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2002 DIGILAW 378 (JHR)

Neelam Sinha v. State Of Bihar

2002-03-19

M.Y.EQBAL

body2002
ORDER M.Y. Eqbal, J. 1. The petitioner claiming to be illegally dispossessed from the tenanted premises has moved this application under Artiele 226 of the Constitution of India for appropriate direction upon the respondents for putting the petitioner and her family members in possession of the tenanted premises which is a residential house. 2. Petitioners case inter alia is that she with her family members were in occupation of a house situated at Amaralay Bhawan. Park Market, Hirapur. Dhanbad as a tenant for the last 20-25 years under Late Rati Devi, mother of respondent No. 6 who was the landlord. In 1992, respondent No. 6 filed a suit for eviction being Title (Eviction) Suit No. 125/1992 which is pending in the Court of 1st Additional Munsif at Dhanbad. It is contended that although the aforesaid eviction suit is pending, respondent No. 4 Executive Magistrate and respondent No. 5 Assistant Sub-Inspector of Police, Dhanbad in connivance with respondent Nos. 6, 7 and 8 forcibly evicted the petitioner and her family members from the tenanted premises on 2.7.2000. Petitioner immediately reported the matter to the Superintendent of Police and the Deputy Commissioner, Dhanbad. It is stated that respondent No. 4 to 8 alongwith police force entered into the tenanted premises of the petitioner and thrown away all the household articles. 3. Respondent No. &, Assistant Sub-Inspector of Police. Dhanbad in his counter-affidavit has stated that he was served with a requisition issued by the respondent No. 4 Executive Magistrate, Dhanbad Mr. Dharam-deo Prasad on 4,6.2000, whereby a section of police was required to be kept at his command and accordingly he was deputed with a section of force in terms of the requisition of the Magistrate. Again on 1.7.2000 a requisition was received by the Officer- in-Charge, Dhanbad for a section of police force on 2.7.2000 and he was deputed for the aforesaid date with the Executive Magistrate. On 2.7.2000 they found the premises locked whereupon the lock was broken open by the order of the Magistrate and the articles found in the premises were taken out in presence of local witnesses. The stand of respondent No. 5 therefore is that he has discharged his duties as Sub-Inspector and obeyed the order of the Magistrate and therefore allegation of connivance is unfounded. The stand of respondent No. 5 therefore is that he has discharged his duties as Sub-Inspector and obeyed the order of the Magistrate and therefore allegation of connivance is unfounded. In para 6 -of the counter- affidavit, it is stated that respondent No. 4 Executive Magistrate is responsible for every act as he was the ring master in this regard. Respondent No. 4 has filed separate counter-affidavit wherein it is stated that respondent No. 6 S.N. Mukherjee. an advocate at Dhanbad filed a petition before the respondent No. 3 Deputy Commissioner, Dhanbad stating that he is a landlord of a house namely, Amaralaya and he obtained decree for eviction in Title (Eviction Suit No. 116/85. After the decree, said S.N. Mukherjee executed Execution case No. 1/88 and delivery of possession was handed over to the decree holder. Inspite of that the family members of "the petitioner tress passed into the vacated rented premises. Respondent No. 3 therefore directed the Sub-Divisional Officer, Dhanbad to take action according to law, whereupon the Sub-Divisional Officer directed the respondents to enquire into the matter and report. 4. Curiously enough, respondent-landlord namely, respondent Nos. 6 to 8 have taken totally different stand in their counter-affidavit by stating that despite the decree passed in Title (Eviction) Suit No. 116/85 and they were put in possession in execution of that decree, petitioner in connivance with her parents and husband forcibly tress passed into the premises for which respondents had to file a suit for eviction of the trespassers from the said premises being Title Suit No. 125/92. In para 11 of the counter-affidavit, it is stated that the premises in question has become totally unsafe due to dilapidated condition and respondent No. 6 filed application under Section 133 Cr PC before the S.D.M. Dhanbad which was registered as M.P. Case No. 206/95. The S.D.M. Dhanbad by order dated 8.9.97 directed for eviction of the premises in question by the husband and father of the petitioner. Pursuant to order passed under Section 133, Cr PC respondent No, 6 filed an application before the Sub-Divisional Magistrate, Dhanbad for eviction of the petitioner from the premises in question, which was not allowed and against that order, respondent No. 6 moved application before the Sessions Court who by order dated 23.7.98 gave a finding and made observation against the order of the S.D.M. Dhanbad. It is stated that