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2008 DIGILAW 506 (GAU)

Somejahan Saikia v. Sujit Kumar Das

2008-07-18

H.N.SARMA, J.CHELAMESWAR

body2008
JUDGMENT H.N. Sarma, J. 1. Being aggrieved and dissatisfied with the judgment and order dated 19.1.2007 passed by the learned Single Judge in WP(C) No. 2711/2002, the Appellant (Respondent No. 5 in the writ petition) has filed this appeal. 2. We have heard Mr. M. Singh, learned Counsel for the Appellant and Mr. P.K. Roy Choudhury, learned Counsel for the Respondent-writ Petitioner. 3. The pleaded case of the writ Petitioner in the aforesaid writ petition, inter-alia, is that the elder brother of the writ Petitioner took on rent a shop premise from the father of the Appellant on 1.11.1954 under Municipal Holding No. 223 of Ward No. XV of the Nagaon Municipal Board, which was used for running their business under the name and style "M/s. Radha Govinda Medical Hall". After the expiry of the elder brother of the writ Petitioner as per family arrangement he was looking after the affairs of the said business duly complying with the obligation of tenancy. But with a view to evict the writ Petitioner from the aforesaid tenanted premises, the Appellant instituted a proceeding under Section 144, Code of Criminal Procedure, in the Court of the Additional District Magistrate, Nagaon, alleging, inter alia, that the writ Petitioner is a trespasser to the tenanted premises and tried to take possession of the said land as he was a tenant of the said premises for some time; and that the Appellant is in peaceful possession of the aforesaid tenanted premises and the writ Petitioner is trying to obstruct him and dispossess from his parental property and, as such, there is apprehension of breach of peace and tranquility in the area. It is also alleged that the Appellant having been in possession of the said premises for long time, the writ Petitioner has no right to enter therein. On such allegations, the Appellant prayed for passing an order directing the writ Petitioner not to enter the premises described in the schedule of the application and to cause breach of peace and tranquility in the area. 4. On the basis of the aforesaid application, the learned Additional District Magistrate, Nagaon, vide order dated 27.3.2002 registered the application as MR Case No. 180/2002 under Section 144, Code of Criminal Procedure and passed an order directing the writ Petitioner not to enter the scheduled premises. 4. On the basis of the aforesaid application, the learned Additional District Magistrate, Nagaon, vide order dated 27.3.2002 registered the application as MR Case No. 180/2002 under Section 144, Code of Criminal Procedure and passed an order directing the writ Petitioner not to enter the scheduled premises. It is the case of the writ Petitioner that alter obtaining the aforesaid ex parte order, the Appellant along with other family members in the mid night of 28.3.2002 broke the lock and opened the door of the shop premises and entered therein, caused damage to the valuable medical apparatus, furniture and other valuable properties and also destroyed valuable documents like trade license, drug license, payment receipts, etc. Although the writ Petitioner lodged an FIR with the Officers-Charge, Nagaon Police Station (Sadar), the same was not accepted gating that the matter to be a civil dispute. A revision petition was filed challenging the order of the learned Additional District Magistrate, Nagaon, in the court of the learned Sessions Judge, Nagaon, which was registered as CM No. 40(N)/2002 and vide order dated 30.3.2002 the revision petition was entertained and the order dated 27.3.2002 passed by the learned Additional District Magistrate, Nagaon, was Suspended. Even after suspending the aforesaid order the tenanted premises was not restored to him, the writ Petitioner withdrew the said Revision petition. The writ Petitioner who is a member of the Nagaon Bar Association, brought the matter to the notice of the Bar Association and ultimate although the Officer-in-charge, Nagaon Police Station (Sadar) received the FIR of the writ Petitioner on 1.4.2002, no action was initiated thereon for restoration of the possession of the tenanted premises to the Petitioner. Challenging the entire action of the Appellant who took possession of the tenanted premises without following the due procedure of law but by initiating a proceeding under Section 144, Code of Criminal Procedure, the Petitioner approached this Court for necessary redressal by filing the aforesaid writ petition. 5. The Appellant contested the writ petition contending that the writ petition is not maintainable for suppression of material facts, more particularly, the filing of TS No. 30/2002 filed by the Petitioner in the court of the Civil Judge (Jr. Divn.) No. 1, Nagaon and in view of withdrawal of the revision petition challenging the order dated 27.3.2002 under Section 144, Code of Criminal Procedure, the writ petition is not maintainable. Divn.) No. 1, Nagaon and in view of withdrawal of the revision petition challenging the order dated 27.3.2002 under Section 144, Code of Criminal Procedure, the writ petition is not maintainable. The plea raised by the Appellant is mostly technical in nature rather than the merit. 