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Shri Gaur Dhan Co-operative Housing Society Ltd. and ors. Vs. the Collector and District Magistrate, Mathura and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 362 of 1972
Reported inAIR1973All85
ActsLand Acquisition Act, 1894 - Sections 6; Indian Penal Code (IPC), 1860 - Sections 105; Code of Criminal Procedure (CrPC) , 1898 - Sections 149; Police Act, 1961 - Sections 23
AppellantShri Gaur Dhan Co-operative Housing Society Ltd. and ors.
RespondentThe Collector and District Magistrate, Mathura and ors.
Appellant AdvocateN.B. Singh, ;V.P. Misra, ;K.L. Misra and ;G.N. Sharma, Advs.
Respondent AdvocateStanding Counsel, ;B.P. Agrawal and ;A. Kumar, Advs.
DispositionPetition allowed
(i) property - acquisition of land - section 6 of land acquisition act, 1894 - petition filed by petitioner against stay order by co-operative minister when acquisition of land completed and possession handed over to petitioner under section 6 - held, land in possession of society has been divested from its previous owners. (ii) duty of police officials - section 105 of indian penal code, 1860 - it is implicit duty of police to protect life and property of persons - police not bound to comply with directions of ministers which may interfere with maintenance of law and order. - - the petitioners now complain that on account of the order passed by the co-operative minister, the district authorities that is respondents nos. several attempts were made by them to challenge the validity of..........acquisition of 28.94 acres of land. subsequent thereto, a notification under section 4(1) of the land acquisition act was published in the u. p. gazette dated 1st may, 1965. an inquiry under section 5a of the land acquisition act was held, and objections were filed. while these objections were pending, babulal sharma respondent no. 6 filed a writ petition no. 1842 of 1966 challenging the acquisition. the petition was rejected on the 20th may, 1966 by a bench consisting of hon'ble w. broome and satish chandra, jj. in the meantime, the inquiry under section 5a of the act was concluded and thereafter the matter was considered by the land acquisition committee which gave approval for the acquisition sometime in march, 1968. inasmuch as the acquisition was for the society, and agreement.....

C.S.P. Singh, J.

1. The petitioner No. 1 is a Co-operative Society having been registered under the Co-operative Societies Act, 1912. The Society required land for certain purposes and it accordingly moved the Collector, Mathura for acquisition of 28.94 acres of land. Subsequent thereto, a notification under Section 4(1) of the Land Acquisition Act was published in the U. P. Gazette dated 1st May, 1965. An inquiry under Section 5A of the Land Acquisition Act was held, and objections were filed. While these objections were pending, Babulal Sharma respondent No. 6 filed a writ petition No. 1842 of 1966 challenging the acquisition. The petition was rejected on the 20th May, 1966 by a Bench consisting of Hon'ble W. Broome and Satish Chandra, JJ. In the meantime, the inquiry under Section 5A of the Act was concluded and thereafter the matter was considered by the Land Acquisition Committee which gave approval for the acquisition sometime in March, 1968. Inasmuch as the acquisition was for the Society, and agreement between the State Government and the Society in respect of land to be acquired was signed in November, 1968. Thereafter, a notification under Section 6 of the Act in respect of the above acquisition was published in the U. P. Gazette of the 4th January, 1969. This led to another round of litigation, by way of a writ petition No. 537 of 1969. In this petition Babulal Sharma again figured as one of the petitioners along with a number of other persons. A stay order was granted staying delivery of possession, but the writ petition was ultimately dismissed on the 22nd April, 1970. Subsequently, an award was given on the 29th May, 1970. Compensation was awarded to 30 persons. The majority of the persons whose land was acquired accepted the award but some have filed references under Section 18 of the Act. On the 1st June, 1970, the Naib Tahsildar went on the spot and delivered possession to the Society. A true copy of this Dakhalnama is Annexure 'B' to the petition.

