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2004 DIGILAW 196 (ORI)

Adhunik Steel Limited v. State of Orissa

2004-04-16

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — This revision is directed against the order dated 8.3.2004 passed by the learned Sub-Divisional Magistrate, Bonai in a proceeding under Section 144 of the Code of Criminal Proce¬dure vide Misc.Criminal Case No.3 of 2004. 2. Before considering the legality of the impugned order, it is necessary to look into the facts leading to filing of cases in different Courts in West Bengal as well as in Orissa. The Government of Orissa granted a lease of mining land at Patmunda, Orahri, Tentulldihl, Kusumdihi, Sonpatholi and Bhanajaikusum in the district of Sundargarh in favour of the opposite party. The opposite party-Orissa Manganese and Minerals Pvt. Limited entered into an agreement with the petitioner-Adhunik Steels Limited to carry out mining operation in the aforesaid mines and excavate/extract/remove manganese ores for and on behalf of the opposite party and to deliver the same to it or its customers for a period of 10 years with effect from May 18, 2003 with an option to renew the same on terms and conditions. It is the case of the petitioner that after execution of the agreement it purchased and acquired valuable plants and machineries to work in the mines and also incurred costs, charges and expenses amounting to Rs. 2.5 crores. It is further case of the petitioners that workmen and personnel were engaged and employed to operate mines and since July, 2003 the petitioners have been paying salary and wages of Rs. 3 lakhs per month. Apart from the above, it is the case of the petitioner that it has undertaken massive development of mines by removing more than 2.5 lakhs cum over burden to expose manganese ores valued at Rs. 10 crores. However, on 24.11.2003 the opposite party-company claimed that the agreement was in violation of the Minerals Concession Rules, 1960 and therefore is illegal and void and terminated the same with immediate effect. Since the agree¬ment contained an arbitration clause the petitioner approached Kolkata High Court by way of filing an application under Section 9 of the Arbitration and Conciliation Act, 1996 seeking interim protection by way of an order restraining the opposite party to take over possession of the schedule mines and to refrain from interfering in the mining operation which the petitioner is enti¬tled to carry on in terms of the agreement. Kolkata High Court after hearing counsel for both parties, by order dated 9.2.2004 restrained both parties from taking any step in accordance with the agreement until the matter is decided. Further case of the petitioner is that in spite of such order passed by the Kolkata High Court the opposite party attempted to evict the petitioner forcibly and illegally and misappropriate the assets created by them valued at Rs. 13 crores. In view of such conduct of the opposite party the petitioner made representation to the Collec¬tor, Sundargarh on 30.1.2004 to invoke Section 144 Cr.P.C. and prevent a large scale disturbance that may occur due to conduct of the opposite party. It is further case of the petitioner that on 3.2.2004 some representatives and supporters of the opposite-party-company including the three Directors forcibly entered into the premises of the petitioner-company and assaulted, threatened staff of the petitioner and looted Rs. 2 lakhs. Making such allegations an F.I.R. was also lodged in Koira Police Station vide Koira P.S. Case No. 3 of 2004. It further appears that the petitioner filed an application under Section 144 Cr.P.C. before the Sub-Collector-cum-Sub-Divisional Magistrate, Bonai which was registered as Misc.Criminal Case No.3 of 2004 and after hearing learned counsel for both parties, the impugned order was passed. 3. Sri Parija, learned senior counsel appearing for the petitioners submitted that though in the Arbitration proceeding pending before the Kolkata High Court an order was passed on 9.2.2004 restraining both the parties from taking any further step in accordance with the agreement until the matter is decid¬ed, three Directors of the opposite party-company along with some other staff forcibly entered into the mines area under the occu¬pation of the petitioners on 3.2.2004, assaulted staff of the petitioners and looted away Rs. 2 lakhs. To meet the situation which led to breach of peace, a petition under Section 144 Cr.P.C. was filed before the Sub-Collector and S.D.M., Bonai. Shri Parija further contended that instead of passing an order in terms of order passed by Kolkata High Court, the Sub-Collector-cum-S.D.M., Bonai though restrained both parties from excavating mines, appointed the opposite party as care-taker to watch the mines, to check theft of ores from lease-hold mines as well as the camp at Koira. The S.D.M. also restrained the petitioner from entering into the lease-hold area till the matter is disposed by the competent Court. The S.D.M. also restrained the petitioner from entering into the lease-hold area till the matter is disposed by the competent Court. Learned counsel for the petitioner submitted that since the S.D.M. was aware of the order passed by the Kolka¬ta High Court he could have only passed order in conformity with the order passed by Kolkata High Court and could not have ap¬pointed the second-party to remain in charge of the mines and restrain the present petitioner from entering into the mines. The apprehension of the learned counsel for the petitioner is that the moment the opposite party is kept in-charge of the mines, valuable plants and machineries installed by the petitioner and the manganese ore already excavated shall be sold by the opposite party and employees of the petitioner shall be thrown out of mines giving rise to serious breach of peace as well as loss to the petitioner-company. Considering such submission, this Court by an ex parte order dated 19.3.2004 directed the Deputy Director of Mines to remain in charge of the entire mines instead of opposite party as di¬rected by the S.D.M. 4. Shri Jagannath Das, learned senior counsel appearing for the opposite party had filed an application for vacating the interim order on the ground that subsequent orders passed by Kolkata High Court were suppressed and not brought to the notice of the Court, as a result of which the ex