IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH AUGUST 2007 / 2ND BHADRA 1929 WP(C).No. 24210 of 2007(F) --------------------------------------- PETITIONER: ------------------- M/S.HARRISONS MALAYALAM LTD., BRISTOW ROAD, WILLINGDON ISLAND, COCHIN-682 003, REPRESENTED BY ITS MANAGER-LEGAL, MR.M.V.H.MENON. BY ADV. DR.RAJEEV DHAVAN (Sr.) SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.JAYASANKAR A.K. SRI.ANIL D.NAIR RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHEIF SECRETARY TOO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF POLICE, TRIVANDRUM RANGE, NANDAVANAM, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 4. DEPUTY SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 5. CIRCLE INSPECTOR OF POLICE, PATHANAMTHITTA. 6. SUB INSPECTOR OF POLICE, PATHANAMTHITTA. ..2/- ..2.. WPC.NO.24210/2007 F 7. ACHUTHAN,STATE COMMITTE MEMBER, SADHU JANA VIMOCHANA SAMYUKTHA VEDI, PATHANAMTHITTA. 8. T.S. SARASWATHI, STATE COMMITTE MEMBER, SADHU JANA VIMOCHANA SAMYUKHA VEDEI, PATHANAMTHITTA. BY ADV. SRI.A.X.VARGHESE for R7 & R8 BY GOVERNMENT PLEADER SRI. SALIM P.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2007, THE COURT ON 24/08/2007 DELIVERED THE FOLLOWING: WPC.NO.24210/2007 F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DTD. 4/08/07 SENT BY THE PETITIONER TO THE CHIEF MINISTER WITH COPY MARKED TO THE HOME MINISTER AND RVENUE MINISTER. EXT.P2: COPY OF THE LETTER DTD. 4/08/07 SENT BY THE PETITIONER TO THE DISTRICT COLLECTOR PATHANAMTHITTA WITH COPY MARKED TO THE CHIEF SECRETARY TO GOVERNMENT AND OTHER OFFICIALS. EXT.P3: COPY OF THE LETTER DTD. 4/08/07 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4: COPY OF THE LETER DTD. 4/08/07 SENT BY THE PETITIONER TO THE SUPERINTENDENT OF POLICE WITH COPY MARKED TO THE 3RD RESPONDENT WITH THE COPY MARKED TO THE 2ND RESPONDENT. EXT.P5: COPY OF THE LETTER DTD. 4/08/07 SENT BY THE PETITIONER TO THE 6TH RESPONDENT WITH COPY MARKED TO THE RESPONDENTS 2, 3 AND 5. EXT.P6: COPY OF THE LETTER DTD. 5/08/07 SENT BY THE PETITIONER TO THE CHIEF MINISTER WITH COPY MARKED TO THE HOME MINISTER AND REVENUE MINISTER. EXT.P7: COPY OF THE LETTER DTD. 5/08/07 SENT BY THE PETITIONER TO THE 3RD RESPONDENT WITH COPY MARKED TO THE HOME MINISTER AND I.G. OF POLICE, TRIVANDRUM RANGE. EXT.P8: COPY OF THE LETTER DTD. 5/08/07 SENT BY THE PETITIONER TO THE 3RD RESPONDENT WITH COPY MARKED TO THE RESPONDENTS 2 AND 5. EXT.P9: COPY OF THE FIR NO.601/2007 DTD. 5/08/2007 REGISTERED BY THE 6TH RESPONDENT. ..2/- .2.. WPC.NO.24210/2007F EXT.P10: COPY OF THE NEWSPAPER REPORT APPEARED IN 'THE HINDU' DTD. 6/08/07. EXT.P11: COPY OF THE NEWSPAPER REPORT APPEARED IN 'THE HINDU' DTD. 7/08/07. 7TH RESPONDENT'S EXHIBITS: EXT.R7(A): COPY OF THE NOTICE DTD.11/08/07 PUBLISHED BY THE PETITIONER. EXT.R7(B): COPY OF THE COMPLAINT GIVEN BY THE OWNER OF THE KUMBAZHA ESTATE DTD. 13/08/07. EXT.R7(C): COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.4033/06/RD DTD. 30/09/06. EXT.R7(D): COPY OF THE REPRESENTATION DTD. 15/07/07. /TRUE COPY/ P.S.TO JUDGE Kss K.BALAKRISHNAN NAIR & HARUN-UL-RASHID, JJ. ----------------------------------------- W.P.(C) NO. 24210 OF 2007-F ----------------------------------------- Dated 24th August, 2007. JUDGMENT Balakrishnan Nair, J. The petitioner is a Public Limited Company. Hundreds of persons under the leadership of respondents 7 and 8 have encroached into a rubber estate of the petitioner company illegally. Though, police and other officials were moved, no help was forthcoming. Hence this writ petition, seeking a writ of mandamus to the police to extend help to the petitioner to evict the encroachers and for consequential reliefs. 2. The brief facts of the case as stated by the petitioner are the following: The petitioner company owns rubber and tea estates in various parts of Kerala and Tamil Nadu. In Pathanamthitta district in Kerala, it owns Kumbazha rubber estate, having an extent of 1048 hectares. Field No.9 of Kurumpatty division of the said estate is fully covered by rubber plants, which are being tapped regularly. While so, at 10.30 p.m on Wpc 24210/07 2 4.8.2007 several hundreds of people under the leadership of respondents 7 and 8 encroached into the said field No.99 of the estate and occupied the entire area. They are remaining there in the temporary sheds put up by them. The encroachers are the members of Sadhu Jana Vimochana Samyukta Vedi, which, according to the petitioner, is an unregistered organisation. On coming to know of the encroachment, the Circle Inspector of Police, Pathanamthitta was informed. Though, the police reached the estate, for want of sufficient strength, they were unable to do anything. The Superintendent of Police was also informed, but he expressed his inability to interfere in the matter during the night. On the next day morning, it was found