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Allahabad High Court · body

1971 DIGILAW 576 (ALL)

Keshar Singh v. State of U. P.

1971-12-22

C.D.PAREKH

body1971
ORDER C.D. Parekh, J. - This reference has been made by order dated 24th of March, 1971, passed by the 1st Temporary Sessions Judge, Azamgarh. He has recommended that the order dated 23-1-1971 passed by the magistrate relegating the parties to the position which they occupied prior to the order dated 30th March, 1970, (passed by this Court in second appeal), be modified. 2. For appreciation of the point involved in this case it would be necessary to give few facts. There is a shop No. 21 situate in mohalla Kurmi Tola, P.S. Kotwali, in the city of Azamgarh. In connection with this shop, as it appears, a civil suit was pending between the landlord and the tenant for ejectment. In that suit one Smt. Dhanraji Kuer, being a decree-holder, obtained orders for the ejectment of one Mata Prasad. This order was stayed by this Court by an exparte order dated 7-11-1969 and this was confirmed on 30th of January, 1970. On 5th of March, 1970, one Lachhmina Kuer filed an application before the SDO, Sadar, stating that she had let out the shop to one Keshar Singh, son of Haveli Singh and the tenant occupied the shop on 17th of June, 1962. She also alleged that since July, 1968, Keshar Singh has abandoned opening the shop and his whereabouts are not known and a sum of Rs. 3,400/- as rent is due from him. She also asserted that a public notice in a local weekly was also got published on 10th of February, 1970, but she having failed to secure the presence of Keshar Singh, is approaching the court and that Kotwali police be directed to open the shop and she be put into possession of the same. The SDO called for a police report and the police after making some enquiry in the locality made a report that the whereabouts of Keshar Singh were not available and the shop was locked from outside. As for the rent dues the police showed its inability to make a definite report. On this police report the SDO by his order dated 30th March, 1970, directed the police to break open the lock and to get an inventory of the property that may be found prepared and the property so found may be given in the custody of some person with the direction that the property may be available when required. On this police report the SDO by his order dated 30th March, 1970, directed the police to break open the lock and to get an inventory of the property that may be found prepared and the property so found may be given in the custody of some person with the direction that the property may be available when required. This order was passed by the SDO in his capacity as magistrate. The police as it appears broke open the lock of the shop and prepared the inventory of the property found therein and submitted its report on 5th of April, 1970. In between nothing appears to have happened till 11th of August, 1970, when Keshar Singh applied for restoration of his possession over the property found in the shop. Keshar Singh in his application dated 11th of August, 1970 stated that he had been to Nepal in connection with his business and remained there for a petty long time and during his absence Smt. Lachhimina Kuer got the lock of the shop broken open through the agency of the magistrate and the police and got the possession through the police. Ha stated that the magistrate had no jurisdiction to pass an order in that manner and he, therefore, prayed that he should be restored the possession of the shop and the property found therein. On this application, as it appears, by order dated 16-12-1970 the SDM ordered redelivery of the possession of the shop from Lachhmina Kuer to Keshar Singh and the police in compliance with this order redelivered the shop and the property to Keshar Singh and got an endorsement to the effect on 21st of December, 1970. This endorsement is on the record. On 23rd of December, 1970, one Mata Prasad applied that he was a tenant of Dhanraji Kuer who obtained a decree against him and the High Court had already passed a stay order dated 30th of January, 1970, as stated above. On 23rd of January, 1971, the magistrate passed the order under reference. In his order the SDM has stated that the orders passed by him earlier are set aside and status quo prior to the order dated 30th January, 1970, is being maintained. On 23rd of January, 1971, the magistrate passed the order under reference. In his order the SDM has stated that the orders passed by him earlier are set aside and status quo prior to the order dated 30th January, 1970, is being maintained. From the discussion of the magistrate in his order it appears that he was himself satisfied that he had no jurisdiction to pass the orders which he passed in ignorance of the civil litigation pending between the parties. 3. A revision was filed against the said order of the SDM dated 30th January, 1971 and the Sessions Judge while making the recommendation has stated that this part of the order of the magistrate relegating the parties to the position which they occupied prior to the order dated 30th January, 1970 be set aside. 