019-SLLR-SLLR-2001-V-1-SIRIMAWATHIE-FERNANDO-v.-WICKREMARATNE-OFFICER-IN-CHARGE-POLICE-STATION.pdf
SIRIMAWATHIE FERNANDO
v.WICKREMARATNE. OFFICER IN CHARGE,
POLICE STATION, DEHIWELA AND OTHERS
SUPREME COURTFERNANDO. J.
WEERASEKERA, J. ANDISMAIL. J.
SC APPLICATION NO. 255/98.7™ DECEMBER, 1999
Fundamental rights – Lease of municipal market stalls ■ Forcible evictionof the lessee from a shop – Liability of the Mayor and police officers -Articles 11, 13(1) and 13(2) of the Constitution.
The petitioners' sister was the lessee of shop No. 2 Dehiwala Marketbelonging to the Dehiwala – Mt. Lavlnla Municipal Council. The lessee wascarrying on a grocery business In the premises. As the lessee was old andfeeble, the petitioner assisted her to continue with the business. The 5threspondent the Mayor of the Council is said to have decided to build anew shopping area; and after the construction of new stalls on one side, anumber of shop keepers including the petitioner were called upon to shifttheir business ‘‘temporarily" to new premises and to demolish the existingstalls where they were carrying on business. A number of shop keepersIncluding the petitioner and her sister were not agreeable to this request.Instead, the petitioner's sister and four others filed a writ application Inthe Court of Appeal; and on 17.3.98 the court Issued an ex parte stayorder restraining the 5th respondent and the 6th respondent (MunicipalEngineer) from ejecting the five petitioners In that case. Each of thepedtloners obtained copies of that Order which was also notified to the 5thand 6th respondents by the Registrar, Court of Appeal by express telegramon 17.3.98. It was however not clear whether the telegram reached Dehiwalaon the 17th, 18 th or 19tt
On 18.3.98 employees of the Municipal Council led by one Ramyapalaclaiming to act on the order of the Mayor visited the market with abouttwelve police officers including the 1“‘ respondent (O.I.C.). The 2ndrespondent Sergeant Silva ordered the Council employees to fix barbedwire to the entrance of shops, including shop No. 2. The petitioner objectedproducing a certified copy of the stay order. The 1* respondent crumpledIt and threw It away saying that he was there to carry out the Mayor'sOrder. The petitioner was abused and arrested by the 2nd and 3 rd
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respondents tn the presence of the Is respondent and taken to the PoliceStation in a jeep. She was assaulted whilst In the jeep and sustained injurieswhich required medical treatment.
Held :
There was no lawful order by the 5th respondent for the ejectment ofthe petitioner's sister or the petitioner.
Per Fernando, J.,
"It may well be that the 5th respondent was motivated by the desire tocomplete the shopping area. But there was no suggestion that the petitioner'ssister was under a legal obligation to vacate her shop, even temporarily;even if she was, that would have been a civil dispute. The 5"1 respondentshould have resorted to his legal remedies, and there was no Justificationfor setting the police in motion."
The fundamental rights of the petitioner under Articles 11, 13( 1) and13(2) have been violated by the Is* and 5th respondents.
APPLICATION for relief for infringement of fundamental rights.
Upul Jayasuriya with R. Radhakrlshnan for petitioner.
Jayalath Hlssella for 1st to 3rd respondents.
Mrs. B.J. Tillekeratne. S.S.C. for 4th, 7th respondents.
W. Dayaratne for 5th and 6th respondents.
Cur. adv. vult.
February 23, 2000.
FERNANDO, J.The Petitioner complains that on 18.03.98 the 1st, 2nd, 3rd,5th and 6th Respondents infringed her fundamental rights underArticles 11, 12( 1) and 13(1), while evicting her from her sister’sshop at the Dehiwela market.
SC Strtmawathte Fernando v. Wtckremaratne, Officer tn Charge, 261
Police Station, Dehiwela and others (Fernando , J.)
The Petitioner averred that in or about 1967 her sister Mrs.K.B. Fernando had been given possession of shop No. 2, MarketPlace (small). Galle Road, Dehiwela, by the Dehiwela-MountLavinia Municipal Council; and that ever since then her sisterhad been carrying on a grocery business in those premises. The5th and 6th Respondents (the Mayor and the Municipal Engineer,respectively, of that Council), denied those averments, pleadingthat they were unaware of them. However, in Court of AppealApplication No. 209/98 filed by Mrs. K.B. Fernando and fourother Petitioners, the 5th Respondent had submitted an affidavitadmitting:
“… the fact that I have leased out the said stalls to thePetitioners in 1967 but further states that the Municipal Councilhave entered into an agreement with the Petitioners in respectof the said transaction only in 1969…”
It is clear therefore, that Mrs. K.B. Fernando entered intopossession of the shop, and remained in possession, lawfully.
