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Raj International Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 286 of 1983
Judge
Reported in1983(2)Crimes254; 24(1983)DLT47
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 146 and 147
AppellantRaj International
RespondentState and ors.
Advocates: B.P. Kathuria,; Sital A.K. Dar,; Charanjit Singh and;
Excerpt:
.....under section 147 of the code to the effect that 'for the time being the said passage from the mezzanine floor to the first floor stairs be locked up. a strong plea was made to quash the order on the ground that the order was made in proceedings to which the petitioners were not parties as also on the basis of an injunction order of the civil court in proceedings to which the petitioners were not parties and the order did not bind the petitioners. the contentions raised by the petitioners naturally found strong support from counsel for the owners. a strong plca was made to uphold the magisterial order having regard to the past conduct of the owners, the involvement of one of them in the commission of a grave crime, and the violation by the owners, as also by the petitioners, of the..........is directed against the order of the sub-divisional magistrate, kotwali, sealing the door of the mezzanine floor of the property in dispute opening towards the staircase which prevents the petitioners from using the staircase. (2) premises no. 4946-48, chandni chowk, delhi, was purchased in june, 1979 by satinder singh and shri pal singh, respondents 3 and 4, m/s k.g. raj & company, watch merchants, respondent no. 2, and m/s castophene manufacturing company, had been in occupation of the first and second floor of the premises as tenants for the last many years before the purchase of the property by the said respondents according to respondent no. 2, the said respondent and the other tenant had been entitled to the exclusive use of the staircase and respondent no. 2 used to put its lock.....
Judgment:

H.L. Anand, J.

(1) This petition under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India is directed against the order of the Sub-divisional Magistrate, Kotwali, sealing the door of the mezzanine floor of the property in dispute opening towards the staircase which prevents the petitioners from using the staircase.

(2) Premises No. 4946-48, Chandni Chowk, Delhi, was purchased in June, 1979 by Satinder Singh and Shri Pal Singh, respondents 3 and 4, M/s K.G. Raj & Company, watch merchants, respondent No. 2, and M/s Castophene Manufacturing Company, had been in occupation of the first and second floor of the premises as tenants for the last many years before the purchase of the property by the said respondents According to respondent No. 2, the said respondent and the other tenant had been entitled to the exclusive use of the staircase and respondent No. 2 used to put its lock on the door. outside the staircase, apparently with an arrangement with the other tenant for the purpose of security of their properly. The ground floor of the property, which consists of a shop, has been in possession of respondents 3 and 4 after the purchase of the property and it appears that the said respondents recently made wide structural changes in the ground floor so as to convert the shop into some kind of a mini market. Between the ground floor and the first floor is a mezzanine floor and there is considerable controversy between the parties if the mezzanine floor was in existence before the purchase or was recently constructed by respondents 3 and 4 Along with making other structural alterations in the ground floor of the premises. There is a door which opens towards the staircase from the mezzanine floor and here also there is considerable controversy between the parties if there has been an opening from the mezzanine to the stairs from before or the opening was recently made and/or a steel structure was substituted for the wooden opening. There has also been some controversy if respondents 3 and 4 had obtained the prior permission of the local authority for the changes or if any such permission was necessary. It was urged that the recent construction put up by respondents 3 and 4 was unauthorised and is not only liable to be demolished but that it had been publically notified that the local authority proposes to deal with it in accordance with law. There is also controversy between the parties if the petitioners, who claim to be exporters and importers, and are not connected with the owners, have been in occupation of the mezzanine as tenants under the owners since April, 1981, as claimed by the petitioner, or were recently inducted into the newly constructed mezzanine somewhere in September, 1981, when contempt proceedings were initiated against the said respondents and the petitioners, on the ground that they had violated an injunction granted by a Civil Court.

