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2009 DIGILAW 1769 (PNJ)

Rishi Parkash v. State Of Haryana

2009-10-14

AUGUSTINE GEORGE MASIH

body2009
Judgment Augustine George Masih, J. 1. The present petition is for quashing of an FIR No. 2 dated 02.01.2009 (Annexure P-3) under Sections 453/506 IPC registered at Police Station Ganaur, District Sonepat and all consequential proceedings arising therefrom. 2. Briefly stated the facts are that a complaint dated 02.01.2009 (Annexure P-2) under Section 453/506 IPC was filed by respondent No. 2 stating therein that the houses in Raunaq Nagar, Ganaur were requisitioned by the District Magistrate, Sonepat for the residence of the Administrative Officers vide order dated 05.12.2008. On 26.12.2008, the complainant, who was posted as a Naib Tehsildar Ganaur, along with Tehsildar, Ganaur went to take the possession of the house, in which the petitioner was residing on the basis of the order dated 05.12.2008 issued by the District Magistrate, Sonepat under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953 (hereinafter referred to as the Punjab Act). The petitioner, who was earlier posted as Naib Tehsildar Ganaur, was in occupation of the house but after the issuance of order dated 05.12.2008, he was illegally occupying the same by way of house trespass. A request was made by the complainant-respondent No. 2 and Tehsildar. Ganaur to the petitioner to vacate the house and also apprised him of the order passed by the District Magistrate, Sonepat but the petitioner became furious and shunted out the complainant and the Tehsildar. Ganaur from the house and warned them that if they again asked him to vacate (he house then they shall face dire consequences. On this basis, it was alleged that this act of the petitioner would amount to commission of an offence punishable under Sections 453/506 IPC. The said complaint was sent under Section 156 (3) Cr.P.C. by the Sub-Divisional Judicial Magistrate, Ganaur to the S.H.O. Police Station, Ganaur for registration of an FIR against the petitioner. The said complaint resulted in registration of FIR No. 2 dated 02.01.2009, which is impugned herein by the petitioner. 3. Counsel for the petitioner contends that the Punjab Act is not applicable to the State of Haryana in the light of the fact that the State of Haryana has enacted an Act No. 35 of 1973, which is called as the Haryana Requisitioning and Acquisition of Immovable Property Act, 1973 (hereinafter referred to as the Haryana Act). 3. Counsel for the petitioner contends that the Punjab Act is not applicable to the State of Haryana in the light of the fact that the State of Haryana has enacted an Act No. 35 of 1973, which is called as the Haryana Requisitioning and Acquisition of Immovable Property Act, 1973 (hereinafter referred to as the Haryana Act). The order dated 05.12.2008 passed by the District Magistrate, Sonepat has been issued in exercise of the powers under the Punjab Act. Me contends that the said order is without any authority of law as the Act, under which the power has been exercised by the District Magistrate, is no more applicable to the State of Haryana. He contends that all actions taken on the basis of and in pursuance to the order dated 05.12.2008 are illegal and are, therefore, not sustainable. He, on this basis, contends that the FIR registered against the petitioner, which was on the basis of order dated 05.12.2008, cannot be sustained. He contends that the act of respondent No. 2-complainant and the Tehsildar, Ganaur by going to the house of the petitioner and getting it vacated on the basis of the order dated 05.12 2008 and thereafter, the response of the petitioner to their asking the petitioner to vacate the house in question, cannot be said to have been performed by them in their official capacity nor it can be said that the petitioner was in illegal occupation of the house or was he a trespasser in the house since the order requisitioning the house, where the petitioner was residing, was not in accordance with law as the same had not been issued under the authority of law but was issued under an Act, which is not applicable to the State of Haryana. He, therefore, contends that the present Petition may be allowed and the FIR in question may be quashed along with all consequential proceedings arising therefrom. 4. On the other hand, counsel for the State submits that the act of the petitioner in continuing in possession of the house in question without any authority in law cannot be said to be justified in the light of the fact that the petitioner stood transferred from his place of posting. 4. On the other hand, counsel for the State submits that the act of the petitioner in continuing in possession of the house in question without any authority in law cannot be said to be justified in the light of the fact that the petitioner stood transferred from his place of posting. He further contends that in the light of the fact that the petitioner was occupying the house without an authority, the offence of Section 453 IPC is fully made out. He further contends that as the petitioner had threatened the complainant and the Tehsildar, Ganaur, who had gone to his house to implement the order dated 05.12 2008 passed by the District Magistrate, Sonepat, offence under Section 506 IPC is clearly made out. He, on this basis, submits that the FIR registered aga inst the petitioner cannot be quashed. However, he has no answer to the submission made by the counsel for the petitioner that the Punjab Act is not applicable to the State of Haryana in the light of the fact that the State of Haryana had enacted Act No. 35 of 1973 titled as The Haryana Requisitioning and Acquisition of Immovable Property Act, 1973. 5. I have heard the counsel for the parties and have gone through the records of the case. 6. The FIR in question deserves to be quashed simply because the FIR, which has come into existence against the petitioner, is based on order dated 05.12.2008 (Annexure P-1) passed by the District Magistrate, Sonepat, which has been issued while exercising the powers under the Punjab Act. The said order is without any jurisdiction and authority in law for the reason that the said Act is not applicable to the State of Harayana in the light of enactment of Act No 35 of 1973 by the State of Haryana known as The Haryana Requisition in and Acquisition of Immovable Property Act. 1973. The reason for registration of the FIR against the petitioner is the order dated 05.12.2008, execution of which order the complaint-respondent No. 2 and Tehsildar, Ganaur had gone to the house of the petitioner where he had been residing for the last four years, The order dated 05.12.2008, which was issued by the District Magistrate requisitioning the property i.e. the house where the petitioner was residing for the purpose of residence of SDM. Ganuar and