SHAUL HAMEED AND ANOTHER v. RANASINGHE AND OTHERS

015-SLLR-SLLR-1990-V-1-SHAUL-HAMEED-AND-ANOTHER-v.-RANASINGHE-AND-OTHERS.pdf


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Sri Lanka Law Reports
(1990} 1 Sri LR.
SHAUL HAMEED AND ANOTHER
v.RANASINGHE AND OTHERS
SUPREME COURT
MARK FERNANDO, J„ KULATUNGA, J. AND DHEERARATNE, J.
S.C. APPLICATION No. 78/87.
APRIL 25, 1989.
Fundamental Rights – Constitution, Articles 12(1) and 136(4) -Persistent discriminationand partiality by Police to one party in land dispute – Penal, Code sections 90, 92, 92(3)
– Section 56 of the Police Ordinance – Male tides – Degree of proof.
There was a dispute between the 5th Respondent's family and the Petitioners lorpossession of a plot of land set apart for construction of wells by one Gradan Wijesuriya.The Police, it was alleged, persistently supported the 5th Respondent who was thePersonal Assistant to the Secretary to the President. The Police assisted the 5thRespondent to erect a fence on the disputed land, charged the Petitioners in Court in twocases but they were tardy in taking action on the Petitioners' complaints although they werevictims of assault, robbery and damage to their house.
Held :
The limit of the authority of the Police to intervene in property disputes has to bedetermined having regard to the rights involved and the powers of the Police under the law.The right to defend property is available only in cases where there is no time to haverecourse to the protection of the public authorities (section 90,92.92(3) of the Penal Code).Section 56 of the Police Ordinance makes it the duty of the Police, interalia, to preventcrimes and public nuisances and preserve the peace. In the discharge of this duty also itmay become necessary for the Police to intervene in property disputes and affordprotection. However, protection of property or its possession does not extend to assistanceto recover property or possession where the dispute is essentially civil in character exceptvery soon after deprivation by an aggressor having no bona fide claim to the property. Herethe evidence favours the claim that the Petitioners were in possession and that the 5thRespondent was probably never in possession. In the circumstances, the 5th Respondenthad no right of private defence of property and the Police were under no duty to assist herto gain possession of the property in dispute. The breach of peace in this case was causedmainly by the 5th Respondent and her supporters who had the assistance of the Police onevery occasion. Such assistance in fact contributed to the breach of peace.
It is significant that the Police were always prompt in taking action against thePetitioners but they were tardy in taking action on the complaints of the Petitioners and thepersistent indifference to the rights of the Petitioners could not be attributable to mereprocedure. Here the impugned acts were deliberate repeated and unequal and not isolatedinstances of mistake or errors of judgment. Equal protection has been denied to thePetitioner.
An alleged violation of human rights has to be established by cogent evidence havinga high degree of probability which is proportionate to the subject matter. However thedegree of proof is not so high as is required in a criminal case.
SCShaul Hameed v. Ranasinghe105
It was the conduct of Police which aggravated the dispute and when criminal acts werealleged they chose to apply pressure only against the Petitioners despite the fact that theywere victims of assault, damage to their house and robbery. :The Polioe have used theirpower unreasonably or for an improper purpose even though .they may not be guilty ofintentional dishonesty. Such conduct is mala fide even though no moral obliquity isinvolved.
Even though the 5th Respondent benefitted by the acts of the Police she is not liablefor the infringement of fundamental rights. The Court however has the power to make anappropriate order even against a Respondent who has no executive status when suchRespondent is proved to be quilty of impropriety or connivance with the executive in thewrongful acts violative of fundamental rights or even otherwise, where in the interests ofjustice, it becomes necessary to deprive a Respondent of the advantages to be derivedfrom executive acts violative of fundamental rights e.g. an orderfor payment of damagesor for restoration of property to the Petitioner. The power of the Court to grant relief is verywide (Article 126(4)).
No infringement has been proved against the 1 st and 6th respondents but 2nd, 3rd and4th Respondents and the State is liable.
Cases referred to:
Katunayakege Demesius Perera v. Premadasa 1 FRD 70
Gunatilake v. Attorney -General 1FRD 86
Velmurugu v. The Attorney-General 1 FRD 180
Goonewardena v. Perera 2 FRD 426
Kapugeekiyana v. Hettiarachchi (1984) 2 Sri L.R. 153
APPLICATION for infringement of fundamental rights under Article 12 (1) of theConstitution.
R. K. W. Gunasekera lor petitioner J. W. Subasinghe, P. C. with D. J. C. Nilanduwa for 1 st,2nd, 4th and 6th Respondents.
