came to be known as Congress (U) when the Presidentship was adorned by Sri. Devraj Urs, and when Sri. Sharad Pawar succeeded as the President in 1981, it came to be known as Congress(S). Subsequently and on 29-11-1986, the Congress (S) decided to merge with the Indian National Congress (I) as per the resolution Ext. P2.
5. Events in the Congress Party in Kerala had forestalled the national scene. Long before Congress (S) merged with Congress (1), and as early as in December 1982, Sri A.K. Antony, who was leading the Congress (S) in Kerala, decided to merger it with the Indian National Congress (1). However, a section of the party lead by Sri. P.C Chacko staunchly remained with Sri. Sharad Pawar, who nominated Sri. P.C. Chacko as the President of the Kerala Unit of his party in the place of Sri. Antony. Sri. P.C. Chacko in turn nominated the 3rd respondent Sri. T. P. Peethambaran as the President of the District Congress Committee (S) at Ernakulam. This did not last long and Sri P.C. Chacko, with a large number of his followers, merged with Congress (I) as a consequence of Ext. P2 resolution.
6. Ext. P2 resolution did not annihilate Congress (S) in toto. There was a group, described as 'defectors' by the petitioner, who continued to function 'claiming to be successors of Congress (S)', and this group is one of the constituents of the present Left Democratic Front Government in power in this State/Petitioner states that consequent on Ext. P2 resolution, offices of the various units of Congress (S) in Delhi, Bombay and Rajasthan went into the ownership and possession of Congress (I).
7. This in sum, is the political background of the present dispute, discernible from the original petition.
8. When the split in the Indian National Congress became inevitiable early in 1978, the District Magistrate apprehended grave disturbance of the peace, which led to his invoking the provisions of Section 27 of the Act. Accordingly, an order was passed on January 3, 1978 temporarily taking possession of the building Chaithanya. This order was initially for a period of three weeks, but was being extended from time to time. The last of such extensions was on May 24, 1987 for a period of sixty days from that day, that is up to July 23,1987.
9. In the year 1983, the 3rd respondent Sri T.P. Peethambaran appeared to have entertained some apprehension that Chaithanya was going to be handed over to the representatives of the Congress (I). He thereupon filed an original petition. O.P. No. 7126 of 1983 in this Court for the issue of a writ of mandamus or other appropriate writ or order directing the District Magistrate 'to decide the question of possession of the claimants on 2-1-1978 before him', and to restore possession of the building to such person. An interim order was passed by this Court on C.M.P. No. 21577 of 1983 On August 18, 1983 in these terms:
I do not think the Collector would hand over the building to any person unless he has established his right on the building. It is submitted on behalf of the petitioner that he is moving the civil court for appropriate relief. While dismissing the C.M.P. I will direct the 1st respondent that the building concerned need not be handed over to anybody for a period of two weeks. Within that time any person who claims that he is entitled to get that building can move the civil court.
(The first respondent mentioned is the District Magistrate, Ernakulam).
The petitioner or any of the representatives of the Congress (I) were not parties to this original petition. I may at once state that there is no mention in the original petition of this original petition or of the interim order, obviously because the petitioner himself, or the other representatives of the Congress (I), were not parties thereto. The Original Petition was ultimately dismissed as infructuous on Nov. 4, 1986.
10. The suit envisaged in the order of this Court was filed by the 3rd respondent as O.S. No. 526 of 1983 in the Sub Court, Ernakulam. The 3rd respondent described himself in the suit as the 'President, District Congress Committee (S).' The suit was for a declaration of the 3rd respondent's title over Chaithanya (the plaint schedule property) and for a decree of permanent injunction restraining the defendants from interfering with the plaintiffs possession and peaceful enjoyment of the plaint schedule property or from doing any acts of violence or trespass 'in or into the property'. The defendants impleaded were T.H. Mustaffa (the petitioner), P.D. Joseph, Kalapurackal Rajan, Garvasis, Ramankutty Achan and Thankachan, who was described as the 'President, Ernakulam District Congress Committee (I)'. In this suit, all the defendants remained ex pane, I was informed at the Bar that they were so set ex parte on January 25,1984. However, the decree in the Suit was passed only on June 26, 1984, The suit was decreed as prayed for. In the event, the decree was one declaring the plaintiffs title to the property Chaithanya and restraining the defendants from entering into the same as also from interfering with the plaintiffs possessory, or other rights therein.
