Allahabad High Court
Mr. D.P. Dani Son Of Late J.B. Dani, Chief ... vs State Of U.P., Umesh Nath Mishra, S.H.O. ... on 25 July, 2007
Author: Ravindra Singh
Bench: Ravindra Singh
JUDGMENT Ravindra Singh, J.
1. This Criminal Misc. Writ No. 2870 of 2007 has been filed by the petitioner Mr. D.P. Dani with a prayer to quash the order dated 12.2.2007 passed by the S.D.M. Sardhana, district Meerut under Section 145(1) Cr.P.C, and to issue a direction in the nature of mandamus commanding the respondents not to interfere in the peaceful possession of the petitioner over the property in dispute i.e. Modi Rubber Factory, Guest House and Administrative Building situated at Modi Puram P.S. Daurala district Meerut, and to quash the action of respondent No. 2 Sri Umesh Nath Mishra S.H.O. P.S. Daurala district Meerut dated 8.2.2007 by which the factory in dispute has been sealed.
2. Subsequently, a Civil Misc. impleadment application No. 84496 of 2007 has been moved on behalf of M.R.L., registered office at Modi Bhawan, Modi Nagar, Ghaziabad, U.P. having its Head Office at 4-C D.D.A. Shopping Centre, New friends Colony, New Delhi- 10025, Sri Sudesh Upadhyay, Deputy Company Secretary, M.R.L. 4-C D.D.A. Shopping Centre, New Friends Colony, New Delhi-110025 and R.K. Agarwal, Head Marketing of M.R.L. 4-C D.D.A. Shopping Centre, New Friends Colony, New Delhi 110025, the same has been allowed by this Court on 24.4.2007 and they have been impleaded as respondents 4,5, and 6.
3. The second impleadment application has been moved on behalf of Modi Rubber Shramik Sangh through its President Sri Dil Bagh Singh, vide Civil Misc. Impleadment application No. 113156 of 2006, for the purpose of argument, the same is also allowed by impleading him as respondent No. 7. Thereafter, Criminal Misc. Impleadment Application No. 107928 of 2007 has been moved on behalf of M/s Philips Carbon Black Limited, a company incorporated in the Companies Act, 1956, having its registered office at 31 Neta Ji Subhash Road, Kolkata- 700001 through its authorised representative Mr. A.N. Mishra, for the purpose of arguments the same is also allowed impleading him as respondent No. 8.
4. Briefly stated the facts of the case are that respondent No. 2 Sri Umesh Nath Mishra, SH.O. P.S. Daurala district Meerut made a G.D. Entry No. 52 at 21.35 dated 8.2.2007 at P.S. Daurala mentioning therein that when he along with other police personnel was on his duty, he saw that Sri R.K. Agarwal (First party) and Sri Vijai Kumar Trehan (Second party) who were claiming their possession over Modi Rubber Limited factory Modi Puram, its other properties including Guest House, Administrative Building etc. and they were making their attempts to take over the possession for which both the parties were under tension. This dispute was likely to cause breach of peace. Both the parties were making allegations and counter allegations. Sri V.K. Gupta, D.P. Dani, P.K. Parashar, R. Giri and Sanjeev Garg were in support of the first party Sri R.K. Agarwat, whereas Alok Modi, R.K. Agarwal, V.K. Sharma Kaushal Bhatnagar and R.C. Sharma were supporting the second party Vijay Kumar Trehan, both the parties: were claiming their possession and were shouting loudly, the were asked to maintain peace by the SH.O. Daurala but they were making the allegations on each other, in both the parties marpeet has taken place and tension has been created for taking the possession of the property in dispute. In such a marpeet the incident like murder etc. may occur, considering the same, the property in dispute was sealed and locked by the police and both the parties were apprised that report was sent to the magistrate concerned to initiate the proceedings under Section 145 Cr.P.C. And to attach the property in dispute and that both the parties were appealed to maintain peace in future. The report for the proceedings under Section 107/116 Cr.P.C. was also sent to the magistrate concerned were asked to adduce the evidence in respect of their claims in the court concerned. The police force was also deputed at the alleged place of dispute and both the parties were allowed to go to their respective houses. The S.H.O. of P.S. Daurala sent a report dated 9.2.2007 to the S.D.M. Sardhana for initiating the proceedings under Section 145 Cr.P.C. mentioning therein that there is a dispute in respect of the possession of Modi Rubber Factory, its Guest House and Administrative Building etc., due to this dispute both the parties may cause breach of peace. In the report it has been mentioned that the property in dispute has been sealed by the police. It has also been requested that the property in dispute may be attached under Section 146 Cr.P.C. and a receiver may also be appointed, relying upon the Police Report dated 9.2.207 the learned S.D.M. Sardhana passed a preliminary order under Section 145(1) Cr.P.C. On 12.2.2007 and both the parties were directed to appear before the court concerned on 20.2.2007 to put in written statements of their respective claims as respect the fact of actual possession of subject of dispute. Against the order dated 12.2.2007 the petitioner has preferred this writ petition.