Tehsilsdar/Naib Tehsildar, Ganaur, was without legal sancity. Ganuar and Tehsilsdar/Naib Tehsildar, Ganaur, was without legal sancity. The action which followed on the part of the petitioner cannot be asstitional do not which would amount to commission of an offence under Sections 453/506 IPC. Section 453 IPC would not be applicable as the petitioner was not in occupation of the house without an\ legal authority. He cannot be said to have committed house trespass or house breaking when he was in due occupation of the house. Counsel for the petitioner has placed on record the ration card and the bills of the telephone, which clearly show that the petitioner was in possession of the house much before the issuance of the order dated 05.12.2008 and subsequently on 26.12 2008 when the alleged act, which has now been termed as an offence was committed by the petitioner. The threat, which is stated to have been given by the petitioner to the complainant-respondent No. 2 petitioner and the Tehsildar, Ganaur cannot be termed as one which would bring the said threat within the provisions of Section 506 IPC. 7. That apart, even if it is assumed that the order dated 05.12.2008 (Annexure P-1) was passed by the competent authority and that too, under a competent act. still the provisions as contained under the Haryana Act, have not been complied with by the Distrct Magistrate. Sonepat while issuing the said order. Sections 3 and 4 of the I laryana Act would be relevant for this purpose and the same read as follows .- "3 Power to requisition immovable Properly (1) Where the compotent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the State, and that the properly should be requisitioned, the competent authority :- (a) shall call upon the owner or any other person who may be in possession of the property by notice in writing (specifying therein the purpose of the requisition) to show cause within fifteen days of the date of the service of such notice on him. why the property should not be requisitioned: and (b) may by order, direct that neither the owner of the property nor any other person shall without permission of the competent authority dispose of or structurally alter, the property or let it out to a tenant until the expiry of such period not exceeding two months, as may be specified in the order. (2) If. alter considering the cause, if any show by any person interestedin the property or in possession thereof, the competent authority is satisfied that is necessary or expedient so to do; it may by order in writing requisition the property and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning; Provide that no property or part thereof. (a) which is bona fide used by the owner thereof as the residence of himself or his family, or (b) which is exclusively used either for religious worship by the public or as a school, hospital, public library or an orphanage or for the purpose of accommodation of persons connected with the management of such place of worship or such school, hospital, library or orphanage, shall be requisitioned. Provided further that where the requisitioned property consists of premises which arc being used as a residence by a tenant for not less than two months immnediately proceeding the date of the service of notice under sub-section (1), the possession of the property shall not be taken unless the competent authority has provided such tenant with alternative accommodation which in its opinion, is suitable. 4. Power to take possession of requisitioned property :- (1) Where the property has been requisitioned under Section 3, the competent authority may, by notice in writing, order the owner as well as any other person who may be in possession of the property to surrender or deliver possession thereof to the competent authority or any person duly authorized by it in this behalf within thirty days of the service of the notice. (2) If any person refuses or fails to comply with an order made under sub-section (1), the competent authority may take possession of the property and may, for that purpose, use such force as may be necessary. 8. (2) If any person refuses or fails to comply with an order made under sub-section (1), the competent authority may take possession of the property and may, for that purpose, use such force as may be necessary. 8. It is a positive assertion made by the petitioner in his petition before this Court that the petitioner was in possession of the house in question and was residing in the same alone with his family. Section 3 of the Act clearly stipulates that a notice has to be issued to the owner of the residence as also to the person who is residing in the same. Admittedly no notice has been served upon the petitioner by the District Magistrate. Secondly, Section 4 of the Act further stipulates that notice of 30 days has to be given to the person who is in possession of the property to surrender or deliver the possession thereof to the competent authority or any other person duly authorized by it in this behalf. The provision has also not been complied with. The order for requisitioning of the house in question as dated 05.12.2008 and as per the complaint, the complainant along with Tehsildar, Ganaur had gone to the house of the petitioner on 26.12.2008 to take possession of the house as per the order of the District Magistrate, Sonepat dated 05.12.2008. This clearly shows that the provision of Section 4 of the Haryana Act has been violated with impunity. 9. The only conclusion, which can be drawn from the facts as is apparent from the complaint, is that the respondents without caring for the provisions of law only wanted to dispossess the petitioner by whatever means. As is apparent firstly, the order dated 05.12.2008 was passed under an Act which was not applicable to the State of Haryana and secondly, even the provisions of the Haryana Act, as contained in Sections 3 and 4 thereof, has been violated with impunity. The action of respondent No. 2 smells of mala fide and arbitrary exercise of powers by the authorities without application of mind and without caring to look into the provisions of law. 10. In view of the above, the present petition is allowed. FIR No. 2 dated 02.01.2009 (Annexure P-3) under Sections 453/506 IPC registered at Police Stattion Ganaur, District Sonepat and all consequential proceedings arising therefrom are hereby quashed. 11. 10. In view of the above, the present petition is allowed. FIR No. 2 dated 02.01.2009 (Annexure P-3) under Sections 453/506 IPC registered at Police Stattion Ganaur, District Sonepat and all consequential proceedings arising therefrom are hereby quashed. 11. It would not be out of way to mention here that the counsel for the petitioner has informed the Court that the petitioner has already evicted the house in question way back which fact is not disputed by the counsel for the State.