parte order is liable to be modified/vacated. Shri Das further contended that since the matter is pending before Kolkata High Court, the learned S.D.M. had absolutely no jurisdiction to entertain the application under Section 144 Cr.P.C. Learned counsel brought to the notice of the Court the order dated 12.3.2004 passed by the Kolkata High Court and it appears that as an interim measure, the Kolkata High Court passed the following order : “Such being the position and since as it appears that the main matter is coming up for hearing on 15th March, 2004, it would be proper for me to direct at this stage that this order will not stand in the way of the petitioner either to enter into the agreement with the authorities to excavate the mines without disturbing the possession of Adhunik Steels Ltd., if any, which has been specifically disputed by Mr. Pal appearing for the respondent, Orissa Manganese and Minerals Pvt. Ltd. I further make it clear that no third party right can also be created by Mr. Pal’s client in respect of the materials lying at the said Mines and Mr. Pal’s client shall not remove the same.” It further appears that after such order was passed, the Kolkata High Court has again by order dated 30.3.2004 appointed Mr. Pradip Mitra (Sr.) of Bar Library Club, 1st Floor, High Court, Calcutta as Special Officer who will make inventory of the plant and machinery and the goods i.e. the excavated manganese ores and also take measurement of the same with the help of an expert to be appointed by the Special Officer at the cost of the petitioner. It is further directed that the Special Officer will not interfere with any other things. Referring to the aforesaid orders Sri Das, learned Senior Advocate appearing for the oppo¬site party submitted that since the matter is pending before the Kolkata High Court, the petitioner should have approached the said Court in the said proceeding for any other appropriate order to prevent breach of peace. 5. There is no dispute that the matter is pending before Kolkata High Court and some orders as indicated above have been passed by the said High Court. In the case of Mahant Ram Saran Dass -v- Harish Mohan and another, reported in (2001) 10 S.C.C. 758 , while dealing with the jurisdiction of the Magistrate under Section 145 Cr.P.C. during pendency of a civil suit, the Apex Court observed as follows : “The short question that arises for consideration is whether in the facts and circumstances of the present case, a civil suit for declaration under Section 92 of the Code of Civil Procedure being pending before the competent forum, the Civil Court, the respondent was entitled to invoke the jurisdiction of the Magis¬trate under Section 145 Cr.P.C., and the Magistrate was entitled to initiate the proceedings and pass any interim order of ap¬pointment of receiver therein. It is not disputed that in the civil suit itself the Court has passed interim order of injunc¬tion, and put certain restrictions on the parties with regard to alienation of the property in question. It is not disputed that in the civil suit itself the Court has passed interim order of injunc¬tion, and put certain restrictions on the parties with regard to alienation of the property in question. It is true that the applicant before the Magistrate, has not been arrayed as party-defendant in the civil suit, but that will not alter the position in any manner since in our view the Civil Court being in seisin of the matter, any appropriate relief could be obtained from the Civil Court itself and the Magistrate had no jurisdiction in the case in hand to entertain the application under Section 145 Cr.P.C., and to pass any orders thereon. In the circumstances, the impugned order of the High Court as well as the proceeding initiated before the Magistrate under Section 145 Cr.P.C. stand set aside. The appeal is disposed of accordingly. Needless to mention the status quo as of today to be maintained to enable the parties to move the Civil Court for appropriate orders.” Same view was also taken by this Court in the case of Ashok Kumar Agarwala and another -v- Sankarlal Choudhury reported in (1988) 1 OCR 13. In the aforesaid decision this Court held that if civil suit is pending between the parties relating to self-same property and ad interim injunction has been issued by Civil Court restraining possession of one party, there is no need of starting proceeding under Section 144 or 145 Cr.P.C. If there is any proceeding pending under either of the provisions, it should be dropped. If the Magistrate finds any breach of peace he can proceed under Section 107 Cr.P.C. The order dated 9.2.2004 passed by Kolkata High Court clear¬ly shows that both parties are restrained from taking any further steps in accordance with the said agreement until the matter is decided. In view of restraint order passed by the Kolkata High Court and in view of what has been decided by the Apex Court and this Court in the aforesaid decisions, I am of the view that the learned S.D.M. could not have passed any order which is not in conformity with the order passed by the Kolkata High Court. If there was apprehension of breach of peace the learned Magistrate could have proceeded under Section 107 Cr.P.C. Therefore, direc¬tions issued by the learned Magistrate in the impugned order are not sustainable. If there was apprehension of breach of peace the learned Magistrate could have proceeded under Section 107 Cr.P.C. Therefore, direc¬tions issued by the learned Magistrate in the impugned order are not sustainable. One may further observe that in view of the decisions referred to above the proceeding under Section 144 Cr.P.C. could not have been entertained by the S.D.M. 6. I, accordingly, quash the order dated 8.3.2004 passed by the learned S.D.M., Bonai. Since the order dated 8.3.2004 is quashed, there cannot be any further apprehension as expressed by the learned counsel for the petitioners that the opposite party-company once kept in charge of the mines, shall either sell away plant and machineries as well as manganese ores. Accordingly, there is also no need to continue interim order passed on 19.3.2004 by this Court. This revision is disposed of with the aforesaid observations and directions. If the parties are aggrieved by the conduct of either party, they should move Kolkata High Court where the matter is subjudice. Revision disposed of.