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2023 DIGILAW 1736 (BOM)

Digambar Vithal Kalekar v. State of Goa

2023-08-17

PRAKASH D.NAIK

body2023
JUDGMENT/ORDER 1. The applicant challenges order dtd. 6/4/2022 passed by learned Adhoc District Judge-1, FTC-I, South Goa, Margao in Criminal Revision Application No.15/2021 wherein the judgment and order dtd. 4/1/2021 passed by Deputy Collector & Sub-Divisional Magistrate, South Goa, Margao in case No.MAG/145/Cr.PC/06/2014/657-I was set aside. 2. The contention of applicant is as under:- < WXY>(i) Shop bearing No. 12 (old) and 275 (new) situated at New Market, Margao Goa belonging to Margao Municipal Council, Margao, was originally sold to Mr Mansour Ali Hirji Kamdar who sold his occupancy rights to Mr Nisar Khan. The occupancy rights were then transferred by Mr Nisar Khan through his wife Mrs Noorjeha Khan to Mr Sheikh Siraj Nizam on 17/7/2006 for consideration of Rs.6.00 lakhs. (ii) The applicant is owner of shop at New Market, Margao, Goa. He is selling cloth, dress material and other goods. (iii) The respondent No.3 was purchasing the goods from applicant on credit. He had purchased goods worth Rs.10.00 lakhs. The respondent No.3 could not repay the amount towards the purchase of goods from applicant. (iv) On 9/4/2007, the respondent No. 3 executed an irrevocable power of attorney in favour of applicant to do acts, deeds and matters relating to the said shop. Possession was handed over to the applicant on 9/4/2007 by executing Irrevocable Power of Attorney as a matter of security for repayment of Rs.10.00lakhs which were due to be paid to the applicant. (v) By agreement for sale and surrender dtd. 5/10/2012, the respondent No.3 agreed to sell the occupancy rights of the shop to the applicant for a consideration of Rs.8,50,000.00. The respondent No.3 also executed Declaration-cum-No Objection and an Irrevocable Power of Attorney in favour of applicant on 5/10/2012. It was stated that the applicant is put into possession of the shop on 9/4/2007. (vi) The respondent No. 3 also handed over post dated cheque dtd. 15/2/2013 for an amount of Rs.10.00 lakhs towards the value of goods purchased by him. The cheque was dishonored. (vii) On 2/5/2013, Memorandum of Undertaking was executed between respondent No.3 and 4 with respondent No.2 to sell the said shop to respondent No.2. Leave and licence agreement was executed by respondent No.3 as licensor in favour of respondent No.2 on 25/2/2014 in respect of same shop. (viii) The respondent No. 2 started interfering with the possession of the applicant in respect to the said shop. Leave and licence agreement was executed by respondent No.3 as licensor in favour of respondent No.2 on 25/2/2014 in respect of same shop. (viii) The respondent No. 2 started interfering with the possession of the applicant in respect to the said shop. On 26/3/2014 the respondent No.2 and his associates tried to take possession of the shop from the applicant. He filed a police complaint on 27/3/2014. (ix) The Margao Town Police submitted report dtd. 9/6/2014 to Sub-Divisional Magistrate, Margao.</ WXY> 3. The Sub-Divisional Magistrate vide order dated 04 01.2021 declared that the party No.1(applicant) is entitled to possession of the said shop until evicted in due course of law and the party No.2 and 3 were forbidden from disturbance of such possession until such eviction. 4. The respondents challenged the order dtd. 4/1/2021 before the District Judge by preferring Criminal Revision Application No.15/2021 which was allowed by order dtd. 6/4/2022 and the order dtd. 4/1/2021 passed by the learned Sub-Divisional Magistrate was set aside. 5. Learned advocate for the applicant submitted that the impugned order dtd. 6/4/2022 is contrary to law. The learned Sub-Divisional Magistrate has supported findings by giving reasons although not elaborate. The Sub-Divisional Magistrate has scrutinized the material and gave a finding that the applicant is in possession of the shop and declared him to be entitled for possession until evicted in due course of law. The order was in accordance with Sec. 145(6)(a) of Cr.PC. The applicant was in possession of the premises. The documents on record supported the possession of the applicant. The respondents did not appear before the Sub-Divisional Magistrate. Learned District Judge at the most could have remanded the case back to the Court of Sub-Divisional Magistrate. The Sessions Judge has simply set aside the order of the Magistrate without giving any finding as to who was in possession of the property. 