Bombay High Court
Romell Housing Llp And Anr vs The State Of Maharashtra And Ors on 14 December, 2018
Bench: B.R. Gavai, Riyaz I. Chagla
927-WP-3214-17.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3214 OF 2017
Romell Housing LLP & Anr. ...Petitioners
Versus
The State of Maharashtra & Ors. ...Respondents
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Mr. Aspi Chinoy, Senior Counsel, a/w Mr. G.S. Godbole, Mr.
A.S. Date, Mr. Pratik Majmudar, Mr. Drupad Patil, Mr. Atharva
Dandekar, i/by Merlyn Dias, for the Petitioners.
Mr. Deepak Thakre, G.P. a/w Mrs. A.S. Pail, APP, for the
Respondent-State.
Mr. Raja Thakare, i/by Mr. Shreeram Shirsat, for the
Respondent No. 5.
Mr. Meghshyam K. Kocharekar, for the Respondents No. 6 to 8.
Mr. Navroz Seervai, Senior Counsel, a/w Mr. Cherag Balsara,
i/by NDB Law, for the Respondents No. 9 and 10.
Mr. Karan Bhosale, a/w Ms. Neha Bhosale, Ms. Disha Parekh,
Ms. Aditi Bhargava, i/by NDB Law, for the Respondent No. 11.
Mr. Sandesh Patil, a/w Ms. Anusha P. Amin, for the Respondent
No. 12 -CBI.
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CORAM : B.R. GAVAI &
RIYAZ I. CHAGLA, JJ.
DATE : 14 December 2018
ORDER :
1. The present proceedings have a chequered history. The Writ Petitioners have approached this Court by the present Petition, basically raising the grievance that the Respondents No. 5 to 8 who are police officers, had acted in a totally high- handed manner in order to ensure that the possession of the premises, which is the subject matter of the present Petition is handed over to the Respondents No. 9 to 11. It was the contention of the Petitioners that the Petitioners had purchased the said property after making payment from one Kamruddin N. Shaikh. It was further contention that the Petitioners had purchased the said property and upon purchase of the said property, various Conveyance Deeds have been executed in favour of the Petitioners between December 2016 to March 2/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc 2017. It was also the contention of the Petitioners that after the Sale Deed was executed, the Petitioner No. 1 had placed porta cabins on the site appointed Security Personell of Maharashtra State Security Guards Board and also erected 10 name boards on the site.
2. It was the contention of the Petitioners that on 22nd April 2017, a FIR came to be registered by Respondents No. 9 to 11 at around 3.30 p.m. Immediately after FIR was lodged at around 3.30 p.m., at around 4.00 p.m., the Respondents No. 5 to 8 visited the site and took the Petitioner No. 2 and others into custody. It was contended by the Petitioners that around 11.30 p.m., the Petitioner No. 2 was served with the notice under Section 41A of the Code of Criminal Procedure, 1973 ("Cr.P.C.") and was arrested. It was further contended that on 23rd April 2017, with the active support of Respondents No. 5 to 8, Respondents No. 9 to 11 removed porta cabins, name boards etc. The Petitioner No. 2 was thereafter, behind the bar till his application for bail came to be allowed on 14th June 2017. 3/40
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3. In this premise, the Petitioners had approached this Court contending therein that Respondents No. 9 to 11 have used police personnel i.e. the Respondents No. 5 to 8, so as to ensure that the lawful possession of the Petitioners was taken away and handed over to the Respondents No. 9 to 11.
4. Prima facie finding substance in the contention of the Petitioners, the Division Bench of this Court to which one of us (B.R. Gavai, J) was party, has passed an order dated 17th January 2018 directing the Commissioner of Police to conduct an enquiry into the allegations made in the Petition through the Joint Commissioner of Police. It will be relevant to refer to paragraph 8 of the said order, which reads thus:-
"We therefore direct the Commissioner of Police to conduct an inquiry into the allegations made in the Petition through the Joint Commissioner of Police. Needless to state that all parties, including Petitioners and all the Respondents will be given hearing while conducting such inquiry. However, we 4/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc direct the Commissioner of Police, either to suspend or transfer the Police Officers who are found to be involved in the said act from Dahisar Police Station, so that inquiry can be conducted in impartial and independent manner. The orders of suspending/transferring the Police Officers who are prima facie found to be involved in the act shall be issued within a period of 48 hours from today."
