1998 Supreme(Bom) 306

IN THE HIGH COURT OF BOMBAY
A.V. Savant S. Radhakrishnan, JJ.
Shankar Savala Chavan ..... Petitioner.
Versus
The State of Maharashtra others .... Respondents.
Civil Writ Petition No. 6376 of 1997, decided on 11-6-1998.
Advocates appeared :
M.N. Dhamal, for the petitioner.
C.J. Sawant A.G., with S.B. Shetye, A.G.P., for the respondents.

Headnote:Bombay Government Premises Eviction Act, 1955

       Section 4-Bombay Police Act, 1951, Section 31-Constitution of India, Article 226-Damages for wrongful eviction-When facts clearly disclose that petitioner was deliberately harassed and high ranking officials just put their signatures without going into debtor of contents of matter is found to be gross negligence on duty, petitioner allowed to file separate suit for damage for wrongful eviction, cost to be paid by DCPs from there own qualified at Rs. 1000/- each.- The order of Maharashtra Administrative Tribunal in no way suggests that the petitioner ought to be evicted or that the tribunal has not, in any manner, directed the Government of Maharashtra or the respondents to evict the petitioner. Whereas the respondent No. 5 has repeatedly stated in the aforesaid affidavits that he had interpreted and construed the order of the Maharashtra Administrative Tribunal to get the petitioner evicted from the said quarters.

       In the affidavits filed today the said respondent No.5 takes a contention that he was concerned with various kinds of activities as a Deputy Commissioner of Police, Headquarters and that he was overburdened and under these circumstances respondent No. 5 claim that he had passed the said order of eviction. Court is not at all satisfied with the explanations tendered by respondent No.5 inasmuch as if the respondent No.5 were to be overburdened with so much of work, one could understand an omission on the party of the respondent No. 5 in not passing an order or not perusing certain documents whereas in this instant case the respondent No.5 has read the order of Maharashtra Administrative Tribunal in detail as the himself has quoted in extenso in his affidavit and he was also very much aware of the order" of the Government of Maharashtra dated 28th October, 1997. He was also aware of the said order received by the Commissioner of Police Officer on 31st October, 1997. Even assuming that the said respondent No. 5 had misconstrued the order to that extent, right course would have been, as the learned Advocate General had stated, he ought to have approached the Government for modification or cancellation or sought legal opinion in this behalf, inspite of hurriedly passing an eviction order. Court is strongly of the view that the respondent No.5 has acted in a very casual and irresponsible manner in passing the above order. This is not a mere act of omission in view of the pressure of work, this is a positive act of passing an order of eviction after fully knowing the order of extension granted by the Government. This aspect is writ large even in the affidavit filed by the said officer. In fact the very order of eviction dated 24th November, 1997 mentioned very clearly in the very first para as under :-

       "Final permission has been granted to him till 24.4.1998 (wrongly stated as 24.4.1998 it ought to be 27.4.1998) by the Government."

       In affidavit respondent states that during the period from 15.12.1997 to 30.12.1997 he was busy with the visits of V.I.Ps., Law and Order etc. The greater emphasis was that respondent No. 3 was very much involved in security arrangement of V.I.Ps. etc. In fact, in the said affidavit respondent No. 3 has categorically stated that all letters which are received in his office are scrutinised by an inward clerk and thereafter by the head clerk and then it goes to the Administrative Officer. Respondent No.3 also stated that this reference was made by the inward clerk and head-clerk and Administrative Officer and then came to him only for a formal endorsement orders i.e. respondent No.3 blindly signs these orders as formal endorsement orders. The respondent No.3 also states that it is an established practice in the office of Zonal Deputy Commissioner of Police that the concerned Deputy Commissioner of Police personally examines the correspondence which is originally .and directly addressed to the Deputy Commissioner of Police whereas if the same is addressed to him only as a copy the Administrative Officer routinely decided what is to be done. In fact the said affidavit of Respondent No.3 does not state that even after letters are addressed to him personally whether he directly reads, as he only states that it is a practice in Zonal Deputy Commissioner of Police Office. In any event, the contents of this affidavit discloses a shocking state of affairs, if the letter addressed to Deputy Commissioner of Police either directly or by way of a copy, the Deputy Commissioner of Police states that he does not bother to read what it contains, only inward clerk, head-clerk and the Administrative Officer will take a decision with regard to the same and the Deputy Commissioner of Police will only incorporate the signature as a formal endorsement order. The perusal of both these affidavits of respondent No. 3 it is very clear that a very Senior Police Officer holding the rank of a Deputy Commissioner of Police has been absolutely callous and indifferent and has been mechanically endorsing orders passed by some lower officials without even bothering to read and understand the contents of any letter addressed to the said officer. Copy of petitioners Advocates letter dated 13.12.1997 was sent to the respondent No.3.

       As far as prayers (e) and (ee) Court already granted liberty to the petitioner to file an appropriate suit for damages. Accordingly, Rule is made forcible dispossession be declared null and void absolute in terms of prayer (a) only. The learned counsel for petitioner has submitted that though damages may not be awarded but there has to be an award of some amount of costs, in view of public accountability, especially by respondent Nos. 3 and 5, being Senior Policy Officer. Having regard to the facts and circumstances of the case, Court felt to maintain and uphold the concept of public accountability it would be appropriate and Court hereby direct respondent Nos. 3 and 5 to pay a sum of Rs. 1,000/- each by way of costs to the petitioner, personally out of their own funds within a period of two weeks from today.

       Sections 31 and 32-See Constitution of India, Article 226.

       Article 226-Bombay Police Act, 1951, Sections 31 and 32-Claim of petitioner of retirement dues with stay in service quarter-Tribunal vacated the interim relief granted to stay in service quarter-Eviction by police officers-Explanation that order is casual-Fund to be baseless-Maintainability of writ not allowed-Remedy lies to file suit for damages.-It is very clear that a public servant who abuses his office either by an act of omission or commission, and the consequence of that is an injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can arrogate to himself the power to act in a manner which is arbitrary.

       In the facts and circumstances of this case, writ petition under Article 226 of the Constitution of India may not be an appropriate remedy to award the damages and quantify the same. Therefore, liberty is granted to the petitioner to file an appropriate suit for damages in this behalf. By prayer (a) of the petition, the petitioner has prayed that the high handed forcible dispossession from service quarters committed by respondent Nos. 2 to 4 dated 18.12.1997 be declared null and void and illegal.