that the entire 107 acres of land in field No.99 was fully occupied by the encroachers. Regarding the encroachment, the Chief Minister, the Home Minister and the District Collector, Pathanamthitta were informed. Ext.P1 is the representation dated 4.8.2007 submitted to the Chief Minister, the copies of which were forwarded to the Home Minister and Revenue Minister. Ext.P2 dated 4.8.2007, is the representation filed before the District Collector, who is also the District Magistrate. Ext.P3 representation was filed before the Inspector General of Police, Thiruvananthapuram Range. Ext.P4 is the representation before the Superintendent of Police, a copy of which was marked to the I.G of Police, Thiruvananthapuram Range Wpc 24210/07 3 also. Ext.P5 is the representation filed before the S.I of Police, with copy to the C.I of Police. 3. When the workers of the estate assembled in the area and tried to persuade the encroachers to go out, they were pelted with stones by the encroachers. A lady worker was injured and she was held captive by the encroachers. She was later released on the intervention of the police. When there was no response from the part of the authorities, the petitioner again addressed Ext.P6 representation dated 5.8.2007 to the Chief Minister. The Superintendent of Police was again moved by Ext.P7, copies of which were marked to the Home Minister and the I.G of Police, Thiruvananthapuram Range. A further representation Ext.P8 dated 5.8.2007 was sent to the District Superintendent of Police with copies to the C.I of Police and the I.G of Police. In the meantime, the S.I of Police registered Crime No.601/2007 on 5.8.2007 against the activists of Sadhu Jana Vimochana Munnani for the offences under Sections 143, 147, 149, 447 and 427 of the I.P.C. Newspapers reported about the encroachment. Exts.P10 and P11 are the reports which appeared in “The Hindu” daily dated 6.8.2007 and 7.8.2007 respectively. 4. Since the date of encroachment, the staff and workers of the petitioner are not able to enter into Field No.99 for tapping or other Wpc 24210/07 4 agricultural operations. Though some police force was sent to the area, they are remaining mute spectators of the illegal activities of the encroachers. The petitioner is unable to protect its property from the encroachment made by respondents 7 and 8 and their supporters. The lives of the employees of the petitioner are in grave danger. The actions of the encroachers are criminal offences. The police have a duty to interfere in the matter and extend protection to the petitioner. So, the petitioner prays for the following reliefs: “(i) issue a writ, order or direction in the nature of mandamus directing respondents 1 to 6 to remove the illegal encroachment caused by respondents 7 and 8 and their men from the petitioner's Kumbazha Estate at Pathanamthitta District, to provide adequate police protection to the petitioner to prevent respondents 7 and 8 and their men from continuing with their illegal encroachment and enable the petitioner to run its Kumbazha Estate. (ii) issue an interim direction directing the respondents 1 to 6 to remove the illegal encroachment caused by respondents 7 and 8 and their members and provide adequate police protection to the petitioner to function its Kumbazha Estate.” 5. The respondents 7 and 8 have filed a counter affidavit. They dispute even the very title of the petitioner to the estate. They submit, the Kumbazha Estate has been taken on lease by the petitioner from a private party and the term of the lease has already expired. So, the petitioner is not the owner of the Estate and therefore, it has no locus standi to maintain the Wpc 24210/07 5 writ petition. In support of the above submission, they produced Ext.R7(b) letter addressed by one Mr.Mohandas, who is stated to be the owner of the Estate, to the District Superintendent of Police. Translation of the said letter reads as follows: “Sir, The land in the possession of the Harrisons Malayalam Company in Malayalapuzha village was given on lease by my late grand father Uzhuthiraru Uzhuthiraru in 1913. I have received rent from the Company up to 1996. Since the lease conditions were violated, notice has been issued to the Company, terminating the lease and also to restore possession of the same to me. It is understood that without my knowledge or consent, people have entered the land and have put up huts. It is requested to evict the encroachers. But, they may not be evicted by use of force. I am ready to discuss with them and also the Government. If the Chief Minister requests, I am ready to surrender a portion from this land. As the owner of the property, I will not recognize any discussion held in my absence. It is requested to evict the encroachers and protect my property. Yours faithfully, Sd/- Mohandas.” The