5. In pursuance to the order passed by this Court, the Commissioner of Police has conducted an enquiry through the Joint Commissioner of Police, Traffic, Mumbai and submitted a report on 12th February 2018. The matter was thereafter, considered by the Division Bench of this Court, to which one of us (B.R. Gavai, J) is a party on 14th February 2018. On the said date a detailed order came to be passed, considering the report of the Joint Commissioner of Police, Traffic, Mumbai. After considering the said report, the Division Bench of this Court in paragraph 15 of the order dated 14th February 2018 observed thus:-
5/40
December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc "However, the main issue that arises for consideration before us is, as to whether it is the police authorities who can decide the question as to who has the title over the property and as to whether who is or was immediately prior to the police coming to know about the incident, in possession of the property. We are therefore not inclined to non-suit the Petitioners on hyper- technical ground raised by Mr. Maneshinde. It cannot be said that, Petitioner No. 2 has willingly suppressed any material fact or made a willful representation to mislead this Court."
6. It could thus, be seen that we have specifically observed that the Police Authority cannot decide the question as to who has title over the property and as to whether who is or was immediately prior to the police coming to know about the incident in possession of the property. We have further observed that such an exercise can be done in the Mumbai area only by the learned Metropolitan Magistrate having jurisdiction over the area, under the provisions of Section 145 of the Cr.P.C. 6/40
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7. We have also considered the Affidavit in Reply filed by the various Police Officers. After considering the Affidavits of the Police Officers, this Court has observed thus, in paragraphs 25 and 26, which read thus:-
"25] It could thus be seen that, on the date of the incident itself i.e. 22nd April, 2017, even according to the said officers, the Petitioners had shown them the documents showing their title over the said land. It also appears to be his case that he had also informed the police authorities that he was in possession of the said property. Admittedly, when the police machinery started their action, the porta cabins, board etc of the Petitioner were already on the said land. It is after the complaint of Respondent No.9 that the police went to the spot, removed the cabins and according to Respondent No.8 brought it with the help of cranes. It can thus clearly be seen that when the police machinery swung in action on 22nd April, 2017, the Petitioners' material including porta cabins, boards etc were already there on the land. The question as to whether the 7/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc Petitioners had forcibly entered into the property which was in lawful possession of Respondent Nos.9 to 11, which according to the said Respondents was a legal possession which could have gone into only by the Metropolitan Magistrate under the provisions of Section 145 of the Cr.P.C.
26] Day in and day out we come across several Petitions wherein the Petitioners approach this Court, stating that though they have been illegally dispossessed and though the said Petitioners have approached the concerned police station with their grievance, an answer given to them by police authorities is that, it is a civil dispute and police has no jurisdiction to enter into the same."
8. From the perusal of the Affidavits, we found that even according to the Affidavits filed by the Police Officers, on the date of incident i.e. 22nd April 2017, the Petitioners had shown papers having their title over the said land. The position that emerged from the Affidavits of the Police Officers show that, when the police machinery started action, the porta cabins, 8/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc boards, etc. of the Petitioners were already on the said land. It also emerged that only after complaint of the Respondents No. 9 to 11, the police went to the spot, removed the cabins from said land. The Respondent No. 8 had also brought cranes for the said purpose. After considering the entire position, in paragraph 31, we had asked a question to ourselves as to whether such high- handed act on the part of the police machinery is to be permitted. After considering the entire position as per the recommendation made by the Joint Commissioner of Police, Traffic, Mumbai, we had directed the investigation of Crime No. 174 of 2017 to be handed over to the Central Bureau of Investigation ("CBI"), who was further directed that apart from examining whether Section 397 of Indian Penal Code was attracted or not, it shall also investigate into complicity of Respondents No. 5 to 8 in assisting Respondents No. 9 to 11. We have issued the following directions in paragraphs 34 and 35, which read thus:-
"34] Insofar as the second suggestion is concerned, we 9/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc are inclined to accept the same in toto. The concerned police station shall forthwith make a report to the learned Metropolitan Magistrate of the area having jurisdiction over the said property. The relevant date for the purposes of sub section 1 of Section 145 would be 22nd April, 2017 i.e. the date on which the report is made to the police officer.