(3) It appears from an entry in the daily diary of September 13, 1981 of Police Station Lahori Gate that on a report to the Police, a Police Party went to the premises and were told that when fixing an iron shutter in place of a wooden door at the opening of the mezzanine, some debris fell into the staircase which was not liked by the employees of K.G. Raj & Go., respondent No. 1. The Police party, however, found that there was 'no dispute' and were assured by the employees of respondent No 1 that 'there was no quarrel'. It was further observed that 'no offence committed worth recording'. The report concluded thus 'owner of the building Shri Raghbir Singh Chhabra came on the spot and explained the whole situation to the tenants and impressed upon them that they would not be put to any inconvenience and that the staircase will be got cleaned'. This was, however, not the end of the matter. On September 17, 1981, K.G. Raj & Go. filed a suit in a Civil Court for permanent injunction against the owners. Castophene Manufacturing Co., the other tenant existing was also imp leaded as a defendant. The suit of respondent No. 1 was based on the allegation that respondent No. 1 and the other tenant had exclusive right of user of the passage and the staircase leading from the ground floor to the second floor of the property and apprehended interference with the right of passage and the staircase from the owners and/or their agents and representatives. It was further alleged that the owners had put up a steel rolling shutter connecting the mezzanine floor with the opening made into the staircase by demolishing the intervening wall to provide passage to the said mezzanine floor from the staircase to which the owners had no right as it would interfere in the right to the exclusive user of the passage and the staircase claimed by the existing tenants. On September 18, 1981, Court granted an interim injunction restraining the owners, their agents, representatives, servants and workmen from using the passage and the staircase, leading from the ground floor to the first and the second floor. The injunction was eventually confirmed on October 23, 1981 after hearing the parties to the suit. It. is alleged that the owners and/or their representatives or agents violated the injunction and contempt proceedings were initiated against them, including the petitioners in. the present proceedings, who claim to be in occupation of the mezzanine as tenants under the owners since April, 1981. The petitioners were, however, not imp leaded as defendants in the suit. Meanwhile, on September 23, 1981, a report under Section 145 of Code of Criminal Procedure was made by the Police Station, Lahori Gate to the Sub-divisional Magistrate, Kotwali, in which after recording the factum of the injunction order, it was pointed out that 'there is still tension and simmering rancour between the two parties and they are complaining each other. Kalendra u/s 107/150 Cr. P.C. has been sent to the court of Sh. G.S. Sidhu, Spl. Executive Magistrate, Kotwali. Keeping in view the above facts and circumstances, it is prayed that this door (Marked 'B' in the map) may be sealed till the decision of the civil suit. Submitted for orders please.'

(4) On the bails of this report, the Sub-divisional Magistrate made a preliminary order u/s 147 of the Code of Criminal Procedure recording that there was a dispute 'of usage of staircase' between the parties and being satisfied that 'such a dispute of usage of staircase' was likely to cause breach of peace called upon the parties to put in their written statements, documents and other evidence 'with regard to the actual possession of the disputed premises'. After hearing counsel for the parties, the sub-divisional Magistrate made an order on March 23, 1983 under Section 147 of the Code to the effect that 'for the time being the said passage from the mezzanine floor to the first floor stairs be locked up.' Unfortunately, the Court has not given its own reasons for the order but the order is preceded by recitals of the rival contentions of the parties. It is difficult to say as to what exactly weighed with the learned Magistrate. It is also not clear if it is a final order made by the learned Magistrate or if the sealing or attachment has been ordered as an interim measure because he has used the expression 'for the time being'. It further appears that apart from noticing the rival contentions with regard to the right of user of the passage and the staircase) it had been pointed out to the learned Magistrate that the owners had violated the injunction granted by the Civil Court in favor of one of the existing tenants restraining the owners or their agents, representatives, servants and workmen from using the passage leading from the ground floor to the first floor and the second floor.

(5) On behalf of the petitioners, it was claimed that the petitioners were in occupation of the mezzanine as bona fide tenants under the owners since April, 1981 and were as such tenants entitled to use the passage and the staircase to which there is a regular opening from the mezzanine and that no tenant was entitled to claim exclusive possession of the passage or the staircase or be entitled to exclusive use thereof. Petitioners refuted the averments that the petitioners had been set up by the owners to frustrate the object of the civil proceedings or to harass the existing tenants of the first and the second floor. A strong plea was made to quash the order on the ground that the order was made in proceedings to which the petitioners were not parties as also on the basis of an injunction order of the Civil Court in proceedings to which the petitioners were not parties and the order did not bind the petitioners. It was further urged that in view of the subsisting injunction against the owners, their representatives, employees, etc. any further order of attachment or sealing was uncalled for. The power of the court to attach or seal any premises u/s 147 of the Code of Criminal Procedure was also challenged. Reliance was placed on the report of the Police dated September 13, 1981 to the effect that there was neither any 'quarrel' nor any 'dispute' which may be said to be worth recording and that the entire position had been satisfactorily explained by the owners to the existing tenants. The contentions raised by the petitioners naturally found strong support from counsel for the owners.

