ORDER
M. Sharma, J.
1. This Revision petition has been preferred against the order of Mr. P.S.
Dkhar, Assistant to Deputy Commissioner, Ri-Bhoi District, Nongpoh by which the stay order dated 6-6-1994 in Misc. Case No. 2/94 in Title Suit No. 1 of 1994 was vacated.
2. The petitioner as plaintiff filed Title Suit No. 1 of 1994 along with an application for injunction for declaration of right of possession, permanent injunction and for cancellation of invalid sale deed and patta and by order dated 6-4-1994 an interim injunction was granted restraining the defendant or any other persons claiming through them or on their behalf from entering into, interfering with or doing anything with the suit land. The subject matter of the T.S. was that the plaintiff was rightful owner of the suit land which was situated at Jorhat Village, which she acquired jointly with her husband (O. P. No. 2) in 1959, during wedlock. The opposite party No. 4 being a non tribal, it is alleged has no legal right to hold, acquire or own any landed property in the tribal area, without approval of the District Council and therefore petitioner who was his tribal wife, acquired the land jointly. That after, the birth of the son, Attorney, of the petitioner, the petitioner was deserted by the opposite party No. 4 and since then the land was looked after and managed by the petitioner and her son by constructing dwelling houses and possessing the same by her family cultivating and planting valuable fruits plants.
3. By order dated 25-8-1994 trial court, after hearing the parties vacated the injunction order. Copies of this order were sent by the court including the Office-in-Charge, Khanapara P.S. “for information and necessary action.” Opposite party No. 2 H. S. Phanbuh aided by the Opposite party Nos. 3 and 4 along with a number of policemen came to the suit land on 30-8-1994 and forcibly entered the dwelling house of the petitioner’s son and without any warrant-order issued by a competent Court. Despite protest by the petitioner’s son the said opposite parties assaulted physically her son, smashed house-hold articles and drove out the inmates of the house and evicted them from the suit land. Petitioner’s son was arrested on charge of obstruction and physical restraint to public servant i.e. P.W. 2. Officer-in-Charge of Khanapara Police Station. Petitioner’s son was produced in Court on 30-8-1994. Next day petitioner’s son was produced before the Court and the learned Magistrate found him in a bad physical state and ordered for treatment and hospitalisation and on the Medical Report petitioner’s son was sent by the Magistrate for X-Ray at Shillong. Thereafter petitioner’s son was granted bail.
4. It is alleged that as result of the forceful eviction by the opposite party Nos. 3 and 4, the petitioner’s son with his wife and four children have been rendered homeless and forced to take shelter at his relation’s home at Shillong and spending his days, in starvation as he lost his source of income for property in dispute.
5. On 9-5-1994 (Annexure 2 to the affidavit-in-reply filed by the petitioner), the son of the petitioner (attorney) Shri Rakhi Rumnong filed an application for police protection against the threatened eviction by the opposite party No. 3 (defendant) Quleny Passa along with some persons from Shillong.
6. As it transpires, petitioner obtained the ad interim injunction order ex parte and after tiling the objection by the opposite party matter was heard, and by order dated 25-8-1994 the ex parte injunction dated 6-6-1994 was vacated. Most interesting aspect of the order was that. The learned Assistant to the Deputy Commissioner Mr. P. S. Dkhar sent copies of his judicial order to some of the defendants including the officer-in-charge, Khanapara Police Station “for information and necessary action”. The allegation of the
petitioner was that taking advantage of the said order opposite party No. 2 H. B. Bhanbuh along with opposite party No. 3 Ka Quincy Pashali and opposite party No. 4 Chittaranjan Das, and along with a number of police men came to the suit land and entered the dwelling house of her son by force without any warrant or order issued by the competent Court on 30-8-1994. Despite protest from her son, the said opposite parties assaulted her son, smashed household articles, and drove out the inmates of the house and evicted them from the suit land. The subseqauent conduct of the police was more deprecatable which is not only unprecedented in a country where Rule of law prevailed upon on all arbitrary action of any authority. The petitioner’s son was arrested on charge of obstruction and physical restraint to public servant by opposite party No. 2, officer-in-charge of Khanapara Police Station, Petitioner’s son was produced before the Magistrate/Court on 31-8-1994 who found him in bad physical condition and ordered for treatment and hospitalisation. After Medical examination at Nongphooh Hospital from the report of the Medical Officer, the Magistrate ordered for X-Ray at Shillong. Thereafter petitioner’s son was granted bail on 5-9-1994. The allegation of the petitioner is that due to illegal, excess, police action at the instigation of opposite party Nos. 3 and 4, the petitioner’s son with his family was rendered homeless and forced to take shelter in the home of the relatives at Shillong.