35] Needless to state that apart from the question as to whether who was in possession on 22nd April, 2017, the Metropolitan Magistrate would also be entitled to go into question as to whether any party was forcibly dispossessed within a period of two months next before 22nd April, 2017. The concerned Police Station shall make a report to the learned Metropolitan Magistrate within a period of three days from today. The learned Magistrate on such report being made would appoint a Receiver on the property in question. The appointment of the Receiver shall be subject to the final decision of the learned Magistrate under Section 145 of the Cr.P.C."
9. It could thus, be seen that we had directed the 10/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc concerned Police Officers to forthwith make a report to the learned Metropolitan Magistrate of the area having jurisdiction over the said property. We had further directed that for the purposes of Sub-Section (1) of Section 145, the relevant date would be 22nd April 2017 i.e. the date on which the report is made to the Police Officers. In paragraph 35, we had specifically directed that on the report being made as directed by this Court, the learned Magistrate would appoint a Receiver on the property in question. We had further directed that the learned Magistrate apart from deciding the question finally that who was in possession on 22nd April 2017, would also be entitled to go into the question as to whether any party was forcibly dispossessed within a period of two months next before 22nd April 2017. We had further clarified that appointment of the Receiver was subject to the final decision of the learned Magistrate under Section 145 of the Cr.P.C.
10. Perusal of the aforesaid directions would reveal that on the date on which the police officer of the 11/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc concerned police station makes a report to the learned Magistrate, the learned Magistrate was to make an appointment of the Receiver on the date of making of the report. Undisputedly, the said report is dated 16th February 2018. No doubt, after appointment of the Receiver, the learned Magistrate was required to conduct an enquiry as contemplated under Section 145 of the Cr.P.C., on two issues. Firstly, as to who was in possession on 22nd April 2017, that is whether on that date, the Petitioners were in possession of the property or it was the Respondents No. 9 to 11 who were in possession. Secondly, taking into consideration, the allegations of the police officer that the Respondents No. 9 to 11 were forcibly dispossessed by the Petitioners, prior to their taking over the possession, we had also directed the learned Magistrate to conduct an enquiry on the issue, as to whether any party was forcibly dispossessed within a period of two months next before 22nd April 2017.
11. The order passed by the Division Bench of this Court came to be assailed before the Hon'ble Supreme Court. It 12/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc would be relevant to refer to the entire order passed by the Hon'ble Apex Court.
"Having heard learned counsel for the parties, we do not think that this is a fit case for this Court to interfere under Article 136 of the Constitution of India at this stage.
However, we direct the Magistrate concerned to conduct the proceedings uninfluenced by any of the observations, directions or findings in the impugned order passed by the High Court.
It is also made clear that the CBI, to which the investigation is entrusted, will be free to investigate the case independently.
The special leave petition is, accordingly, disposed of.
Pending application (s), if any, shall stand disposed of."
12. It could thus be seen, from the order passed by the Hon'ble Supreme Court that the Hon'ble Supreme Court found that this was not a fit case for their Lordships to interfere 13/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc under Article 136 of the Constitution of India at that stage. However, their Lordships directed the Magistrate concerned to conduct the proceedings uninfluenced by any of the observations, directions or findings in the impugned order passed by this Court. Their Lordships further made it clear that the CBI, to which the investigation is entrusted, will be free to investigate the case independently.
13. As held by the Hon'ble Supreme Court in many cases, it is not permissible for this Court to interpret the orders of the Hon'ble Apex Court. However, perusal of the order passed by the Hon'ble Supreme Court would reveal that, though the Hon'ble Apex Court found that the order passed by this Court which was impugned before their Lordships was not interfered with; however, enquiry which was directed to be conducted by the learned Magistrate by this Court, was directed to be conducted uninfluenced by any of the observations, directions or findings, in the order which was impugned before their Lordships. We are therefore, of the view that the directions 14/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc which are issued by this Court to the learned Magistrate that once a report was made to him by the police officer of the concerned police station was not interfered with by their Lordships. At the same time, we are also of the view that in view of the directions issued by the Hon'ble Apex Court, an enquiry which we have directed to be conducted by the learned Magistrate, was to be conducted uninfluenced by any of the observations, findings and directions in the order passed by this Court.