D. S. Wijesinghe with Jayantha Suriapperuma for 5th respondent A. R. C. Perera S. S.C. for 7the Respondent.
Cur. adv. vult.
June 20, 1989.
KULATUNGA, J.
In this case the Petitioners claim reliefs in respect of the alleged violationof their fundamental rights guaranteed by Article 12 (1) of the Constitutionarising from purported official acts performed by Police Officers inconnection with a land dispute between the Petitioners and the 5thRespondent.
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At all time material to these proceedings the Petitioners were residentat No. 10, Bahirawakanda Path, Kandy, situated on a land which the 2ndPetitioner's 1st husband had purchased in 1970 by deed No. 9937 (XI).They were the neighbours of Mrs. Johana Hamine Athukorale who wasresident at No. 14, Bahirawakanda Path, Kandy, situated on Lot No. 1 inPlan No. 4035(X3), a fair copy of which has been produced by the 5thRespondent marked 5R3. Mrs. Athukorale had purchased the said Lot in1956. She sold it to her daughter the 5th Respondent in 1984 by deed No.28 (5R1), but continued to reside there with her daughter Mrs. ChandraWickremeratne whilst the 5th Respondent lived in Colombo with herhusband.
The 5th Respondent was the Personal Assistant to the Secretary to thePresident and her husband Mr. Morris Dahanayake was employed as Co-ordinating Officer, Insurance Corporation, Colombo.
Adjoining Lot No. 1 owned by the 5th Respondent is a triangular blockof land 4.04 perches in extent comprising Lots 1 A, 1B and 1C in Plan X3.This block of land was originally owned by one Gracian Wijesuriya whohad set it apart for construction of wells when he blocked out the land forsale in 1956. He had, however, left it unsold and this led to a disputebetween the 5th Respondent s family and the Petitioners for its posses-sion. The earliest complaint over it was made to the Police on 25.8.86 byMrs. Athukorale who states that it was given to her by Gracian Wijesuriya(5R1). However, she had no title to it. According to the 5th Respondent,Mrs. Athukorale was in possession of it from about 1984.
The 2nd Petitioner claims that she and her husband possessed theallotment in dispute forover 15 years and planted fruit trees thereon whichwere 10 to 12 years old. The fact that it had been planted is borne out bythe photographs produced in these proceedings by the Petitioners andthe 5th Respondent – (P3, p4, p5-p13 and 5R4, 4R4A, 5R4B).
Whilst the dispute for the possession of the concerned allotment oflandwason, Wijesuriya gifted it to the 5th Respondent by deed No. 12711dated 04.03.87 (5R2). This deed contains a condition that “the donordoes not warrant or defend title to the premises and further that the donordoes not undertake to give vacant possession of the said premises to thedonee". The inference which one makes on this condition is that the donorwas able to transfer only a paper title and that as on the date of the gift
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Shaul Hameed v. Ranasingha (Kulatunga, J.)
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he did not have possession of the land. This would tend to support theclaim of the Petitioners to the land, based on prescriptive possession.
Neither the deed 5R2 nor the plan 5R3 relied upon by the 5thRespondent show any fence as a boundary to the land in dispute. It isbounded on the West by Lot 1 owned by the 5th Respondent, on the Northand East by a 3 feet reservation (in which direction the Petitioners' landis situated) and on the South by the roadway. However, both parties claimthere was a fence.
According to the 5th Respondent, the fence was along the 3 feet res-ervation in which event the land in dispute would be an annex to the 5thRespondent's land depicted as Lot 1 in Plan 5R3. According to thePetitioners, the fence constituted the boundary between the said Lot 1and the land in dispute in which event it would be an annex to their land.In this context, the dispute blossomed into a battle for fixing the fencewhich each party attempted to effect by force until 6.6.87 on which datethe 5th Respondent’s party erected it with concrete posts. However, it isalleged that the Petitioners' party uprooted it on 26.6.87 in support ofwhich allegation the 5th Respondent has produced photographs 5R4,5R4A and 5R4B.
The Petitioners complain that the police were partial to the 5threspondent and exceeded their authority beyond limit acting mala fideand in disregard of the rights of the Petitioners. It is alleged that the Policestood by and even assisted whilst the 5th Respondent 's party constructedthe fence as they wished and took no meaningful action against offencescommitted by them but whenever complaints were made by the 5thRespondent’s party against the Petitioners the Police promptly arrestedthe Petitioners and produced them before Court. The Petitioners allegethat the Police have thereby violated their fundamental rights underArticle 12 (1) of the Constitution by denying to them equal protection ofthe law.