5. Heard Sri Vinay Saran, S. Agarwal, learned Counsel for the petitioner, learned A.G.A. for the State, Sri Vijai Bahadur Singh, Senior Advocate assisted by Miss. Kirtika Singh and Sri N.P. Singh, learned Counsel for the respondents Nos. 4,5 and 6. Sri Ravi Kiran Jain, Senior Advocate assisted by Sri Nitin Sharma, learned Counsel for respondent No. 7 and Sri Ajai Bhanot, learned Counsel appearing on behalf of respondent No. 8.
6. It is contended by the learned Counsel for the petitioner that the S.H.O. of P.S. Daurala was not legally empowered to seal abd lock the property in dispute because there was no order of any court to seal the property in dispute and before initiation of the proceedings under Section 145 Cr.P.C, the property in dispute was sealed by the police. The act done by the S.H.O. P.S. Daurala was totally arbitrary, illegal and the report sent by the S.H.O. to the learned S.D.M. Sardhana for initiating the proceedings under Sections 145 Cr.P.C. was also illegal. It is also surprising that the learned S.D.M. Sardhana passed the preliminary order under Section 145(1) Cr.P.C. without mentioning therein the grounds of his satisfaction. There was no dispute between parties concerned. The order under Section 145(1) Cr.P.C. has been passed on 12.2.2007 on the basis of the police report dated 9.2.2007 sent by the S.H.O. P.S. Daurala whereas S.H.O. Daurala has not sent any such report on 9.2.2007, it was sent on 8.2.2007. On 9.2.2007 the S.H.O. has sent the report for initiating the proceedings under Sections 107/116 Cr.P.C. on the basis of that report, the learned S.D.M. Sardhana has issued notice under Section 111 Cr.P.C. on 9.2.2007. The learned magistrate has passed the order dated 12.2.2007 in a routine manner without considering the existence of any dispute which was likely to cause breach of peace, because both the parties were stranger to the property in dispute. The parties concerned were directed by the S.D.M. Sardhana to appear on 20.2.2007, on that date the second party Sri Viyay Kumar Trehan appeared before the S.D.M. Sardhana and filed a written statement whereas the first party R.K. Agarwal did not appear before the court of learned S.D.M. Sardhana. In an exhaustive written statement filed by the second party Sri Vijai Kumar Trehan, it has been clearly stated that no such incident as reported by the police has occurred between the parties even there was no dispute between the parties in respect of the possession of property in dispute. It has been clearly stated by the second party that all the facts narrated by the police are incorrect, he was having no concern with the property in dispute even the police of P.S. Daurala was having no business to seal the property in dispute. The property in dispute i.e. Modi Rubber Factory is owned by the family of Modi, neither the first party has any concern with the property nor the second party was having any concern with the property in dispute. It has also been clearly stated by the second party that the proceedings have been initiated without any reason whereas in respect of the property in dispute, the matter is pending before the B.I.F.R., and it has been prayed by the second party that the proceedings under Section 145(1) Cr.P.C. May be dropped even then the learned S.D.M. Sardhana has not dropped the proceedings and the property in dispute which has been sealed and locked by the police has not been released because the police authority was not having any lawful authority to do so.