14. It appears that immediately after the orders were passed by this Court, the police officer of the concerned police station made a report under Sub-Section (1) of Section 145 of the Cr.P.C. to the learned Magistrate. It appears that since the Receiver was not appointed by the learned Magistrate, the Appellants made an application before the learned Magistrate, which was allowed by him on 6th April 2018. However, the learned Magistrate directed the parties to suggest the name of the Receiver and further directed that after the 15/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc name of the Receiver was suggested by the parties, the said Receiver would take care of this disputed property.
15. However, it appears that the parties did not agree on the name. It would be relevant to refer to the application made by the Petitioners suggesting the name for the Court Receiver, High Court to be appointed as Court Receiver. It appears that thereafter, the proceedings came to be adjourned on various dates. It further appears that the order passed by the learned Magistrate dated 6th April 2018, came to be challenged by the present Petitioners in a Criminal Revision Application. The Respondents No. 9 to 11 challenged the order by filing a Criminal Revision Application before the learned Additional Sessions Judge. In the said Criminal Revision Application, a prayer for ad-interim stay to the order passed by the learned Magistrate was also made. The said prayer is rejected by the learned Additional Sessions Judge and the revision is pending for adjudication before the learned Additional Sessions Judge. 16/40
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16. It further appears that the Petitioners also filed an application before the learned Magistrate for immediate implementation of the order dated 6th April 2018. The main contention raised in the said application was that the Respondent No. 1 was indulging in dillydally tactics and was making every possible attempt to ensure that the order passed by the learned Magistrate dated 6th April 2018 in pursuance to the order passed by the Division Bench of this Court dated 14th February 2018 was not given effect to.
17. It further appears that the application filed by the Petitioners was resisted by the Respondents No. 9 to 11 by filing a Reply, on the ground that the learned Magistrate once having passed an order dated 6th April 2018 had no jurisdiction to review the same in view of the provisions of Section 362 of the Cr.P.C.
It further appears that the Respondents No. 9 to 11 also filed an application dated 27th July 2018 thereby, 17/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc praying before the learned Magistrate to set aside the report under Section 145 of the Cr.P.C. and stop all the proceedings emanating thereunder.
18. It appears, that the matter has been listed before the earlier Division Benches of this Court so as to consider the report of the CBI of the investigation which was directed to be conducted by him.
19. However, when the matter was listed on 12th December 2018 and a report of the CBI was placed before us by Shri. Sandesh Patil, who appears for CBI. Shri. Chinoy, the learned Senior Counsel appearing for the Petitioners raised a grievance that though specific orders were passed by this Court directing the learned Magistrate to appoint the Receiver on the Suit property in the proceedings under Section 145, every attempt was made by the Respondents No. 9 to 11, to ensure that the orders passed by this Court are not given effect to. 18/40
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20. Shri. Seervai, the learned Senior Counsel appearing for the Respondents No. 9 to 11, had also appeared on 12th December 2018 and had sought some time to argue the matter. As such we had kept the matter for hearing today.
21. As such, the matter was listed today. We have extensively heard Shri. Chinoy, the learned Senior Counsel appearing for the Petitioners and Shri. Seervai, the learned Senior Counsel appearing for the Respondents No. 9 to 11.
22. Shri. Chinoy, the learned Senior Counsel appearing for the Petitioners, submitted that the conduct of the Respondents No. 9 to 11 would reveal, that they have made every possible attempt to see that the orders passed by the Division Bench of this Court on 14th February 2018 are not given effect. He submits that this Court had prima facie come to a conclusion that an enquiry under the provision of Section 145 of Cr.P.C. was required to be conducted by the learned Magistrate and till enquiry was completed, the learned 19/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc Magistrate was directed to appoint a Receiver on the said property. Further, the Respondents No. 9 to 11 by filing various frivolous applications, was making an attempt to stall the Receiver's appointment made by the learned Magistrate and stall the Receiver from taking possession of the disputed property.
