Karnataka High Court
Mr. Umar Abdul Sattar Vahendna vs The Commissioner Of Police on 5 September, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 1704 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 1704 OF 2015 (GM-POLICE)
BETWEEN:
1. MR. UMAR ABDUL SATTAR VAHENDNA
SINCE DECEASED BY LRS
1A SMT. REHMAT O. VEHEDNA
W/O LATE UMAR ABDUL SATTAR VEHEDNA
AGED ABOUT 70 YEARS
1B MR. OWAIS O. VAHEDNA
W/O LATE UMAR ABDUL SATTAR VEHEDNA
AGED ABOUT 47 YEARS
1C MS. FIRDAUS ASIM
D/O LATE UMAR ABDUL SATTAR VEHEDNA
AGED ABOUT 43 YEARS
1D MR. ATA ASHRAF O.VAHEDNA
S/O LATE UMAR ABDUL SATTAR VEHEDNA
Digitally signed AGED ABOUT 39 YEARS
by SUMA B N
Location: High ALL R/AT NO.301, SKYLINE ELYSEE
Court of NO.24, VIVANI ROAD, RICHARDS TOWN,
Karnataka
BANGALORE-560 005
...PETITIONERS
(BY SRI.VIKRAM A . HUILGOL SR. COUNSEL FOR
SRI. ALOKE MADAPPA.,ADVOCATE AND
SRI. SYED KHAMRUDDIN., ADVOCATES )
AND:
1. THE COMMISSIONER OF POLICE
BANGLAORE CITY POLICE
NO.1, INFANTRY RAOD,
BANGALORE-560 001.
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WP No. 1704 of 2015
2. THE DEPUTY POLICE COMMISSIONER
WEST DIVISION
BANGALORE CITY POLICE,
BANGALORE GPO,
BANGALORE-560 001.
3. SRI. TANVEER AHMED
S/O SRI. NISSAR AHMED
AGED ABOUT 38 YEARS
R/AT NO.2, 1ST MAIN ROAD,
B.M. KRISHNAPPA LAYOUT,
SHAMPURA EXTENSION,
BANGALORE-560 045.
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE N., HCGP FOR R1 & R2;
SRI. SHAIKH SAOUD, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED:24.06.2013 PASSED BY THE R-1 VIDE
ANENX-A AND TO QUASH THE REPORT DTD.30.5.2013 PREPARED BY
THE R-2 VIDE ANNEX-AG AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
Petitioner is before this Court being aggrieved by the
order dated 24.06.2013 passed by the respondent No.1-
Commissioner of Police as per Annexure-A and also seeking
quash of the report dated 30.05.2013 submitted by the
respondent No.2-Deputy Police Commissioner, West Division
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and for direction directing the respondent No.1 to appoint an
independent and unbiased agency to conduct enquiry and to
file a report to the respondent No.1.
2. Brief facts of the case are that;
(a) Petitioner was residing with his family in the First
Floor portion of the property bearing No.20, situated at
Benson 'A' Cross, Benson Town, Bangalore since 1993,
which was purchased by his younger brothers namely,
Sri. Mohammed Muneer Abdul Sattar Vahedna and Sri
Anwar Vahedna of the petitioner. That the petitioner
contributed towards construction of said residential
property. As such he was permitted to occupy the First
Floor portion of the property. That brother of the
petitioner namely, Mohammed Muneer Abdul Sattar
Vahedna passed away on 22.04.2006 leaving behind his
wife Smt.Nasreen Vahedna and two children namely,
Sri. Abdul Sattar and Smt. Taiba Vahedna to succeeds to
the estate.
(b) That there was difference of opinion between
petitioner and his other brother Sri. Anwar Vahedna and
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the legal heirs of Mohammed Muneer Abdul Sattar
Vahedna, in which an attempt was made illegally
dispossess the petitioner from the property. The
petitioner had therefore filed a suit in O.S.No.17588/2006
before the Additional City Civil Judge, Mayo Hall,
Bengaluru seeking relief of permanent injunction against
his brother and legal heirs of other brother. That an
exparte interim order was granted. The said interim order
was subsequently modified in MFA No.14481/2007 and
MFA No.14480/2007 by this Court restricting the
possession of the petitioner to the First Floor portion of
the property. The said suit in O.S.No.17588/2006 was
withdrawn by the petitioner upon the undertaking of the
defendants therein not to disturb his possession.
