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Brindaban Shaw Vs. Narendra Nath Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1948Cal192
AppellantBrindaban Shaw
RespondentNarendra Nath Sarkar and ors.
Excerpt:
- .....served upon the tenants who were in possession. the petitioner says that he had called upon his tenants to vacate but that they refused to do so. that being so, he moved the criminal court under section 144, criminal p.c., for an order calling upon the tenants to vacate the premises.3. it appears to me that proceedings under section 144 were wholly misconceived. under that section a magistrate may by a written order stating the material facts of the case direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully.....
Judgment:

Harries, C.J.

1. This is a petition for revision of an order of a learned Presidency Magistrate refusing to take action under Section 144, Criminal P.C.

2. The petitioner is the owner of certain huts situate at 65, Cornwallis Street in this City. These structures are said to be in a dilapidated condition and might collapse at any moment. According to the petitioner, the Calcutta Corporation on 20-12-1946 served a notice upon him directing him to pull down the structures within seven days, and this notice apparently was also served upon the tenants who were in possession. The petitioner says that he had called upon his tenants to vacate but that they refused to do so. That being so, he moved the Criminal Court under Section 144, Criminal P.C., for an order calling upon the tenants to vacate the premises.

3. It appears to me that proceedings under Section 144 were wholly misconceived. Under that section a Magistrate may by a written order stating the material facts of the case direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot on an affray.

4. I cannot possibly read this provision as entitling a landlord to go to a Criminal Court and ask for an order that his tenants should vacate. In short, what the petitioner was attempting to do here was to obtain a very summary remedy for eviction. The only course the petitioner could follow was to obtain an order for possession from the Civil Courts in the ordinary way. It has been urged on behalf of the petitioner that he is being prosecuted. But how can a prosecution succeed against him when he is not in possession of the premises? No landlord can pull down premises, if by law, he is not entitled to enter upon those premises to do anything to them. As long as the tenants are lawfully on the premises a landlord cannot enter. What must be done in this case is legally to put an end to these tenancies and obtain a legal order for eviction. No such order can in my view be made under Section 144, Criminal P.C. In the result, therefore, this petition fails and is dismissed. The rule is discharged.

Clough, J.

5. I agree.


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