Judgment:
S.K. Chattopadhyaya, J.
1. In this writ application the petitioners have impugned the order dated 29.6.1990 (Annexure-12) passed by the Sub-Divisional Magistrate, Jamshedpur by reasons of which, in spite of his order dated 1.2.1992 quashed by this Court, he has refused to restore possession of the petitioners over three rooms of holding No., 33, road No. 3 of Manifit Basti, Telco, Town, Jamshedpur and have prayed for consequential relief by way of directing the respondents concerned to restore the possession of the said house to the petitioners.
2. Before adverting to the contentions raised by the learned Counsel for the parties, some facts are necessary to be discussed which, in short are as follows:
One Sardar Jagdish Singh had filed Title Partition Suit No. 26/90 against Smt. Harbans Kaur and others in the Court of Subordinate Judge No. 1, Jamshedpur claiming, inter alia, for partition of the suit properties detailed in Schedules A, B and C of the plaint. It is to be noted that this Jagdish Singh, husband of respondent No. 4, is none else but the son of Harbans Kaur the vendor of petitioner No. 1 of this writ application. It was admitted by the plaintiff, Jagdish Singh, that Schedule B property belonged the defendant No. 1, his brother and other defendants. Harbans Kaur and others contested the suit by urging, inter-alia that the property mentioned in Schedule B of the plaint exclusively belongs to defendant No. 1 (Harbans Kaur) and the same is Stridhan which stands in her name in the records of Tisco. Her case was that she had already sold the said property to Smt. Sarjeet Kaur (who is petitioner No. 1 herein) and put her in possession. By judgment and order dated 4.7.1992 the aforesaid suit was dismissed by the court below and there is nothing on record to show that against the said judgment and decree said plaintiff, Jagdish Singh moved in appeal.
In this writ application the case of the petitioner is that the purchased the said three rooms in holding No. 33 from Harbans Kaur by a registered sale-deed dated 1.6.1991. On 9.6.1991 she came in possession by performing some rituals. Respondent No. 4. Manjeet Kaur filed a written complaint on 19.11.1991 before the officer, incharge of Telco police station alleging, inter-alia, that for the last 15 years she was residing in the said holding with her family members but on that date Nirmal Singh, Devendra Singh, Rama Singh, Gulla, Sukhwant Singh, Didar Singh, Manrup Singh and others came to her house and had thrown out her all belongings from the house by assaulting her. Other allegations were also made and on the basis of the said allegation, after inquiry the police submitted a report before the S.D. Daldhum praying for initiation of a proceeding under Section 144, Cr.PC against both the parties. A written report of Manjeet Kaur and the police report are Annexures 2. By order dated 20.11.1991 a proceeding under Section 144, Cr.PC was started against both the parties and the learned Magistrate restrained both the sides from going upon the disputed premises. This order is Annexure-3. On receiving notice on 27.11.1991 the petitioners appeared by filing their show cause stating categorically that the vendor, Harbans Kaur already sold the said holding on 6.4il991 and petitioner No. 1 was put in possession. Against the intention of the proceedings petitioner No. 1 filed Criminal Revision No. 169/91 before the Sessions Judge, Jamshedpur which was submitted and lower Court record was called for. Next date fixed was 9.12.1991 but as the lower Court records were not received till that date, the matter was adjourned to 3.1.1992. In the meantime, it is alleged, the petitioner was forcibly evicted by Telco Police from the said premises on 12.12.1991 and after throwing all her house hold articles, locked the door of the said premises. This matter was brought to the notice of the learned Sessions Judge by filing a petition but the court directed the matter to be heard on 3.1.1992, the date fixed for hearing of the case. On 3.1.1992 the case was not heard and after adjourning from -time to time the said Criminal Revision was dispose of on 23.1.1992 (Annexure-5) by which he dismissed the said revision application.
During the pendency of the proceedings under Section 144, Cr.PC it appears, the petitioners also filed title suit No. 174/91 when respondent No. 3 and Respondent No. 4 started planning to dispossess the petitioners from the said premises. This suit was for permanent injunction restraining the respondents from disturbing the rightful owner ship and peaceful possession of the plaintiffs. However, as the petitioners were forcibly thrown out by the local police from the suit premises on 12.12.1991, the petitioners had to withdraw the said suit on 11.2.1992. On 13.12.1991 the matter of forcible dispossession was brought to the notice of the S.D.M. Dalbhum by the petitioners and on 27.1.1992 both the first party and the 2nd party filed a petition before the court admitting therein that the proceeding under Section 144, Cr.PC lost its force and the parties, therefore, prayed that they may be put in possession after unlocking the disputed premises. It appears that instead of directing the police to open the lock of the disputed premises and to hand over possession to the petitioner, by order dated 1.2.1992 the S.D.M. directed the police to open the lock and give the possession thereof to the first party respondent holding that the proceeding has spent its force.