(c) In the interregnum a notice was issued on 30.01.2008
calling upon the petitioner to vacate and hand over the
vacant possession of the property and attempts were
made to dispossess the petitioner. Complaints were filed
for the offences punishable under Sections 448, 504, 506
registered in Crime Nos. 64/2008, 173/2008, and
238/2008 before the J.C. Nagar Police Station. Since the
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petitioner apprehended forcible eviction he filed yet
another suit in O.S.No.25228/2009 on 04.02.2009
seeking relief of permanent injunction. That on
05.02.2009 an exparte order of temporary injunction was
granted infavour of the petitioner restraining his aforesaid
brother and family members of deceased brother from
interfering with his possession. The said order was passed
at about 5.10 p.m.
(d) In the meanwhile, a false complaint was registered in
Crime No.31/2009 before the J.C.Nagar Police Station by
the aforesaid brother and family members of deceased
brother of the petitioner. In furtherance to the said false
complaint, the respondent No.3 herein along with other
police personnel accompanied by the aforesaid brother of
the petitioner and other anti- social elements visited the
property and demanded the petitioner to vacate the same
which was protested by the petitioner. Petitioner also
informed that he had already obtained an exparte
injunction order and would furnish the certified copy of
the same on the following date as the order was passed
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at 5.10. p.m. on 05.02.2009 and a letter in this regard
was also submitted to the respondent No.3.
(e) It is contended that brushing aside the said plea of
the petitioner, respondent No.3 forcibly took petitioner
and his family members to the J.C.Nagar Police Station
and illegally detained them up to 11.00 p.m. on the said
day. In the meanwhile the building in possession of the
petitioner was illegally demolished causing lose to the
petitioner.
(f) Petitioner on 13.02.2009 lodged a compliant with the
Lokayukta of all these incidents who after investigation
found that respondent No.3 was guilty of his misconduct
and accordingly forwarded the report to the Chief
Secretary, Home Department to take necessary action
against the respondent No.3. In furtherance to the said
report, the respondent No.1 is the competent authority
under the Karnataka State Police (Disciplinary
Proceedings) Rules, 1965/89 appointed respondent No.2
to conduct departmental enquiry against the respondent
No.3 and to submit a detailed report.
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(g) That charge was framed by the respondent No.2.
Enquiry was conducted, witnesses were examined from
both the side. Upon completion of the enquiry respondent
No.2 forwarded a report stating that petitioner herein had
already vacated premises, as such allegations made
against the respondent No.3 was not proved. Respondent
No.1 without any application of mind accepted the said
report and by its order dated 24.06.2013 impugned in
this petition exonerated the respondent No.3 from the
charge alleged. It is these impugned orders and the
report put to challenge in this petition.
3. Sri. Vikram A.Huilgol, learned Senior Counsel
appearing for the petitioner taking this Court through the
records submitted that the enquiry conducted by the Lokayukta
as per the report produced at Annexure-R had categorically
found respondent No.3 guilty of misconduct. It had also found
the petitioner was illegally detained by the respondent No.3
disregarding the interim order passed by the Court and had
deliberately allowed demolition of the building. He submits that
the petitioner and his family members who were illegally
detained on a purported complaint that was filed by brother
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and family members of deceased brother of the petitioner
registered in Crime No.31/2009 and the said complaint was
registered around 5.00 p.m. on the said day. By the time
respondent No.3 and his accomplices came to the spot, the
petitioner had already obtained the interim order which was
brought to his notice by submitting a letter. Without even
considering the plea and letter, the respondent No.3 detained
the petitioner and his family members only to accommodate
the opposite parties to achieve their dubious intentions of
demolishing the house that was occupied by the petitioner.
4. Further taking this Court through the enquiry report
conducted by the respondent No.2 he submits that without
touching upon the core issue of registration of compliant in
Crime No.31/2009 and illegally detaining the petitioner and his
family members and without giving any reason whatsoever on
the said core issue, respondent No.2 has dealt with every other
aspect which was not within his purview. He submits that
respondent No.1 is the competent authority who is required to
accept the report only after applying his mind and satisfy
himself with regard to veracity or otherwise had blindly
accepted the same exonerating the respondent No.3 merely
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making mockery of the entire process of enquiry. He submits
that petitioner has no other alternate remedy but to approach
this Court with the relief as sought for.
