Decided on November 24,1970

P. Kondish Chetty And Another Appellant
The Commissioner Of Police, Madras And Another Respondents


Ramaprasada Rao, J. - (1.) THE petitioners are said to be co -owners of land situate in Velacheri near the City and the description of which is furnished is paragraph 2 of the affidavit. A portion of the said land was acquired by the Government under the provisions of the Land Acquisition Act for providing a workshop for the Tamil Nadu State Transport. After the acquisition was over, it is said, that there were heavy rains and that some persons at the bidding and Instigation of one Rama Iyer trespassed into the available vacant space of land as above in Velacheri village and erected without authority huts and continued to remain there unauthorisedly. Attempts of the petitioners by approaching such occupants proved futile. It is stated that some of the occupants even threatened the petitioners, if they were to approach them for removing the huts put up earlier, or is any other connection. It is however, reiterated by the writ petitioners these all such persons, who dared to insult these were instigated and encouraged to do so by one Rama Iyer. As the personal approach of the petitioners to unauthorised occupants proved futile, they filed a petition to the first respondent seeking redress and asking him to take action under the criminal law of the land. The said petition was forwarded to the second respondent for necessary action. Ultimately, the second respondent enquired into the matter under S. 156 Crl. P. C. and same to the conclusion that under S. 157(1)(b) Crl. P. C. no further investigation was required, as it was purely a civil matter. It is the case of the respondents that the petitioners were given such information on their petitions filed by them earlier. The report by the second respondent is dated 9th March 1970. But the petitioner's ease is that as criminal trespass is a cognisable offense, the police are obliged in law to take action, give relief and put the petitioners back in possession of the land and do such other necessary things in the eye of law so as to enable the petitioners to enjoy and preserve the lands without obstruction by any one. At one time, the petitioners moved this court under S. 561 -A Crl. P. C. for directions to the respondents to remove the alleged trespassers from the petitioners' lands this petition was dismissed by a final order of this court made on 26th June 1970. After the dismissal of the said petition, they have come up to this court under Art. 226 of the Constitution of India, for the issue of a writ of Mandamus directing the respondents to do their duty by dispending the unlawful assembly and removing the criminal trespassers and unauthorised constructions in their property at Velacheri and for other reliefs ancillary thereto.
(2.) THE Commissioner of Police admits that the petitioners did file a petition for redress. He also refers to a petition dated 15th February 1970 filed by the second writ petitioner, who inter alia alleged that the said Rama Iyer whom the first respondent characterised as the instigator, was falsely representing to the hut dwellers that he was entitled to leave out the property and that he had selected large sums of money from, each such hut dweller. The second respondent, who enquired into the matter says that at the time when be undertook investigation, the petitioners could not produce the original documents to prove the ownership of the lend when demanded. It, is, therefore, stated that at the enquires made by the second respondent at the behest of the first respondent revealed only a civil dispute, the petitioners were advised to seek redress in a court of law meaning thereby a civil court. The other averments in the affidavit in support of the writ petition are denied and, in any event, it is stated that as an investigation was undertaken and as it was found that there were disputes about the entitlement of the property and as such disputes could not be solved by the police, the parties were referred to the appropriate forum for relief. A writ of Mandamus is issued in extraordinary circumstances to compel a public officer to do a duty which he failed to do, inspite of the fact that the public authority was asked to perform the same, or has been prompted otherwise by due process of law to perform such a public duty. In the instant ease, the very petitioners' case in their complaints to the police officers discloses the absence of a cognisable offence. The petitioners' case is that at the instigation of one Rama Iyer several persons have been brought into their land and it is this Rama Iyer, who is encouraging such recalcitrance on the part of the occupants, besides himself collecting large sums of moneys from those who have put up huts in the property of the petitioners. The petitioners, therefore, knew at the time when they sought the help of the police, and at all material points of time thereafter, that it was Rama Iyer, who was responsible for the induction of various persons, whom the petitioners characterised as unauthorised occupants, and that it was Rama Iyer who was proclaiming himself to be the person entitled to collect sums from the hut dwellers as person entitled to lease the same. Obviously, the (petitioners' case is that Rama Iyer was setting up a hostile title in him and was openly violating then vested rights as owners of the property. Without taking any action against such a person, who in the instant case, has been identified by the petitioners, they have now come up to this court for the issue of a writ of Mandamus against the Commissioner of Police, in particular, and the police authorities in general, to perform their alleged public duty to remove the trespassers on the ground that such trespass is a criminal trespass and their continuance in the property amounts to such criminal trespass as well. Reliance is placed upon a decision of this court in Varadachariar v. Commissioner of Police, 1969 M.L.J. Cri. 533. There, the learned single Judge issued a writ of Mandamus because the Commissioner of Police in his counter affidavit took up the specific stand that, whether the police action is necessary or what action is to be taken by them is within the discretion of the police and that a writ of Mandamus cannot be issued notwithstanding the fact that the offence complained of is cognizable or not. In those circumstances, the learned Judge was inclined to point out that it was the duty of the Commissioner of Police to determine whether the continued presence of the hut dwellers amounted to criminal trespass. The police having disregarded their duty were reminded of it by the issue of the rule by this court. That is not however the case here. The specific case of the petitioner is that the unauthorised occupants have come into the field at the behest, instigation end encouragement of one Rama Iyer. It is also their case that Rama Iyer is setting up an adverse title to the property. The police enquired into the matter and finding that the dispute was between Individuals and referred to the same as of a civil nature and thus completed the investigation. What ought to be done by the police has been done in this case as required under Ss. 156 and 157 Crl. P.C. In the absence of any material on record to show that the police did not perform their duty, or failed to discharge their duty in a manner known to law, no writ of Mandamus can issue. The rule nisi is, therefore, discharged.
(3.) THE writ petition is dismissed. There will be no order as to costs.;

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