Illegal Occupants

A case study


We came across a curious case of illegal occupants that remains unresolved for years for want of simple administrative or police action. Let me cut the long story short and start with true facts with unreal names and follow up with legal aspects of the case from the viewpoint of police.


  • Facts of the case

  • Why should police help and not direct victim to court?

  • Is police competent to help?

  • Is this a case of cognizable offence?

  • Question of intent

  • What can police do?


Mary gave possession of her spacious flat in Mayoor Cooperative Housing Society to Ramlal through a registered L&L agreement for a period of 11 months starting January 2014 for a monthly license fee of Rs x. Five months down, Ramlal did not pay a single rupee. Mary issued Ramlal a notice to vacate the flat. Ramlal refused to comply. Mary approached Competent Authority who, after hearing both parties under a summary procedure for the leave-and-license cases given under the MRCA, 1999, issued order in the year 2018 for Ramlal to (a) vacate the flat and handover its peaceful possession to Mary within one month and (b) Pay Mary an amount comprising [Rs x/month from January 2014 to June 2014 as the license fee when the license subsisted + Rs 2x/month as compensation from December 2014 to the date of returning possession]. One month was meant to allow Ramlal to approach Divisional Commissioner to seek relief. Ramlal did approach Divisional Commissioner who rejected Ramlal's revision application but allowed another one month for him to approach Bombay High Court. Ramlal failed to obtain any relief from the HC either. Mary approached Pune Police as well as the Competent Authority but has not got her flat back till date. Ramlal, on his part, enjoys Mary's property to date without having paid a single rupee since January 2014 while Mary continues to pay Society’s maintenance bills regularly. Mayoor Cooperative Society, a 60-member community of elites, did not taken any cognizance of the woes of Mary except that none of the families socializes with Ramlal and other occupants of Mary's flat. Emboldened with their apathy, the number of occupants in Mary's flat grew to nine: Five males and four females including juveniles. Ramlal's LPG connection and vehicles registration documents show Mary's flat as his permanent address. Society members have assumed that Ramlal is a tenant in civil dispute with Mary, and keeps sub-tenants. Mary's door carries name of a company purportedly directed by Ramlal. The nine occupants enjoy all the common amenities of the Society to their fullest with impunity. They are arrogant to security staff, their visitors refuse to make entry in the visitors' register and they park their vehicles illegally. All these years Mary is forced to live with her parents; father an army veteran in his late seventies.

Why should police help and not direct Mary to court?

Given the ruling of Competent Authority (CA) and failure of Ramlal to obtain relief from Divisional Commissioner (DC) and High Court it is undisputed that Mary (not Ramlal) is the victim in the case. CA will certainly issue a warrant to get Ramlal out of the house. But when? Ramlal knows better. Every time the matter comes up for hearing, his lawyer produces a frivolous application and CA will rightly or wrongly believe that s/he is duty-bound to address it through another months-long adjournment adding further delays to the process. The CA has already consumed five years against the six-month period stipulated by law to summarily resolve Leave & License disputes. This is where police can help.

Is police competent to act?

Prima facie, the officer on duty will assume it is a matter in court and s/he is not competent to take cognizance. A mere glance through the documents will, however, reveal that it is not so. As of date Mary holds unambiguous order of the CA that has not been stayed by any superior authority or court. Documents produced by Ramlal will shows the following:

  • Ramlal approached DC for revision of CA's order but failed to appear when the matter was called for hearing. So DC dismissed his application.

  • As Mary and her lawyer slept over her rights, Ramlal woke up one day and moved another application praying DC to restore his application for revision. DC allowed the application on the condition that Ramlal deposits his dues before notice is issued to Mary.

  • Ramlal did not pay up. No notice was sent to Mary. So, clearly, Ramlal's application for restoration of his Revision application remains inconsequential. When the matter came up before CA again Ramlal moved an application and CA adjourned the matter for Mary to respond. But, importantly, CA did not pass any stay or status-quo order on its order in favour of Mary.

  • Around this time, management of Mayoor Society, which is entrusted with the administration of common property, woke up. It asked Ramlal to produce copies of documents showing his authority to live in the house and park his vehicles on their premises. It was revealed that the vehicle documents were made showing Mary's house as Ramlal's permanent address -- clearly made by deceiving the RTO. When vehicles with wrong papers were stopped by security, Ramlal made a ruckus and police, when called, was indecisive at to what to do.

  • Somewhat affected by Society's action, Ramlal filed an application before High Court. Court's website shows that the application has not been admitted.

This should convince any well-trained police officer that as of date CA's order for Ramlal to leave the flat and pay his dues remains in force. As such police is fully competent to act to protect Mary's rights without awaiting a nudge by any court, provided there is a case of cognizable offences.

Is this a case of cognizable offence?