7. There is no dispute that trial Court has jurisdiction to pass ex parte ad-interim injunction in appropriate case, if the Court is satisfied that facts and circumstances of the case, prima facie, require such order. Accordingly the Court was satisfied and passed the order with notice to the opposite parties and the ex parte interim stay was vacated. But evidently, it was established that, at the time of police raid the petitioner’s son was in possession, though attempt has been made by the opposite party No. 3, that taking the advantage of the order of ex parte interim injunction, the petitioner, through her son, forcibly occupied the disputed property. Apparently no information against forceful
possession by the petitioner was complained to the notice or to the Court.
8. Mr. M. Z. Ahmed, learned counsel for the opposite, party No. 4 submitted that, the opposite party never even under Section 151 made a prayer to the Court to evict the petitioner party by employing police force and denied any involvement or instigation on their part to evict the petitioner’s son was done in the case.
9. From the above circumstances, I am constrained to hold that learned Assistant to the Deputy Commissioner misused his authority as provided under the law. Under Order 39 provides procedure for taking step for violation of Court’s order and any judicial officer trained in law has to act under the mandatory provision of the Code. If any party of the suit/proceeding fail to comply with Court’s order, police help can be directed in appropriate cases, if Court, after receiving such petition from the aggrieved party, satisfied that police help was necessary. Apparently the order dated 6-6-1994 discussed the entire case and with a reasoned order, the Court granted ad interim ex parte injunction in favour of the petitioner with notice to the opposite parties.
10. By the order dated 6-6-1994 the Court found that, the petitioner’s son had been residing in the suit property in a house, constructed by the petitioner. The established position of law in that injunction order can not ascertain the right of the parties in the suit; only for adjudication of claim if a prima facie case is found out for trial, and physical possession is established, ex parte injunction can be granted, and, after hearing the opposite party it may be made absolute or may be vacated. In this initial stage Court need not go to the merit of the case to give its decision at the preliminary stage-which would apparently prejudice the right of the either party. Court cannot presume the right, interest and title of parties without legal evidence in the suit/trial. The impugned order dated 25-8-1994, certainly has deviated from the principle and procedure provided under Section 39 of the Code.
11. This Court is very much disturbed to the manner of eviction and use of police force which is unprecedented in our judicial system. Taking advantage of Court’s order, evidently police force indulged in exceeding its power. In the impugned judgment the Court held that at the time of filing the suit along with the injunction petition, the petitioner was in possession of the suit land or part of it through her son, as her attorney. Further there was no prayer on the part of the opposite party No. 3 to evict the petitioner party with police help. Court did not mention in its order that situation warranted eviction of the petitioner (through her son) by employing police force nor there was any direction to police to evict the petitioner. Simply a copy of the order was forwarded to police for necessary action vide Memo No. Misc. 2/94, dated Nongpooh, the 26th August, 1994. But police had taken the order in its own way, and in the name of performing of official order, petitioner’s son was evicted, rendering them homeless and damaging their house-hold property by physically torturing him and learned Magistrate who found him in seriously injured condition when produced before him by police, had to direct the police to hospitalise him for treatment. This excess of police action shows misuse of process of the Court converting it to the draconian use of force by police.
12. On 30-8-1994 (Annexure-5 to the
Affidavit-in-reply filed by the petitioner), Opposite Party No. 2 made an inquiry in connection with Court’s order vide Misc. 2/94-A dated 30-4-1994 in confirmation to Misc. 2/94 dated 28-8-1994, he was obstructed by Shri Rakhi Hamnong, son of Chittaranjan Das, that as said Rakhi had gone to the extent of snatching the police arm in order to cause physical injury; he was held up, but failing to do so he ran away from his premises and jumped from the hill top over making road at Jorhat and sustained injuries.
13. As staled above there was no such direction from the Court to evict the petitioner Party. As Mr. Mahanta learned counsel for the petitioner submits that the police report dated 30-8-1994 (Annexure-2 to the
Affidavit-in-reply) was an attempt to impress the police atrocities, in which actually petitioner’s son was chased by the police who was unarmed and lonely person and who had no courage to obstruct the police force all alone. From the facts and circumstances, I find force in the submission of Mr. Mahanta.