11. Long afterwards, and on May 27, 1985, the 6th defendant Sri. P.P. Thankachan filed an application to set aside the ex parte decree. None of the other defendants, including the petitioner, filed any such application; for that matter, they were not even made parties to the petition filed by Sri. P.P. Thankachan. I am not going into the details of the said petition or the grounds on which it was filed. Suffice it to say that the said application was allowed by the Subordinate Judge by her order dated December 20, 1986. The ex parte decree was set aside. However, the 3rd respondent filed revision petition C.R.P. No. 273. of 1987 in this Court, which was allowed with costs throughout by order dated June 24,1987. The effect of this Court's order was that the ex parte decree in the suit stood restored.
12. Events moved fast after this order. The 3rd respondent whose title to the property had been declared, and who had got an injunction against the defendants, including the petitioner, restraining them from interfering with his rights, moved the District Magistrate to restore possession of the building and the premises forthwith to him. This was by application dated June 26, 1987. The District Magistrate called upon the 3rd respondent to furnish a copy of this Court's order, which was promptly complied with. The District Magistrate thereupon addressed the City Police Commissioner as to the arrangements to be made to ensure that no breach of peace occurs when the property is released from his possession. The Commissioner of Police replied stating that there was likelihood of breach of peace, when the building was being handed over to the 3rd respondent, but that the police was making necessary arrangements to deal with the situation. The District Magistrate thereupon passed the order Ext. P4 containing the directions aforesaid.
13. I may at this juncture point out that on June 27, 1987 Sri P.P. Thankachan had filed an application before the second respondent District Magistrate, in which it was inter alia stated:
But it is reliably understood that you are going to hand over the property and building in dispute without giving notice to the parties and also without complying the formalities mentioned in Section 27 of the Kerala Police Act. If it is done without giving notice and without complying the formalities we will be put to irreparable loss and injury.
I am intended to file an appeal before the Supreme Court as soon as a copy of the order of the High Court by Justice K. Sukumaran is received. I applied for the copy of the said judgment also. Without going into the details in the judgment I hope that you will not take a decision and also without giving an opportunity for the parties in the proceedings.
Hence it is humbty requested that a decision with regard to the property and building (Chaitanya) will be taken after giving an opportunity to present the case and also after complying all the formalities laid down in Section 27 of the Kerala Police Act.
However, possession of the building was actually handed over to the 3rd respondent on June 28, 1987 pursuant to the order Ext. P4.
14. The prayer in the original petition is to quash Ext. P4 and also to direct the second respondent 'to restore the possession of the property and building called Chaithanya to his custody under Section 27 of the Kerala Police Act.' This is sought to be done by the issue of a writ of mandamus.
15. The facts stated above are culled from the original petition, and from the files relating to this matter handed over to me by the learned Advocate General. I may point out that counsel for the petitioner had requested the Court to call upon the second respondent to produce the files for the Court's perusal, even though the matter was coming up only for preliminary hearing as to admission. The learned Advocate General thereupon produced the files. Some details mentioned above were gathered from these files. The respondents have not filed any counter affidavits at this stage, as the matter was only at the preliminary stage for admission.
16. Counsel for the petitioner challenges the order Ext. P4 as wholly beyond the purview of Section 27 of the Act, According to him, so long as there is a threat of grave disturbance of the peace, the District Magistrate is obliged to retain possession of the building and that it is not open to him to release the building from his possession. He refers to various provisions in the Act, namely the other sections in Chapter IV, like Sections 18, 19, 28(2) and 29(c). He also refers to certain provisions of the Code of Criminal Procedure, 1973, namely Sections 107, 133, 144, 145 and 146 and seeks to draw support therefrom to the effect that Section 27 is a special provision for dealing with grave disturbance of the peace, while the other provisions deal with ordinary cases of breach of the peace and the like which may not require continued possession. When once a building is taken possession of under Section 27, it must continue to be in the possession of the District Magistrate till such time as the threat of grave disturbance of the peace vanishes.
16-A. Section 27 is in these terms:
27. Issue of orders by District Magistrate for prevention of riot, etc. - In order to prevent or suppress any riot or grave disturbance of the peace, the District Magistrate may temporarily close or take possession of any building or place and may exclude all or any persons therefrom or may allow access thereto to such persons only and on such terms as he may deem expedient. All persons concerned shall be bound to conduct themselves in accordance with such orders as the District Magistrate may make and notify in the exercise of the authority hereby vested in him.
The section vests the District Magistrate with a power whose exercise makes substantial inroads into rights of parties. It is intended to meet emergency situations of a grave nature. The very nature of the power delimits its user to be sparing and to cases of extreme emergency (Chellappan v. District Collector ILR (1970) 1 Ker 146). In fact even the assumption of possession is only to be temporary. The inference is obvious, that the dispossession, and disturbance of rights of parties, should be as temporary and limited as possible.