It seems that the acquisition was not to the liking of certain residents of the locality and obstructions were being put in the way of the petitioner from starting constructions. An incident took place on the 13th June, 1970 in respect of which a First Information Report was lodged. It is alleged by the petitioners that a large number of persons instigated by Babulal Sharma and others came on the spot where the construction was in progress, and beat a number of persons. A case in respect of this incident is said to be pending before the Judicial Magistrate under Section 307, I.P.C. and the matter is still undecided. It appears that subsequent to this, representations were made to the State Government regarding the acquisition, Wherein it was requested that further proceedings in the acquisition may be stayed, and allegations were also made that the land was not being used for the purpose for Which it was acquired. It is averred by the petitioners that directions were issued by Sri Lakshmi Shanker Yadav, the Minister concerned on the 7th June, 1970 which was later on confirmed by a D. O. letter dated 11th June, 1970, that further action relating to the acquisition be stayed. The petitioner, thereafter, made an application under Sections 107/117, Cr. P. C. against Babulal Sharma and 18 other persons, and a report thereof was called from the Station Officer, Police Station, Goverdhan, but he made a report that there is an apprehension of breach of peace from the side of Babulal only and not from the side of the petitioners.

On the 4th August, 1970 Babulal Sharma filed a writ petition No. 3587 of 1970 challenging the decision of the Land Acquisition Officer dated 18th June, 1969, rejecting an application purported to have been made by him under Section 49 of the Act, and the order passed on the review application made by him. This petition was, however, rejected summarily on that very date. It seems that the petitioners were being perpetually harassed by the local residents, including Babulal Sharma and as such they filed three suits being Suits Nos. 456 of 1970, 484 of 1970 and 591 of 1970 in the Civil Court, and interim injunctions were also granted restraining the defendants from interfering with the possession of the petitioners. While these proceedings were going on, the parties fought out the matter in the [Revenue Court. A mutation application moved on behalf of the Society for mutation of name of the Society was contested by Babulal Sharma and a number of other persons. An order for mutation in favour of the petitioner No. 1 was passed on the 12/16th February, 1972. In the meantime, the Co-operative Minister seems to have sent an order to the District Magistrate, Mathura to complete the entire proceedings for the acquisition which may not have been completed till then. This order has been quoted in para 69 of the petition, and its authenticity has been admitted.

The petitioners seem to have become apprehensive about safety of their person and property by now, and applications were made to the District Magistrate, Mathura for being given police aid to help in raising a barbed wire fencing around the acquired land on payment of charges. The petitioners also deposited certain sums of money fop that aid. This was done on the 23rd May, 1971 and it is averred that the petitioner put up barbed wire over about 18.94 acres of land with police help but no sooner the police left the place the wire etc. were pulled out. A report of this incident was lodged by the petitioners and, thereafter on the 27th May, 1971 the police reached the spot again, and the fencing was completed by the petitioners. Subsequent to this, it has been alleged that the barbed wire fencing was again pulled down by Babulal Sharma and others, and a report in writing was made on the 10th October, 1971. A report in respect of this incident was sent by the police in connection with the application which was moved by Babulal Sharma, for bail and this has been filed as Annexure 'J' to the petition, and it appears that the case set up by the petitioners was vindicated in the report. The petitioners had deposited money for police aid for three days. This had been accepted and a receipt has been issued to the petitioners, but as has been noticed police aid was given to the petitioners for making constructions and setting up barbed wire fencing only for two days and, thereafter, it is averred in the petition that, the petitioners approached the Superintendent of Police for being granted police aid for a day more but no action was taken. Thereafter, the petitioners, began levelling the acquired site and cutting down certain trees, but this was stopped by the Station Officer, Police Station, Goverdhan on 17th August, 1971. This fact is, however, denied in the counter-affidavit.

The opposite parties were, however, still agitating and making representations to the State Government, and the petitioners went and saw the Co-operative Minister in this connection in September, 1971. On the 13th September, 1971, the Co-operative Minister issued a telegraphic order, dated 19th August, 1971 to the District Magistrate, Ma-thura directing him to stay proceedings in respect of the land acquired for the society, and further that the tenants who were in possession of the land should not be evicted. On the 14th October, 1971, the petitioners averred, an attempt was made by Babulal Sharma and others to take forcible possession of the land, and as a result the petitioners sent a telegram and application to a large number of persons including the Chief Minister, Inspector General of Police, Deputy Inspector General of Police and District Magistrate, Mathura and Superintendent of Police. A, true copy of the telegram and application have been annexed as Annexure 'B' to the petition. No action, it is averred, was taken on these complaints. Apart from the Co-operative Minister having passed an order for staying further proceedings in the acquisition matter, the District Magistrate, Mathura also passed an order on the 19th October, 1971 to the effect that such parties as are in possession of the land should keep possession.

