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2012 DIGILAW 821 (PAT)

Shambhu Singh v. State Of Bihar

2012-06-18

RAVI RANJAN

body2012
CAV ORDER Petitioner seeks direction to the respondents to restore his possession over the shop situated in the market complex standing over the Khesara No.1443 appertaining to Khata No.141 in Ward No.13 at Gopalganj, wherefrom he was dispossessed by the State-respondents in connivance with respondent no.7. He also seeks inquiry into the circumstance under which, without any valid order passed by the competent court, the petitioner being a bona fide tenant has been dispossessed from the shop in question and for adequately compensating him for their arbitrary and illegal action as he claims that his printing machine and other valuable articles worth Rs.2 lakhs have been removed behind back of the petitioner. 2. Shorn of the details brief facts of this case necessary for appreciation of the lis between the parties are narrated as under:- 3. The petitioner had approached the father of respondent no.7, namely, Dwarika Prasad, who was owing a “Khaparposh” market situated at Khesara No.1443 appertaining to Khata No.141 in Ward No.13 at Gopalganj for letting out his shop in favour of the petitioner on rent for running the business of Printing Press & Book Binding. The landlord agreed and, accordingly, an agreement was executed by the parties . The shop was let out at the rent of Rs.160/- per month with a clause that it would be open for the landlord to get the premises vacated on one month previous notice. The deed of lease has been brought on record as Anenxure-1. However, it does not disclose the period for which the same was executed and at the same time, it also does not appear to be a registered document. The petitioner, thereafter, installed the printing machines and started doing business. He has also annexed certificate dated 09.03.1983 issued by the Directorate of Industries, Government of Bihar declaring that the petitioner is running a small scale industry registered with the Directorate. It has been stated in the writ petition that the petitioner was regularly paying rent to the landlord and some receipts issued by the landlord have been brought on record as Annexure-3 Series. It has further been stated that the condition of the premises became dilapidated one and respondent no.7 has asked Rs.50,000/- from the petitioner in the name of renovation by giving an assurance that after such renovation, the shop would again be given to the petitioner on the old rent. It has further been stated that the condition of the premises became dilapidated one and respondent no.7 has asked Rs.50,000/- from the petitioner in the name of renovation by giving an assurance that after such renovation, the shop would again be given to the petitioner on the old rent. On such assurance, petitioner gave Rs.50,000/- with the condition that the same be either adjusted or refunded from the future rent after the shop would again be given to the petitioner. It is contended that all the machines as well as equipments remained inside the room itself. However, at the same time, it has also been stated that during renovation work the number of room was increased diminishing the area of the shop which was taken under tenancy and hence a reduced monthly rental of Rs.250/- was agreed to be paid. However, the amount of Rs.50,000/- given to the father of the petitioner was neither adjusted nor refunded. It has been submitted that the petitioner tried to pay the rent through money-order. However, respondent no.7 made a complaint before the State authorities alleging the petitioner to be a trespasser and has got him evicted from the premises and while doing so, the Dy. S.P. Town, Gopalganj has broken the lock of the shop and had taken away valuable machines and articles from the shop behind the back of the petitioner without preparing any list of inventory. 4. A counter affidavit has been filed on behalf of the respondent no.4. A document has been appended as Annexure-D which shows that the son of the petitioner and staff of his shop had vacated the shop as per the direction of the District Magistrate in presence of the Sub-Divisional Officer and Dy. S.P. and have taken the entire articles in his safe custody. However, the same has been denied by filing a reply by the petitioner. 5. Three counter affidavits and a reply to the rejoinder filed on behalf of the petitioner to the counter affidavit have been filed on behalf of respondent no.7. The tenancy of the petitioner as per earlier agreement is admitted, however, it is stated that the petitioner, of late, become defaulter in payment of rent and, as such, a notice was given to him to vacate the premises. Further, the petitioner had vacated the premises on 20.01.2003 after legal notice was served upon him on 24.12.2002. The tenancy of the petitioner as per earlier agreement is admitted, however, it is stated that the petitioner, of late, become defaulter in payment of rent and, as such, a notice was given to him to vacate the premises. Further, the petitioner had vacated the premises on 20.01.2003 after legal notice was served upon him on 24.12.2002. Therefore, his claim of being a bona fide tenant would not be tenable as the moment he vacated the premises he ceased to be a tenant of respondent no.7 in the absence of any further agreement. Thereafter, the petitioner on 24.02.2005 had forcefully entered into the shop with the help of antisocial elements including his brother who is an accused in the Gopalganj P.S. Case No.71/2003 registered for Bank robbery and has taken forceful possession of the newly constructed room. Respondent no.7, thereafter, had also lodged First Information Report which has been registered as Gopalganj P.S. Case No.72/2005. Thereafter, he also approached the State-respondents who after inquiry found that the petitioner being a trespasser had forcefully entered into the premises as trespasser and has given a direction for getting the premises vacated. 