23. Shri. Seervai, the learned Senior Counsel appearing for the Respondents No. 9 to 11, submitted that as a matter of fact, the entire scope of the order passed by the Division Bench of this Court dated 14th February 2018 has been watered down by the orders passed by the Hon'ble Supreme Court in the Special Leave Petition on 9th March 2018. He submitted that since the Hon'ble Supreme Court has directed the learned Magistrate to conduct an enquiry uninfluenced by the observations, findings and directions of this Court, the learned Magistrate was required to decide the proceedings by totally ignoring the orders passed by this Court. He submitted that the effect of the order of the Hon'ble Supreme Court is that while conducting the proceedings under Section 145 of the Cr.P.C., 20/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc the learned Magistrate will have to proceed as if the order dated 14th February 2018 passed by the Division Bench of this Court, is not in existence.
24. Shri. Seervai, the learned Senior Counsel appearing for the Respondents No. 9 to 11, while relying upon the following judgments of the Hon'ble Supreme Court :-
(1) Amresh Tiwari Vs. Lalta Prasad Dubey & Anr.1 (2) Ashok Kumar Vs. State of Uttarakhan & Ors.2 (3) Ram Sumer Puri Mahant Vs. State of U.P. and Ors.3 submits that, when the civil proceedings with respect to possession of the same property are pending before the Competent Civil Court, the parallel proceedings under Section 145 of the Cr.P.C. would not be tenable.
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25. The learned Senior Counsel appearing for the Respondents No. 9 to 11 submits that the said Respondents as the citizens of India have a fundamental right to take recourse to the legal remedies available to them on the basis of the law laid down by the Hon'ble Supreme Court. While relying upon the judgments of Hon'ble Supreme Court, he submits that in view of the settled legal position, that if the civil proceedings with regard to possession of the same property are pending before the Civil Court, then automatically, the proceedings pending before the learned Magistrate under Section 145 of the Cr.P.C. are required to be dropped. He further submits that, in view of this legal position, the Respondents No. 9 to 11 are entitled to file an application for dropping of the proceedings under Section 145 of the Cr.P.C. and this cannot be considered to be a dillydallying of the proceedings before the learned Magistrate.
26. He further submits that, as a matter of fact, the conduct of the Petitioners is such which would dis-entitle them 22/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:02 ::: 927-WP-3214-17.doc to any equitable relief. He submits that though the suit under Section 6 of the Specific Relief Act for restoration of possession is filed, the Petitioners did not initially pursue the same. Only after they saw that the order of the learned Magistrate dated 6th April 2018 cannot be given effect to, they made an attempt to move for ad-interim orders in the suit. An erroneous submission was made before the learned Single Judge that the order passed by the Division Bench in the present Writ Petition dated 14th February 2018 was binding on him. In that premise, the learned Single Judge was required to seek clarification from the same Bench (i.e. B.R. Gavai and B.P. Colabawalla, JJ). The said Division Bench clarified vide order dated 8th June 2018 that the observations made in the criminal proceedings would not bind the Civil Court and the enquiry as contemplated under Section 145 of the Cr.P.C. was for a limited purpose. He submits that after a clarification was given by the Division Bench, the learned Single Judge on 18th June 2018 passed an order thereby refusing the Motion for ad-interim orders and kept the Motion for final hearing and disposal on 2nd July 2018. 23/40
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27. Shri. Seervai, the learned Senior Counsel appearing for the Respondents No. 9 to 11, therefore, submits that when the present proceedings were filed, the Petitioners had already taken recourse to the civil suit which is pending before the learned Single Judge.
28. Shri. Seervai further submits that the law laid down by the Apex Court is binding on all the Courts of the Country, including the High Court under Article 141 of the Constitution of India. He therefore, submits that the Hon'ble Supreme Court in catena of Judgments has held that when the civil proceedings are pending for possession of the property, the learned Magistrate cannot proceed under Section 145 of the Cr.P.C., and in that event, the learned Magistrate is bound to drop the proceedings under Section 145 of the Cr.P.C. and allow the application of Respondents No. 9 to 11. He therefore, submits that by no stretch of imagination, they can be permitted to continue with the proceedings under Section 145 of the Cr.P.C.
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29. We have considered the rival submissions. We have already stated in the beginning that the Petition arises out of the peculiar facts and circumstances.
