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1992 DIGILAW 260 (PAT)

Baijnath Prasad v. District Magistrate Jehanabad

1992-07-30

B.P.SINGH

body1992
ORDER Heard learned counsel for the parties. 2. Despite several opportunities given to the counsel for the State, he has received no instruction and no counter affidavit has been filed on behalf of the State. It is stated by the learned counsel for the State that a copy of the Court's earlier order was also sent to the District Magistrate Jehanabad but he has received no response. 3. In these circumstances, I proceed to dispose of the application after hearing the counsel for the State; respondent no. 5 and the counsel for the petitioner. 4. The petitioner has mainly challenged the order of the District Magistrate (Annexure-3) dated 20.7.1990 whereby the District Magistrate respondent no. 1 has directed that police force be provided to the Executive Magistrate to evict the petitioner from the premises in question. The order purports to give effect to the order dated 1.6.1990, whereby according to the facts narrated in the order, the authorities were directed to evict the petitioner from the premises belonging to respondent no. 4. Respondent no. 4 has served a copy of his show cause on the counsel for the respondent no. 5 and the petitioner as well as the State, but from the record it appears that he has not filed the same in Court. His counsel however, has not entered appearance and is not present to oppose the application. 5. It appears that at the instance of respondent no. 5, a proceeding was initiated against the petitioner under Section 133 of the Code of Criminal Procedure in the court of Sub-divisional Magistrate, Jehanabad. It was alleged that on account of installation of a pulley in the premises occupied by the petitioner, respondent no. 5 was suffering nuisance caused by vibrations as a result of the operation of the Mill. He was, therefore, not in a position to carry on his work in the adjacent premises. 6. After hearing the parties, the said application was allowed by the Sub-divisional Magistrate by his order dated 12.4.1988 and he ordered the petitioner to remove the pulley within three days and not to run the Mill unless the pulley was removed. The appeal against the order was rejected by the Sessions Judge and similarly an application was filed before this Court which was subsequently converted into a criminal writ case was also rejected on 26.2.90. The appeal against the order was rejected by the Sessions Judge and similarly an application was filed before this Court which was subsequently converted into a criminal writ case was also rejected on 26.2.90. Thereafter on 1.6.1990, the Sub-divisional Magistrate again passed an order (Annexure-1) whereby the petitioner was directed to remove the pulley within one week. 7. The petitioner contends that he has obeyed the order dated 1.6.1990, whereas respondent no. 5 states that he has not done so. It appears that the respondent no. 4 who is a clerk in the Jehanabad Collectorate made an application to the District Magistrate praying that he should evict the petitioner from the premises in question and also recover the arrears of rent due from the petitioner. It is evident that the order dated 1.6.1990 did not direct the petitioner to be evicted from the premises in question. The only direction was to reserve the pulley from the premises. So that the running of the Mill did not cause nuisance to the neighbours, including the respondent no.5. 8. Surprisingly, the District Magistrate by his order Annexure-3 which is impugned in the instant application has referred to the order dated 1.6.90 and has proceeded to direct that the aid of Police force be taken and the petitioner be evicted from the premises in question Annexure-3 the impugned order passed by the District Magistrate is entirely without jurisdiction. A District Magistrate has no jurisdiction to entertain an application for eviction of a tenant on whatever grounds. So far the order dated 1.6.90 is concerned which was passed in a proceeding under Section 133 of the Code of Criminal Procedure, there was no direction to evict the petitioner from the premises. The District Magistrate has not displayed any sense of responsibility in discharge of his duties. It is quite apparent that he has acted on an application made by respondent no. 4 which he could not even have entertained. If respondent no. 4 wanted his tenant to be evicted on the ground that he had defaulted in payment of rent or on any other ground, he ought to have approached the proper court having jurisdiction to entertain such an application. 4 which he could not even have entertained. If respondent no. 4 wanted his tenant to be evicted on the ground that he had defaulted in payment of rent or on any other ground, he ought to have approached the proper court having jurisdiction to entertain such an application. Surprisingly; he approached the District Magistrate and the District Magistrate after usurping the powers of the court purports to act as if he was implementing the order dated 1.6.1990 passed in a proceeding under Section 133 of the Code of Criminal Procedure. He did not purport to allow the application of respondent no. 4, but sought to achieve the same objective by misreading the order dated 1.6.1990 passed in the proceeding under Section 133 of the Code of Criminal Procedure and ordering eviction of the petitioner. I have, therefore, no option but to quash the impugned order (Annexure-3) which is not only without jurisdiction but also passed in mala fide exercise of power. 9. Learned counsel for the State submits that since the petitioner has already been evicted pursuant to Annexure-3, this writ petition bas become infurctuous. The submission has to be stated to be rejected. Where injustice results by reason of illegal orders passed by the authorities, this Court is not helpless in the matter and it can always grant appropriate relief in the interest of justice. In the instant case I direct that the District Magistrate shall within three days of the date of receipt of copy of this order in normal course, or upon service of copy of this order upon him by the petitioner, see to it that the petitioner is put back in possession of the premises from which he had been evicted. 10. It is a matter of some concern that the District Magistrate has acted in a highhanded manner, adversely affecting the rights of a citizen. Such acts on the part of the District Magistrate will not help to improve the already grim situation that prevails in the district concerned. Rather it may give an impression to law abiding citizens that the law has no meaning and the authorities who are duty bound to uphold and enforce the law are themselves bent upon misusing the powers vested in them. Rather it may give an impression to law abiding citizens that the law has no meaning and the authorities who are duty bound to uphold and enforce the law are themselves bent upon misusing the powers vested in them. I say so because this is not the first instance of its type and I have noticed such action on the part of executive authorities in other cases as well. In these circumstances, this petition is allowed, Annexure-3 is quashed and the District Magistrate, Jehanabad is directed to give effect to this order of the Court as earlier directed. The District Magistrate who passed the order shall pay personally a sum of Rs. 500/- (Rupees five hundred) by way of costs to the petitioner. It is made clear that I have not interfered with the order passed under Section 133 of the Code of Criminal Procedure which must be given effect.