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2013 DIGILAW 253 (JHR)

Amit Choudhary v. State of Jharkhand

2013-02-20

R.R.PRASAD

body2013
JUDGMENT Heard learned counsel appearing for the petitioners and also learned counsel appearing for the opposite party no.2 as well as learned counsel appearing for the State. This application has been filed for quashing of the order dated 2.3.2012 passed by the Sub-divisional Magistrate, Saraikella in Misc. Case No.4 of 2012 whereby and whereunder a proceeding initiated under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. It does appear that the opposite party no.2 had entered into a contract with M/s. I.B.P company for running a petrol pump as retail outlet. Subsequently, the land attached to the said outlet was leased out to the opposite party no.2 for a period of 40 years giving right to the opposite party no.2 to construct five shops and one service center at his own cost within the boundaries of said outlet. Later on, on account of merger of M/s. I.B.P company with Indian Oil corporation all the assets and liabilities were taken over by M/s. Indian Oil Corporation Limited. At the time of taking over petrol pump was being run by one Bhagwan Singh, a nominee of opposite party no.2. After expiry of the agreement, I.O.C was looking out to appoint a regular dealer. Meanwhile, a case was filed under the provision of Public Premises (Eviction of Unauthorized Occupants) Act for evicting of the said Bhagwan Singh from the premises of retail outlet. On 8.9.2011 an order was passed by the Estate Officer under Section 5(1) of the said Act for eviction of the said premises. That order was challenged before the appellate court and the appellate court affirmed the order passed by the Estate Officer. Being aggrieved with that order, opposite party no.2 preferred a writ application before this Court, vide W.P.(C) No.5844 of 2011. In that application, an interlocutory application was filed wherein prayer was made to restrain the petitioners from taking over the possession of the retail outlet and the said six shops. In that case, a counter affidavit was filed stating therein that possession has already been taken of those shops and retail outlet. That claim was laid on the basis of documents showing taking over possession by the petitioners. In that case, a counter affidavit was filed stating therein that possession has already been taken of those shops and retail outlet. That claim was laid on the basis of documents showing taking over possession by the petitioners. This Court taking into account the facts and circumstances of the case vide its order dated 3.2.2012 declined to pass any order in favour of the writ petitioners as the property in question had been allotted to 3rd party. However, before that, an application was filed by the opposite party no.2 (writ petitioner) before the Sub-divisional Magistrate, Saraikella for initiation of a proceeding under Section 144 of the Code of Criminal Procedure. Learned Magistrate called for a police report. Pursuant to that, police submitted its report stating therein that pursuant to order of eviction these petitioners have already taken possession of some parts of the land which was under lease but still the possession of six shops has not been taken over by the petitioners, though the petitioners have been trying hard to take possession over the said shops and on account of that there has been apprehension of breach of peace. Learned Magistrate having found that there appears to be bona fide land dispute which may result into breach of peace initiated a proceeding under section 144 of the Code of Criminal Procedure vide order dated 10.1.2012. Subsequently, a show cause was filed on behalf of the 1st party opposite party no.2 on 27.2.2012. A show cause was also filed by the petitioners stating therein all the facts which have been stated hereinabove. Even the order passed by this Court on 3.2.2012 was annexed with the show cause. Thereupon the court passed an order on 2.3.2012 whereby the proceeding initiated under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. That order is under challenge. Mr. V. Shivnath, learned Sr. Even the order passed by this Court on 3.2.2012 was annexed with the show cause. Thereupon the court passed an order on 2.3.2012 whereby the proceeding initiated under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. That order is under challenge. Mr. V. Shivnath, learned Sr. counsel appearing for the petitioners submits that pursuant to the order passed by the Estate Officer for eviction, confirmed by the appellate court when the possession of the shops in question had already been taken of by the petitioners the court should not have converted 144 proceeding into a proceeding under Section 145 of the Code of Criminal Procedure when every document was there before him showing possession being taken over by the petitioners and in such situation, the order of conversion certainly suffers from illegality. However, Mr. B.M. Tripathy, learned Sr. counsel appearing for the opposite party no.2 submits that it is true that the claim is being laid by the petitioners that possession has been taken pursuant to the order passed by the Estate Officer for eviction but the petitioners had never taken possession of the shops in question which fact was also found by the police. Accordingly, he submitted report, pursuant to the order passed by the Magistrate and thereby it was quite evident that the possession over the shop has been with the opposite party no.2 and since the petitioners were trying hard to take possession, there was likelihood of breach of peace and in such situation, if the proceeding has been initiated under Section 144 of the Code of Criminal Procedure and was converted into a proceeding under Section 145, the court can never be said to have committed any illegality. Having heard learned counsel appearing for the petitioners, it is admitted fact that when an order of eviction was passed not against the opposite party no.2 but against the one person said to be the nominee of opposite party no.2 which got confirmed by the appellate court, a writ application was field by the opposite party no.2 before this Court, vide W.P. (C) No. 5844 of 2011 in which an interlocutory application bearing no.3641 of 2011 was filed on behalf of the opposite party no.2 wherein prayer was made to restrain the petitioners from taking possession over the shops in question. Rejoinder to that application was filed wherein statement was made that the petitioners have already taken possession of the shops in question. In support of that statement, a document showing taking over the possession of the premises leased out including six shops in question was filed. Taking into account all these facts, this Court passed an order on 3.2.2012 which reads as follows:- I.A.No.3641of 2011 “In this I.A the petitioner-applicant has prayed for direction on the respondents to restrain the respondents from handing over the possession of the 'retail outlet pump' and other shops to any other allottee till disposal of the writ petition. Mr. V. Shivnath, learned Senior counsel appearing on behalf of the respondents opposed the petitioner's prayer and submitted that the petrol pump has already been allotted to some other dealer and they have taken possession of the entire premises. In view of the above, when the allotment has already been made in favour of any 3rd person, the prayer made in this application can not be granted. However, if the petitioner is aggrieved by the allotment made against the 3rd person, he can take resort to the legal remedy available to him. I.A No.3641 of 2011 stands disposed of.” Thus, it appears that the litigation was pending before this Court where the question of possession was also involved and in fact, this Court has gone into the matter of possession and therefore, the Sub-divisional Magistrate before whom the order passed by this Court was placed should not have converted 144 proceeding into a proceeding under Section 145 of the Code of Criminal Procedure, in view of the well settled proposition of law laid down in a case of Ram Sumer Puri Mahant vs. State of U.P and others [ (1985) 1 SCC 427 ] holding therein that where the question of possession is involved and has been adjudicated, there has been hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code of Criminal Procedure. Thus, the order impugned never appears to be justified. Accordingly, the impugned order dated 2.3.2012 passed by the Sub-divisional Magistrate, Saraikella is hereby set aside. In the result, this application stands allowed.