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2006 DIGILAW 765 (ORI)

Sanyasi Barik v. Orissa Secretariat Low Paid Employees Co-Operative Societies Limited

2006-11-08

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. — The petitioner in the present writ petition prays for issue of a direction to the opp.parties 1 and 2 to redeliver possession of shop room No.6 at Kharvelnagar, Bhubanes¬war, to him, after holding that the forcible eviction of the petitioner from the said room by the opp.parties is without au¬thority of law. The petitioner has stated that he was a bona fide tenant in respect of the aforementioned shop room under the opp.party No.1-Society by virtue of an agreement annexed to the writ petition as Annexure-1. While the petitioner was carrying on his business from the said shop room and was regularly paying rent to the opp.party No.1, the opp.party No.1 issued a notice on 1.2.2006 to the petitioner for vacating the said shop room (Annexure-4). It is stated by the petitioner that even after issuance of the said notice, the opp.party No.1 has accepted rent from the petitioner on 4.3.2006. On 7.3.2006, the opp.parties 1 and 2 being accompanied with the Executive Magistrate-opp.party No.4 and police personnel of Kharvelnagar Police Station came to the shop room of the petitioner, threw away the movable articles kept therein, forcibly evicted the petitioner and locked up for the said shop room. The petitioner thereafter claims to have not been able to enter into the said shop room and the same is under lock and key put by the opp.party No.1. It is alleged that on enquiry, the petitioner came to know that by a letter of the Asst. Registrar, Cooperative Societies-opp. party No.3 being letter No.860 dated 24.2.2006, copy whereof was endorsed to the Superintendent of Police, Khurda at Bhubaneswar under memo No.861 dated 24.2.2006, the said Asst. Registrar, Co-operative Societies intimated the Sub-Collector, Bhubaneswar that from the report of the Secretary of the opp.party No.1-Society dated 27.12.2006 addressed to him, he has learnt that a number of tenants have taken some rooms of the said Society on rent, for business pur¬pose, on execution of due agreement with the Society. But the tenants have occupied their rooms unauthorisedly after expiry of the term of such agreements and were directed to vacate the said shop rooms by the said Society and have failed to do so. But the tenants have occupied their rooms unauthorisedly after expiry of the term of such agreements and were directed to vacate the said shop rooms by the said Society and have failed to do so. On account of the above, the business of the said Society is under threat and the Society is also not being able to repair the said rooms for which it has become indispensable to evict the tenants from the said shop rooms in presence of Magistrate and police personnel, in order to enable the Society to carry on its busi¬ness. On the above intimation, the said Asst. Registrar requested the Sub-Collector in the said letter for favourable orders for deputing an Executive Magistrate and for providing police assis¬tance for evicting the petitioner and others, similarly, placed like the petitioner, under the provisions of Section 33 (3) of the Orissa Cooperative Societies Act, 1962 (hereinafter referred as ‘the Act’). The petitioner has also learnt that on receipt of the said letter, the Sub-Collector, Bhubaneswar rendered neces¬sary police help and directed a Magistrate to be present during the process of eviction and pursuant to such assistance being provided, the petitioner was forcibly evicted as stated earlier. 2. Mr. Sarangi, learned counsel for the petitioner vehe¬mently argued that the Sub-Collector, Bhubaneswar had no authori¬ty under law to render police help and direct the Executive Magistrate to be present for forcibly evicting the petitioner from the shop room which he was occupied by the petitioner as a bona fide tenant under the opp.party No.1-Society. He further submitted that such action is not contemplated under Section 33 of the Act. The other question raised by Mr. Sarangi is that the action of forcible eviction of the petitioner clearly shows viola¬tion of Right to Life under Article 21 of the Constitution of India as the petitioner was earning his livelihood from the busi¬ness which he was carrying on, from the said shop room and by the illegal action of the opp.parties, the petitioner has been de¬prived of his livelihood which, on the face of it, is unconstitu¬tional. 3. Mr. 3. Mr. P. Acharya, learned counsel, who has entered ap¬pearance on behalf of opp.parties 1 and 2, on the other hand, contended that the writ petition is not maintainable as the relief claimed though virtually against the Government Officials being opp.party Nos.3 to 5, is in reality, against the opp.par¬ties 1 and 2 who are not amenable to the writ jurisdiction under Article 226 of the Constitution. 4. Since the basic facts involved in the writ petition are not disputed, we heard the matter on merits. From the letter under Annexure-6, we find that on the basis of the letter written by the Asst.Registrar, Cooperative Societies-opp.party No.3, to the Sub-Collector, Bhubaneswar, police assistance was directed to be given to the opp.party No.1-Society and an Executive Magis¬trate was also directed to remain present during the process of eviction of the petitioner from the shop room in question, appar¬ently by force. 5. It is naive to state that even in the case of a monthly tenant, the landlord has no right to forcibly evict the tenant without taking recourse to law. It is clear from the facts of the present case that it was at the instance of the Asst. Registrar, Co-operative Society based on a letter of the opp.party No.1-Society, the Sub-Collector rendered necessary police help and also directed the presence of an Executive Magis¬trate for forcibly evicting the petitioner, purportedly exercis¬ing power under Section 33(3) of the Act. Section 33 of the Act is quoted hereunder :- “33. Securing possession of records etc.