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2002 DIGILAW 752 (PAT)

Surendra Prasad v. State Of Bihar

2002-07-16

R.S.GARG

body2002
Judgment 1. Heard learned counsel for the parties. 2. The submissions of the present petitioner in writ application are that after some agreement between the parties, the petitioner came in possession of the property and started business there. 3. Though the petitioner says that he took the premises on lease, according to the petitioner certain proceedings under Section 144 Cr.P.C. were drawn and later on dropped, thereafter the police under the influence and pressure of the private respondent started proceedings under Section 107 Cr.P.C. He submits that an application was filed by the private respondent before the Sub Divisional Magistrate, which was registered as Case No. 447MK/01. It is stated that the concerned Sub Divisional Magistrate without issuing notice to the present petitioner called for a report from the Police officer, the said police officer, who was in league with the private respondent submitted the report in favour of the private respondent. The concerned Sub Divisional Magistrate without issuing any notice to the present petitioner and without drawing any proceedings either under Code of Criminal Procedure or under any Civil law or under the provisions of Eviction of unauthorised occupants, directed that the petitioner be dispossessed and after breaking open the lock the possession of the shop be given to the private respondent. The grievance is that in execution of the said order dated 3.5.2001, the petitioner has been dispossessed and the private respondent has been put in possession. 4. On a notice State appeared through the Government Counsel and the concerned Sub Divisional Magistrate has filed his affidavit inter alia submitting that as the property was settled by the authorities in favour of the private respondent and as the present petitioner has no right, title or interest in the property and as he had already put a lock over the property, the action taken by the concerned Sub Divisional Magistrate was justified. 5. The private respondent submits that the property was not let out by him to the present petitioner but in fact under an agreement of partnership, the petitioner was put in possession, it is also contended that the present petitioner was acting dishonestly and had already removed the goods from the premises and thereafter had put a lock over the property. The private respondent submits that the property was not let out by him to the present petitioner but in fact under an agreement of partnership, the petitioner was put in possession, it is also contended that the present petitioner was acting dishonestly and had already removed the goods from the premises and thereafter had put a lock over the property. According to them as the petitioner had already shifted from the said premises and had put a lock over the property, the concerned Sub Divisional Magistrate was absolutely justified in directing restoration of the possession to the private respondent. 6. Learned counsel for the petitioner during the course of arguments submitted that the procedure adopted by the concerned Sub Divisional Magistrate is known to law. He submits that unless a notice is issued to the party against whose interest an order has to be passed, an order cannot be passed and in any case present is a case where principles of natural justice have been violated to the hilt. He submits that the manner in which the concerned police officer has been helping and assisting the case and the cause of the present respondents would speak for itself and it would also appear that the said officer in fact was working as a handle in favour of the private respondent. Learned counsel for the State, however, was unable to support the order passed by the learned Sub Divisional Magistrate, but, however, submitted that there appears to be some bonafide lapses on part of the Sub Divisional Magistrate in passing the order, he submitted that no malafides can be attributed against the concerned Sub Divisional Magistrate. 7. Learned counsel for the private respondent submits that not only the present application was filed by the respondent, but even after dispossession the present petitioner himself had filed an application for restoration of possession and an enquiry was directed to be made. An enquiry was made by the concerned police officer, who again reported in favour of the private respondent. He submitted that private respondent is the owner of the property and as the petitioner had put a simple lock on the property the order passed by the concerned Sub Divisional Magistrate is justified. An enquiry was made by the concerned police officer, who again reported in favour of the private respondent. He submitted that private respondent is the owner of the property and as the petitioner had put a simple lock on the property the order passed by the concerned Sub Divisional Magistrate is justified. It is also contended that the shop remained locked for a period of eight months because the private respondent had gone out of the town for earning his livelihood and during that period the petitioner shifted the goods from the shop and had put his lock. 8. There is no dispute that the private respondent had made an application to the Sub Divisional Officer, copy of the said application is available on the record at Annexure-6. From the said application, it would appear that it has been filed simply for a relief that the Sub Divisional Magistrate be pleased to direct the police to act according to law. In paragraph 6, the private respondent has submitted that the Sub Divisional Officer is competent under law to direct the police to open the lock and put the private respondent in possession. After this application was submitted, it appears that the concerned Sub Divisional Magistrate required the police to submit its report. The police officer submitted his report on 3.5.2001. On the very same date after receiving the report and after hearing the counsel for the private respondent (petitioner before the Sub Divisional Magistrate) an order was passed requiring the police to break open the lock and put the private respondent in possession. 