30. No doubt, parallel civil proceedings are also pending before the learned Single Judge of this Court. It does appear that the learned Counsel for the Petitioners herein who are the Plaintiffs in the Suit had made submissions before the learned Single Judge, who was hearing the Notice of Motion in the Suit, that the observations made by the Division Bench in the order dated 14th February 2018, are also binding on the learned Single Judge in the civil proceedings. It appears that in that view of the matter, the learned Single Judge vide order dated 15th May 2018 found it appropriate to direct the Registry to place the matter before the Division Bench, which had passed the order on 14th February 2018 for clarification. As such the matter was placed before the same Division Bench (i.e. B.R. Gavai and B.P. Colabawalla, JJ). The Division Bench observed thus, in paragraphs 2 to 4 of the order dated 8th June 2018:- 25/40
December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc "2] Perusal of the order passed by this Court dated 14th February 2018 would reveal that the issue as raised in the Criminal Writ Petition before this Court was in respect to the allegations of the Petitioners that the private Respondents therein in collusion with the police, had acted in high handed manner and dispossessed the Petitioners from their property. Taking into consideration the allegations made in the Petition as well as the affidavits filed on record, this Court was of the view that the only recourse available in such a situation to the police machinery was to take recourse to the provisions of Section 145 of the Criminal Procedure Code ("Cr.PC." for short). In that view of the matter, the Court had issued certain directions to the learned Magistrate. Perusal of the provisions of Section 145 of the Cr.P.C. would reveal that even under Section 145 of the Cr.P.C., a limited inquiry that is permissible for a Magistrate is to find out as to who was in possession on the date of the report and if it is the case of dispossession, to find if the person who was in possession has been forcibly dispossessed prior to the police making report to the learned 26/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc Magistrate or not.
3] While making inquiry under Section 145 of the Cr.P.C., the Magistrate can not go into the question with regard to the title etc. of the property and the said issues are required to be decided exclusively by competent Civil Court after taking into consideration the material placed on record. In any case, any such finding by a criminal Court would not bind a competent Civil Court while entertaining the lis before it.
4] As such, though there is no necessity to clarify our order dated 14th February 2018, we clarify that any observations made therein would not be binding on the learned Single Judge while deciding the civil lis between the parties, pending before him."
31. It could thus, be seen that while answering the queries made by the learned Single Judge, the Division Bench observed that, after taking into consideration the allegations made in the Petition as well as Affidavits, the Court was of the view that only recourse available in the factual situations to the 27/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc police machinery was to take recourse to the provisions of Section 145 of the Cr.P.C. It further observed that the limited enquiry that is permissible for the learned Magistrate, is to find out that as to who was in possession on the date of the report and if it is the case of dispossession, to find out if the person who was in possession has been forcibly dispossessed prior to making the report by the learned Magistrate. The Division Bench further observed that in the procedure under Section 145 of the Cr.P.C., the question as regards the title, etc. cannot be gone into by the learned Magistrate and the findings recorded by the Criminal Court would not be binding, on the Competent Civil Court while entertaining the case before it.
32. However, it appears that after the said query was answered by the Division Bench by the order dated 8th June 2018, the learned Single Judge has directed the Notice of Motion to be placed for hearing and final disposal on 2nd July 2018. It could thus, be seen that the learned Single Judge in the Civil proceedings pending before him, has not yet gone into the 28/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc rival contentions for considering ad-interim or interim prayers for grant of injunction and appointment of the Receiver.
33. There cannot be a quarrel with a proposition that when an issue is being entertained with regard to possession of the property before the Competent Civil Court, the parallel proceedings under Section 145 of the Cr.P.C. will have to give way to the civil proceedings. There also cannot be a quarrel with the proposition that all the Courts in India including this Court, are bound to obey the law as declared by the Hon'ble Supreme Court under Article 141 of the Constitution of India.
34. However, the question that we are now called upon to consider is as to whether, when this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India, prima facie comes to a conclusion that the Respondents No. 9 to 11 herein in collusion and with the aid of the Police Officers have dispossessed the Petitioners by 29/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc removing its porta cabin and other materials and thereafter directed an enquiry to be conducted by the learned Magistrate under Section 145 of the Cr.P.C. and further directed the Receiver to be appointed immediately on the receipt of the report from the concerned police officer; would it be powerless to ensure that the directions issued by this Court are given effect to in its true spirit or not.