Ramlal has entered upon two distinct areas: the common areas of the Society and Mary's flat. He entered in the year 2014 lawfully, as a licensee. According to Mary the license was revoked in May 2014. Competent Authority, accepting the contention of Mary held that he is unauthorized occupant since June 2014 and directed him to vacate the property and pay license fee for authorized period plus penalty equal to double the license fee for the period of unauthorized occupation. Clearly, Ramlal and other occupants of Mary flats have no right to remain on the property. Occupants' right of movement in and out of Mary's flat and Mayoor Society stand evaporated by corollary.

In criminal law, the Indian Penal Code, 1860 ("IPC") presence of Ramlal and other occupants authorized by Ramlal on the Society's common area is the crime defined under sections 441 (criminal trespass) punishable under section 447 (fine and/or imprisonment up to 3 months) ;

Provided, the criminal intent is made out. Intent is discussed in a preceding paragraph. Here, let's say the condition is intent is fulfilled.

Then similarly, the presence of Ramlal and other occupants authorized by Ramlal in Mary's flat is the crime defined under sections 442 (house trespass) punishable under section 448 (fine and/or imprisonment up to 1 year).

Both offences are cognizable, meaning, if presence of Ramlal and persons authorized by him on the property is witnessed by a policeman, police can forthwith arrest the offenders under sections 41 of the Code of Criminal Procedure (CrPC) following procedure laid down in section 41-B to 41-D. Section 41-A (notice to offender) need not be invoked since the condition of section 41 (a) is satisfied. You don't issue a written notice to a thief caught in the act of stealing. The child or juvenile offenders (under 18 years of age) need to be treated as juvenile in conflict with law and dealt under the relevant juvenile justice laws.

The said crimes are bailable and compoundable; meaning if Ramlal and his accomplices agree to not repeat the offence they can be released on bail and further that their offence can condoned by Mary in exchange for payment of her dues. Consequence of not agreeing to return to the property is non-grant of bail, that is jail (or protection home if juvenile) for offenders for a period during which when Mary can peacefully reclaim her property. Consequence of non-payment of dues is jail term up to a year during which, Mary's lawyers can set up a suit for recovery of dues by seeking attachment of offenders' properties.

Thus we see that police has adequate power to get Mary her flat immediately and possibly all her dues. Next we address the question of intent.

Question of intent

The entire structure of criminal justice system rests on one factor: intent(ion). In legal terminology this factor is called mens rea, that is, a guilty mind. Does our Ramlal have a guilty mind? As per well-established principles of criminal law the previous and subsequent conduct of the accused is mirror to intent of the accused. Let us apply this principle to Ramlal. He was licensed to live in the flat from January to November 2014 but did not pay any license fee. There is nothing on record to show that he ever pleaded with Mary of any financial difficulty. Further, a sincere man facing financial difficulty would pay some amount if not all over the time. On the contrary Ramlal paid nothing throughout his stay from January 2014 to this day while leading a decent life himself. A neighbor reported that an Instagram post of Ramlal's son showed that he visited the USA, which costs far more money. He sports two scooters and hires cabs, plying all the time. He keeps sub-tenants and earns money illegally. A sign on his door shows him as Managing Director of his company registered under the Companies Act. His police verification shows that he has his own house at another city. On the other hand his vehicles documents show Mary's flat as his permanent address, which further nails his mala fide intention of usurping Mary's property. Thus, the question of intent is amply settled in Mary's favor throwing it open for police to act on the cognizable offences.

What can police do?

To be fair police is a civilian force and its members have civil emotions. Its powers within city limits are mostly preventive and not offensive. No wonder, police is reluctant to drag average-looking guys into crime records. Our Ramlal is that average-looking guy with stories of his own. What police misses out is balance of convenience -- a legal phrase to work out who will get the rougher deal if police does not act. It must imagine the troubles of Mary who not only lost several tens of Lakhs of her Rupees but is already deprived for five long years from living and leading a social life of her choice at her house occupied by Ramlal without any authority. She lost years of her life in this unnecessary battle affecting her personal and professional life. Add to this the sense of frustration and grief inflicted by Ramlal's crimes as well apathy of the police and justice system on her family, extended family, friends and well wishers. So there is no ground for police to not forthwith take cognizance of the cognizable offences of Ramlal.

All police has to do is (on the first information received) visit the site, apprehend Ramlal and his accomplices (in compliance with the previously discussed laws) with some help from Mayoor Society and not release them on bail unless they pledge to not repeat the offence (of trespass and house trespass) thereby meaning that the house is clear for Mary to move in. The course the law will take thereafter (charge sheet and all) should have enough coercive effect for Ramlal to cough up his dues. Or else the question of money claim can be left for Mary's lawyers to sort out in the civil courts.

Really, it is as simple as that.