The petitioners now complain that on account of the order passed by the Co-operative Minister, the District authorities that is respondents Nos. 1 and 2 who are under a duty to maintain law and order are not taking action on their complaints and they are sitting idle even when the lives of the members of the society and its properties are in jeopardy, and are not assisting the petitioners in maintaining peaceful possession. The petitioners pray for quashing the order issued by the Minister concerned, and of the District Magistrate, as also for issuing orders directing respondents Nos. 1 and 2 to protect the lives and properties of the petitioners, and to assist them in making constructions on disputed land by preventing trespassers from interfering with their possession.

2. Counsel for the petitioners has contended that the respondents Nos. 1 and 2 are under a duty to maintain law and order, and to take appropriate action under the law for preservation of the lives and properties of the petitioners, and also to assist them in ousting trespassers from the acquired properties and further that the Cooperative Minister and the District Magistrate had no jurisdiction to pass the impugned orders. These contentions have been controverted by the respondents.

It will be seen that a notification under Section 6 of the Land Acquisition Act has already been issued. This has been followed by the delivery of possession which has been handed over to the petitioners. The result of it is that the land stands divested from its erstwhile owners and has vested in Society. The State Government cannot now Withdraw the acquisition proceedings in such circumstances see Girdharilal v. State of Gujarat : [1966]3SCR437 and Lt. Governor of Himachal Pradesh v. Avinash : [1971]1SCR413 .

So far as Babulal Sharma and others are concerned, they have no semblance of title over the disputed land. Several attempts Were made by them to challenge the validity of the acquisition proceeding but they have failed on each and every occasion. The decisions of this Court given in the writ petitions filed by them have become final. The interference that has been complained of is at the instance of Babulal Sharma and his other supporters who have no title left in the property, and there exists no justification Under the law for interference on their behalf with the possession of the petitioners. So far as the order of the Minister and the District Magistrate are concerned, the first of which directs the District Magistrate not to take any action for dispossessing the tenants, the same is not referable to any provisions of the Land Acquisition Act. It is, however, urged that inasmuch as the State Government is empowered under the agreement entered between it and the Co-operative Society, to resume possession in case the land is not used for the purpose for which it has been acquired, and as in the present case the petitioners are not using the land for the purpose of the original acquisition, the State Government, while passing the impugned orders, has acted in exercise of the powers under the agreement, which has statutory force in view of Section 42 of the Land Acquisition Act. It may be that the State Government can in accordance with the terms of the agreement resume the land, but neither the agreement nor Section 42 of the Act confer powers on the State Government to pass an order of the type which has been passed in the present case so as to restrain the authorities at the district level to not discharge their duty of maintaining law and order. Even if it be assumed that the order was passed in exercise of administrative powers, the order in question would still be invalid. In the first place, even if it was passed for maintaining law and order it has to be passed by the Minister concerned, that is Home Ministry. In the present case, the order has been passed by the Minister for Co-operatives and there is nothing on the record to indicate that he could pass orders in respect of law and order situation. Secondly, an administrative order which tends to restrain the district authorities from discharging their function of maintaining law and order would be invalid. The order of the District Magistrate which, has been quoted in paragraph 118 of the writ petition suffers from the same infirmity.