35. This Court after considering an enquiry, report submitted by the Joint Commissioner of Police, Traffic, Mumbai and after considering the affidavits of police officer of the concerned police station, prima facie came to a conclusion that on 22nd April 2017 the police officer of the concerned police station had forcibly dispossessed the Petitioners who were in possession of the suit premises. This Court has also considered the submissions on behalf of the Respondents No. 9 to 11 that it was forcibly dispossessed by the Petitioners prior to the Petitioners forcibly taking possession. It was the contention of the Respondents No. 9 to 11 that the possession of the 30/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc Petitioners was illegal and it is the Respondents No. 9 to 11 who were legally entitled to the possession. This Court specifically observed that it was not for the Police Authorities to go into that question and take steps to restore the possession to the Respondents No. 9 to 11. The Court had given various instances wherein, in similar situations when the parties had approached the Police Authorities, they had advised the citizens to go to the Court of law. The Court had therefore, prima facie come to a conclusion that it was only on account of high-handed manner of Respondents Police Authorities, in collusion with the Respondents No. 9 to 11 that the possession was handed over to the Respondents No. 9 to 11 on 22nd April 2017, by illegally removing the articles of the Petitioners from the suit premises. In this premise, this Court directed the police officer of the concerned police station to send a report under Section 145 of the Cr.P.C. to the learned Magistrate having jurisdiction over the area. This Court further directed that the relevant date for the purposes of Sub-Section 1 of Section 145 of the Cr.P.C. would be 22nd April 2017.
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36. This Court has specifically observed that apart from going into the question as to whether who was in possession on 22nd April 2017, the learned Magistrate would also be entitled to go into the question as to whether any party was forcibly dispossessed within a period of two months next before 22nd April 2017.
37. It could thus, be seen that the directions were given to the police officer of the concerned police station to make a report to the learned Magistrate. Upon receipt of the report from the police officer of the concerned police station, the learned Magistrate was directed to appoint a Receiver. Admittedly, that report has been received by the learned Magistrate on 16th February 2018. The learned Magistrate therefore, ought to have appointed the Receiver on the very same day without waiting for the application of any of the parties.
38. As per the directions issued by this Court, the 32/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc learned Magistrate after appointing the Receiver and putting him in possession of the property, was required to conduct an enquiry under Section 145 of the Cr.P.C. and find out that as to who was in possession on 22nd April 2017 and also to enquire as to whether the claim of any of the parties that they have been forcibly dispossessed prior to 22nd April 2017 or not and as to whether such a party illegally dispossessed is entitled for restoration of the possession or not. It appears that neither the learned Magistrate nor the parties understood the directions issued by this Court in correct perspective.
39. The perusal of the order passed by the Hon'ble Apex Court would reveal that the Hon'ble Supreme Court has observed that this was a fit case to interfere under Article 136 of the Constitution of India. The Hon'ble Supreme Court made clear that the CBI to which the investigation is entrusted, will be free to investigate the case independently. However, the Hon'ble Apex Court has directed the learned Magistrate concerned, to conduct the proceedings, uninfluenced by any of the 33/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc observations, findings or directions, in the order of this Court, which was impugned before the Hon'ble Apex Court.
40. In effect, the Division Bench had issued the following directions:-
(1) The police officer of the concerned police station to make a report to the learned Magistrate of concerned area. For the purposes of Sub-Section 1 of Section 145 of the Cr.P.C., the relevant was 22nd April 2017.
(2) Upon the police officer of the concerned police station making such report to the learned Magistrate, the learned Magistrate was directed to forthwith appoint a Receiver on the property in question.
(3) Thereafter, the learned Magistrate was to 34/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc conduct an enquiry as contemplated under Section 145 of the Cr.P.C. to decide the question as to who was entitled to be in possession.
(4) The investigation was entrusted to the CBI who was also directed to investigate into complicity of the police officer of the concerned police station in aiding the Respondents No. 9 to 11 in taking the possession.
