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1966 DIGILAW 174 (ALL)

Narendra Kumar Agarwal v. Kallan Bag

1966-04-13

GANGESHWAR PRASAD

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JUDGMENT Gangeshwar Prasad, J. - This is an application by one Narendra Kumar Agarwal praying that the proceedings in Criminal Case No. 272 of 1965 (Kalian Beg v. Narendra Kumar Agarwal) started against him on the complaint of Kalian Beg opposite party and pending in the court of the Judicial Magistrate Bijnor be quashed, and, in the alternative, the case be transferred outside the district of Bijnor. Notice of the application was given to the opposite party but he has not appeared to oppose it. 2. Briefly stated, the facts mentioned in the application are as follows. The applicant is the owner of a house of Nai Basti Bijnor. The eastern portion of the house (hereinafter called the accommodation) was in the occupation of Sri R.N. Sinha, Additional District Magistrate (Judicial) Bijnor, as a tenant. Consequent upon his transfer from Bijnor Sri R.N. Sinha vacated the accommodation on June 18, 1965. He, however, left some articles in the accommodation informing the applicant that they were Government property and would be collected from the applicant by the Nazir. The applicant entered into possession of the accommodation and on June 23, 1965 he applied for the release of the accommodation in his favour. Thereafter Sri N.P. Pandey, who succeeded Sri R.N. Sinha as Additional District Magistrate (Judicial) Bijnor, met the applicant and asked the applicant to let him occupy the accommodation as it had been allotted to him but the applicant refused to do so. On June 29, 1965 the applicant made an application to the Rent Control and Eviction Officer Bijnor stating that he had learnt that the accommodation had been allotted to Sri N.P. Pandey and praying that he may be informed of the correct position. In reply to this application the Rent Control and Eviction Officer Bijnor forwarded to the applicant a copy of the allotment order purporting to have been passed on June 15, 1965 in favour of Sri N.P. Pandey. In the mean time, on June 28, 1965 the opposite party, who is a peon of the Additional District Magistrate (Judicial) Bijnor filed a complaint against the applicant under Section 448 I.P.C. and this complaint, according to the applicant, was got filed by the District Authorities. The proceedings which are sought to be quashed have been started on this complaint. In the mean time, on June 28, 1965 the opposite party, who is a peon of the Additional District Magistrate (Judicial) Bijnor filed a complaint against the applicant under Section 448 I.P.C. and this complaint, according to the applicant, was got filed by the District Authorities. The proceedings which are sought to be quashed have been started on this complaint. The grounds on which the prayer for quashing the proceedings has been made are that on the basis of the allotment order in favour Sri N. P. Pandey was not entitled to enter into possession without the accommodation having been let out to him and he could only have initiated proceedings under Section 7-A of the Control of Rent and Eviction Act, and further that no case under Section 448 I.P.C. is made out against the applicant even on the facts alleged in the complaint of the opposite party. 3. The alternative prayer for the transfer of the case out side the district of Bijnor is based on the allegations that the Judicial Magistrate Bijnor is directly subordinate to the Additional District Magistrate (Judicial) Bijnor, and that the latter repeatedly told the applicant that he would get the complaint withdrawn if the applicant handed over possession of the accommodation to him but otherwise the applicant could not escape being sent to jail. It has also been stated that the lawyers of Bijnor are reluctant to appear for the applicant in the case. The applicant has stated for the reasons mentioned above he apprehends that he will not have fair trial in Bijnor. 4. It would appear that, according to the applicant, he entered into possession of the accommodation as soon as it was vacated by Sri R.N. Sinha and did not allow Sri N.P. Pandey to occupy it. The accommodation was, therefore, never in possession of Sri N.P. Pandey, and, if that is so, the applicant cannot be said to have been guilty of an offence under Section 448 I.P.C. The allegations of the applicant in this behalf are supported by his affidavit and they have not been controverted by the opposite party. In these circumstances I think that the proceedings against the applicant should not be allowed to continue and they should be quashed. In these circumstances I think that the proceedings against the applicant should not be allowed to continue and they should be quashed. But even if the allegations made in the complaint filed by the opposite party are taken at their face value a case under Section 448 I.P. C. cannot be said to be made out. 5. It has been stated in the complaint that the accommodation was allotted to Sri N.P. Pandey, on June 15, 1965 and that, after it had been vacated by Sri R.N. Sinha in June 18, 1965, the opposite part took possession of it as directed by Sri N.P. Pandey, put some articles in one of its rooms and locked the accommodation from outside. On June 27, 1965 the opposite party wanted to have the house cleaned but he found that the door on which he had put a lock from outside could not be opened as it had been closed from inside and the other door of the accommodation which had been closed by him from inside had been locked from outside. The opposite party was informed by two persons named in the complaint that they had seen the applicant putting the lock and one of them also told the opposite party that the applicant had helped a servant to enter the accommodation and had asked him to open one of its doors. 6. The contention on behalf of the applicant is that the applicant became entitled to take possession of the accommodation as soon as Sri R.N. Sinha vacated it, and that the allotment order did not authorise Sri N.P. Pandey to enter into possession unless the accommodation had been let out to him by the applicant or proceedings had been taken under Section 7-A of the Control of Rent and Eviction Act. The contention appears to me to be well founded. Section 7(2) of the U.P. Control of Rent and Eviction Act empowers the District Magistrate to require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant. An order passed under this provision is only in the nature of a direction issued to the landlord and it does not confer an authority on the person to whom the accommodation is allotted to take possession of it without reference to the landlord. An order passed under this provision is only in the nature of a direction issued to the landlord and it does not confer an authority on the person to whom the accommodation is allotted to take possession of it without reference to the landlord. The procedure for enforcing obedience of an order passed under Section 7 (2) has been laid down in Section 7-A. If the landlord has occupied the accommodation in contravention of an order passed under Section 7 (2) District Magistrate may call upon him to show cause why he should not be evicted. The landlord will then have an opportunity of satisfying the District Magistrate that the order under Section 7 (2) was not duly passed, and that he has a right to remain in occupation. If he fails to satisfy the District Magistrate he may be directed by the District Magistrate to vacate the premises within a specified period. Then, upon the landlords failure to vacate the accommodation within the time allowed to him the District Magistrate may have him evicted and may use such force as may be necessary for carrying out the order, and he may also put the persons entitled under Section 7(2) of the U.P. Control of Rent and Eviction Act in occupation of the accommodation. There is nothing in the present case to indicate that the procedure laid down in Section 7-A had been observed. Having regard to the above-mentioned provisions the applicant cannot be said to have committed an offence under Section 448 I.P.C. even on the facts alleged in the complaint of the opposite party. 7. On a consideration of the facts and circumstances of the case I am of opinion that it would be an abuse of the process of court to allow the prosecution of the applicant on the basis of the complaint filed by the opposite party to continue and the proceedings should be quashed. 8. The application is allowed and the proceedings in Criminal Case No. 272 of 1965 (Kalian Beg v. Narendra Kumar Agarwal) pending in the court of the Judicial Magistrate Bijnor are quashed.