According to the Petitioner, because her sister was old andfeeble, she was assisting her sister to continue with the business.
The affidavits of the 5th and 6th Respondents were virtuallyidentical. They stated that sifter the 5th Respondent becameMayor he decided to build a new shopping area for "pavementhawkersthat after the construction of the new market complexside “the shop keepers including the Petitioner were requestedto shift their businesses to the left side”, and that out of thirteen“traders”, including the Petitioner, who were carrying onbusiness on the right side, eight had no objection to temporarilyshifting from their stalls, and to the demolition thereof. Thisversion shows that the Petitioner and her sister – whether shewas a lessee, a pavement hawker, a shopkeeper, or a trader, orotherwise-had not agreed to vacate the premises.
The Petitioner averred that the 5th Respondent by letterdated 8.10.97 (not produced] “made an order ejecting her
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sister… with immediate effect from her present place of businessfor the purported reason of building a new shopping area forpavement hawkers.” In reply the 5th and 6th Respondents didnot deny that such a letter had not been sent and admitted thatthe Petitioner had been requested to remove the goods from thepremises. They further stated that “some of the MunicipalCouncil officers went to the market place only on 11.3.1998 toinform the vendors that the Municipal Council want them tovacate the premises temporarily… until the construction of theirside I the right side] is completer'
Thus it was not the Respondents' case that the Petitioner'ssister's possession had become wrongful or unlawful.Nevertheless, from 8.10.97 upto 11.3.98 the 5th Respondent,and perhaps the Council, had been endeavouring to get thePetitioner’s sister, and those holding under her, to leave thepremises, at least temporarily. That they were unwilling to do.
It was in that background that the Petitioner's sister andfour others filed CA Application No. 209/98 for writs of Certiorari,Prohibition and Mandamus. On 17.3.98 the Court issued anex parte stay order restraining the 5th and 6th Respondentsfrom ejecting the five petitioners in that case; and directed theRegistrar to notify the Respondents of that order by telegramand to issue Counsel for the five Petitioners a certified copy ofthat order. The Petitioner pleaded that copies of that order weregiven to all five Petitioners that same day, and in proof of thatfact she produced a photocopy which bears the Court of Appealdate stamp “17 MAR 1998.”
The Petitioner also maintained that the Registrar did notifythe 5th and 6th Respondents by express telegram on 17.3.98,and annexed a copy of the receipt issued by the Colombo CourtsPost Office. In reply, each of them merely stated:
"… I have received a copy of the stay order issued by theCourt of Appeal only on 19.3.98… In proof of the same I annexthe document marked Rl…”
SC Sirimawathle Fernando u. Wtckremaratne, Officer, in Charge, 263
Police Station, Dehlwela and others (Fernando , J.)
R1 was a photocopy of the telegram. The original was neverproduced, not even at the hearing on 7.12.99 when we calledfor it. That photocopy shows the Municipal Engineer’s datestamp clearly, as “19.3.98”; it also has the Sri Lanka TelecomDehlwela date stamp, in which, unfortunately, the date is notclear. Hence we do not know whether the telegram actuallyreached Dehlwela on the 17th, or the 18th, or the 19th. It was theRespondents’ duty to have produced the original telegram whichwas in their custody, and since they failed to do so it would notbe fair to assume that it was received only on the 19th.
I now come to. the events of 18.3.98. The Petitioner statedthat at about 10.00 a.m. the other shopkeepers and she learntthat the Mayor was taking steps to eject them and to fix barbedwire right across the entrance to their shops. She claimed thatthey then contacted their Attorneys-at-Law, one of whominformed the 6th Respondent by telephone of the stay orderissued the previous day: but in the absence of an affidavit fromthat Attorney-at-Law, that is only hearsay, and I cannot acceptthat allegation.
The Petitioner’s position is that at 1.30 p.m. there came tothe market some employees of the Council, led by oneRamyapala, a supervisor, in a vehicle belonging to the Council,as well as a group of about twelve Police Officers from theDehlwela Police in two jeeps. The Police party included the 1stRespondent (the Officer-in-Charge) and the 2nd Respondent,Sergeant Silva, who ordered the Council employees to fix barbedwire to the entrance of the shops, Including shop No. 2. ThePetitioner objected, producing a certified copy of the stay order.Without listening to her or perusing the document, the 1stRespondent crumpled it and threw it away, saying in Sinhala:
“We are not bothered or bound [by) any Court order; wehave come here to carry out an order made by the Mayor of thisarea. Therefore take all your things and get out of this placebefore we thrash and kick you’ll out of this place.”