5. He further submits that even the mahazar report
indicate that demolition had indeed taken place with respect of
windows, doors and other items of the building which have
been removed and terrace of the second floor had been
demolished. However, the Enquiry Officer without even looking
into the same had opined at para 18 of the report that it takes
two to three days for the unit to be demolished. With these
reasoning has even rejected the allegation made by the
petitioner with regard to demolition of the building. Hence,
seeks for allowing of the writ petition.
6. This Court by order dated 28.08.2024 had directed
the learned HCGP to secure the Station House Diary in respect
to the Crime Nos.31/2009 and 32/2009 which was registered
against the petitioner and his family members as found
mention in the report prepared by the Lokayukta. In response
on 04.09.2024, learned HCGP furnished true copies of the
Crime Register as well as Movement Register pertaining to
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Crime No.31/2009 and submits that petitioners were indeed
arrested in furtherance to the said crime number. He submits
that respondent No.3 was discharging his duties as
contemplated under law and had never intended to detain them
enabling the opposite parties in demolishing the house as
alleged.
7. He also submits that even as admitted by the
petitioner during the enquiry they have never been in the
possession of the property in dispute. As such the question of
dispossession and demolition is not arise. He also submits that
neither the letter of the counsel for the petitioner regarding the
interim order nor the copy of the interim order was furnished to
the respondent No.3 by the petitioner. He submits that all
these aspects of the matter have been taken into consideration
by the respondent No.2- Enquiry Officer and said report has
been accepted by the respondent No.1 and no fault therein can
be found warranting interference. Hence, seeks for dismissal of
the petition.
8. Heard. Perused the records.
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9. The charge which was framed against the
respondent No.3 by respondent No.1- Disciplinary Authority as
found at Annexure-A is as under;
" ೋ ಾ ೋಪ ೆ:-
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gಕQO% ಕತ,ವ-iೋಪSೆಸUರು12ೕO."
10. A report of the Enquiry Officer is produced at
Annexure-AG, which is lengthy and runs into 43 pages. The
said report indicate that the Enquiry Officer has adverted to the
history of the dispute, various litigation between the petitioner
and his family members and also extensively refers to evidence
of the parties during the time of the evidence, which runs from
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page Nos.1 to 38. The reasoning and conclusion arrived at by
the Enquiry Officer are found in paragraph Nos.1 to 18 at page
Nos.39 to 43 of the said report.
11. Paragraph Nos.1 and 2 of the said reasoning refers to
the statement of the witness/petitioner herein of he not
furnishing the certified copy of the interim order passed in
O.S.No.25228/2009, and he having submitted only the letter of
his counsel regarding the interim order with representation of
furnishing the certificate copy of the following day. Thus based
on this, Enquiry Officer has held that the allegation of
respondent No.3 not obeying the interim order as not proved.
12. Paragraph No.3 refers to issue of cancellation of the
power of attorney during the year 2006.
13. Paragraph No.4 refers to an interim order obtained
by the petitioner in O.S.No.17588/2005, which was
subsequently withdrawn.
14. Paragraph Nos.5 and 6 refers to certain notices that
were issued by the owners of the house to the petitioner and
which were returned 'unserved' and 'unanswered'. Based on
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which, it is concluded that petitioner being in possession of the
property was doubtful.
15. Paragraph No.7 refers to filing of the suit in
O.S.No.25228/2009 and the averments made in paragraph
No.6 of the affidavit, wherein there appears to be reference to
the date of incident as 01.02.2009. Based on this the Enquiry
Officer has opined that the petitioner has not filed any
compliant before the Police or any suit before the Court and as
such since he has presumed that the demolition process had
begun on 01.02.2009 and the petitioner filed the suit
subsequently on 04.02.2009.
16. Paragraph Nos.8, 9 and 10 referring to the earlier
proceedings has held that petitioner was not in possession of
the property.
17. In paragraph No.11 the Enquiry Officer referring to
the statement of the petitioner that it would take two to three
days for demolition of building and has opined that building
could not be demolished within four to five hours.
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18. Paragraph Nos.9 and 12 refers to certain judgments
regarding revocation of the power of attorney and suit for
permanent injunction.