14. This situation as stated in the bar is common and known in the State where the executive Officers are conferred with judicial power and these officers are not properly trained with judicial procedure and even not equipped with knowledge of law. Under the administration of justice order 1950, the judicial power has been conferred to the executive officers and mostly they are not conversant with practice and procedure of law. It is needless to discuss the vices of non adoption of constitutional mandate for separation of Executive from judiciary which has been ordained by the constitution separation of Executive from Judiciary has been held as the basic structure of Democracy and all the States of the Union of India has adopted the policy and separate judiciary is functioning since long back except the Hill States of N. E. Region. Our Constitution provides for Rule of law and independent judiciary for proper democratic functioning of our republic, where separation of judiciary is contemplated to enforce rights of the citizens conferred by Constitution for equal protection of life and liberty to all the citizen. The people of the Hill States who identify themselves to the main stream of the national life, certainly require similar protection, equality under the Rule of law which the similarly situated citizens of other States of the Union enjoying. The consequence of non-implementation of the separation of judiciary from Executive are apparent and Writ large in the hand of the executive who are not only unequipped with judicial knowledge, but also overworked with the administrative function hardly having opportunity to devote time for their judicial work which needs not only training but also knowledge to impart with justice to the litigant people. Our Constitution confers divine right to the judiciary to judge the fellow human beings to which judicial restrain, knowledge and human
approach is necessary.
15. As from the facts and circumstances as have emerged from above discussion the consequential effect of the impugned order has to be considered. As discussed above, there was no direction by the Court to the police to evict the son of the petitioner by applying force. Resistance from the son of the petitioner by applying force. Resistance from the son of the petitioner as human being was natural as he was occupying a house in the suit land construction by the son of the petitioner to perform official work of the police. Admittedly petitioner was arrested on the basis of the police report dated 30-8-1994 by the opposite party No. 2 the Officer-in-charge, Nongpooh Police Station and produced before the Magistrate next day in a precarious, injured condition. Mr. Mahanta had submitted that inhuman torture by police was started right from the eviction from the house to the lock-up and petitioner’s son was hospitalised.
16. I am constrained to hold that it is high time to implement the police of separation of executive from judiciary as citizens of the Hill States are becoming very much aware of asserting the right through judicial process and not by whims of the executive officers.
17. Evidently process of law was misused by the Court itself and taking its advantage police acted in excess of its power. In executing of a Court’s order, police required to keep in view that the matter relates to Civil Rights of the respective parties and there was no specific order of Court to evict the petitioner party. A copy to police for “necessary action” cannot be interpreted that the petitioner’s son be evicted by police force. Opposite party No. 2 denies her involvement of instigation to police and disowns her participation in the eviction process. Apparently, police exceeded its action for which the son of the petitioner had to suffer his life and liberty as he was kept in custody for unfounded allegation of the police.
18. During the pendency of the case this Court by order dated 7-12-1994 directed the Assistant to the Deputy Commissioner,
Nongpooh for personal appearance as Mr. Mahanta learned counsel for the petitioner insisted this Court to initiate contempt of Court against the Officer alleging that the officer be charged for misuse of process of its own count. The officer was heard in the Chamber, of the Court who tendered unconditional apology admitting his lack of knowledge of law and procedure to be followed in such cases. On this ground this Court did not consider to initiate contempt proceeding.
19. Mr. Mahanta insisted that in appropriate cases, High Court can under Article 227 of the Constitution, take action against the concerned police officer and therefore police may be directed to pay compensation for the damage, mental, physical and financial to the son of the petitioner. Certainly police excess was established in so-called execution of the Court’s order. As submitted by Mr. M. Z. Ahmed, that the opposite party No. 3 never prayed for eviction by police as was done in this case. Opposite party No. 3 approached the Court only to assert her rightful claim over the suit land through appropriate and proper process of law.
20. In such case it was the duty of the Officer-in-charge of Nongpooh police Station to approach the Court for clarification of the Court’s order. Certainly police cannot take to its hand the draconian process in the guise of implementation of Court’s order. Some order is necessary to restrict such out look/action of police in future so that poor helpless citizens cannot be victimised. The trial Court no where in its order directed the police to evict the petitioner nor the opposite party made prayer for police help to evict the petitioner. The Courts finding on the basis of the objection of the opposite party was that there is controversy as to right of occupancy by plaintiff/petitioner and her attorney; but it was also finding of the Court that petitioner through attorney occupied the land on 1993 i.e. on the date of passing of the ad-interim injunction Court found petitioner’s attorney in possession of the suit land. Police action was an unauthorised action acted beyond its power for the occasion which caused damage
to both property and person of the petitioner’s attorney. Accordingly, I direct the opposite party No. 2 H.B. Panbuh, Officer-in-charge (then), Khanapara Police Station District-Ri-Bhoi under whose leadership the atrocity was done, to pay Rs. 4,000/-(Rupees four thousand) as compensation to the son of the petitioner. This amount shall be paid within one week from the date of receipt of the order.
21. By order dated 9-11-1994 this Court directed to maintain statuts-quo. The trial Court is directed to restore the possession of the petitioner, through her son to the house which was constructed by the petitioner and restore her possesion accordingly. Every attempt shall be made by the Court to dispose of the suit expeditiously. The respondent No. 3 is directed to pay a costs of Rs. 500/- to the petitioner.