1. This is an application under Article 226 of the Constitution of India by the petitioner who has alleged herself to be a licensee and occupant of a flat bearing No. B-& on the 2nd floor of Malabar Apartments, Napean Sea Road, Bombay. The Malabar Apartments appear to be a co-operative housing society.
2. A few facts that must be noted for the disposal of this petition are these: One Nasim Sultana is the allottee of the said flat from the co-operative society. It is alleged that she gave that flat on leave and licence basis to her own father one Shri G. M. Roshan. It is farther alleged that this Mr. Roshan handed over the said flat to the petitioner in Ms turn on the basis of a licence on payment of monthly licence fee of Rs. 1200/-. This happened sometime in May of 1971. Ever since the petitioner appears to be in continuous possession and occupation of this flat till the night of October 14, 1976.
3. On that day late in the night the flat was raided by the Vigilance Branch of the Bombay Police. They had suspected that the petitioner was misusing the flat and was carrying some nefarious trade in human flesh. On that information the flat was raided and the petitioner arrested for the offence Under Sections 3 (1), 4 (1) and 5(1) of the Suppression of Immoral Traffic Act. Next day on October S5, 1976 she was produced before a Magistrate, It appears from the statements made by the learned Public Prosecutor that along with her, her manager was also arrested under the same provisions of the Act.
4. On October 15, 1976 the Magistrate released her on bail in the amount of Rs. 5000/-. While she was going home from the Magistrate's Court, she was called to the Office of the Commissioner c Police and was served with a detention order under the MISA. In the night of the same day she was transferred to the prison at Kalyan,
5. In the jail she came to know that the flat has been attached by the Police. On that information she wrote a letter to the Assistant Commissioner of Police, Vigilance Branch, C. I. D. on 8th November 1976 as per Ex. A to the petition. She makes a positive assertion that on the night of her arrest by the Vigilance Branch she was in occupation of that fiat which is now under attachment with the police. She also tells the officer that she has been detained under the provisions of the MISA under the order issued by the Commissioner of Police, Greater Bombay. She then points out that in the flat which was in her occupation there are household-articles, furniture, fittings and valuable belongings etc. and that she is anxious to protect that property. She then tells him that she has her mother named Fatima Yakub and her sister Smt. Najbunnisa, She desires that the sister should look after the flat. Hence she requests the Officer to hand over the flat to her sister whom she was authorising to receive the possession. It is specifically pointed out that if the property is left inside the flat, which is not being used for a long time, the articles and valuables are likely to be adversely affected.
6. No reply was ever received by the petitioner to this letter. Why no reply was given has not been explained by any written counter in this petition nor the Public Prosecutor has made any statement as to why the Police did not care to reply to this letter. Finding that the letter is ineffective it appears that on her instructions her sister engaged Advocate Mr. Ved and through him another letter dated 20th December 1976 was addressed to the Assistant Commissioner of Police as per Ex. B to the petition. The same history is again repeated with a request to hand over the flat so that some one authorised on her behalf will take care of the flat and look after the same. Even this letter was not replied at all. A third letter was again written by the same Advocate on January 29, 1977 as per Ex. C to the petition. This is a short letter in which the Assistant Commissioner is reminded of the earlier two letters and to reply to the same. An additional feature of this letter is that in the penultimate paragraph the Advocate calls upon the Assistant Commissioner of Police to state under what provisions and what law he has chosen to seal the premises on or after 15th Oct. 1976. Even to such a letter there was no reply. In the meanwhile on Feb. 22, 1977, the petitioner was released from the detention under MISA. On Feb. 23, 1977, she personally saw the Assistant Commissioner of Police along with her Advocate and handed over a written request in the form of a letter similar to Ex. D attached to the petition. Even this had no effect and she received no reply at all nor did she get possession of the flat. A further letter was written through the Advocate dated 28-2-1977, followed by another letter dated 5-3-1977.
7. Finding that the Police are just not taking cognizance of the correspondence and are sitting tight over the property without disclosing to the citizen why and under what provisions of law they have taken possession of the flat, the petitioner was advised to try her luck with the Secretary in the Home Department. Accordingly she wrote a letter dated 8th March 1977 to the Secretary to the Government of Maharashtra, Home Department. Even this letter has remained unanswered till to-day.
8. With such a long and infructuous correspondence, the petitioner was ultimately driven to file the present petition which came up for first orders on March 22, 1977. This was done after the Public Prosecutor was served with a notice on the previous day. On March 22, 1977 this Bench granted Rule returnable on March 28, 1977. On certain statements of fact made before us, we also directed the respondent Police Authorities not to part with the possession of the flat and to bring this order to the notice of any authority if any process is sought to be levied in the meanwhile upon that flat. In those circumstances the petition which was made returnable yesterday has reached hearing to-day.
9. The simple request of the petitioner is that the Police Authorities should be directed to place her into the same position in which she was on the night of 14th October 1976 when she was arrested from her flat. It is her say that the retention of the flat by the police in the meanwhile and not allowing either her mother or her sister to look after the fiat during her absence in the jail was an utterly highhanded and illegal act. It was further stated orally before us in arguments to-day that the police seem to be more helpful to the landlord, viz. Nasim Sultana, and the co-operative society itself as all communications addressed to the Police were always made available to these parties by the Police. That may be so or that may not be so. These allegations are not made on oath in the petition itself and even if the police in spite of service, of Rule in this petition have chosen not to file any affidavit, we, cannot conclude on the facts not pleaded that they must be deemed to have been admitted.