6. The learned single Judge after hearing the parties allowed the writ petition vide impugned judgment and order dated 19.1.2007 by quashing the order dated 27.3.2002 passed by the learned Additional District Magistrate, Nagaon, holding that the Appellant could not have entered the tenanted premises by breaking the lock and opening the door during the subsistence of tenancy agreement with the writ Petitioner. The learned Single Judge has also directed the Director General of Police, Assam, the Deputy Commissioner, Nagaon district and the Officer-in-Charge, Nagaon Police Station (Sadar) to ensure immediate restoration of possession of the tenanted premises to the Petitioner. Such direction was also extended to the present Appellant (Respondent No. 5 in the writ petition. 7. Assailing the said judgment and order of the learned Single Judge Mr. Singh, learned Counsel for the Appellant, submits that the Petitioner not having disclosed about his approaching the civil court for redressal and thereby suppressing material facts, he is not entitled to any equitable relief under the writ jurisdiction. Submission of the learned Counsel is more on technical pleas rather than on merit of the case. 8. Par contra, Mr. Roy Choudhury, learned Counsel for the Respondent-writ Petitioner contends that the entire action of the Appellant including institution of a proceeding under Section 144, Code of Criminal Procedure, is camouflaged one and instead of approaching the appropriate forum to evict the writ Petitioner who is a lawful tenant of the tenanted premises illegally adopted short circuit procedure by misusing the provisions of Section 144, Code of Criminal Procedure and thereby obtained ex parte ad interim order from the learned Additional District Magistrate, Nagaon and forcibly took over possession of the tenanted premises on the night of 28.3.2002 and such an action cannot be permitted under the law and in the backdrop of such facts, the learned single Judge is justified in passing the impugned judgment and order. 9. We have considered the rival contentions of the learned Counsel for the parties. 9. We have considered the rival contentions of the learned Counsel for the parties. The records placed before us clearly demonstrate the fact that the writ Petitioner is a tenant over the disputed premises and has acquired at least some civil right to stay in the said premises under the relevant tenancy law. A tenant can be evicted under the procedure prescribed under the tenancy law, more particularly, under the provisions of the Assam Urban Areas Rent Control Act, 1972. Section 144; Code of Criminal Procedure, deals with the power of the Magistrate to issue order in urgent cases of nuisance or apprehended danger. The key note of the power under Section 144, Code of Criminal Procedure, is to free the society from the menace of serious disturbance of great character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. The section provides for making a prohibitory or mandatory order and such an order must be in the aid of lawful exercise of established legal rights against unauthorized interference, which may lead to breach of peace. 10. Turning to the application filed by the Appellant invoking the provisions of Section 144, Code of Criminal Procedure, we found that the necessary ingredients and/or averments required for taking cognizance of offence for initiating action under Section 144, Code of Criminal Procedure, are absolutely lacking. A close perusal of the averments made in the petition filed under Section 144, Code of Criminal Procedure, establishes the relationship of landlord and a tenant between the parties. The order dated 27.3.2002 on the basis of which the Appellant forcibly took over possession of the tenanted premises on the night of 28.3.2002 also does not satisfy the requirement of law. It does not disclose on what basis the learned Magistrate was satisfied for drawing up a proceeding. That apart, the allegations made in the petition demonstrate violation of private or individual right, if at all, and not of any public peace and tranquility for which immediate prevention of speedy remedy was desirable. Although under Sub-section (1) of Section 144, Code of Criminal Procedure, the learned Magistrate is bound to state the material facts in the order, the same is absolutely found to be lacking in the order. 11. Although under Sub-section (1) of Section 144, Code of Criminal Procedure, the learned Magistrate is bound to state the material facts in the order, the same is absolutely found to be lacking in the order. 11. In our considered opinion, the very basis of initiation of the proceeding under Section 144, Code of Criminal Procedure, on the basis of which forcible possession of the tananted premises was taken is lacking. A proceeding under Section 144, Code of Criminal Procedure, cannot be permitted to draw up in a short circuit process replacing a civil action. The learned Single Judge has elaborately discussed the relevant facts by citing various case laws of the Apex Court as well as of this Court. Accordingly, we do not find any reason to interfere with the same. Consequently, this writ appeal fails and stands dismissed directing the parties to bear their own costs. Appeal dismissed