The Petitioners rest their claim for relief on certain incidents whichoccurred on 6.6.87 and thereafter. They allege that these incidents werea sequal to another incident which occurred on 28.3.87 which wasfollowed by certain other incidents which culminated in the incidentswhich occurred on 6.6.87 and that the Respondent Police Officers werepartial to the 5th Respondent during all such incidents.
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It is Alleged that on 28.3.87 the 5th Respondent together with severalPolice Officers including the 3rd and 4th Respondents and a Surveyorvisited, the land and started removing the fence stating that it would berelocated after the survey of the land purchased by the 5th Respondent.Although the 1st Petitioner protested the 3rd Respondent threatened totake him into custody and allowed the survey to proceed. The Petitionerihen contacted Mr. Wickremaratne, a lawyer who' came to the spot andinquired from the Police and the Surveyor what they were doing on theland. The 3rd Respondent and the Surveyor said that they had ordersfrom Mr. Menikdiwela, the Secretary to the President to survey the landand io relocate the fence. However, Mr. Wickremaratne pointed out thatthey had no authority to do so whereupon they left leaving a partially putup fence. The petitioners re-erected the original fence and removed thepart of the fence put up by the 5th Respondent.
Admittedly the alleged survey was carried out with a view to erectinga fence, police officers were present at the time, and this work wasinterrupted by the intervention of Mr. Wickremaratne, Attorney-at-Law.The Surveyor and the 3rd Respondent have denied informing Mr. Wick-remaratne that this work was undertaken on the orders of Mr. Me-nikdiwela who himself has made an affidavit denying that he gave anysuch order. The learned Counsel for the Petitioners agreed that thisdenial has to be accepted. Mr. Wickremaratne has declined to furnish anaffidavit in support of the allegation that Mr. Menikdiwela's name hadbeen used on this occasion. As such, the allegation that Mr. Me-nikdiwela’s name was used is also not established. Nevertheless theallegation of discrimination against the Police has to be considered on thebasis of the available evidence.
What was the role of the Police on 28.3.87? According to the statementof the 1st Petitioner made to the Police at 10.05 a m. on that day (2R2)the 5th Respondent’s husband Morris Dahanayake had broken the fenceabout 8.00 a.m. and they started making a new fence. Police Officerswere also present at the spot. According to Morris Dahanayake's state-ment (2R3) made at 11.45 a m., he had visited his wife's house in Kandyat about 7.30 a.m. that day when the 1 st Petitioner’s brother-in-law brokethe fence. When he questioned him, be said that the land belongs to themand this was reported to the Police. Then, the lawyer Mr. Wickremaratnewas brought. A number of Police Officers visited the spot and left afterinquiry.
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The 2nd Respondent Beddewela who was the Chief Inspector ofKandy Police admits that the 3rd Respondent SI Aththudawa visited thescene but not the 4th respondent PC Tikiri Banda. The 3rd Respondenthimself merely denies the allegation that he directed the 5th Respondentand the Surveyor to proceed. He admits that he visited the scene on manyoccasions but does not clarify whether he went there on 28.3.87. The 4thRespondent denies the allegation in respect of 28.3.87. He too admitsthat he visited the scene on many occasions but does not clarify whetherhe went there on 28.3.87. On the other hand, the 6th respondent (SIAmunugama) admits having gone there on his traffic rounds on 28.3.87having seen the 4th Respondent who said that he was there toinvestigate a complaint.
On the basis of the available evidence, I am satisfied that the surveywas conducted on 28.3.87 and the work on the fence had been pre-planned and Morris Dahanayake visited Kandy that morning to supervisethat work. I am also satisfied that at least three police officers werepresent at the scene. Even if the 6th Respondent had gone there havingseen the 4th Respondent, the latter along with the 3rd Respondent wereat the spot presumably on the instructions of the 2nd Respondent.However, they do not clarify with precision what their mission was. Theyowe a duty to this Court to be more specific. Yet they have opted to makevague or evasive statements. After referring to the complaints 2R2 and2R3, the 2nd Respondent states that both parties were warned to keepthe peace. However, this cannot be a reference to what occurred at thescene. In the circumstances, I accept the version of the Petitioners thatthe police officers were there to ensure that the survey and the construc-tion of the fence were not impeded but were constrained to leave due tothe intervention of Mr. Wickremaratne, Attorney-at-Law.
Petitioners allege that after 28.3.87, Kandy Police made almost dailyvisits and threatened them to permit the 5th Respondent to possess theland in dispute. This allegation is supported by the complaint made byMrs. Chandra Wickremaratne, a sister of the 5th Respondent on 6.4.87(2R4), in which she states inter alia that the Police warned the 1stPetitioner several times not to touch the fence. She complained thatdespite such warnings the 1 st Petitioner had broken the fence again.Consequently, the Police filed MC Kandy case No. 54537 (2R5) on
charging the 1st Petitioner under sections 433 and 410 of thePenal Code.