6. I have heard learned counsel appearing on behalf of the parties and perused the records of the case. 7. Upon consideration of rival submission, following issues emerge for determination in this case:- (i) Whether the State-respondents were correct in getting the concerned premises vacated from the petitioner considering him as a trespasser? (ii) Whether the petitioner is a bona fide tenant and is entitled for restoration of possession in the concerned premises? 8. For the reasons that both issues are interrelated and connected, they are being dealt with together for the sake of convenience. 9. Learned counsel for the petitioner submitted that the petitioner, being the bona fide tenant, could not have been evicted without obtaining orders from a competent civil court for his eviction under the provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. The State authorities did not have any power to evict the tenant. Learned counsel submitted that even it is assumed that the petitioner was not a bona fide tenant, in such case also, the State authorities could not have forcefully dispossessed him as they are not empowered to do so under any law or statute. The State authorities did not have any power to evict the tenant. Learned counsel submitted that even it is assumed that the petitioner was not a bona fide tenant, in such case also, the State authorities could not have forcefully dispossessed him as they are not empowered to do so under any law or statute. Learned counsel has placed reliance upon several decisions of this Court on both issues such as decisions of Division Bench of this Court in Jagdish Ram Vs. Commissioner of Bhagalpur Division and others {1965 (XIII) B.L.J.R. 408}, Amrit Varsha Hindi Dainik Vs. the Bihar State Agriculture Marketing Board & anr. {2000(2)PLJR 729} and decision of a Single Bench of this Court in Ajai Kumar Vs. State of Bihar & Ors. {2005(4)PLJR 142}. 10. Per contra, learned counsel appearing on behalf of respondent no.7 has submitted that the Executive Magistrate, while dealing with the case under Section 145 Cr.P.C., can pass an order declaring the possession of a party and as such the party is entitled to possession thereof until evicted therefrom in due course of law. However, when he proceeds under the proviso to sub-section (4) of Section 145 Cr.P.C., he may restore to possession of the party forcibly and wrongfully dispossessed. He has also placed reliance upon Section 20 of the Cr.P.C. which deals in appointment of Executive Magistrate and District Magistrate and has placed reliance upon the definition of the Collector under the provision of General Clauses Act as well as a decision of Calcutta High Court in Chaudhury Bejoy Krishna Deb Vs. Thakur Shyam Narain Singh {A.I.R. 1940 Calcutta 30} to impress upon this Court that merely because the District Magistrate has been vested with certain powers Section 20 of the Cr.P.C., it does not follow that he does not have any other power as in addition thereof he is also the Collector of the District and is also the District Officer and in those capacities he has to perform many function which are not covered by the Criminal Procedure Code. He further submits that the moment the petitioner vacated the premises on 20.01.2003 he ceased to be a tenant and though he has forcefully re-entered the premises on 24.02.2005, he is silent regarding his right during the period from 20.01.2003 to 24.02.2005. He further submits that the moment the petitioner vacated the premises on 20.01.2003 he ceased to be a tenant and though he has forcefully re-entered the premises on 24.02.2005, he is silent regarding his right during the period from 20.01.2003 to 24.02.2005. It has further been contended that the petitioner claims that he had left some articles in the shop itself as only roof of the premises was to be renovated, however, he himself has again stated that number of rooms have also increased and, as a result of which, the area of the shop of the petitioner has been diminished. Such construction could not have raised unless all the heavy machines including the printing machines and other equipments were removed by the petitioner. The statements made in paragraph 8 and 9 of the writ petition are contrary to each other and falsify the claim of the petitioner. So far payment of Rs.50,000/- by the petitioner to respondent no.7 for renovation of the premises is concerned, it has been contended that the claim is false and frivolous. Though the petitioner has brought some receipts showing payment of rent by him for the earlier periods but he has not brought any document to show that such amount had been paid to respondent no.7 and, as such, he should be put to strict proof of the same. It has lastly been contended that even if it is assumed that the petitioner has vacated the premises on the pretext that it has to be renovated, in that case also, the colour of tenancy was lost at the moment when the petitioner, even willfully, had vacated the premises as the petitioner has not brought any written agreement on record to show that the respondent no.7 had agreed to let out the renovated premises again on certain different terms and conditions in his favour and at a reduced rent as has been stated in paragraph 9 of the writ petition. He has merely stated regarding some assurance given by the petitioner and the assurance cannot be taken to be an agreement between the parties unless same is proved. 11. Learned counsel appearing for the State has placed reliance upon the statement made in the counter affidavit filed on behalf of respondent no.4. He has merely stated regarding some assurance given by the petitioner and the assurance cannot be taken to be an agreement between the parties unless same is proved. 11. Learned counsel appearing for the State has placed reliance upon the statement made in the counter affidavit filed on behalf of respondent no.4. In the counter affidavit, it has been stated that the State authorities are empowered to get the premises vacated from the trespasser but at the time of argument learned counsel could not point out any provision of law or statute wherefrom such power of authority flows. 