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The Petitioner claimed that she was abused in obscenelanguage by the 2nd and 3rd Respondents; assaulted by the 2ndRespondent, and dragged to the Police Jeep; and pushed on tothe floor of the jeep. The 1st Respondent was watching all this.Thereafter, while being taken to the Police station the 2ndRespondent laid his booted foot on her hip, and assaulted andabused her when she attempted to get up. She was released onPolice bail at 6.30 p.m.. and obtained treatment at theKalubowila Hospital, where she was found to have “multipleabrasions.”
Thus her case is that she was arrested, not merely withoutvalid reasons but in defiance of a Court order which protectedher right to remain in possession of the shop; that she wasassaulted and humiliated in the process; and that despiteknowledge of the Court order she was unnecessarily andunreasonably taken to the Police station and kept there forseveral hours.
I must now turn to the Respondents’ version. In so far asthe Police are concerned, while the 1st and 2nd Respondents denythe Petitioner’s account, they contradict each other in severalmaterial aspects.
According to the Information Book extracts, at 13.00 on18.3.98 one J.M. Ramyapala requested Police assistance toimplement a special order of the Mayor to eject the occupantsof some old shops at the Dehiwela market; and Ramyapala wasproduced before the 1st Respondent, and his statement wasrecorded. He stated that he had been ordered by the Mayor,both orally and in writing, to effect such ejectment. He requestedPolice assistance for such ejectment and to erect a barbed-wirefence. He added that on a previous occasion a similar attempt(with the Mayor) with Police assistance, had been unsuccessful,and had been temporarily stayed, after a discussion with a localopposition politician.
SC Strtmawathte Fernando v. Wlckremaratne, Officer In Charge, 265
Police Station, Dehtwela and others (Fernando , J.)
It seems to me that the 1st Respondent and other policeofficers have much too readily accepted Ramyapala’s assertionthat the Mayor had made an order for the ejectment of thePetitioner. They neither insisted on the production of that order,nor even attempted to verify from the Mayor whether he hadmade such an order. No such order has been produced in theseproceedings. Rirther, whether such order was lawful does notseem to have troubled them at all. It is therefore probable thatthere was in fact no official or lawful order for the ejectment ofthe Petitioner’s sister or herself.
Without verification, and with otherwise commendablepromptitude, at 13.10. S.I. Silva, and some other officers,proceeded in a Police jeep to the market, in accordance with anorder from the 1st Respondent, in order to preserve the peacewhile Ramyapala carried out his task. At 13.15 the 1stRespondent received a message from S.I. Silva that there hadbeen some obstruction, and at 13.20 he too set out for themarket, with some more officers, in his official vehicle. The 2ndRespondent was on duty elsewhere; he heard about adisturbance at 13.15, and promptly came to the scene at 13.35.In his affidavit he said:
“… there was a lady sleeping on the ground with her faceupward in manner of obstructing the duties of the officersand shouting and using filth against the said officers.
I heard that the persons obstructed the duties of the policeand the Municipal officers in say [sic] that there was stayorder against the sealing of premises and therefore the 1strespondent unhesitatingly demanded the production of thestay order to support their rights of [sic] the premises to soobstruct, and injailing to produce any such document the1st respondent ordered the arrest of the petitioner andremove her to Dehiwala Police station and advised theMunicipal officers to carry on their duties.
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I specifically deny the production of any stay order by thepetitioner staying the sealing of the premises…” [emphasisadded throughout]
According to the 2nd Respondent's notes, the 1st Respondentordered him to arrest the Petitioner, which he did at 13.45; heput her Into a Police jeep, and handed her over to the 1stRespondent.
This Is what the 1st Respondent said in his affidavit:
”… at no time during my presence of the scene of theincident, I was shown by the petitioner or any body else, anorder from the Court of Appeal staying the ejectment untilone Susil Chandrasiri Fernando who came by 3.15 p.m.and produced a certified copy of an order issued by theCourt of Appeal In pursuance of which I forthwith orderedto stop any act contravening the stay order and returned tothe police station.
By the time the said order of the Court of Appeal wasproduced to me, the petitioner had been arrested andremoved to the police station for conducting herself in amanner amounting to a breach of peace and also amountingto obstruction to carry out the official duties of Municipalityand Police officers.
… until the certified copy of the said stay order was producedto me by the said Susil Chandrasiri Fernando, 1 was notaware of the existence of any application made to the Courtof Appeal… nor any stay order issued by Their Lordships ofthe Court of Appeal…
…1 directed the 2nd respondent to arrest the petitioner andremoved her to the police station without knowing thatthere was a stay order issued by the Court ojAppeal.”
There Is no note or entry among the Information Bookextracts produced to the effect that the Petitioner was brought
SC Slrimawathle Fernando v. Wtckremaratne, Officer In Charge, 267
Police Station, Dehtwela and others (Fernando , J.)
to the Police station before 3.30 p.m., or by any officer otherthan the 1st Respondent.