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(1990] 1 SriLR.
On 23.5.87, the 5th Respondent made a complaint to the Police to theeffect that the 1 st Petitioner was trying fraudulently to claim title to the landin dispute which had been gifted to her by the owner (2R8). It is significantthat the 5th Respondent states in that statement that the 1st Petitionerreferred her to his Attorney-at-Law who informed her that the 1stPetitioner has a road through this land and adds “It is not true. ThisAbdeen has a motorable road separately". In view of such rival claims itis difficult to characterise the 1st Petitoner's claim as being fraudulent.However, the 2nd Respondent states that on a perusal of the complaint,he gave orders for an investigation and for charges to be framed againstthe 1 st and 2nd Petitioners under sections 433,386 and 332 of the PenalCode.
According to 2R12 copy of report to the Magistrate in M.C. Kandy No.B/21120/87 the Police had inquired into a complaint of Mrs. ChandraWickremaratne, sister of the 5th Respondent to the effect that on
the Petitioners and one Kumarasinghe had with others enteredthe land in dispute and broken the fence. On this complaint, the Policeproduced the two Petitioners and Kumarasinghe before the Magistrate oncharges under sections 140/141,410 and 433/146 of the Penal Code. Itis significant that by this report the Police also represented to theMagistrate that Gracian Wijesuriya had remained in possession of theland in dispute since the sale of the other lots in 1956 until March 87 whenit was gifted to the 5th Respondent by deed No. 12711 (5R2) and thecomplainant was entitled to the possession of this land.
In so reporting to Court the Police do not appear to have takencognizance of the terms of the deed according to which Wijesuriya hadpresumably lost possession of the land as on the date of the gift. In theresult, they misreported the facts to the Magistrate which tends to supportthe allegation that the Police were partial to the 5th Respondent.
In his affidavit, the 2nd Respondent himself asserts that as on the dateof the deed (5R2) the land in dispute had been in the possession ofJohana Hamine the mother of the 5th Respondent. He states that this andother facts are based on his knowledge gained in the course of investi-gations, and conferences with Respondent Police Officers and a perusalof relevant documents. It is thus clearthat the 2nd Respondent and someother police officers were acting together and in concert in handling thedispute and all of them favoured the claim of the 5th Respondent. I nowcome to the events of 6.6.87.
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The Petitioners allege that on this day the 2nd Respondent came fairlyearly in the morning and ordered the 1 st Petitioner to permit Mr. and Mrs.Dahanayake to put up a fence enclosing the land in dispute. Thereafter,the 2nd, 3rd and 4th Respondents and several other police officers alongwith the 5th Respondent and her husband and about 20 thugs enteredthe land, pulled down the existing fence and erected a fence with concreteposts. The 3rd Respondent said that they had orders from the 1stRespondent. The 2nd, 3rd and 4th Respondents remained till the newfence had been erected and left warning the Petitioners not to attempt toregain possession of the land.
The Petitioners have produced photographs P2, P3 and P4 – P14 asevidence of the alleged incident. The photographer Kumarasiri Pereira inhis affidavit states that he took them on 06.06.87 at about 10.30 a.m.. ThePetitioners identify the 3rd, 4th and 6th Respondents in some of thephotographs and members of the gang which helped in erecting the fencein photograph P14. Photographs P3, P4, P5 and P13 show the work inprogress and police officers standing by in various positions. Petitionersidentify the man in shorts in P4 as Morris Dahanayake. The photographsalso show a van and a car..
The Petitioners allege that on the same day at about 4.30 p.m. the 5thRespondent and her husband and their thugs started smashing thePetitioners' house and assaulted the Petitioners and their daughter. The1 st Petitioner and the daughter were treated at the hospital for the injuriessustained during this incident. Photographs P6 – P12 have been pro-duced as proof of damage to the house and medical certificates P14 andP15 in proof of injuries sustained by the 1st Petitioner and his daughter.
The 1st Petitioner has with his affidavit dated 25.11.87 annexedaffidavits P18 -P22 from persons claiming to be eye witnesses to theincident which occurred on the evening of 6.6.87. Mathew Joseph (P18)states that he identified Chandra Athukorale and Abey. Issadeen (P20)states that a gang of people attacked the petitioners' house and assaultedthem. He identified Morris Dahanayake. They went away in vehicle No.8 Sri 2621 and a white colour van which belongs to the InsuranceCorporation.
