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1987 DIGILAW 18 (GAU)

BIJAY KUMAR DALMIA v. SANWARMAL JALAL

1987-03-17

MANISANA

body1987
JUDGEMENT This revision petition arises from the order dt. 10-11-1986 passed by the learned Sub-Divisional Magistrate (E) Tinsukia under S.144 Cr.P.C. in Case No.507 of 1986. 2. Facts : Landlord Sanwarmal Jalan, the opposite party herein, filed an application dt.7-11-86 for drawing up a proceeding under S.144, Cr.P.C. The case of Sanwarmal is that he was the absolute owner of the disputed house. The house was let out on monthly rent to one Meghraj Dalmia who died in the year 1978. The tenant Meghraj Dalmia was a defaulter. Sometime before his death, Meghraj Dalmia abandoned the disputed house. Since then it was lying unattended and uncared for. Meghraj or his heirs did not also formally hand over the disputed house to Sanwarmal. They did not pay rent but their lock was still there fastening with the bolt of the door of the disputed house. Due to such act, the house was getting damaged and was in a dilapidated condition. It was apprehended that the fall of the house might endanger the lives of the neighbours and the passers-by. Therefore, it was necessary for the landlord to cause repairs or reconstruction by unlocking the door of the house immediately. 3. On 10-11-1986, the learned Sub-Divisional Magistrate drew up a proceeding under S.144 Cr.P.C, and passed an ex parte order. The relevant portion of the order runs : ".......Accordingly let a proceeding under S.144 Cr.P.C, be drawn up and ask O/C TSK P. S. to direct the owner of the house in question to unlock the said dilapidated house and take such steps as to remove impending danger to human life as apprehended, immediately, Also ask O/C to make an inventory of articles if found any within the said house and take to his custody or given zima to any third person and report compliance. In public interests, the whole operation may be carried out in presence of a Magistrate deputed for the purpose. Sri J. Das, E.M. is deputed for the purpose....." 4. The affidavits of the parties, the report of the police dt. 12-11-1986 and other materials on record show that in the course of execution of the order of the learned Sub-Divisional Magistrate, the house was demolished and destroyed, and the landlord Sanwarmal took the possession of the land on which the house was standing. However, this Court on 26-11-1986 passed an interim order in Criminal Misc. 12-11-1986 and other materials on record show that in the course of execution of the order of the learned Sub-Divisional Magistrate, the house was demolished and destroyed, and the landlord Sanwarmal took the possession of the land on which the house was standing. However, this Court on 26-11-1986 passed an interim order in Criminal Misc. Case No.506/86 arising out of this. revision petition prohibiting Sanwarmal from making any construction on the land and also from alienating the same pending final disposal of this revision petition. 5. The impugned order was passed on 10-11-1986. The order has spent itself as the period of 2 (two) months has elapsed at the time of hearing of the revision petition. The disputed house had been demolished and the landlord has taken possession of the land on which the house was standing. 6. As regards the order under S.144 which has exhausted itself by efflux of time, in Gulam Abbas v. State of U.P., AIR 1981 SC 2198 : (1981 Cri LJ 1835) the Supreme Court has observed. "Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity. Since however, occasions or situations arise even during a year as well as year after year making it necessary for the executive magistracy of Varanasi to take action under S.144 and since it has been the contention of the petitioners, - though stoutly disputed by all the respondents - that the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions....." 7. Therefore, normally the High Court will not interfere in revision after the order of the Magistrate has lapsed by efflux of time. However, in the exceptional circumstances the High Court has the power to interfere in revision even if the order has spent itself by efflux of time at the time of hearing of the revision. Therefore let me now examine the case in hand if such circumstances exist. However, in the exceptional circumstances the High Court has the power to interfere in revision even if the order has spent itself by efflux of time at the time of hearing of the revision. Therefore let me now examine the case in hand if such circumstances exist. In Gulam Abbas (supra), the Supreme Court has further observed : "Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the Executive Magistracy in defence of such established rights of the petitioners and the Shia community and instead of prohibiting or suspending the exercise of such rights on concerned occasions...." (emphasis added) Therefore, the proper course of the Magistrate specified in S.144 is to ascertain which party is in the wrong and is interfering with the exercise of the legal right of the other party. Thereafter, the Magistrate, in defence of the legal right rather than suspension or suppression of the right, direct that party to abstain from a certain act, or to take certain order with respect to certain property in his possession or under his management, if the magistrate considers that such direction is likely to prevent or tends to prevent danger to human life, etc. as specified in S.144. The expression "direct any person to abstain from a certain act " under S.144 shows that the direction is in the nature of prohibitory order, and the expression "direct any person to take certain order with respect to certain property in his possession or under his management" employed under S.144 shows that the person against whom the direction is made must be in possession of the property in respect of which the order is passed. Therefore, the impugned order is attributable to the expression "to take certain order with respect to certain property" as the learned Sub-Divisional Magistrate, in his order, directed the O/C Tinsukia P.S. to direct the owner (landlord) of the house to unlock as to remove the impending danger to human lives as apprehended, and also to make an inventory of articles if found any within the disputed house and to take into his custody or be given in the Zima of a third person. But this expression does not imply to remove property into the custody of the Court in the context of this case, or to evict a tenant. But this expression does not imply to remove property into the custody of the Court in the context of this case, or to evict a tenant. The O/C Tinsukia P.S. was not in possession of the house. The landlord was also not in physical possession of the disputed house. The rights and the liabilities or duties of the landlord and the tenant are governed by the tenancy or rent laws. The jurisdiction of the Court cannot be circumvented by cleverly drafting the petition. A tenant cannot be evicted by cleverly executing the impugned order. 9. In view of the above discussion, the impugned order was passed in utter disregard of the provisions of S.144 affecting the future rights and liabilities of the parties. In such a case, I am of the view that the High Court has the power to interfere with the impugned order in revision although the impugned order has by now exhausted itself by efflux of time. 10. The next question which arises for consideration is what is the relief to be given to the petitioner in such a situation. The house is no more there. Therefore, this Court cannot direct to restore the existence of the house and possession of the same. Any action under the illegal order will be null and void. However, in the circumstances of the case, I am of the view that the High Court in the exercise of its revisional jurisdiction cannot give any relief to the petitioner other than a declaration that the impugned order was null and void. 11. For the foregoing reasons, the petition is allowed. The order dt. 10-11-1986 passed by the learned Sub-Divisional Judicial Magistrate (E) Tinsukia in Case No.507 of 1986 was null and void. The petitioner Bijay Kumar Dalmia may approach proper forum for his proper relief. With the said observations and directions, the petition is disposed of. Petition allowed.