41. Though it is not open for us to interpret the order passed by the Hon'ble Apex Court, and the order will have to be read as it is, in our understanding, the order of the Hon'ble Supreme Court passed on 9th March 2018 would be that the direction issued by us are not interfered with.
42. However, in view of the directions issued by the Hon'ble Apex Court, the enquiry which was directed to be conducted by us by the learned Magistrate will have to be 35/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc conducted without being influenced by any of the observations, findings and directions of this Court in the order impugned before the Hon'ble Apex Court. As such, though the learned Magistrate was bound to give effect to our direction to appoint a Receiver immediately, on the receipt of the report of the police officer, of the concerned police station, while conducting an enquiry under Section 145 of the Cr.P.C., he was to ignore the entire observations, findings and directions given by us and conduct the said enquiry uninfluenced by the observations, findings and directions.
43. The effect of the order of Hon'ble Supreme Court would be that though the learned Magistrate while conducting an enquiry, will have to ignore all the observations, findings and directions given by us. If at the end of an enquiry, the learned Magistrate comes to the conclusion that it is the present Petitioners who were in lawful possession on 22nd April 2018, then the learned Magistrate would be required to protect the possession of the Petitioners. Per contra, if the learned 36/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc Magistrate comes to a finding that within a period of two months next prior to 22nd April 2018, the Respondents No. 9 to 11 were in legal possession and they were forcibly dispossessed by the Petitioners, the learned Magistrate would be required to restore the possession of the Respondents No. 9 to 11. In any case, all this would have been subject to the findings, if any, recorded by the Competent Civil Court in the proceedings before it. The directions and orders of the learned Magistrate under Section 145 of the Cr.P.C. would have effect, only till the orders are passed by the Competent Civil Court in the dispute between the parties. Undisputedly, as of now, there is no finding, even of a prima facie nature of the competent Civil Court as to who was entitled to be in possession.
44. In that view of the matter, we find that the learned Magistrate has erred in not complying the directions issued by us. There was no necessity for the learned Magistrate, to seek consent of the parties as to who shall be the Receiver. In that view of the matter, we direct the learned Magistrate to 37/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc forthwith give effect to our order dated 14th February 2018 and appoint either the official Court Receiver of this Court or any Revenue Officer having jurisdiction over the area, where the suit property is situated, as the Receiver over the said property. The learned Magistrate is also directed to ensure that the Receiver, so appointed by him, is put in possession of the suit premises within a period of two weeks from the date on which this order is uploaded.
45. The learned Magistrate is further directed to conduct an enquiry as contemplated under Section 145 of the Cr.P.C. within a period of three months from today. If the learned Magistrate after completing an enquiry, comes to the conclusion that the Petitioners were forcibly dispossessed from their lawful possession, then he shall direct that the possession to be handed over to the Petitioners.
46. Per contra, if the learned Magistrate find that the Respondents No. 9 to 11 were forcibly dispossessed within a 38/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc period of two months prior to 22nd April 2017, he shall direct that the possession shall be restored to the Respondents No. 9 to
11.
47. The proceedings before the learned Magistrate shall be subject to the outcome of the civil proceedings pending before the Competent Civil Court. In the event, if the Competent Civil Court comes to a finding, may be prima facie that either the Petitioners or the Respondents No. 9 to 11 are entitled to interim injunction, the same shall result in termination of the proceedings under Section 145 of the Cr.P.C.
48. We make it clear that the aforesaid directions are issued by us, taking into consideration the peculiar facts and circumstances of the case and should not be construed laying down any proposition of law.
49. The Registrar Judicial is directed to forthwith communicate this order to the learned Chief Metropolitan 39/40 December 14, 2018 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 27/12/2018 07:44:03 ::: 927-WP-3214-17.doc Magistrate, who shall forthwith communicate the same to the concerned learned Magistrate to comply with the directions.
50. At this stage, Shri. Seervai, the learned Senior Counsel prays for stay of the order passed by this Court for a period of two weeks.
51. Shri. Chinoy, the learned Senior Counsel for the Petitioners, vehemently objects to the said prayer.
52. Taking into consideration the fact that we have granted two weeks time to the learned Magistrate to comply with our order, we do not find it necessary to accept the request of Shri. Seervai, appearing for the Respondents No. 9 to 11.
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