6. Learned advocate for respondent No.2 submitted that there is no infirmity in the impugned order. Learned Sessions Judge has assigned reasons for passing the order. There was error in the order passed by the learned Sub-Divisional Magistrate. The respondent No.2 was in possession of the subject premises. The revisional Court has perused the material on record by setting aside the order dtd. 6/4/2022. Preliminary order was not passed by the learned Magistrate. The learned Magistrate ought not to have gone beyond the scope of Sec. 145 of CrPC. 7. The respondent No.2 was in possession of the subject premises. The revisional Court has perused the material on record by setting aside the order dtd. 6/4/2022. Preliminary order was not passed by the learned Magistrate. The learned Magistrate ought not to have gone beyond the scope of Sec. 145 of CrPC. 7. The concerned police station submitted the report to the Deputy Collector/Sub-Divisional Magistrate, Margao. The report indicated that the party No.1 (applicant) had alleged that party No.2 and 3, i.e. respondents No.2 and 3 are interfering with the shop and trying to take possession of the shop. Both are claiming their right on the shop and there is likelihood of breach of peace and thus proceedings under Sec. 145 Cr.PC were initiated. Thereafter, notices were sent to both the parties. Despite service of notice party No.2 and 3 failed to remain present and the case proceeded ex-parte against them. 8. Learned Sub-Divisional Magistrate gave a finding that party No.1 has established his claim of possession over the shop through valid agreement for sale and surrender. The party No.2 has neither challenged the claim of party no.1 nor produced any documents to show their right of possession. Party No.3 has also not proved how the possession once given to party No.1 was taken from party No.1 and handed over to party No.2. The party No.1 was declared to be entitled for possession of shop until evicted in due course of law. 9. The revisional Court set aside the order dtd. 4/1/2021. The observations made in the said order would indicate that the respondent No.2 had appointed advocate to conduct the proceedings before the Sub-Divisional Magistrate but the advocate did not appear and ex-parte order was passed on 4/1/2021. The contention of the respondent No.2 before the Sessions Judge was that he was denied natural justice in the proceedings before the Sub-Divisional Magistrate. The order is sketchy and unreasoned whereas the contention of the applicant was that the learned Magistrate has discussed documentary evidence filed along with police report in terms of agreement of sale and surrender dtd. 5/10/2012, NOC dtd. 5/10/2012, agreement for sale between the parties and agreement of leave and licence. The learned Sessions Judge observed that the Magistrate did not appreciate the documents to find out veracity, admissibility and relevancy. 5/10/2012, NOC dtd. 5/10/2012, agreement for sale between the parties and agreement of leave and licence. The learned Sessions Judge observed that the Magistrate did not appreciate the documents to find out veracity, admissibility and relevancy. The learned Magistrate has simply stated that the party No.1 has established possession over the shop through documents. The order suffers from lack of reasons. Without reason the order becomes lifeless. Absence of reasons renders the order unsustainable when it is subject to further challenge before the higher forum. The order must be supported by reasons. It is also observed that absence of order under sub-sec. (1) of Sec. 145 does not vitiate final order passed under sub-sec. (4) of Sec. 145 of Cr.PC. 10. Primarily, the revisional Court has set aside the order in the light of observations made in the order dtd. 4/1/2021, lack of reasons and violation of principle of natural justice. Learned counsel for the applicant rightly submitted that for the reasons stipulated in the impugned order, the learned Sessions Judge at the most could have remanded the case back to the Court of learned Magistrate for deciding it afresh. The impugned order dtd. 6/4/2022 was primarily based on technicalities and not on merits. Perusal of order dtd. 4/1/2021 gives an impression that it is cryptic and it could have been more elaborate considering the nature of issues involved in the proceedings. It is also pertinent to note that the respondents were not before the authority. Of course, it appears that they were served and did not appear. The proceedings were conducted ex-parte. For all these reasons, the Sub-Divisional Magistrate could be directed to re-hear the matter after giving an opportunity to both the parties. < WXY>ORDER (i) The impugned order dtd. 6/4/2022 is modified to the extent that the proceedings are relegated to the Deputy Collector and Sub-Divisional Magistrate, Margao, to decide the same again without being influenced by the previous order dtd. 4/1/2021 as well as the order dtd. 6/4/2022. (ii) Both the parties are directed to appear before the Authority on 11/9/2023 at 11:00AM. Issuance of fresh notice to the parties is dispensed with. (iii) The Sub-Divisional Magistrate shall hear both the sides and decide the proceedings in MAG/145/CrPC/6/2014/657-I afresh in accordance with law. (iv) The hearing of the proceedings are expedited. 6/4/2022. (ii) Both the parties are directed to appear before the Authority on 11/9/2023 at 11:00AM. Issuance of fresh notice to the parties is dispensed with. (iii) The Sub-Divisional Magistrate shall hear both the sides and decide the proceedings in MAG/145/CrPC/6/2014/657-I afresh in accordance with law. (iv) The hearing of the proceedings are expedited. The Sub-Divisional Magistrate is requested to conclude the proceedings within a period of 6 months from 11/9/2023. (v) Application stands disposed of.</ WXY>