respondents 7 and 8 submit that their followers are not encroachers. They are landless persons agitating for distribution of land to them. 500 families have entered the Kumbazha Estate, demanding the Government to take over the Estate from private parties and distribute it to the landless Wpc 24210/07 6 members of the Scheduled Caste and also to other landless and homeless people. If the Government do not fulfill the promises held out by it and try to evict the activists of Sadhu Jana Vimochana Samyukta Vedi camping in Kumbazha Estate by use of force, there is every chance of mass suicide of the occupants of the said Estate. They deny the allegations and the averments in the writ petition. According to them, the plantation workers of the petitioner threatened the occupants. They attacked the persons camping in the Estate by pelting stones and as a result, 11 occupants, who were injured, have been admitted in the Kottayam Medical College Hospital on 5.8.2007. A battalion of police led by the Deputy Superintendent of Police is camping in the area. So, the police is taking all possible steps to evict them. The respondents 7 and 8 also point out that the Company is in possession of 8783.96 acres of excess land, as evident from Ext.R7(c) Government order dated 30.9.2006. The Government have constituted a high level committee headed by the Commissioner of Land Revenue, to look into the matter of possession by the petitioner of excess land. They further point out that they have already filed Ext.R7(d) representation before the Government, claiming various reliefs and when the said representation was not considered and the reliefs not granted, the present action was taken. The Government have a duty to implement the mandate of Article 46 in Wpc 24210/07 7 Chapter IV of the Constitution of India. Since the Government have failed to perform its duty, they submit, their members have entered the property held by the petitioner. The petitioner has not filed any reply affidavit. 6. Heard the learned counsel on both sides. The learned senior counsel Dr.Rajeev Dhawan appearing for the writ petitioner after referring to the facts of the case, submitted that the police have to perform their duty to protect the property of the petitioner and the lives of its employees. He pointed out that under Section 129 of the Cr.P.C., the District Magistrate and also the officer in charge of a Police Station have the power to command any unlawful assembly to disperse. If the members of the said assembly do not obey them, the said officers can disperse the assembly by use of force. The learned senior counsel also brought to our notice Section 130 of the Cr.P.C., which empowers the Executive Magistrate to disperse any unlawful assembly by using armed forces, for public security. The Executive Magistrate has power to issue prohibitory orders under Section 144 of the Cr.P.C., to prevent danger to human life and disturbance of public tranquility. Reference was also made to Section 149, which mandates every police officer to prevent the commission of cognizable offences. The learned senior counsel also took us through the various relevant provisions under the Kerala Police Act, 1960. Special reference was made to Wpc 24210/07 8 Sections 4, 5 and sub-sections (b), (c ), (d) and (q) of Section 29. Section 4 says that the administration of the police in the State shall be vested in the Inspector General of Police, subject to the control of the Government. Section 5 says that the police force within the local jurisdiction of a District Magistrate shall be in the general control and direction of him. Section 29 enumerates the duties of police officers. Sub-section (b) of Section 29 makes it the duty of the police among other things to prevent commission of cognizable offences. Sub-section (c ) mandates that it is the duty of the police to preserve peace. Sub-section (d) says that it is the duty of the police to prevent public nuisances. Sub-section (q) requires the police officer to prevent entry without reasonable excuse into dwelling houses or other buildings and on lands attached to them. 7. The learned senior counsel for the petitioner pointed out that except registering a crime, the police has done nothing to prevent breach of peace or avert the commission of cognizable offences. The police have failed to perform their statutory duties. So, this Court may interfere in the matter, it is submitted. He, in support of his submissions, relied on the decision of the Apex Court in Sanjay Sitaram Khemka v. State of Maharashtra [(2006)5 SCC 255] and also the decisions of this Court in Wpc 24210/07 9 Shahul Hameed v. Narayana Pillai (2003(3) KLT 536), Midland Rubber & Produce Co. Ltd. v. Superintendent of Police (1998(2) KLT 365) and Raghavan v. Superintendent of Police [1998(2) KLT 