The 5th Respondent states that on 6.6.87, they were repairing the
fence which had been damaged by the Petitioners when Kumarasiri
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On 23.5.87, the 5th Respondent made a complaint to the Police to theeffect that the 1 st Petitioner was trying fraudulently to claim title to the landin dispute which had been gifted to her by the owner (2R8). It is significantthat the 5th Respondent states in that statement that the 1st Petitionerreferred her to his Attorney-at-Law who informed her that the 1stPetitioner has a road through this land and adds “It is not true. ThisAbdeen has a motorable road separately”. In view of such rival claims itis difficult to characterise the 1st Petitoner's claim as being fraudulent.However, the 2nd Respondent states that on a perusal of the complaint,he gave orders for an investigation and for charges to be framed againstthe 1 st and 2nd Petitioners under sections 433,386 and 332 of the PenalCode.
According to 2R12 copy of report to the Magistrate in M.C. Kandy No.B/21120/87 the Police had inquired into a complaint of Mrs. ChandraWickremaratne, sister of the 5th Respondent to the effect that on
the Petitioners and one Kumarasinghe had with others enteredthe land in dispute and broken the fence. On this complaint, the Policeproduced the two Petitioners and Kumarasinghe before the Magistrate oncharges under sections 140/141,410 and 433/146 of the Penal Code. Itis significant that by this report the Police also represented to theMagistrate that Gracian Wijesuriya had remained in possession of theland in dispute since the sale of the other lots in 1956 until March 87 whenit was gifted to the 5th Respondent by deed No. 12711 (5R2) and thecomplainant was entitled to the possession of this land.
In so reporting to Court the Police do not appear to have takencognizance of the terms of the deed according to which Wijesuriya hadpresumably lost possession of the land as on the date of the gift. In theresult, they misreported the facts to the Magistrate which tends to supportthe allegation that the Police were partial to the 5th Respondent.
In his affidavit, the 2nd Respondent himself asserts that as on the dateof the deed (5R2) the land in dispute had been in the possession ofJohana Hamine the mother of the 5th Respondent. He states that this andother facts are based on his knowledge gained in the course of investi-gations, and conferences with Respondent Police Officers and a perusalof relevant documents. It is thus clear that the 2nd Respondent and someother police officers were acting together and in concert in handling thedispute and all of them favoured the claim of the 5th Respondent. I nowcome to the events of 6.6.87.
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The Petitioners allege that on this day the 2nd Respondent came fairlyearly in the morning and ordered the 1 st Petitioner to permit Mr. and Mrs.Dahanayake to put up a fence enclosing the land in dispute. Thereafter,the 2nd, 3rd and 4th Respondents and several other police officers alongwith the 5th Respondent and her husband and about 20 thugs enteredthe land, pulled down the existing fence and erected a fence with concreteposts. The 3rd Respondent said that they had orders from the 1stRespondent. The 2nd, 3rd and 4th Respondents remained till the newfence had been erected and left warning the Petitioners not to attempt toregain possession of the land.
The Petitioners have produced photographs P2, P3 and P4 – P14 asevidence of the alleged incident. The photographer Kumarasiri Pereira inhis affidavit states that he took them on 06.06.87 at about 10.30 a.m.. ThePetitioners identify the 3rd, 4th and 6th Respondents in some of thephotographs and members of the gang which helped in erecting the fencein photograph P14. Photographs P3, P4, P5 and P13 show the work inprogress and police officers standing by in various positions. Petitionersidentify the man in shorts in P4 as Morris Dahanayake. The photographsalso show a van and a car..
The Petitioners allege that on the same day at about 4.30 p.m. the 5thRespondent and her husband and their thugs started smashing thePetitioners' house and assaulted the Petitioners and their daughter. The1st Petitioner and the daughter were treated at the hospital for the injuriessustained during this incident. Photographs P6 – P12 have been pro-duced as proof of damage to the house and medical certificates P14 andP15 in proof of injuries sustained by the 1 st Petitioner and his daughter.
The 1st Petitioner has with his affidavit dated 25.11.87 annexedaffidavits P18 -P22 from persons claiming to be eye witnesses to theincident which occurred on the evening of 6.6.87. Mathew Joseph (P18)states that he identified Chandra Athukorale and Abey. Issadeen (P20)states that a gang of people attacked the petitioners' house and assaultedthem. He identified Morris Dahanayake. They went away in vehicle No.8 Sri 2621 and a white colour van which belongs to the InsuranceCorporation.
The 5th Respondent states that on 6.6.87, they were repairing the
fence which had been damaged by the Petitioners when Kumarasiri
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Pereira a brother of the 2nd Petitioner accompanied by the othersthreatened them with bodily harm. The timely arrival ot the Policeprevented a serious breach of the peace. The parties were instructed tomaintain peace and the damaged fence was re-erected. As regards theincident on the evening of that day the 5th Respondent states that justbefore they left Kandy the Petitioners and others started shouting andcreated a commotion and she heard windows being smashed in thehouse of the Petitioner.