The entry made by the 1st Respondent upon his return tothe station at 3.30 p.m. records that It was he who arrested thePetitioner and handed her over to the Reserve. It states that acertified copy of the stay order was produced by Susll Fernandoat 3.15 p.m. – which must therefore have been at the scene, andbefore the Petitioner was brought to the station. It does not statethat that copy was returned, and therefore – If the Is* Respondentis truthful – It must have remained in his possession.
These affidavits and entries establish that the Petitionerdid refer (in the presence of the 1st Respondent) to the fact thatthe Court of Appeal had issued a stay order, in support of herright to undisturbed possession; that a copy of that order wasproduced at the scene (and not later, at the Police station); thatthe Petitioner was taken away from the scene only after thatdocument had been handed over to the 1st Respondent, andthat was In defiance of the Court order; and that she was broughtto the station only at 3.30 p.m.
The 1st Respondent’s claim, in his affidavit, that by the timethe stay order was produced [i.e. at 3.15 p.m.] the Petitionerhad been arrested and removed to the Police Station is flatlycontradicted by his own entry made at 3.30 p.m. Further, thePetitioner made a very serious allegation that he had crumpledand thrown away the certified copy of the stay order. If his storywas true, that could have been rebutted, simply and conclusively,by the production of the document which he claimed that SusilFernando handed to him: his failure to produce it makes thePetitioner’s version more probable than his.
I have therefore no hesitation in accepting the Petitioner’saffidavit in preference to those of the Police Respondents.
But even if I were to accept the Respondents’ version, theinevitable conclusion is that, from and after 3.15 p.m., the Is*
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Respondent deprived the Petitioner of her liberty by falling torelease her immediately upon the production of the stay order,and, Instead, by bringing her, quite unnecessarily, to the Policestation. And this despite his claim that he had ordered theMunicipal employees “to stop any act contravening the stay order."
In passing, 1 must note without comment the contrastbetween the ready acceptance by the Police of Ramyapala's claimof an alleged Mayoral directive to eject an ordinary citizen, andtheir summary refusal to delay such ejectment, even for a littlewhile, in order to verify that citizen’s plea that her right topossession was protected by a Court order.
I hold that the 1st Respondent together with other Policeofficers assisted Ramyapala and other Municipal employees intheir endeavours to eject the Petitioner from, and/or to preventher having access to, her sister’s shop No. 2; that they made noattempt to verily whether there was a lawful order for ejectment;that the Petitioner did assert her rights under a stay order issuedby the Court of Appeal, and in all probability tendered a certifiedcopy of that order – which the 1st Respondent ignored; that the1st Respondent either arrested her, or ordered her arrest, withoutthe least effort to verify her claim; and that despite the productionof the stay order he brought her, in custody, to the Police stationat 3.30 p.m., and needlessly kept her there for another threehours. I accept her evidence that she had been subjected todegrading treatment both at the time of arrest and while beingtaken to the Police station. All this happened in the presence ofthe 1st Respondent and with his acquiescence if not approval.The Petitioner, however, is not consistent as to whether it wasthe 2nd Respondent Sergeant Silva or another officer S.I. Silvawho ill-treated her, and I am therefore unable to come to adefinite conclusion as to who was directly responsible for thattreatment. I
I turn to the responsibility of the 5th and 6th Respondents.It is not established that they knew of the stay order. BothRespondents stated:
SC Stilmawathle Fernando v. Wtckremaratne. Officer in Charge. 269
Police Station, Dehlwela and others {Fernando , J.)
the vendors including the petitioner have not agreed |tovacate the premises]… and therefore the Respondents havecomplained to the Officer-in-Charge of Dehlwela- Mt. LaviniaPolice station and according to the said complaint the policewent to the market place on 18.13.1998… only to informthe vendors to shift to the other side of the market placetemporarily.”
The Police did not produce any such complaint, and it maybe that the 5th Respondent made an oral complaint. If indeed acomplaint was made, that shows that Ramyapala acted withthe prior approval of the 5th Respondent. It may well be that the5th Respondent was motivated by the desire to complete theshopping area. But there was no suggestion that the Petitioner’ssister was under a legal obligation to vacate her shop, eventemporarily: even if she was, that would have been a civildispute. The 5th Respondent should have resorted to his legalremedies, and there was no justification for setting the Police inmotion. He is therefore personally liable for the illegal acts ofthe Police. I
I hold that the fundamental rights of the Petitioner underArticles 11, 13(1) and 13(2) have been violated by the Is* and5th Respondents, and award her a sum of Rs. 60,000 ascompensation and costs. There is no reason why the State orthe Municipal Council should be ordered to pay this sum. Idirect the 1st Respondent personally to pay a sum of Rs. 30,000and the 5th Respondent personally to pay a sum of Rs. 30,000,before 3001 April 2000.
WEERASEKERA, J.I agree.
ISMAIL, J.I agree.
Relief granted.