12. On consideration of rival submission and on perusal of the records of this case, in my considered opinion, the action of the State authorities was wholly unjustified for two reasons:- 13. Firstly, that respondents have miserably failed to point out any law or statute empowering the State authorities for doing such action. Learned counsel for respondent no.7 has tried to justify the action by taking resort to decision of the Calcutta High Court in Chaudhury Bejoy Krishna Deb (supra) as well as the definition of Collector in General Clauses Act and also the provisions contained in Section 145 of Cr. P.C., however, the same would not be tenable. So far as the provisions contained under Section 145 Cr.P.C. are concerned, it is well established that in such proceeding only the possession of certain persons on a given date can be declared and the Magistrate can also pass preventive order forbidding all disturbance of such possession until the lawful eviction of such person in whose favour possession has been declared under sub-section (6)(a) of Section 145 of Cr.P.C. The Magistrate would also be entitled to restore possession of the parties which had been forcibly and wrongfully dispossessed in view of the order which is passed under sub-section 4 of Section 145 Cr.P.C. and in view of provision as contained in proviso thereof. However, the aforesaid provisions are not applicable in this case as there has not been any initiation of proceeding under the aforesaid provision of the Code of Criminal Procedure. 14. That apart, the entire action appears to have been taken without proper service of notice upon the petitioner. The different provisions under the Code of Civil Procedure such as 107, 133, 144 and 145 are the provisions for preventing any illegal act. 14. That apart, the entire action appears to have been taken without proper service of notice upon the petitioner. The different provisions under the Code of Civil Procedure such as 107, 133, 144 and 145 are the provisions for preventing any illegal act. However, what has been done by the State authorities appears to be some sort of grant of mandatory injunction after assuming the petitioner to be a trespasser. Such power, in any considered opinion, is not available to the State Authorities. Though a First Information Report has been lodged by respondent no.7 but whether the petitioner is trespasser or not is to be decided by a competent court and not by the prosecutor itself. In the present case, no proceeding under Cr.P.C. has been initiated and even no notice prior to any action taken by the State authorities has been issued or served upon the petitioner. Thus, this Court would not have any difficulty in holding that the entire action of the State authorities was illegal and uncalled for. 15. However, there would be difficulty for this Court, even after holding as above, to direct for restoration of the possession in favour of the petitioner. For entitling himself for such relief the petitioner would have to demonstrate from the records of the case that he was a bona fide tenant. Though the petitioner has stated that he has given some money for renovation of the premises to the respondent no.7 and has willfully vacated the premises for its renovation and, thereafter, he has again entered as per the agreement and tried to give rent also by way of money-order and, as such, he has claimed himself to be a bona fide tenant. However, the petitioner has not given the date on which he has vacated the premises even though if it is assumed that some articles were kept there. He has not brought any record, any document or any evidence proving existence of agreement between the petitioner and respondent no.7 whereunder the landlord had agreed that after renovation he would again induct the petitioner as tenant of the concerned shop. There is no evidence on record that he has given Rs.50,000/- to respondent no. 7 for renovation of the premises. There is no evidence on record that he has given Rs.50,000/- to respondent no. 7 for renovation of the premises. He has not given the date on which he has re-entered the premises and started doing business again, whereas, respondent no.7 has stated that on 20.01.2003 the petitioner has vacated the premises which cannot be disputed as the petitioner himself has stated that he has vacated the premises for renovation work (though without removing the entire articles) and has also given the date, i.e, 24.02.2005, on which the petitioner has forcefully re-entered the premises and, thereafter, the First Information Report has also been lodged and the complaints have been made before the State authorities. Though the petitioner has stated in Paragraph 8 that he did not vacate the premises completely as certain equipments were not removed and those remained inside the premises as only at the roof of the premises was to be renovated. However, in Paragraph-9, it has been stated that number of room was increased during renovation diminishing the area of the shop considerably and, as such, it was agreed that he would pay only Rs.250/- per month as rent. Both the submissions are contrary to each other and raises serious doubt about the genuinity of the statement made on behalf of the petitioner. If printing machine and other equipments were already there and if number of rooms was to be increased then it would not have been possible to do so without removing those articles, thus, such statement raises serious doubt about the genuinity of the claim of the petitioner specially when there is no written agreement between the parties. That apart, the petitioner is silent about his status during the period of renovation work. If he was still keeping his equipments in the shop then it is not clear as to whether he was paying rent during that period also showing continuance of his tenancy or the landlord has permitted him to do so even without payment of any rent. 16. In the absence of any agreement or evidence regarding grant of further lease or letting out the concerned premises to the petitioner after renovation work or continuance of tenancy during such renovation it would be difficult for this Court to order for restoration of his possession in the present proceeding. 