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2012 DIGILAW 1707 (PAT)

Deb Narayan Sah v. State of Bihar

2012-12-18

ASHWANI KUMAR SINGH

body2012
ORDER In paragraph-1 of the writ petition, the petitioner has made the following prayers: – “1. That the petitioner seeks indulgence of this Hon’ble Court for the following reliefs: – (A) A writ in the nature of certiorari or any other appropriate writ, order, direction, quashing the order dated 22.9.2011 passed by the Sub-Divisional Magistrate, Araria in Sanchika Sankhya 24-4/11 directing the Executive Officer, Nagar Parishad, Araria to unseal the shop of room no.32 of Radha Krishna Seva Sangh, Araria and hand over the same to Ram Lakhan Ram and impliedly rejecting the claim of the petitioner. (B) A writ in the nature of mandamus or any other writ, order, direction commanding the respondents to act in accordance with law and not to disturb the petitioner’s possession, articles and materials lying in shop of the said room no.32 of Radha Krishna Seva Sangh, Araria. (C) Any other relief to which the petitioner is found entitled to.” 2. The case of the petitioner is that he is a tenant of Shree Radha Krishan Seva Sangh, Thakurbari Road, Araria (in short “the Sangh”) since long. 3. The Sangh issued a notice to the petitioner on 21.11.2005 asking him to vacate the room in which he was running a shop by 24.11.2005 so that after demolishing the old construction a new construction be erected. In the notice issued by the Sangh it was clearly mentioned that after the new construction the petitioner would be allotted a new shop. In compliance of the notice issued by the Sangh, the petitioner vacated shop no.1 to facilitate a new construction and deposited Rs.1,30,000/- for the allotment of newly constructed room. The other occupants of the rooms had deposited Rs.80,000/- only as the size of their rooms was smaller. On completion of the new construction, the petitioner’s old room was divided into two parts and numbered as shop no.32 and 33. The petitioner was allotted room no.33 only. He protested against the allotment of smaller size room before the Sangh. The Sangh rectified its mistake and asked him to take possession of room nos.32 and 33 and, accordingly, he took possession of both the rooms and started doing business from there. The petitioner was allotted room no.33 only. He protested against the allotment of smaller size room before the Sangh. The Sangh rectified its mistake and asked him to take possession of room nos.32 and 33 and, accordingly, he took possession of both the rooms and started doing business from there. Subsequently, the Secretary of the Sangh filed an application before the Sub-Divisional Magistrate, Araria on the basis of which a proceeding under section 144 of the Code of Criminal Procedure (in short “the Code”), being Case No.327M of 2006, was initiated. In the said proceeding, by order dated 24.7.2006, the Executive Magistrate was directed to enquire into the matter and submit his report. Sri J.K.Dwivedi, an Executive Magistrate, Araria enquired into the matter and submitted his report on 11.8.2006. The Executive Magistrate, in his report, stated that the petitioner was in possession of Room nos. 32 and 33 from before initiation of the proceeding under Section 144 of the Code. He had kept his articles and materials in the said rooms. The size of the rooms is 9’ x 11’ whereas the size of the room possessed by the petitioner in the old construction was 17’ x 16’. The report further goes to suggest that the Sangh had realized Rs.1,30,000/- from the petitioner whereas, the other occupants of the rooms in the same building had paid Rs.80,000/- only. In the report, it has been contended that in order to resolve the dispute, the Sangh should allot some other room adjacent to the room of the petitioner to respondent no.6. The Sub-Divisional Magistrate, Araria dropped Case No.327M of 2006 by his order dated 5.9.2006 in the light of the recommendation made by the Executive Magistrate. Subsequently, another proceeding i.e., Case No.1724M of 2006 was initiated at the instance of the petitioner since he was constantly being threatened by the Sangh and, accordingly, a show cause notice was issued to the Sangh and its officers and the officer incharge, Araria was directed to maintain status quo. The second proceeding initiated by the Sub-Divisional Magistrate, Araria was also subsequently dropped by order dated 19.12.2006 as the Sangh expressed its willingness to abide by the order dated 5.9.2006 passed in Case No.327M of 2006. The second proceeding initiated by the Sub-Divisional Magistrate, Araria was also subsequently dropped by order dated 19.12.2006 as the Sangh expressed its willingness to abide by the order dated 5.9.2006 passed in Case No.327M of 2006. The further case of the petitioner is that after considerable period of time respondent no.6 claiming to be the allottee of room no.32 filed an application before the Sub-Divisional Magistrate, Araria for getting vacated the said room from the possession of the petitioner. The Sub-Divisional Magistrate, Araria did not initiate any proceeding on the application. He opened a file bearing Sanchika No.24-4/11. The petitioner was directed by the Sub-Divisional Magistrate, Araria to vacate room no.32 within a week. The petitioner produced all the papers before the Sub-Divisional Magistrate, Araria and claimed that he was not an encroacher. However, the Sub-Divisional Magistrate, Araria by order dated 18.3.2011, deputed a Magistrate accompanied with the police force in order to get room no.32 vacated. When the police party along with the Magistrate came to execute the order dated 18.3.2011, the petitioner protested. The Magistrate, taking into consideration the protest made by the petitioner though could not succeed in evicting the petitioner from Room no. 32 but on 5.4.2011, he sealed the room. However, the articles and the materials of the petitioner remained in shop no.32. Ultimately, the Sub-Divisional Magistrate, Araria by his order dated 22.9.2011 passed in Sanchika No.24-4/11, ordered the Executive Magistrate, Nagar Parishad, Araria to unseal room no.32 and hand over the same to respondent no.6. 