19. At paragraph No.14 refers the Enquiry Officer has
noted as under:
"14. It is evident from the documents that, on
05.02.2009, APO had illegally detained P.W.1 with
respect to complaint made by Sri. Abdul Sattar Vahedna
against P.W.1 and others before J.C.Nagar Police
Station on 05.02.2009 and upon the said complaint APO
has lodged complaint in Crime No.31/2009 for the
offences punishable under Section 448, 504, 506 read
with 34 IPC and has carried out investigation, and with
regard to investigation of the case, Police had taken
P.W.1 to the Police Station as per rules and have
released them. It is evident that, if a complaint is
registered under Section 154 IPC than immediate action
should be taken as per law and upon the complaint
given by Sri. Abdul Sattar Vahedna, APO has registered
Crime No.31/2009 for the offences punishable Under
Section 448, 504, 506 read with 34 IPC and upon the
said complaint, P.W.1 and others are taken to the police
station and have released them as per rules.''
20. At paragraph No.15, the Enquiry Officer has
concluded that on 05.02.2009 neither the petitioner nor his
advocate had furnished the copy of the interim order.
21. Paragraph Nos.15 and 16 refers to earlier suit and
petitioner residing in 'Skyline Apartment', and paragraph No.18
the Enquiry Officer has concluded that the building could not
have been demolished within five to six hours. With the above
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reasoning, the Enquiry Officer has proceeded to concluded as
under:
''As it is certified that P.W.2 has not produced the
injunction order to APO on 05.02.2009 and also upon
the complaint lodged by Sri. Abdul Sattarr Vahedna on
05.02.2009 alleging that P.W.1 and others are illegally
trespassing into the property and have threatened for
life, it is understood that, the APO has registered the
complaint in Crime No.31/09 and has conducted
investigation. P.W.1 in the Crl.Pet.No.4358/2008 filed
before Hon'ble High Court he has stated at Para 6 that
he may be vacated from the house illegally and for
purpose of protection he has made an appeal for 2-5
members to reside in the said house. As P.W.1 has
mentioned before court that he is not residing in the
said house since 2008, it is understood that he is not
residing in the said house.
P.W.1 in Para-6 of his affidavit filed before CCH No.20
in O.S.No.25228/2009 has mentioned that defendants
are trying to vacate him from the said house. But, at
the time of enquiry he has not produced any document
to show that, he has registered a complaint before the
nearby police station about the incident which occurred
on 01.02.2009 or information about the same. Even it
was known that, owners had started demolishing the
building 01.02.2009, P.W.1 would have filed suit on the
same day before Hon'ble Court. But, P.W.1 has not
instituted any suit on the said day or on the next day or
any complaint before police station. It is found on the
face of it, that P.W.1 was not residing in the said
building, and it is understood that, after knowing the
said fact P.W.1 has instituted suit on 04.02.09. From
the above said reasons, the allegations made against
APO is not proved".
22. That respondent No.2-Enquiry Officer was required
to deal with facts, circumstances, allegations, evidences,
statement and documents produced during the evidence to
specifically address the charge that is framed against
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respondent No.3. In other words, the respondent No.2 was
required to enquire and come out with the report if the
respondent No.3 was guilty of charge framed against him. As
noted above, though the lengthy report deals with several
aspect including the rival claims of the parties with regard to
their rights and possession over the disputed property, the
same unfortunately does not address the core issue which is
subject matter of the enquiry. Thus, said enquiry does not
meet the requirement except making passing remarks as found
at paragraphs 14 and 18 as noted above.
23. The respondent No.2-Enquiry Officer heavily relied
upon the averments made by the petitioner at paragraph No.6
of the affidavit accompanying the application filed by him under
Order 39, Rule 1 and 2 in O.S.No.25228/2009, pursuant to
which the interim order was granted on 05.09.2009. The said
paragraph reads as under:
''6. I submit that last attempt to illegally disposes
me happened on 01.02.2009, which I resisted and
defendant have threatened to comeback.''
24. As seen above, there is no statement by the
petitioner with regard to any demolition of the building having
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taken place on 01.02.2009, as recorded in the conclusion
portion of the enquiry report extracted hereinabove. There is no
basis for the respondent No.2-Enquiry Officer to have come to
such a conclusion and to further opine that the petitioner ought
to have filed the complaint before the Police or the suit on
01.02.2009 or on the next day.
25. The other reasons assigned by the respondent
No.2-Enquiry Officer is with reference to the deposition of the
petitioner during the cross-examination, wherein he has stated
that the building cannot be demolished within two to three days
and that it was not proved that the building was demolished
within five to six hours.