17. The question with which this case is concerned is whether the District Magistrate is bound to keep possession so long as the threat to breach of the peace continues -to exist. I do not think so. This argument is founded on the reply of the Commissioner of Police that there was likelihood of breach of peace when possession of building was being handed over. The existence of the circumstances mentioned in Section 27 are, no doubt relevant, and conditions precedent to the exercise of the power under the section, when possession is taken. It does not however necessarily follow that the cesser of those conditions is equally a condition precedent for revocation of the order under the section or for release of possession by the District Magistrate. Section 27 enables the District Magistrate to take possession only temporarily. What is contemplated is the least disturbance to rights of parties, and to the person in possession, and to confine the dispossession to as temporary a period as possible. The significance of the word temporarily is not to be whittled down by reading into the section, conditions which are not there, in relation to revocation of the order under the section. It is up to the District Magistrate to redeliver possession as and when he chooses.
18. In this connection, it has to be remembered that Section 27 does not cast any obligation on the District Magistrate to take possession of building even if the circumstances specified therein exist. On the other hand it is only a power enabling the District Magistrate to act in a particular manner in certain circumstances. It is a special power conferred on him to be resorted to, if need be, in his discretion, to prevent or suppress any riot or grave disturbance of the peace. Even if there is a grave threat of disturbance of the peace, nothing obliges the District Magistrate to resort to the power under Section 27. It is equally open to him to prevent or ward off the disturbance in other modes available to him in law. If so, it is equally not obligatory for the District Magistrate to continue to retain possession of the building beyond what he feels necessary. It is open to the District Magistrate at any time to revoke his order under the section and to restore possession. There is no legal right vested in anybody to compel the District Magistrate to retain possession, when he himself does not feel the necessity for it. Whether he should continue to retain possession or not, is a matter entirely within the subjective satisfaction of the District Magistrate, and it is not subject to judicial review.
19. If this be the interpretation of Section 27 petitioner has no legal right which could be enforced by the issue of a writ of mandamus, much less to compel the District Magistrate to retain possession. The District Magistrate was well within his rights in revoking the earlier order under Section 27 and directing restoration of possession of the building and the premises to the person entitled.
20. Petitioner would contend that events have moved post haste after this Court delivered the judgment on June 24, 1987. The contention is two-fold. One is that no opportunity of hearing was afforded to the petitioner, despite the letter dated June 27, 1987 given by Thankachan. Secondly, the District Magistrate passed his order in undue haste obviously with a view to favour the 3rd respondent. The action is mala fide.
21. The factual canvas presented earlier shows that on June 24, 1987 the decree of the Sub Court stood restored, bringing in its wake a two-fold effect, one, a declaration of the 3rd respondent's title, and the other, an injunction restraining the defendants (including the petitioner) from interfering with the 3rd respondent's rights or possession. The essence of declaratory judgment is that it states the rights or legal position of the parties vis a vis each other, without charging them in any way (Wade on Administrative Law. Fifth Edition, page 522). So long as this decree stands, there is nothing preventing the District Magistrate from delivering possession to the 3rd respondent. Petitioner cannot object to the same inasmuch as he himself and the others have suffered the decree being passed against them. It is significant to note that the petitioner who was the first defendant in the suit, did not even choose to file a petition to set aside the ex parte decree. It was Thankachan, the 6th defendant, who alone filed such an application. Petitioner's explanation for his inaction is seen in paragraph 11 of the original petition where he castigates even the 6th defendant (who alone filed the application) in these terms:
The 6th defendant in the suit who was expected to contest the suit being the President of the D.C.C. (I) either duetto indifference or negligence or for some other reason did not take prompt steps to contest the suit and protect the interest of the organisation, which resulted in an ex parte decree being passed in that case.
It was Thankachan who wanted to be heard by the District Magistrate and even that, not for any cogent reason. His letter dated June 27, 1987 has been extracted herein earlier. The ground stated was that delivery of possession will cause irreparable loss and injury to Thankachan, and that an appeal to the Supreme Court is contemplated How it causes irreparable injury, if pending the contemplated appeal in the Supreme Court, the building is delivered to the 3rd respondent is not explained. I do not find anything in Thankachan's request which smacks of any such loss or injury, or any other matter which requires a hearing before the building is restored to the rightful claimant. I can understand the necessity for a hearing if some complicated issues of fact or law are raised requiring elucidation or unravelling. All that, possibly could be set fourth by Thankachan was that he intended to take up this Court's order in C.R.P. No. 273 of 1987 in appeal to the Supreme Court. This did not require any personal hearing. In any case, requirements of natural justice need to be observed only if rights of parties are to be affected. When the ex parte decree stood restored, no right of the petitioner or of Thankachan or of others stood affected by the restoration of possession, so that there was no question of affording any opportunity of hearing to any of these parties.