4. Learned counsel for the petitioner submits that the orders passed in the aforesaid Sanchika No.24-4/2011are glaring example of the executive arbitrariness and administrative high handedness. The orders are completely without jurisdiction. He contends that the Magistrate has no power to adjudicate a private dispute between the parties. 5. Learned counsel for the State submits that the learned Sub-Divisional Magistrate, Araria had passed a speaking and reasoned order after following the principles of natural justice. He found that the claim of respondent no.6 over shop no.32 was bona fide. It has further been contended that the petitioner has left his articles in the said shop on his own while it was being sealed. 6. Learned counsel appearing on behalf of respondent no.6 submits that the Sangh had allotted shop no.32 in favour of respondent no.6 as per consent of all the concerned parties. It has further been contended that the petitioner has left his articles in the said shop on his own while it was being sealed. 6. Learned counsel appearing on behalf of respondent no.6 submits that the Sangh had allotted shop no.32 in favour of respondent no.6 as per consent of all the concerned parties. Since the petitioner was illegally occupying shop no.32, the respondent no.6 lodged a written complaint before the learned Sub-Divisional Magistrate, Araria. The learned Sub-Divisional Magistrate, Araria got the matter enquired into by an Executive Magistrate. The respondent no.6 had also made a representation before the District Magistrate, Araria, on 3.2.2010 and the District Magistrate, Araria, had also directed the Sub-Divisional Magistrate, Araria to pass appropriate orders. In pursuance of the direction given by the District Magistrate, Araria the Sub-Divisional Magistrate, Araria directed the petitioner vide letter contained in Memo No.65 dated 31.1.2011 to vacate shop no.32 which was being possessed by him illegally. Since the petitioner flouted the aforesaid order, the Sub-Divisional Magistrate, Araria deputed an Executive Magistrate vide order contained in memo no.224 dated 18.3.2011 to get the aforesaid shop no.32 vacated from illegal possession of the petitioner. In compliance of the aforesaid order, the concerned learned Magistrate sealed shop no.32. Subsequently, the learned Magistrate was directed by the learned Sub-Divisional Magistrate, Araria vide order dated 22.9.2011 passed in Case No.24-4/11 to hand over the possession of shop no. 32 to respondent no.6. Learned counsel submits that since the orders were passed by the Sub-Divisional Magistrate, Araria after hearing the parties, it is not open for the petitioner to challenge the validity of the order. 7. After hearing the parties, I find that the orders impugned were not passed by the learned Sub-Divisional Magistrate, Araria in any proceeding initiated in terms of the Code. Section 144 of the Code is intended to preserve public peace and tranquility, without lapse of time, acting emergently, if warranted and if necessary, by even over-riding temporary private rights in view of public interest. It is intended to meet an emergency. Its validity is for a period of sixty days from the day the order is passed. Section 145 of the Code is intended to provide speedy remedy for the prevention of breach of peace arising out of disputes relating to immovable property. It is intended to meet an emergency. Its validity is for a period of sixty days from the day the order is passed. Section 145 of the Code is intended to provide speedy remedy for the prevention of breach of peace arising out of disputes relating to immovable property. The object of this section is to enable the magistrate to intervene and pass a temporary order in regard to the possession of the property in dispute, having effect until the determination of the actual right of the parties by a competent civil court. Section 146 of the Code is a corollary to Section 145 of the Code. Under this section the Magistrate is given power to attach the subject of dispute until the competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. The Magistrate is empowered to attach the subject of dispute only in three cases: (i) if it is a case of emergency, or (ii) if none of the parties was in possession, or (iii) if no decision is possible as to the possession. There is no other provision under the Code under which the Magistrate can exercise his power to attach the property in dispute. 8. From the admitted facts of the case, it is apparent that before passing the impugned orders in Case No.24-4/11, the Sub-Divisional Magistrate, Araria had not initiated any proceeding under sections 144 or 145 of the Code. The property can be attached only when there is a proper proceeding in accordance with law, in absence whereof, the order of attachment of the property is without jurisdiction. Moreover, the learned Sub-Divisional Magistrate, Araria had no right to pass an order of eviction. Such right is vested only in a civil court of competent jurisdiction. Admittedly, the petitioner was running his shop from room no.32. The same has illegally been sealed by the respondent-authorities. Such an illegal order cannot be sustained in law. The petitioner can not be deprived of his property in exercise of the police power of the State. The shop of the petitioner has been sealed by the respondent authorities in a manner unknown to law. In that view of the matter, I am of the considered opinion that the orders passed by the learned Sub-Divisional Magistrate, Araria, in Sanchika No.24-4/11, are not only illegal but without jurisdiction too. 9. The shop of the petitioner has been sealed by the respondent authorities in a manner unknown to law. In that view of the matter, I am of the considered opinion that the orders passed by the learned Sub-Divisional Magistrate, Araria, in Sanchika No.24-4/11, are not only illegal but without jurisdiction too. 9. In the result, the writ petition is allowed and the entire proceedings of Sanchika No.24-4/11 are held to be bad and thus, set aside. The Sub-Divisional Magistrate, Araria is directed to immediately unseal shop no. 32 and hand over the possession of the same to the petitioner forthwith. He is further directed not to disturb the possession of the petitioner over the shop in future otherwise than according to procedure established by law.