7. In reply of the above contention, the learned Counsel for the respondents namely by Sri V.B. Singh, Senior Advocate, has submitted that the proceedings have been illegally initiated, there was no reason to initiate the proceedings but due to some ulterior motive such proceedings have been initiated, which may be dropped and the property in dispute which has been illegality sealed and locked by the police may be released. It has been argued by Sri R.K. Jain, Senior Advocate that the issue involved in the present case is very important, the interest of the employees of the factory may be protected and the status quo may be maintained regarding the property in dispute till the sanction of the revival scheme is being made by the B.I.F.R. or a receiver may be appointed till the sanction of revival scheme is declared by the B.I.F.R. so that the assets of the company may be protected and it has been submitted by Sri Ajay Bhanot, learned Counsel fort he respondent No. 8 M/s Phillips Carbon Black Limited that to protect the assets of he company, an official liquidator may be appointed so that the directions of BIFR may be effectively implemented.
8. In the present case some of the issues relating to title/ ownership in respect of he property in dispute and with regard to the pendency of the proceedings before BIFR have been raised, the same can not be adjudicated in the proceedings under Section 145 Cr.P.C. These issues may be raised before the appropriate court or BIFR.
9. Considering the facts and circumstances of the case and submissions made by the learned Counsel for the petitioner and the learned A.G.A,, and the learned Counsel for the respondents and from the perusal of the record, it appears that in the present case before initiation of the proceedings under Section 145 Cr.P.C. The S.H.O. Of P.S. Daurala has illegally sealed and locked the property in dispute, he was having no authority to seal the property in dispute because there was no such order passed by any court but the S.H.O. concerned has assumed the power of the Magistrate. The act done by the S.H.O. P.S. Daurala is full of arbitrariness and totally illegal even there was no compelling circumstance to seal and lock the property in dispute. The learned Magistrate concerned has not passed any order under Section 146(1) Cr.P.C. to attach the subject of dispute. The act of the S.H.O. concern attaching/sealing the subject of dispute has no legal sanctity even it can not be legalised by subsequent approval of the Magistrate concerned, surprisingly the Magistrate concerned has not rectified the illegal act done by the S.H.O. concerned whereas it was disclosed in the police report, therefore, it requires the interference by this Court, accordingly it is directed that S.H.O. of P.S. Daurala shall open the lock of the property in dispute and the same shall be released forthwith.
10. So far as the legality of the impugned order dated 12.2.2007 is concerned, it is preliminary order passed by learned S.D.M concerned under Section 145(1) Cr.P.C. by which the parties concerned have been directed to appear before the learned Magistrate concerned to put in written statements of their respective claims as respects the facts of actual possession of subject of the dispute, this order has been passed by learned Magistrate concerned after considering the police report dated 9.2.2007. The police report dated 9.2.2007 has not been filed by any of the party in the present writ petition. This order has been passed after subjective satisfaction of the learned S.D.M. concerned, the ground of satisfaction has been mentioned and according to police report the dispute in respect of actual possession of the property in dispute was likely to cause a breach of the peace. The impugned order dated 12.2.2007 passed by learned S.D.M., Sardhans in case No. 3 under Section 145 Cr.P.C. is not suffering from any illegality, therefore, the prayer for quashing the impugned order dated 12.2.2007 is refused. The Interim order dated 7.3.2007 passed by this Court is hereby vacated. The learned S.D.M concerned is a competent authority to pass appropriate orders in respect of the actual possession of the subject in dispute or to drop the proceedings, it is further directed that the learned S.D.M., Sardhana shall pass appropriate orders, expeditiously, in accordance with the provisions of law.
11. In view of the above discussion and directions direction, this petition is finally disposed of without any order as to the cost.