16. In the absence of any agreement or evidence regarding grant of further lease or letting out the concerned premises to the petitioner after renovation work or continuance of tenancy during such renovation it would be difficult for this Court to order for restoration of his possession in the present proceeding. The moment the petitioner had, even willfully, vacated the premises, the tenancy came to an end. If there was any further written agreement between the parties then it was required to be brought on record. However, if there was only oral agreement, as per claim of the petitioner, then that is required to be proved before a court of competent jurisdiction by leading evidence. Such matters cannot be decided by this Court in exercise of its discretionary power under Article 226 of the Constitution of India. Further, the claim of the petitioner that a revised rent of Rs.250/- was agreed between the parties and the respondent no.7 has subsequently changed his mind and started creating problem and was instrumental in getting the premises forcefully vacated after labeling the petitioner as a trespasser, are the facts that are required to be proved by leading evidence. In almost all the decisions which have been relied upon by the petitioner the tenancy was admitted and, thus, the Courts have held that a bona fide tenant cannot be thrown out without following the due procedures of law or without a decision given by the court of competent jurisdiction. For example in Jagdish Ram (supra) after considering Section 2(bb) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (III of 1947) as inserted by Section 2 of the amending Act XVI of 1955, it has been held that Sub-Divisional Officer of Rajmahal has no jurisdiction to try the suit for eviction under the Act. However, the aforesaid decision would not applicable in the case of the petitioner. In Amrit Varsha Hindi Dainik (supra), the issue was as to whether the Bihar State Agriculture Marketing Board could have vacated the tenant under the provisions of Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956? However, the aforesaid decision would not applicable in the case of the petitioner. In Amrit Varsha Hindi Dainik (supra), the issue was as to whether the Bihar State Agriculture Marketing Board could have vacated the tenant under the provisions of Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956? The Division Bench of this court has answered question in negative and has held that the Bihar State Agriculture Marketing Board does not come under the definition of Government premises and, thus, the tenant could only have been evicted under the provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. The Division Bench has gone further to hold that in the aforesaid facts and circumstances of the case, restoration of possession of the premises cannot be refused on the ground that the tenant was a chronic defaulter. However, in the present case, no such issue has arisen. Similarly, in Ajai Kumar (supra), a learned Single Judge of this Court has directed for restoration of the possession on the ground that the tenant was evicted by the State authorities and, thus, the Court has also granted compensation. However, in that case on the pretext of doing repair work, tenant was dispossessed with the help of the State authorities but even repairs were not effected by the landlord. Thus, the action was held to be illegal and a direction was given to restore back the possession. Aforesaid decision would be of no help to the petitioner inasmuch as in the aforesaid case, the tenancy was admitted but in the present case, the tenancy has been disputed by respondent no.7 and, the petitioner has not been able to establish the same from the records of the case. In the aforesaid case tenant has not vacated the premises for repairs on his own but he was forcefully thrown out with the help of State authorities on the pretext that some repair work was necessary in the premises. However, thereafter, even the repairs were not effected by the landlord and he was using the premises for his purpose. But in the present case, the petitioner has not been able to establish that before vacating the premises for repair or renovation work, there was any further agreement between him and the landlord creating further tenancy as the landlord claims that he had willfully vacated the premises after a notice was served upon him. But in the present case, the petitioner has not been able to establish that before vacating the premises for repair or renovation work, there was any further agreement between him and the landlord creating further tenancy as the landlord claims that he had willfully vacated the premises after a notice was served upon him. Thus, it has been contended that the colour of tenancy was lost the moment the petitioner had vacated the premises. However, if he has re-entered the premises upon any oral agreement between him and the landlord then that is required to be proved by leading evidence and, therefore, he would have to approach a court of competent jurisdiction for grant of such relief and other connected reliefs, for example, grant of compensation etc. 17. In the aforesaid facts and circumstances, this Court would refrain from giving a direction for restoration of possession in favour of the petitioner as the aforementioned issues are required to be proved and established by the petitioner by leading evidence before the court of competent jurisdiction. 18. Accordingly, this writ application is disposed of with the aforesaid observation and, further, granting liberty to the petitioner to move before a civil court of competent jurisdiction for redressal of his grievance including grant of compensation and/or restoration of possession of the concerned premises in his favour or any other connected relief(s).