22. In any case the petitioner is not entitled to complain about any such violation of natural justice, when he himself had not chosen to put forward any such plea for hearing before the District Magistrate.
23. Equally unsound is the plea of mala fides. It is not as if any particular length of time should elapse before the District Magistrate could revoke the order under Section 27. Immediately after this Court's order on C.R.P. No. 273 of 1987, the 3rd respondent made request to the District Magistrate for redelivery of possession. He also produced the necessary records in support of his plea, including the decree and the judgment of the Sub Court, and the order of this Court. The District Magistrate had therefore, all the materials before him on which to conclude that the 3rd respondent was the person legitimately entitled to possession. When there is a decree in his favour, it does not behave the District Magistrate to refuse to deliver the building to him, more so when the solitary objection was from Thankachan, against whom there was the decree of injunction. I do not therefore, find anything to vitiate the action of the District Magistrate. If the District Magistrate had the right to release his temporary possession, he was duty bound to restore the possession to the person entitled to it, which in his case was only the 3rd respondent because of the decree of the Sub Court.
24. I may also just mention that even this Court in the interim order passed on C.M. P. No. 21577 of 1983 in O.P. No. 7126 of 1983 had expressed the hope that the Collector will not deliver possession of the property to anyone unless he established his right to the building. In positive terms, it means the Collector could deliver possession of the building to a person, who had established his rights.
25. Counsel Sri. T.R. Raman Pillai raised a further plea that the proper remedy of the 3rd respondent was only to apply to the Sub Court for directing the District Magistrate to deliver possession. He relied on the decision of the Madras High Court in Administrator General of Madras v. Tasai Gounden (1911) 10 Ind Cas 678. On perusing the facts of that case, I do not find it is applicable to the facts of this case. That was a case where property was in the possession of a receiver, appointed by court. An application was filed for leave to sue the receiver by a party entitled to possession. The Court said that the suit was unnecessary and that the purpose could be achieved by an application to the Court to direct the receiver to deliver possession of the property to him. Here the position is different. The District Magistrate is not functioning under any court as in the case before the Madras High Court, to be directed in exercise of the powers under Order 40, Rule 1, C.P.C. The decree in question is a declaratory decree of the third respondent's rights in the property. When the property is in medio, a further decree for recovery of possession is unnecessary to enable the third respondent to be put in possession, vide Deo Kuer v. Sheo Prasad Singh : [1965]3SCR655 . Since the assumption of possession by the District Magistrate was on his own, under Section 27 of the Act, he was by himself (without any order from any other authority or Court) competent to restore possession of the building and the premises to the person entitled, namely the third respondent.
26. The possession of the District Magistrate is only temporary. The order under Section 27 would normally have expired on July 23, 1987. If it is not extended, naturally the District Magistrate has to deliver possession to the person entitled. Assuming that the order had continued to be in force till July 23, 1987, the District Magistrate could without anything more, only look up to the person entitled as per decree of court, to take delivery of possession from him. The position is not altered merely because there is an anterior revocation of the order under Section 27. The District Magistrate was therefore well within his rights in delivering possession to the 3rd respondent, who had armed himself with the decree of court, not merely of declaration, but also of prohibitory injunction against the petitioner and others.
27. Counsel for the petitioner had a further contention that the decree in the suit does not have any impact on the proceedings under Section 27. True, it does not bind the District Magistrate, who was not a party to the suit. But it does have effect of guiding the District Magistrate in deciding as to whom he should deliver possession. He cannot give possession to a party who is not entitled to it, or who is injuncted by order of court from exercising any right over it. To that extent, the decree of the court does have an impact on the District Magistrate's decision.
28. As pointed out by me even at the beginning, I have heard this original petition only for purpose of admission. Even then, the Advocate General appeared for respondents 1 and 2 and Sri. N.N. Sugunapalan for respondent No. 3. They were also heard. However, and since the matter had not been admitted, these respondents have not filed their counter affidavits. However, and, as requested by counsel for the petitioner, the files relating to the matter were placed before me by the learned Advocate General.
I dismiss the original petition in limine.