4. While opposing the reference Sri U.K. Misra, learned Counsel for Mata Prasad, stated that no revision lay against the order passed by SDM. His objection is that this order has not been passed by the magistrate acting in judicial capacity. He has further contended that neither of the orders passed by the magistrate were in such a capacity. Therefore, if the magistrate himself felt that the orders passed by him were either improper or unjust the Sessions Judge or the High Court sitting in revisional jurisdiction will have no powers to revise the order passed by the magistrate. From the facts as stated by me in the earlier part of this order it appears that the magistrate himself realised that the earlier order passed by him dated 30-3-1970 directing the police to break-open the lock of the shop and to prepare inventory of the property found therein and the order dated 16-12-1970 directing the police to redeliver the possession over the shop to Keshar Singh were not according to law and he himself felt that he had no jurisdiction to pass such an order. He, therefore, vacated the said orders passed by himself and relegated the parties to the position prior to 30th of January, 1970, in view of the stay order passed by the High Court. In the instant case from the record it does not appear whether prior to January, 1970, Mata Prasad was in possession of the shop or Smt. Lachhmina Kuer through Keshar Singh was in possession of the shop. In the instant case from the record it does not appear whether prior to January, 1970, Mata Prasad was in possession of the shop or Smt. Lachhmina Kuer through Keshar Singh was in possession of the shop. Police put into possession Keshar Singh in pursuance of the order dated 16-12-1970 passed by the magistrate and the magistrate, therefore, in my opinion, rightly observed that the parties be relegated to the position anti the order dated 30th of January, 1970, passed by this Court. Be as it is, it was for the magistrate to set things right in his own way. I agree with the submissions made by Shri Misra that no revision lies against the order passed by the magistrate. In the present case there was no question of deciding the rights of any party. Smt Lachhmina Kuer filed an application on 5th of March, 1970 and on that application the magistrate acted. That order merely directed the police to break open the lock of the shop and take charge of the goods if any lying therein. This order, in my opinion, passed by the magistrate is not covered by any of the provisions of Code of Criminal Procedure or any law for the time being in force. At least none has beer pointed out to me except Section 25 of the Police Act which I will deal hereafter The magistrate, therefore, as an executive officer appears to have acted and he has not acted as a court o law or as a magistrate acting in hi judicial capacity. The second order dated 16-12-1970 directing the redelivery of the property and the shop to Keshar Singh is nothing but a consequential order of the first order and whether the magistrate was competent to pass the consequential order is also not covered by any of the provisions o the law where it can be said that the magistrate acted in his judicial capacity in passing such an order. I, therefore, hold that no revision lay to reverse the said orders under the provisions of Code of Criminal Procedure and the reference made by the learned 1st Temp. Sessions Judge is bad in law. 5. Learned Counsel for the opposite party Keshar Singh tried to support the order u/s 25 of the Police Act. I, therefore, hold that no revision lay to reverse the said orders under the provisions of Code of Criminal Procedure and the reference made by the learned 1st Temp. Sessions Judge is bad in law. 5. Learned Counsel for the opposite party Keshar Singh tried to support the order u/s 25 of the Police Act. Section 25 of the Police Act runs thus: Police-officers to take charge of unclaimed property and be subject to Magistrate's orders as to disposal. It shall be the duty of every police-officer to take charge of all unclaimed property and to furnish an inventory thereof to the Magistrate of the district. The police officers shall be guided as to the disposal of such property by such orders as they shall receive from the Magistrate of the district. At the out set it may be observed that the proceedings u/s 25 of the Police Act could ordinarily be initiated by the police and would apply only to movable property but it would not apply to immovable property. In the instant case the magistrate appears to have put into possession Smt. Lachhmina Kuer by his earlier order dated 30th of March, 1970 and directed redelivery of the property, i.e., the shop, to Keshar Singh by his order dated 16th December, 1970. The learned Counsel feeling this difficulty relied upon Section 26 of the Police Act and stated that u/s 26 of the Act the magistrate while deciding the claim is undoubtedly expected to act judicially and therefore a revision would lie. Again the same difficulty would arise that so far as the movable property is concerned the magistrate may decide the same but in this case neither of the parties has laid any dispute with regard to movable property which has been stated by the police to have been found in the shop and which has been redelivered to Keshar Singh. The dispute, therefore, relates to the possession over the shop that has been redelivered to Keshar Singh in pursuance of the order dated 16th December, 1970 and in my opinion Section 26 of the Police Act also does not apply in the circumstances of the case. I, therefore, hold that the order passed by the magistrate is not covered either u/s 25 or Section 26 of the Police Act, 1861. 6. I, therefore, hold that the order passed by the magistrate is not covered either u/s 25 or Section 26 of the Police Act, 1861. 6. In view of the discussions aforesaid no revision lies against the order of the magistrate which order was passed in his executive capacity. The reference is, therefore, rejected.