(6) On behalf of the existing tenants of the first and second floor, it was urged that they had the exclusive right to the use of the passage and the staircase and one of them has been locking the door leading from the ground floor to the two floors and neither the owners nor any of their tenants had any right of access to the passage and the staircase from the mezzanine, and the only right that the owners had in terms of the order of the Civil Court was to inspect the premises after proper notice to the existing tenants. It was further pointed out that the owners had carried out illegal construction on the ground floor and had similarly constructed the mezzanine all of which were liable to be demolished and appropriate steps were being taken by the local authority for the purpose. It was further urged that the owners were desperate characters and one of them Satinder Singh, respondent No. 3, was in judicial custody pending trial on a charge of armed bank robbery. It was urged that the petitioners were inducted into the mezzanine only recently with a view to defeat the object of the proceedings, now pending in the Civil Court, and to frustrate the purpose of the order of the sub-divisional Magistrate attaching the disputed part of the premises since the owners themselves dare not challenge any of these in any court of law. A strong plca was made to uphold the Magisterial order having regard to the past conduct of the owners, the involvement of one of them in the commission of a grave crime, and the violation by the owners, as also by the petitioners, of the injunction granted by the Civil Court, for which the owners as well as the petitioners were being proceeded on a charge of contempt of court. It was strenuously urged that a contemner was not entitled to seek justice. On behalf of K.G. Raj & Co., respondent No. 2, it was particularly pointed out that their merchandise on the first floor and part of the second floor consists of valuable watches and unless the opening from the mezzanine floor to this passage and the staircase remains sealed, there would be threat to their personal security as also the security of their property.

(7) After hearing learned counsel for the parties, it appears to me that even though the order of sub-divisional Magistrate suffers from fatal infirmities, the situation emerging from the material on record would justify appropriate directions to ensure maintenance of status quo with regard to the use of the passage and the staircase until appropriate orders arc made by the Civil Court, after hearing all the parties, including the petitioners. The disputes between the parties did not relate to possession of any property but with regard to the use of it. The learned Magistrate, thereforee, rightly initiated proceedings u/s 147 of the Code of Criminal Procedure rather than u/s 145 of the Code. The impugned order also purports to have been made u/s 147 of the Code. Section 147 which deals with disputes with regard to the use rather than possession of property does not confer any power on the court to seal or attach any part of the property. Since the dispute in such cases relates to use of any part of the property, sub-section (3) of Section 147 rightly empowers the Magistrate to make an order 'prohibiting any interference with the exercise of such right, including in a proper case an order for removal of any obstruction in the exercise of any such right'. The learned Magistrate could have, thereforee, issued a prohibitory order which was apparently unnecessary because an order in those terms had already been made by the Civil Court. Learned Magistrate apparently exceeded his jurisdiction in ordering attachment apparently because he was told that the owners and even the petitioners had violated the terms of the injunction. The Civil Court, however, had ample power to deal with the violation of any restraint order. Learned Magistrate also did not give any reasons for his order. To my mind, the requirement that an order mast be based on reasons is not satisfied merely because a Court notices the rival contentions. But this is what exactly the learned Magistrate has done. It has often been pointed out that the duty to give reasons has built into it a safeguard against any possible despotism, including judicial despotism. It is no doubt true that the petitioners, who claim to he occupants of mezzanine as tenants, whether they were inducted in April, 1981 as claimed by them or were inducted subsequently with a view to over-reach the Civil Court, as claimed on behalf of the existing tenants, were not made parties to either of the two proceedings, except that notice was issued to them by the Civil Court of the petition for contempt. The petitioners, thereforee, obviously have had no opportunity of being heard by either of the Courts even though the effect of both the orders would be that the petitioners would be prevented from the common use of the passage and the staircase even if the petitioners are bona fide tenants in respect of the mezzanine. It is also not possible to justify the order u/s 146 52 of the Code of Criminal Procedure even though this Section was not invoked by the learned Magistrate. For this purpose, we may assume that the proceedings had been initiated u/s 145 of the Code of Criminal Procedure and Section 146 could, thereforee, be invoked at an appropriate stage. Before an order u/s 146 could be made, it is necessary that its conditions are satisfied. Sub-section (1) of Section 146 empowers the Magistrate to attach the subject of dispute if the Magistrate 'considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in Section 145 or if he is unable to satisfy himself as to which was then in such possession of the subject of dispute'. None of these matters were considered by the learned Magistrate and it is difficult to say which, if any, of these conditions was considered satisfied so as to justify the order of attachment. It is, however, necessary in the circumstances that until the petitioners succeed in the proceedings in the Civil Court neither the owners nor any of their representatives, employees, agents, including the petitioners, would use the passage or the staircase from the mezzanine and the existing tenants would be entitled to put a lock over the door of the mezzanine from the side the passage.

(8) In the result, I would accept the petition, quash the order of the learned Sub-divisional Magistrate made on March 23, 1983, sealing the passage from the mezzanine to the first floor stairs and direct that pending further orders of the Civil Court, on the motion of the petitioners, neither the owners nor any of their employees, agents or representatives, including the petitioners, or any other tenants that may be inducted into the mezzanine by the owners, would be entitled to use the passage and the staircase and the existing tenants would be entitled to put their lock on the door opening from the mezzanine to the passage from the side of the passage, as before.


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