732 FB]. The learned senior counsel also made reference to the decision in Vineet Narain v. Union of India [(1998)1 SCC 226],wherein the Apex Court took an active supervisory role in guiding investigation into the corruption of men in high places. He submitted that the petitioner is in lawful possession of the Kumbazha Estate and it has got every legal right to protect it from the encroachers, who are total strangers and who have no claim whatsoever over it. 8. The learned Government Pleader Mr. P.A. Salim, upon instruction, submitted that two criminal cases have already been registered by the police on information of cognizable offence being lodged with the Station House Officer. He also pointed out that thousands of people are involved in the encroachment and therefore, the police cannot use excessive force to evict them. It may engender more serious law and order problems, instead of solving the existing one. Against the encroachers the petitioner has an effective alternative remedy before the civil court, it is submitted. 9. Mr.A.X. Varghese, learned counsel appearing for respondents 7 Wpc 24210/07 10 and 8 submitted that more than 8000 acres of land in the possession of the petitioner belongs to the Government. To evict the petitioner from the said land and distribute the same to the landless members of the Scheduled Caste and adivasis, a peaceful agitation is launched. They have peacefully entered the Government land in the possession of the petitioner and are squatting there. They are not causing any obstruction to the agricultural operations or tapping of rubber. It is a peaceful non-violent agitation to persuade the Government and other authorities to take over the Government land in the possession of the petitioner. They have no intention whatsoever to cause any damage or commit waste or cause any bodily harm to the employees. The said respondents also point out that the Government have a duty under Article 46 of the Constitution to promote with special care the economic interest of weaker sections of people, particularly of Scheduled Castes and Schedule Tribes. The learned counsel for the respondents 7 and 8 also relied on the decision of the Apex Court in P.R.Muralidharan v. Swami Dharmananda Theertha Padar [(2006)4 SCC 501]. He also referred to the decision in Sanjay Sitaram Khemka v. State of Maharashtra [(2006 (5) SCC 255]. 10. The members of the Sadhu Jana Vimochana Samyukta Vedi, Wpc 24210/07 11 which means “joint forum for liberation of poor people”, have no right over the property in the possession of the petitioner. Even if 8000 acres of surplus land is in the possession of the petitioner Company, the members of the Vedi will not have any special claim over it. Of course, when the Government take over the land and invite applications from eligible persons for assignment of the surplus land so taken, if they are eligible, they can also apply. They have only a claim to be considered for assignment of surplus land, when it is taken over by the Government. The encroachers, even if they are eligible, cannot be, directly, assigned the land, as the same will be resulting in injustice to several persons who may be more eligible, but who may not have chosen to come and encroach into the property. 11. It is true, the encroachers have every right to hold peaceful demonstrations and public meetings, to highlight the inaction of the Government and for persuading it to take the surplus land, if any, in the possession of the petitioner. Forming organizations for the upliftment of the downtrodden and holding demonstrations or public meetings are protected by the fundamental rights of the members of the Vedi under Article 19(1)(a), (b) and (c ) of the Constitution of India. Those sub-Articles guarantee freedom of speech and expression, right to assemble peacefully without arms and the right to form associations or unions. But, they cannot Wpc 24210/07 12 take law into their hands. Of course, modern jurists recognize the right of citizens to disobey the laws, which they think are unjust and unconstitutional. The right to take the said risk and the discretion to disobey a law, are recognized and referred to in all modern books on jurisprudence. See the views of the following learned authors: Hilaire Barnett (Constitutional and Administrative Law): “The question which then arises is whether the individual has a 'right' to disobey the law? A Government true to democratic percepts of representativeness and fairness must be sensitive to demands for change. If it fails in that regard it is at least arguable that demands for change, while entailing technical breaches of the law, should be accommodated within the constitutional framework.” R.W.M. Dias (Dias Jurisprudence - 5th Edition): “Civil disobedience has become a problem in many societies