The 1 st Petitioner appeared at the Kandy Police Station with bleedinginjuries on his forehead on the evening of 6.6.87. In his statement whichwas recorded at 5.15 p.m. he complained of an attack on his house byabout 20 persons. One Abey of Kandy caused damage to the house andalso assaulted him with a flower pot, and snatched the 2nd Petitioner'sgold chain. He identified only Abey among the crowd (2R14).
The 1 st Respondent (Superintendent of Police, Kandy) denies havinggiven an order for the construction of the fence on 6.6.87. He admitshaving visited the scene along with the 2nd Respondent in connectionwith the 1 st Petitioner’s complaint as regards the incident which occurredat his house on the evening of that day.
The 2nd Respondent denies the allegations in respect of 06.06.87.However, he admits –
that he visited the scene at 11.30 a.m. and returned to the stationat 12.00 p.m. in connection with the dispute;
that the 4th Respondent had visited the scene in the course of hisduties to ensure that there was no breach of the peace;
that the 6th Respondent who was attached to the traffic branchhad gone to the scene in the course of his rounds.
The 3rd Respondent denies having visited the scene on 06.06.87.However, he admits his appearance in photographs P4 and P5 but statesthat he visited the scene on many occasions in the performance of hisduties and that said photographs may have been taken on such occa-sions at the scene.
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The 4th respondent denies the allegations in respect of 6.6.87. Hestates that on the orders of his superior officers he held investigations intocomplaints relating to the land dispute between the 1 st and 2nd petition-ers and the 5th respondent and visited the scene on many occasions andthat he appears in photograph P2 taken on one such occasion.
The 6th respondent denies the allegations in respect of 06.06.87. Heneither admits nor denies having visited the scene on that day. He admitsthat he appears in photograph P3 and states that he had been to thescene on 28.3.87 whilst on traffic rounds and that it.had been taken onsuch occasion.
The petitioners' allegation is that after a series of attempts to deprivethem of the possession of the land in dispute,they were dispossessed on6.6.87, by a show of force and threats with the active assistance of thePolice. This allegation is supported by the evidence which I havesummarised. The construction of a fence with concrete posts was carriedout in the presence of some of the respondents. The 3rd, 4th and 6threspondents appear in the photographs which have captured the incidentin graphic detail despite attempts by the respondents to shift the datewhen they were photographed. Admittedly, the 2nd respondent was atthe scene from 11.30 a.m. to 12.15 p.m. The 5th respondent says thetimely arrival of the Police saved a breach of the peace and that they re-erected the fence after the Police had instructed the petitioners tomaintain the peace.
Mr. R.K.W. Goonesekera, Counsel for the petitioners submitted thatwhilst he concedes to the Police the traditional function of conciliatingminor disputes and the authority to maintain peace in appropriatesituations, in the instant case the Police have exceeded their authoritybeyond limit and in a discriminatory manner. I am of the opinion that thissubmission is warranted by the evidence.
The limit of the authority of the Police to intervene in property disputeshad to be determined having regard to the rights involved and the powersof the Police under the law. Section 90 of the Penal Code confers on everyperson the right, subject to restrictions contained in section 92, to defendthe property of himself or any other person against acts constitutingoffences affecting property. Section 92(3) provides that there is no rightof private defence in cases in which there is time to have recourse to the
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protection of the public authorities. Therefore, the Police do have a dutyto afford such protection. Under section 56 of the Police Ordinance it isthe duty of the Police inter a//ato prevent crimes and public nuisances andto preserve the peace. In the discharge of this duty also it may becomenecessary for the Police to intervene in property disputes.
However, protection of property or its possession does not extend toassistance to recover property or possession where the dispute isessentially civil in character except very soon after deprivation by anaggressor having no bona fide claim to the property. Here the evidencefavours the claim that the petitioners were in possession and that the 5threspondent probably was never in possession. In the circumstances, the5th respondent had no right of private defence of property and the Policewere under no duty to assist her to gain possession of the property indispute.
It is apparent that the dispute between the parties was essentially acivil dispute resulting from the efforts of the 5th respondent to gainpossession of the land in dispute after she had obtained a gift of it on
on deed 5R2 according to which the donor was not in a position togive vacant possession. The Police have no authority to assist in such acase.
The breachof peace in this case was mainly by the 5th respondent andher supporters who had the assistance of the Police on every occasion.I am of the view that such assistance in fact contributed to the breach ofpeace and was not warranted by section 56 of the Police Ordinance.