ultimately petitioners were removed from the premises with the help of police and the Magistrate breaking upon the lock. 5. From the pleadings of the parties, the admitted facts emerge is that on 2.7.2000 the premises in occupation of the petitioner as tenant was vacated by breaking upon the lock and removing all the articles therefrom with the help of police and the Magistrate at the instance of respondent Nos. 6 to 8. The question therefore falls for consideration is to whether petitioner has been thrown out from the premises by the respondents in accordance with law. The respondent Nos. 6 to 8 in their counter-affidavit have admitted that Title Suit No. 125/92 was filed against the petitioner by the said respondents for eviction of the petitioner from the premises in question and the said Title Suit was pending. Respondent Nos. 6 to 8 in their counter-affidavit have very categorically made out a case that because of the premises being in delapidated condition, respondent No. 6 filed application under Section 133, Cr PC before the S.D.M., Dhanbad in which order was passed on 8.9.97 directing the eviction of the premises in question. It is also stated that respondent No. 6 thereafter filed application before the S.D.M., Dhanbad for execution of the order passed on 8.9.97. The S.D.M. Dhanbad, by order dated 6.10.97 rejected the application holding that the order dated 8.9.97 was obtained by respondent No. 6 with ulterior motive to get the house evicted under the garb of proceeding under Section 133, Cr PC. A copy of the order dated 6.10.97 passed by S.D.M. Dhanbad has been annexed as An-nexure-6 to the rejoinder filed by the petitioner. The relevant portion of the order dated 6.10.97 is reproduced herein below : "Even the order passed on 8.9.97 in its operative part gives order to the second party/opposite party to vacate the house within seven days otherwise it will be forcibly vacated. It nowhere mentions that the said house is to be demolished by the first party. Therefore it appears that the actual motive is to get the house evicted under the garb of proceeding under Section 133, Cr PC, which is clearly the jurisdiction only of the civil Court. Hence I dont consider it appropriate to pass any further order in this case." 6. Therefore it appears that the actual motive is to get the house evicted under the garb of proceeding under Section 133, Cr PC, which is clearly the jurisdiction only of the civil Court. Hence I dont consider it appropriate to pass any further order in this case." 6. Respondent No. 6 then moved the learned Sessions Judge, Dhanbad against the aforesaid order by filing Criminal Revision No. 114/97. Learned Sessions Judge disposed of the revision application on 23.7.1998 holding that the order was not revisable and it was rightly observed by the S.D.M., Dhanbad that the proceeding under Section 133, Cr PC is not an appropriate remedy for evicting the tenant when title suit was pending in the Civil Court. The stand of respondent Nos. 6 to 8 in this writ application is that petitioner was evicted with the help of police from the suit premises in execution of order passed under Section 133, Cr PC is wholly false, frivolous and mala fide. 7. Now coming to the counter-affidavit filed by the administration, as noticed above, respondent No. 5, A.S.I. police, Dhanbad in his counter-affidavit has stated that he has simply obeyed the direction issued by the Executive Magistrate, who was the ring master and doing this mis-chief with the petitioner. On the other hand, the Executive Magistrate stated that it was the Deputy Commissioner, Dhanbad who directed him to take immediate action for eviction of the petitioner and other who have trespassed into the house. In para 8 of the counter- affidavit, the Executive Magistrate stated that he by letter No. 883 Dated 26.4.2000 informed the Deputy Commissioner in writing that the matter relates to Civil Court and therefore it would be wholly improper and illegal to take action against the petitioner for their eviction from the house in question. It is stated that the Deputy Commissioner again by letter dated 30.4.2000 directed the S.D.M. Dhanbad to immediately comply his direction within three days by evicting the petitioner from the house. The Executive Magistrate therefore tried to save his skin by saying that he obeyed the direction of the Deputy Commissioner. The Deputy Commissioner who was posted at the relevant time has neither been impleaded as party nor any counter-affidavit has been filed on his behalf. The instant counter-affidavit has been tiled by the Deputy Commissioner, presently posted in Dhanbad. The Executive Magistrate therefore tried to save his skin by saying that he obeyed the direction of the Deputy Commissioner. The Deputy Commissioner who was posted at the relevant time has neither been impleaded as party nor any counter-affidavit has been filed on his behalf. The