The petitioners' grievance, as has been seen, is that even though the possession was given to them and title has been passed in their favour, they are being prevented from making constructions on the acquired land, and that respondents Nos. 1 and 2 are not paying heed to the complaint made by them. Under Section 97 of the Indian Penal Code, a person has a right of private defence of his life and property. This right extends against acts which amount to theft, robbery, mischief or criminal trespass, or which is an attempt to commit these offences. Section 105 of the Penal Code confers right of private defence of property as soon as a reasonable apprehension of danger to the property commences, and in cases of criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. By Section 104 of the Penal Code the right extends to causing such harm to the wrongdoer as is necessary other than death. These rights are, however, subject to the exceptions contained in Section 99 of the Penal Code. One of the exceptions is that a person does not have a right of private defence in cases in which there is time to have recourse to the protection of the public authorities. It is implicit in this exception that if the notice of the public authorities is drawn to the commission of offences against either the property or body of the person concerned, public authorities must take such steps as are necessary to protect the person and the property of the complainant. It is thus incumbent on public authorities to take such steps as are reasonable for the protection of the life and property of citizens. They cannot sit as idle spectators, on information being given to them of a criminal act which is continuing or which is likely to take place. In the present case, the petitioners have been complaining of repeated acts of trespass and mischief, and it appears that on two occasions the police was sent to protect the petitioners while making constructions on the land in dispute. This protection is no longer forthcoming. The orders passed by the Minister for Co-operative and of the District Magistrate seem to have had some effect in bringing about this situation. The orders of these two persons as has been held earlier are beyond the pale of law. In these circumstances the respondent No. 2 and the police force at his disposal was not bound to comply with the directions given by the respondents Nos. 1 and 3. They had to act in a manner so as to ensure the maintenance of law and order and to protect the life and property of citizens. The petitioners have not acquiesced in the various acts of trespass and mischief on their land, and inasmuch as they have brought this fact to the notice of the public authorities, the eight of private defence which could be exercised by the petitioners under Section 105 of the Penal Code till such time that the trespass or mischief continued, would have to be exercised by the public authorities. This view of mine finds support from the decision in the case reported in (1969) 2 M (J) and the decision in the case of C. A., R. V. Metropolitan Police Commissioner, (All England Law Reports page 763). It would be appropriate to extract some passages from the decision in R. v. Metropolitan Police Commissioner (supra). Lord Denning, Master of Rolls referring to the duties of the Commis-sioner of Police observed :

'The office of Commissioner of Police within the Metropolis dates back to 1829 when Sir Robert Peel introduced his disciplined Force. The Commissioner was a justice of the peace specially appointed to administer the police force in the Metropolis. His constitutional status has never been defined either by statute or by the courts. It was considered by the Royal Commission on the Police in their report in 1962 (Cmnd. 1728). I have no hesitation in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act, 1964 the Secretary of State can call on him to give a report or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. That appears sufficiently from Fisher v. Oldham Corpn., (1930) 2 KB 364, the Privy Council case of A. G. for New South Wales v. Perpetual Trustee Co. (Ltd.), 1955 AC 457. Considering the matter Salman (J) observed on page 771. 'In this Court it has been argued on behalf of the Commissioner that the police are under no legal duty to any one in regard to law enforcement. If this argument were correct, it would mean that insofar as their most important function is, concerned, the police are above the law and therefore immune from any control by the Court. I reject that argument. In my judgment the police owe the public clear duty to enforce the law a duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently. In the extremely unlikely event, however, of the police failing or refusing to carry out their duty, the court would not be powerless to intervene. For example, if as is quite unthinkable, the chief police officer in any district were to issue an instruction that as a matter of policy the police would take no steps to prosecute any house-breaker, I have little doubt but that any house-holder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn. Of course, the police have a wide discretion whether or not they Will prosecute in any particular case. In my judgment, however, the action which I have postulated would be a clear breach of duty. It would be so improper that it could not amount to an exercise of discretion.'

I am in complete agreement with the views expressed by the court of Appeals.

3. The writ petition is accordingly allowed. The order of the respondent No. 3 dated 9-8-1971 quoted in paragraph 112 of the petition and of the District Magistrate dated 19-10-1971 quoted in paragraph 118 are quashed. The respondents Nos. 1 and 2 are directed to ensure that there is no interference with the work of constructions which the petitioners propose to make on the land in dispute, by trespassers. The petitioners should, however, intimate respondents Nos. 1 and 2 of the date on which they propose to start the constructions, and should complete the same expeditiously. In case it is necessary, the respondents Nos. 1 and 2 should take steps to oust trespassers from the land in dispute. The petitioners are entitled to their costs.

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