The appropriate procedure was to refer the dispute to the PrimaryCourt under section 66 of the Primary Court Procedure Act. The Policefailed to make such reference and thereby aggravated the breach ofpeace. In the result the 2nd petitioner was constrained to institute D. C.Kandy case No. 15490 (2R17) against the 5th respondent, her sister andanother on 2.6.87 for a declaration of title to the land by prescription, forthe ejectment of the defendants and damages.
If the defence of the Police is that they had been summoned to preventa breach of the peace they have a duty to clarify to this Court thecircumstances of their intervention. This duty cannot be discharged by a
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mere denial of the allegation or evasive averments. It is strange thatwhenever the 5th respondent wished to erect the fence the Police werepresent at the scene in force in circumstances which suggest that theywere so present by engagement with the 5th respondent, outside theperformance of their normal duties.
It is also significant that the Police were always prompt in taking actionagainst the petitioners. Thus is respect of the incident on 6.4.87 criminalproceedings were instituted on 20.4.87. In respect of the incident on
the petitioners and one Kumarasinghe were arrested and producedin Court with the report under section 115 (1) of the Code of CriminalProcedure. However, in respect of the petitioners’ complaint on 6.6.87,investigations were not complete even at the time of the 2nd respondent’saffidavit in September 1987.
On 25.6.87, the 5th respondent’s mother made a complaint to thePolice (2R 15) in which she alleged that the disputed fence had beenuprooted by the petitioners. The 1st respondent ordered the 2ndrespondent to proceed to the scene and investigate the matter.Consequently, the petitioners were arrested and produced before theMagistrate for offences under Sections 140,144,433,434,410,367 and486 of the Penal Code.
I shall now examine the steps taken by the Police on the 1 st petitioner’scomplaint of 6.6.87. He told the Police that he identified one Abey ofKandy among the crowd that came to his house. Abey caused damageto the house, assaulted him with a flower pot and snatched the 2ndpetitioner’s gold chain. On 15.6.87 the Police made a report to theMagistrate (2R14A) but did not produce any suspect. It was only on 9.1.89that criminal proceedings were instituted against Gamini Abeyratne andChandra Athukorala in M. C. Kandy case No. 79202. The proceedings inthat case (2R14B) show that as on 24.4.89 summons had not beenserved on the accused.
The address of Gamini Abeyratne mentioned in the charge sheet filedby the Police is Kengalle Street, Kengalle. I find that one GaminiAbeyratne of Kengalle Street, Kengalle had witnessed the deed of gift(5R2) on which the 5th respondent claims title to the land in dispute. The5th respondent in her complaint made on 23.5.87 (2R8) told the Policethat on that day she visited the land in dispute with her son Channa
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Dahanayake accompanied by one Gamini Abeyratne. Probably thereforethe accused Gamini Abeyratne and the man referred to in documents 5R2and 2R8 are one and the same person who was a close associate of the5th respondent and whose movements were well known. Yet there is noevidence of any effort by the Police to trace him.
The 2nd respondent's explanation for the inordinate delay in institutingcriminal proceedings on the 1st petitioner's complaint is that as thiscomplaint disclosed an offence of robbery of a gold chain the matter hadto be reported to the Police Headquarters in conformity with departmentalorders. Mr. Subasinghe, P. C. told us that the Police were awaitinginstructions from Police Headquarters before institution of criminalproceedings. However, the learned Counsel conceded that departmentalorders cannot supercede the provisions of law applicable to criminalproceedings.
Having regard to the entire conduct of the Police established in theseproceedings, I am unable to treat the delay by the Police in pursuingaction on the petitioners' complaint as attributable to mere procedure. Onthe other hand, it is attributable to their persistant indifference to the rightsof the petitioners.
It is true that the Police have onerous duties in maintaining law andorder and often have to act under constraints. I would not construe everyexcess by them as constituting a breach of fundamental rights underArticle 12 (1). It is only where the discrimination is deliberate that it wouldinfringe on Article 12(1)- Katunayakege Demesius Perera v. Premadasa,(1). If the Police made a mistake (specially a single mistake) in attemptingto assist in recovery of possession, it would not per se be a violation ofArticle 12 (1). Here the impugned acts were deliberate, repeated andunequal because complaints against the 5th respondent were so tardilyand inefficiently dealt with. Therefore, equal protection has been deniedto the petitioners.
At the same time, a wrong decision due to an error of judgment on aquestion of fact cannot constitute a breach of the fundamental right ofequality in the eye of law – Gunatilleke v. Attorney-General (2). An allegedviolation of human rights has to be established by cogent evidence havinga high degree of probability which is proportionate to the subject matter.However, the degree of proof is not so high as is required in a criminal
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Shaul Hameed and Another v. Ranasinghe and Others (Kuiatunga, J.)117
case- Velumurugu v. The Attorney-General(3). This standard of proof hasbeen applied in Goonawardena v. Perera (4) and Kapugeekiyana v.Hettiarachchi, (5).