- (1) If the Committee of a Society is reconstituted at a general meeting of the Society or is removed by the Registrar under Section 32 or if the Society is ordered to be wound up under the Section 72 and the outgoing members of the Committee refuse to hand over charge of the records and property of the Society to the new Committee or the Administrators or the Society appointed under Section 32 or the Liquidator, as the case may be, such Committee, Adminis¬trators, Society or Liquidator, as the case may be, may apply through the Registrar or any person empowered by the Registrar to the Sub-divisional Officer having jurisdiction for securing such records and property. (2) The Registrar may, if he has reason to believe that any records of any Society are likely to be tampered with or sup¬pressed or that any property of any Society is likely to be re¬moved or misappropriated; authorize any person to enter and search any place where such records or property are kept or are believed to be kept and to seize such records and property and in the event of such person being prevented from making any such en¬trance, search or seizure, the Registrar may apply to the Sub-Divisional Officer having jurisdiction for securing such records and property. (3) On receipt of an application under Sub-sec. (1) or (2) the Sub-Divisional Officer may, by a warrant authorize any Police Officer, not below the rank of a Sub-Inspector, to enter and search any place where the records and property are kept or are believed to, be kept and to seize such records and property and the records and property so seized shall be handed over to the applicant. Explanation - For the purposes of this Section “Sub-Divisional Officer” means the Principal Revenue Officer of the Sub-Division.” 6. A bare reading of the above provisions would go to show that power under Sub-section (3) of Section 33 of the Act can only be exercised either on receipt of an application under Sub-sections (1) or (2). An application under Sub-section (1) can be made if the committee of a society is reconstituted of a general meeting of the society or is removed by the Registrar under Section 32 or if the society is ordered to be wound up under Section 72 and out going members of the committee refused to hand over charge of the records and property of the society to the new Committee or the Administrators or the Liquidator, as the case may be. The application is required to be filed by such Commit¬tee, Administrators or Liquidator as the case may be, through the Registrar to the Sub-Divisional Officer having jurisdiction. The application is required to be filed by such Commit¬tee, Administrators or Liquidator as the case may be, through the Registrar to the Sub-Divisional Officer having jurisdiction. Sub-section (2) contemplates that the Registrar may apply to the Sub-Divisional Officer if he has reason to believe that any records of the society are likely to be tampered with or suppressed or that any property of the society is likely to be removed or mis-appropriated, and while the authorized person of the Registrar is prevented from making any entrance to search any place for such records or property. 7. In our considered view, no such contingency as contem¬plated under Sub-sections (1) or (2) of Section 33 of the Act arose in this case for the Sub-Collector to take any action under Sub-section (3) thereof. In such view of the matter, the action of the Sub-Collector taken on the letter of the Asst. Registrar Co-operative Society in rendering police help and directing presence of a Magistrate for forcibly evicting the petitioner from the shop room in question is clearly without authority of the law. 8. We, therefore, have no hesitation to hold that the eviction of the petitioner by force and with the help of police in presence of an Executive Magistrate which was availed of by purported exercise of the power of the Sub-Collector under Sec¬tion 33 (3) of the Act could not have been done. Thus, the action of forcible eviction of the petitioner being illegal, in our view, the petitioner is entitled to an order of restoration of possession of the shop room which he was occupying previously. In view of our above conclusion, we do not find any necessity to go into the question as to whether there has been infringement of right of the petitioner under Article 21 of the Constitution of India. 9. We, accordingly allow the writ petition with following directions:- (i) The opp.party No.3-Asst. Registrar, Co-operative Socie¬ty is directed to remove the lock put in shop No.6 of the shop rooms situated at Kharvelnagar, Bhubaneswar belonging to opp.party No.1-Society and redeliver the possession of the shop room to the petitioner. (ii) The Inspector-in-Charge, Kharvelnagar, Police Station-opp.party No.5 is directed to render police help for preventing any untoward incident at the time of redelivery of possession of the shop room to the petitioner by the opp.party No.3. (ii) The Inspector-in-Charge, Kharvelnagar, Police Station-opp.party No.5 is directed to render police help for preventing any untoward incident at the time of redelivery of possession of the shop room to the petitioner by the opp.party No.3. The opp.party No.1-Society is restrained from evicting the petitioner after redelivery of the possession of the shop room without taking recourse to due process of law for eviction of the peti¬tioner. 10. All the parties shall act in compliance with the above directions, which shall be complied within a period of fifteen days from the date of production of the certified copy of this judgment before the opp.party No.3 by the petitioner. S. B. ROY, C.J. I agree. Petition allowed.