in recent times, and changes have been brought about in consequence. The question is how far, if at all, disobedience can be accommodated within a theory of law. On the face of it, there is an obvious contradiction here; but if law is thought of in a continuum and ability to change is regarded as a condition of the continuity of law, then disobedience could, within limits, be included among the phenomena inducing legal change.” Edgar Bodenheimer (Jurisprudence): “It may, however, happen that an oppressive regime enacts rules into law which utterly defy all civilized standards of decency. Suppose, for example, a Government orders the extermination or sterilization of an unpopular religious, racial, or national minority, sanctions the lynching of persons by mobs, commands (like King Herod in the New Testament) the killing of innocent children, or compels persons at the threat of torture to inform on close relatives who have criticized the Government. If (as will usually be the case under a tyrannical regime) no bona fide legal procedures for challenging the authority of such utterly iniquitous laws are available, a right to resist the application and execution of such commands ought to Wpc 24210/07 13 be accorded to legal officials as well as private citizens. The exigencies of legal security demand, however, that his right be limited to extreme and inextricable situations in which an outrageous wrong is being committed by the Government. Furthermore, the person making use of the right of resistance must be held to the risk of having misjudged the stringent prerequisites for the legitimate exercise of this right.” Ronald Dworkin (Taking Rights Seriously): “In a democracy, or at least a democracy that in principle respects individual rights, each citizen has a general moral duty to obey all the laws, even though he would like some of them changed. He owes that duty to his fellow citizens, who obey laws that they do not like, to his benefit. But this general duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the State. A man must honour his duties to his God and to his conscience, and if these conflict with his duty to the State, then he is entitled, in the end, to do what he judges to be right. If he decides that he must break the law, however, then he must submit to the judgment and punishment that the State imposes, in recognition of the fact that his duty to his fellow citizens was overwhelmed but not extinguished by his religious or moral obligation.” The above concept of discretion to disobey the laws has been dealt with by our Apex Court in Nawabkhan v. State of Gujarat [(1974)2 SCC 121]. The relevant portion of the said judgment reads as follows: “Illegal acts of authorities, if can be defied on self-determined voidness, startling consequences will follow, as the High Court apprehends. A detinue will beat back, a builder will put his wall on the forbidden line, a court officer will meet with physical resistance, all because the order is, on the view of the affected party, a nullity and is late proved so before a court. Not every action by a Government agency carries with it the force of law and naturally what should he do if he concludes that the action is invalid? Should he disobey, face penal proceedings and get his violation legitimated by Court? Is there no alternative to breaking the law or order to expose the lawlessness of the Wpc 24210/07 14 law or order? A recent book ('Discretion to Disobey' by Kadish and Kadish) establishes this line of thought from Benjamin Curtis, a former Supreme Court Justice, who argued to the Senate on behalf of President Andrew Johnson (sic) during the latter's impeachment trial a century ago: 'I am aware that it is asserted to be the civil and moral duty of all men to obey those laws which have been passed through all the forms of legislation until they shall have been decreed by judicial authority not to be binding; but this is too broad a statement of the civil and moral duty incumbent either upon private citizen or public officers. If this is the measure of duty there never could be a judicial decision that a law is unconstitutional, inasmuch as it is only by disregarding a law that any question can be raised judicially under it. I submit to senators that not only is there no such rule of civil or moral duty, but that it may be and has been a high and patriotic duty of a citizen to raise a question whether a law is within the Constitution of the country.' On this view it is almost as though the Constitution contained the words to be found in the constitution of one contemporary German State: 'It is the right and duty of every man to resist unconstitutionally exercised public power': More apposite to the present case are these remarks of the same authors: 'If a policeman, in the exercise of