10. We are prima facie satisfied that the flat was taken charge of by the Police. But it is now stated through the Public Prosecutor only orally that a seal was applied to the flat under certain Circumstances which are these: Within a day of the order of the detention of the petitioner, her servants who were working with her saw the Police Officers and said that they are leaving the flat. The Police Officers felt that if the servants left the flat unattended some arrangements must be made for protecting the flat. With that laudable object as if, they merely decided to put a seal on the main door and put a guard. It is being stated by the Public Prosecutor that nothing more and nothing less was done by the Police. When this was stated, we asked him as to why none of the letters was replied. If this was a limited object with which the police had put the seal, there was no reason not to give any reply to the letters of the petitioner. It is very important to note that the Police Officer who observed silence as stated earlier suddenly woke up on 22nd March 1977. A communication bearing No. OW/1693/ CO/VB/1977 dated 22nd March 1977 was issued by the Assistant Commissioner of Police, Greater Bombay, to Advocate Jay kumar Ved. This purports to be a reply to the letter dated 5th March 1977. We have already stated that the present petition was placed for Motion hearing on 22nd March 1977 and we had directed Rule to be issued returnable on 28th March 1977.
11. We have no doubt that after having learnt that such a petition has been filed by the petitioner and the Court has decided to entertain it, the Assistant Commissioner of Police, Greater Bombay either thought himself or was advised to give some kind of reply. In this letter, a copy of which is handed over to us, the Assistant Commissioner of Police says that there are two different orders passed in certain execution proceedings in different cases. Under the circumstances the petitioner is advised to obtain orders from the High Court. We do not suppose that the petitioner needed any advice from the Assistant Commissioner of Police to approach this Court because the facts as brought on record clearly show that realising the high-handedness and unreasonableness of his own conduct the Police Officer woke up and chose to write this communication only after Rule was granted by this Court after accepting the petition of the petitioner and further directing him not to part with the possession of that flat.
12. It is now stated by the Counsel for the petitioner that the allottee of the flat Smt. Nassim Sultana moved the Small Causes Court against her own father Shri G. M. Roshan and obtained an ex parte decree for possession. It is alleged that Nassim Sultana was fully aware that the present petitioner was in possession since May 1971 and still in a proceeding of 1973 against her own father she never cared to join the petitioner as a party respondent. It is also alleged in the petition that the Co-operative Society which is in law the owner of the property has taken out a proceeding in the Co-operative Court against Smt. Nassim Sultana for recovery of the arrears outstanding, failing which possession of the flat. In those proceedings also the person in physical occupation, viz. the petitioner, has not been made a party defendant. A decree or an executable award is already passed in that proceeding.
13. It now transpires that these are old decrees and award. The decree as well as the award was kept dormant for years and it is only when the petitioner was behind the bars under MISA that the decree holders suddenly became , active. On the top of it the Police machinery which had a very limited purpose in this case was putting forward those decrees for denying possession to the present petitioner. One fails to understand what the Assistant Commissioner of Police had to do with those decrees when lie had taken possession from the petitioner while she was occupying the flat. If the order of possession had been obtained from the Magistrate under the provisions of Suppression of Immoral Traffic Act it would have been an entirely different matter. However, without obtaining any such order from the Court we do not see how the police could take possession of the fiat itself. Assuming that they did so out of good intention to protect the flat and the property inside because the petitioner was detained under the provisions of MISA, why was not another gesture made to the petitioner when she requested to return the flat to her own sister, or at least return the flat to her when she was released on 22-2-1977.
14. We are thus satisfied, and we are sorry to observe, that the Assistant Commissioner of Police has undoubtedly acted highhandedly against every provision of law and is now merely pretending to protect the property because the petitioner was behind the bars. This is rot the first occasion when this Court has noticed that the Police are misusing their powers under one pretext or the other. In this case we notice the highhandedness being repeated by the police and it is necessary to stop this type of behaviour and do something about it. We would, therefore, direct that a copy of this judgment be sent to the Secretary, Home Department, bringing to his notice this passage with regard to the conduct of the Assistant Commissioner of Police and his staff.
15. We are also told that the Sheriff has in his possession certain warrants under some proceedings. It would be quite legitimate for the Sheriff to execute the warrants if the law permits her to do so. If the petitioner who was found in possession and whose possession is restored by this order has right to resist those processes and protect her interest, she may do so. If these decrees are put in execution against her successfully she may lose her possession in due course of law. this Court is least concerned with that will happen to the property and the person after this order is executed. However, it is the bounden duty of the Police to restore the property from whom it was attached as on 14th October 1976.
16. For these reasons we make the Rule absolute. We direct the respondents to hand over the flat to the petitioner forthwith by this evening. If the possession is not so received the petitioner may report to this Court tomorrow. We thus make the Rule absolute as stated above vith costs.