instant counter-affidavit has been tiled by the Deputy Commissioner, presently posted in Dhanbad. The Deputy Commissioner in his counter-affidavit has taken same stand which has been taken by the Executive Magistrate. In the counter-affidavit, the Deputy Commissioner admitted that it was only on the application filed by the respondents S.N. Mukherjee before the Deputy Commissioner alleging that the petitioners relative have tress-passed into the premises and inquiry was made and direction was issued to the Executive Magistrate who passed the order under Section 133, Cr PC and evicted the premises with the help of police. However, it is stated that the Executive Magistrate talked to both the parties and they had agreed that if S.N. Mukherjee withdraw the case being C.P. No. 790/1992 and T.S. No. 125/92 they will vacate the premises. 8. Mr. R.K. Marathia, Government Pleader No. 2 very fairly and boldly submitted before this Court that he cannot justify the action of the said officer for the reasons that Civil Court decree could not have been executed suo motu at the instance of the Deputy Commissioner; in view of the admitted fact that the suit for eviction was pending against the petitioner. 9. Mr. A.K. Sahani, learned Counsel appearing for the private respondents tried to impress this Court by referring counter- affidavit filed by the respondents namely the Deputy Commissioner and the Executive Magistrate to the effect that when after eviction of the respondents in execution of decree, they again trespassed into the premises, the Deputy Commissioner rightly issued direction for redelivery of possession. The submission of Mr, Sahani and the stand of the Administration has no leg to stand for the reasons that private respondents in their counter- affidavit have admitted that delivery of possession was evicted pursuant to the order passed by the Executive MagistRate under Section 133, Cr. P,C. 10. Prom the facts of the case and the submission made by the learned Counsel I have no doubt in my mind for holding that petitioner has been illegally dispossessed due to arbitrary action of the administration. P,C. 10. Prom the facts of the case and the submission made by the learned Counsel I have no doubt in my mind for holding that petitioner has been illegally dispossessed due to arbitrary action of the administration. The respondent district administration had no authority of law to unlock the premises and dispossess the petitioner when civil suit was pending in the Civil Court. The high handed-ness of the respondent and misuse of power for extraneous reasons has exposed them and proved that authorities are not following the rule of law. I have come across another case where in the same district of Dhanbad the District Administration forcefully took possession of a premises by putting lock and seal and the aggrieved persons moved this Court in C.W.J.C. No. 4331/2000. This Court after holding the action of the administration as being illegal and unauthorised issued direction for immediate delivery of possession. The District Administration of Dhanbad are therefore in the ambit of exercising their power illegally and arbitrarily in disregard of the rule of law and procedure. The Apex Court in a number of times hold that administrative action must be exercised objectively, rationally, fairly and non arbitrarily. It should not be taken in due haste disregarding the procedure nor it should be ultra vires the powers conferred by the Statute. In this connection reference may be made to a decision of the Apex Court in the case of Bangalore Medical Trust v. B.S. Muddappa and others, 1991 (4) SCC 54 . 11. In the case of Samir Sobha Sanyal v. Tracks Trade Private Ltd. and others. 1996 (4) SCC 144 , the Apex Court in similar circumstances observed as under : "Even with regard to that, we are not impressed with the same. Since the letter of the law should be strictly adhered to, we find that high-handed action taken by respondents 2 and 3 and 4 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from the demised property and would say that the status quo be maintained. If the Court gives acceptance to such highhanded action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. If the Court gives acceptance to such highhanded action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law abiding citizens and rule of law would remain a mortuary." 12. In the facts and circumstances of the case. I, therefore, allow this writ application and direct the respondents to immediately and forthwith hand-over possessing of the premises to the petitioner from where he has been illegally dispossessed. Respondent State of Jharkhand shall pay a sum of Rs. 25,000/- (twenty five thousand) to the petitioner by way of compensation for the loss, damages and mis chief committed by them with the property in question by illegally dispossessing the petitioner from the said property.