Mr. Subasinghe, P. C., learned Counsel for the 1st, 2nd, 4th and 6threspondents and Mr. D. S. Wijesinghe, learned Counsel for the 5threspondent, submitted that the acts of the Police were bona fide and atthe most committed by an error of judgment. I am unable to agree with thissubmission except as regards the 1st and the 6th respondents. Theevidence establishes a series of incidents which gave ample opportunityto the Police Officers concerned to appreciate the correct position and totake appropriate action in respect of what was essentially a civil dispute.It was their conduct which aggravated it and when criminal acts werealleged they chose to apply pressure only against the petitioners. Theyhave used their power unreasonably or for an improper purpose eventhough they may not be guilty of intentional dishonesty. Such conduct ismala fide even though no moral obliquity is involved – Wade onAdministrative Law Fifth Edn. 391 ; Principles of Administrative Law, Jain4th Edn. 562.
In all the circumstances, I am satisfied that the charge against the 2nd.3rd and 4th respondents has been established as required by law. The2nd respondent has filed the main defence in these proceedings and theother respondent-Police Officers have stated that they accept and abideby the averments in that defence. In the light of their conduct and thecommon defence taken by them I am of the view that all of them are jointlyand severally liable for violating the rights of the petitioners.
I determine that the 2nd, 3rd and 4th respondents have in thepurported exercise of statutory power infringed the rights of the petitionersunder Article 12 (1) of the Constitution by executive or administrativeaction, and that they along with the State are liable for such infringements.However, Mr. Subasinghe, P. C. informed us at the hearing that the 3rdrespondent has since died and as such I shall make no order for reliefagainst him.
Taking into account the harassment and the pain of mind suffered bythe petitioners at the hands of the Police whenever they asserted theirclaim to the land in dispute and having regard to the duty of the State tolay down guidelines against such excesses as established in these
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proceedings, I hold that the petitioners are entitled to Rs. 5,000 ascompensation and Rs. 1050 as costs from the 2nd and 4th respondentsand the State jointly and severally.
The available evidence does not establish that the 1 st respondent hasviolated the fundamental rights of the petitioners. Thus on 6.6.87 hevisited the scene along with the 2nd respondent in connection with the 1 stpetitioner’s complaint. On 25.6.87 he ordered the 2nd respondent toproceed to the scene and investigate the complaint of the 5th respondent.These were acts performed by the 1 st respondent as the superior officerof 2nd, 3rd and 4th respondents but none of these acts were calculatedto interfere with the rights of the petitioners. The petitioners allege that on
the 3rd respondent said that they had orders from the 1strespondent. The 1st respondent has denied having given the orderreferred to and even if an order had been given I am not satisfied that the1 st respondent intended thereby to direct his subordinates to commit anyunlawful acts. I therefore dismiss the application against the 1 st respondentwithout costs.
Even though the 5th respondent benefited from the acts of the PoliceI hold that she is not liable for the infringement of fundamental rights of thepetitioners. This Court has the power to make an appropriate order evenagainst a respondent who has no executive status where such respondentis proved to be guilty of impropriety or connivance with the executive inthe wrongful acts violative of fundamental rights or even otherwise, wherein the interest of justice it becomes necessary to deprive a respondent ofthe advantages to be derived from executive acts violative of fundamentalrights e. g. an order for the payment of damages or for the restoration ofproperty to the petitioner. Article 126 (4) provides that ‘the Supreme Courtshall have the power to grant such relief or make such directions as it maydeem just and equitable in the circumstances in respect of any petition or
reference referred to in paragraphs (2) and (3) or this Article". The
power of this Court to grant relief is thus very wide. Such power has beenexpressly conferredto make the remedy under Article 126 (2) meaninglul.
However, in the absence of proof of impropriety or connivance by the5th respondent in the wrongful acts of the 2nd, 3rd and 4th respondentsand particularly in view of the fact that the dispute between the parties isnow before the District Court, I do not consider it necessary to make anyorder against her. Accordingly, the application against her is dismissedwithout costs.
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Lakshman de Silva v. Hon. H. W. Senanayake and Another
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The 6th respondent has only visited the scene on his traffic roundshaving seen the 4th respondent there and the petitioners have notclaimed any relief against him. I dismiss the applications as against himwithout costs.
MARK FERNANDO, J. -I agree.
DHEERARATNE, J. -I agree.
Application upheld against 2nd, 3rd and 4th respondents.
Application against 1st, 5th and 6th respondents dismissed.