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2004 DIGILAW 59 (PAT)

Jai Govind Patel v. State Of Bihar

2004-01-14

CHANDRAMAULI KR.PRASAD

body2004
Judgment 1. This application has been filed for quashing the order dated 2-8-2002 passed by the Sub-Divisional Magistrate, Bhabhua in Case No. 133 of 2002 (Annexure-5). 2. Respondent No. 4 happens to be the owner of one of the shops in a cluster of shops namely, Sanjay Katra in the town of Bhabhua. He filed application for fixation of rent. According to him respondent No. 5 Sheo Pujan Mishra was his tenant. The Sub-Divisional Magistrate, Bhabhua, bv order dated 11-8-2001, on the basis of the purported compromise entered between respondent Nos. 4 and 5, directed the Office-in-charge of Bhaubhua Police Station to break open the lock and hand over the possession of the articles to respondent No. 5. In pursuance of the said order, inventory (Annexure-2) of the articles found in the shop, had been prepared and the shop in question was handed over to the landlord, i.e. respondent No. 4. Petitioner claiming to be the tenant having been inducted after the vacation of the tenanted premises to the original tenant Sheo Pujan Mishra filed appeal before the Collector which was registered as Appeal Case No. 26/2001-2002. The Collector, by order dated 17-1-2002 (Annexure-3), dismissed the appeal. Aggrieved by the same, petitioner preferred C.W.J.C. No. 3004 of 2002 (Jai Govind Patel v. The State of Bihar and others) before this Court. This Court, by order dated 2-4-2002, disposed of the writ application with the following observation : The petitioner even today is free to make an application before the S. D. O. /Rent Controller for the said relief. It is made clear that if such an application is filed then the S. D. O. shall be obliged to issue notice to the said landlord and the alleged tenant who entered into the said compromise because the allegations are of serious nature and if not inquired into seriously, they may shake confidence of the general public in system itself. 3. In the light of the liberty given to the petitioner, he preferred application and by the impugned order, same has been rejected. 4. Mr. Srinandan Singh appears on behalf of the petitioner, Junior Counsel to Govt. Pleader No. IX appears on behalf of the State whereas Mr. R. S. Sahay is present on behalf of respondent No. 4. In spite of service of notice on respondent No. 5. nobody has chosen to appear on his behalf. 5. Mr. 4. Mr. Srinandan Singh appears on behalf of the petitioner, Junior Counsel to Govt. Pleader No. IX appears on behalf of the State whereas Mr. R. S. Sahay is present on behalf of respondent No. 4. In spite of service of notice on respondent No. 5. nobody has chosen to appear on his behalf. 5. Mr. Singh submits that the prayer made by the petitioner has been rejected by the Sub-Divisional Magistrate on the ground that it has no power to recall or re-open the matter. Learned counsel submits that in view of the command of this Court, the Sub-Divisional Magistrate was obliged to make an inquiry as to whether the order was obtained on the basis of a surreptitious compromise or not and he having not gone into this question, the order deserves to be set aside by this Court only on this ground. 6. Mr. Sahay submits that the petitioner being not the tenant, has no locus stand to file the application. I am afraid, I cannot go into this question at this stage. This Court, in its earlier order, had directed the Sub-Divisional Magistrate to make an inquiry into the allegation made by the petitioner that the order had been obtained by filing a surreptitious compromise petition. In that view of the matter, the Sub-Divisional Magistrate was obliged to go into this question and he should not have dismissed the application on the ground that he has no power to recall or re-open the proceeding. The learned Magistrate ought to have taken into consideration the plea of the petitioner that he was inducted by Sheo Pujan Mishra the original tenant and as such, he has interest in the lis. This itself vitiates the impugned order. 7. The Sub-Divisional Magistrate, Bhabhua shall now proceed to inquire as to whether the earlier order passed by him was on the basis of the surreptitious compromise or not and thereafter pass order in accordance with law. It is made clear that any observation made by me in the present application is for the purpose of its disposal and the Sub-Divisional Magistrate shall not be prejudiced by the same. 8. It is made clear that any observation made by me in the present application is for the purpose of its disposal and the Sub-Divisional Magistrate shall not be prejudiced by the same. 8. Petitioner shall also be free to file ap plication before the Sub-Divisional Magistrate for release of the articles seized and in case, he is of the opinion that the same belong to the petitioner, he shall pass order for disposal of the articles within four weeks from the date such an application is filed. 9. Writ application stands allowed in the aforesaid terms. Application allowed.