26. The mahazar report drawn on 06.02.2009, pursuant
to the case in Crime No.31/2009 reveal that the residential
house is measuring about 100X40 feet having basement,
ground floor, first floor and second floor existing on the
property and that the terrace portion of first floor and second
floor of the house having been demolished and windows and
doors of all the floors and other items have been removed and
the workers were still continuing to demolish the house. The
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respondent No.2-Enquiry Officer has not adverted to the
contents of the said mahazar report, which categorically reveal
that as on 06.02.2009 only terrace of second and first floor of
the building was demolished and the demolition work was still
in progress.
27. It is not disputed that the petitioner have indeed
submitted a letter of his counsel on the evening of 05.02.2009,
intimating interim order having been granted in
O.S.No.25228/2009. It appears merely because certified copy
of the interim order was not furnished on 05.02.2009 on
instant, which according to the petitioner could not produced
since the said interim order was passed about 5.00 p.m. and
that despite the petitioner assuring to furnish the same on the
following day, respondent No.3 did not pay any heed to the
request made by the petitioner. Respondent No.3 himself is a
law enforcing officer.
28. The respondent No.2-Enquiry Officer has not
adverted to this aspect of the matter, while he is expected to
act judiciously in discharge of his functions as expected under
law.
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29. The respondent No.1 who has accepted the said
report has exonerated respondent No.3 without looking into
contents of the charge framed, evidence led in this regard as
required to be done. There is complete lack of application of
mind and consideration in the matter, by the respondent No.1.
Relevant to refer the reasons assigned by the respondent No.1
in accepting the report, which are as under;
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30. The aforesaid contents of the order accepting the
report by the respondent No.1 falls shy of the requirement of
law as there is complete lack of application of mind.
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31. As already noted hereinabove, there is no dispute of
the petitioner having filed the suit in O.S.No.25228/2009 on
04.02.2009 instant and interim order having been granted
around 5.00 p.m. on 05.02.2009. Interestingly, case in Crime
No.31/2009 for the offences punishable under Sections 448,
504 and 506 r/w 34 of IPC has been filed on the very same day
i.e., on 05.02.2009 and FIR has been registered on 05.02.2009
at 16.50 hours. The copies of the crime register and movement
register furnished by the learned HCGP do not indicate the time
at which the petitioner was purportedly arrested and detained
in the police station. It only refers to the Crime number and
names of the complainants and accused and the statement of
they having been arrested. The timing at which the complaint
alleging offences under Sections 448, 504, 506 of Cr.PC made
against the brother of the petitioner and the timings of the
registration of the case in Crime No.31/2009 by the respondent
No.3 and their purported visit to the spot would indicate that
the said complaint was apparently filed close to the heels of
petitioner filing the suit. The petitioner who admittedly obtained
the interim order has submitted a letter of his counsel
regarding he having obtained the interim order and undertaking
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to furnish the copy on the following day. There is no
gainsaying by the respondent No.3 that he was not aware of
filing of such suit or passing of interim order by the Civil Court,
merely because certified copy of the order was not furnished to
him by the petitioner on 05.02.2009 instant.
32. Given the history of the case, suits that were filed
on earlier occasions, criminal cases being pending between the
parties it was normally expected the respondent No.3 to have
verified the records and then taken further action in accordance
with law. Whether the respondent No.3 has done that or not is
not forthcoming in the repot except stating that certified copy
of the order was not furnished.
33. The misdemeanor on the part of the respondent
No.3 has been found to have been proved in the report of the
Lokayukta, which indicates malafide exercise of power by
respondent No.3 which aspect of the matter has not been gone
into by the respondent No.2-Enquiry Officer though a specific
charge in this regard as extracted herein above has been
framed. This aspect of the matter has also completely lost site
of by the respondent No.1.
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34. As rightly contended by the learned Senior counsel
for the petitioner the enquiry report by the respondent No.2
and acceptance of the said report by the respondent No.1
suffers from perversity and arbitrariness as the same is one
without appreciation of evidence, factual aspect of the matter
pertaining to the charges and which lack reasoning in that
regard.
35. In that view of the matter, following;
ORDER
(i) Petition is allowed.
(ii) The Report dated 30.05.2013 prepared by the
respondent No.2 vide Annexure-AG and the order dated
24.06.2013 passed by the respondent No.1 produced at
Annexure-A are set aside. The matter is remitted to the
respondent No.1 who shall ensure that an independent
enquiry is constituted and enquiry to be conducted afresh
taking into consideration the charge which was originally
framed and restricting the material evidence only to that
extent.
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(iii) The enquiry should be conducted as expeditiously as
possible.
Sd/-
(M.G.S. KAMAL)
JUDGE
