Indian Kanoon - Search engine for Indian Law

. We have heard the parties in the present Letters Patent Appeal which has been preferred by the writ petitioner-appellant seeking modification of the order dated 8.9.2009 which was passed by the learned single Judge in CWJC No.4791 of 2009.

The limited prayer which has been made before us in the present L.P.A. is that on account of the arbitrary and illegal act of the officers of the state, i.e., respondents no.2 and 3, of locking the premises without resorting to the proper provision of the law in that behalf, it was an action virtually ousting the appellant from the premises and, as such, it invited payment of compensation as per the principles laid down in general law. However, prayer was that the direction should go to respondents no.2 and 3 for removal of the lock which was put over the premises admittedly, as is indicated by Anexure-3 to the writ petition, which was a notice issued by respondent no.2 S.D.O. Bikramganj, District- Rohtas.

The learned single Judge after hearing the parties and considering the pleadings made the following observations which appear from pages-9 and 10 of the impugned judgement.

"It is now to be seen whether petitioner was running the business or having any interest in the agency. In letter dated 21.3.2009 addressed to the S.D.O. Bikramganj, the Officer-in-Charge has stated that since last many years respondent no.4 had handed over the Gas Agency to the petitioner for running the same. He further stated that the previous evening Shiv Kumar Mochi, respondent no.4 removed the lock of the petitioner replacing it with his own. Furthermore the S.D.O. Bikramganj, in his letter no.78/R dated 27.3.2009 has clearly stated that the petitioner has been running the Gas Agency since last many years. The letters have been annexed as Annexure-R-2/A and R-2/B of the affidavit filed by respondent no.2 itself. Thus, the own letters of official respondents clearly manifest that the petitioner was running the Gas Agency since last many years and had substantial interest in it. The Indian Oil Corporation had not earlier approached the administration for removing the petitioners from the premises. The respondents as such were not justified in locking the premises to the ouster of the petitioner, without initiating a proceeding or taking resort to procedure under the law. Further more, it appears that the premises has been unlocked and handed over to respondent no.4 even without noticing the petitioner. The action of the respondent no.3 in locking the premises is without any sanction of law. The respondent no.2 after initiating a proceeding could have passed an appropriate order regarding locking or unlocking of the premises. There is nothing on record to show that any proceeding was initiated before locking or unlocking much less under section 133 Cr.P.C.

Thus, what appears from the above findings is that the learned single Judge was also holding that the locking of the premises by respondent no.3 Officer-in-Charge of Bikramganj police station was without any sanction of law and as such, it could not be upheld or supported. Besides, it was also held that it was the petitioner who was doing business in the premises prior to and upto the day the premises was locked.

As regards the grievance of the petitioner that the action of locking the premises was arbitrary and illegal there could not be any two views as noted by the learned single Judge. The notice issued after locking of the premises which is contained in Annexure-3 also loudly indicates as to how arbitrary the action could be. Even respondent no.2 the S.D.M.,Bikramganj was issuing Annexure-3 which is memo no.312 dated 31.3.2009, was pointing out that the respondent no.3, the Officer-in-Charge of Bikramganj police station had already put a lock on the premises and had reported to the S.D.M., Bikramganj about the dispute about the proprietorship of the outlet of L.P.G. Before us also, the learned counsel appearing for the parties were unanimous in submitting that no law empowered the officer-in- charge of Bikramganj and also the S.D.M., Bikramganj to issue a notice after having put a lock on the premises without taking up any proper proceeding. We also find that the act of the officer-in-charge of Bikramganj police station of putting a lock on the premises was completely arbitrary and unknown to the laws which action was being reiterated by issuing the notice by S.D.M., Bikramganj. This was clearly in violation of settled principles of law, settled by the decision of this court in M/S Maa Durga Enterprises Vrs. State of Bihar reported in 2009(2)PLJR 1000, specially that part of the judgement which refers to N.Nagendra Rao and Company Vrs. State of Andhra Pradesh which is reported in AIR 1994 SC 2663. We are of the view that the actions of the respondents no.2 and 3 require a direction to them for payment of compensation to the writ petitioner because the award of compensation, as was held by the Supreme Court in N.Nagendra Rao (supra), under article 32 by the Supreme Court or under Article 226 of the Constitution by the High Court was a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign does not apply even though it may be available as a defence in private law in action based on tort.