9. I am shocked to see the order passed by the concerned Sub Divisional Magistrate. From the manner in which the order was passed by the Sub Divisional Magistrate, it does not appear that after receiving the application and after registering the case in his Court, he ever issued any notice to the present petitioner. It is trite law and is basic canon of the principles of natural justice that the authority shall not pass an order against the interest of a person without giving an opportunity of hearing to him. In the present case the police report was called for. Either after the registration of the case or after receiving the police report, the concerned Sub Divisional Magistrate did not deem it necessary to issue any notice to the present petitioner. In the present case the police report was called for. Either after the registration of the case or after receiving the police report, the concerned Sub Divisional Magistrate did not deem it necessary to issue any notice to the present petitioner. True it is that title of the private respondent is not in dispute but the question still is that, who was in possession on the date when the Sub Divisional Magistrate had passed the order. Present is not a case where the trespasser or encroacher was in the process of settling himself in the property. Even from the application (Annexure-6) it would clearly appear that the petitioner was put in possession and on the date when the orders were passed against his interest, he was in settled possession. In fact there was a civil dispute between the parties specially in relation to the fact that whether the present petitioner is a tenant as alleged by him or was a partner as alleged by the private respondent. In any case it is also not disputed by the private respondent that the petitioner was in settled possession of the property and as alleged by him was committing breach of the terms of the partnership deed. I fail to understand that how a civil dispute of present nature would become a dispute for a decision under the provisions of the Code of Criminal Procedure. The Sub Divisional Magistrate is entitled to take proceedings either under Section 144 Cr.P.C. or under Section 145 Cr.P.C, beyond that he has no powers. If he draws the proceedings under Section 144 Cr.P.C. then he has to issue a notice to the other side, call for a show cause and then decide that the proceedings initiated under Section 144 Cr.P.C. are to be dropped or to be converted under Section 145 Cr.P.C. If the concerned Magistrate records his satisfaction that there is apprehension of breach of peace and the same continues then he could convert the proceedings under Section 145 Cr.P.C. and could proceed with the matter, but in any case he could not pass an ex-parte, arbitrary, whimsical and capricious order requiring the police to break open the lock and put another party in possession. 10. The manner in which the Sub Divisional Magistrate had passed the order speaks against his understanding. 10. The manner in which the Sub Divisional Magistrate had passed the order speaks against his understanding. It appears that he does not understand law and the manner in which he has tried to support his acts and misdeeds would further show that he is not ready to mend his ways. 11. The order passed by the Sub Divisional Magistrate is patently illegal, it cannot be allowed to stand, it deserves to and is accordingly quashed. The Sub Divisional Magistrate is hereby directed to restore the possession of the property in favour of the present petitioner. On submission of a copy of this order to the concerned Sub Divisional Magistrate, he shall require the said police officer or the competent police officer to come to him and thereafter the concerned Sub Divisional Magistrate with the said police officer shall go to the spot and restore the possession to the petitioner. 12. The manner in which the Sub Divisional Magistrate has acted compels me to require the State Government to look into the desirability of the said Sub Divisional Magistrate to have the criminal powers. It is further directed that the State Government shall pay a sum of Rs. 5,000/- (Five thousand) as compensation to the present petitioner, the State, however, would be free to recover the amount from the wrong-doers. The State shall be obliged to pay the compensation to the petitioner within 15 days from today. Non-observance of this order may lead to serious consequences and the concerned Sub Divisional Magistrate may be taken to task under the provisions of the Contempt of Courts Act. The petition is allowed. 13. A copy of this order be given to the learned counsel appearing for the State by tomorrow.