The petitioner moved this Court against the order dated 1.2.1992 in Cr. Misc. No. 650/92 (R) and a learned Single Judge of this Court after hearing the parties, by order dated 28.4.1992, quashed the said order of the S.D.M. holding the said order as illegal on the ground that when the proceeding under Section 144, Cr.PC was no longer in existence after expiry of two months, the said order could not have been passed by the learned Magistrate without restoring to the provisions as provided under law. this Court gave opinion to the learned court below to take suitable step in the matter if such a situation arises in accordance with law. The order of the High Court is Annexure-7. Immediately thereafter, the petitioner filed a petition on 15.5.1992 before the S.D.M. praying restoration of possession of the aforesaid premises on the ground that the order dated 1.2.1992 had been set aside by the High Court but by the impugned order, as contained in Annexure-10 the learned S.D.M. dismissed the petition filed by the petitioners on the ground that as in view of the order of the High Court sixty days had expired, he had no jurisdiction under law to pass any fresh order in the matter.
3. In her counter-affidavit Manjeet Kaur (respondent No. 4) has denied the assertion of the petitioner that she ever came in possession of the said property rather asserted that she along with her family members is residing in the said premises for the last 15 years. She has stated that pursuant to order dated 1.2.1992 the Telco police dispossessed the petitioner and sealed the said premises. According to her, Title Partition Suit No. 26/90 was dismissed only on the ground that the suit property actually belonged to Mohan Singh who is her father-in-law.. Her further case is that respondents 3 and 4 were forcibly dispossessed by the petitioner in November, 1991 and as such, complaint was filed by the husband before the Telco police under Section 107, Cr.PC which was ultimately dropped by order dated 28.2.1992.
4. The assertion of respondent No. 4 in her counter-affidavit have been denied by the petitioner by filing rejoinder to the same. It has been categorically asserted that prior to order dated 1.2.1992 the police had illegally dispossessed her and locked the house. This dispossession was on 12.12.1991 and pursuant to order dated 1.2.1992 the respondent No. 4 was put in possession. To controvert the statements of respondent No. 4 that Title Partition Suit 26/90 was dismissed only on the ground that the suit property actually belonged to Mohan Singh, the petitioner has annexed a photo copy of the said dismissal order which is Annexure-11 to the rejoinder of the petitioner.
5. Mrs. Jaya Roy, learned Counsel appearing on behalf of the petitioners, has vehemently urged that the order of the learned Sub-Divisional Magistrate is manifestly illegal mainly on two accounts. Firstly, she contends, that in a proceedings under Section 144, Cr.PC the Magistrate had no power to ask the police to dispossess' a party from her possession and to put another party in possession thereof. Secondly, when admittedly on 1.2.1992 the period of sixty days had already expired, the learned S.D.M. became functus offico and, as such, could not have passed the said order. Mrs. Roy further submits that when the order, dated 1.2.1992 was quashed by this Court in the aforesaid Cr. Misc. No. 650/1992 (R) and this Court left open to the learned Magistrate to take suitable steps in the matter, he ought to have passed order for restoration of the possession to the petitioners.
6. Mr. R.S. Mazumdar appearing on behalf of the respondents, while admitting the legal position that after expiry of sixty days the Magistrate had no power to pass the order dated 1.2.1992, submits that the respondents were disposed by the petitioner forcibly on 19.10.1991 as a result of which a proceeding under Section 107, Cr.PC was drawn up by the learned Sub-Divisional Magistrate but-ultimately the said proceeding was dropped by order dated 28.2.1992 (Annexure-D) on the ground that the proceedings under Section 144, Cr.PC was pending in respect of the same dispute. Mr. Mazumdar, fairly submitted that though on 19.11.1991 the respondent No. 4 was dispossessed, but when the proceeding under Section 144, Cr.PC was initiated on 20.11.1991 by issuing notice, the petitioner was in possession which possession was forcible. He urged that the impugned order as contained in Annexure-10 cannot be impugned as illegal inasmuch as after expiry of sixty days the Magistrate could not have passed any order in the said proceeding even though the possession was actually resorted to the respondents by the police in view of the order dated 1.2.1992 Lastly he contends that the High Court will not exercise its inherent jurisdiction directing the police to restore the possession to the petitioner and the petitioner may approach the civil court for appropriate relief.
7. The scope and jurisdiction of a Magistrate under Section 144, Cr.PC has been reiterated again and by again the Hon'ble Supreme Court as well as various High Courts and by now it settled law that this provision confers jurisdiction to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management with the object, inter-alia, or preventing disturbance or public tranquillity or a riot, or affray. The kind of orders mentioned in Section 144, Cr.PC are obviously intended only to prevent dangers to life, health, safety or peace and tranquillity of members of the public. They are only temporary in nature which cannot last beyond two months from the making thereof which is clear from Section 144(6) of the Code. Deciding question of title is not the scope of Section 144 of the Code and deciding such title by the Magistrate in such a proceeding has been depricated by various judicial authorities from time to time.
8. In the case of Gulam Abbas and Ors. v. The State of Bihar and Ors. reported in : 1981CriLJ1835 , the Supreme Court has summed up as follows:
The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Prevention of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred or the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to overide temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the Section does not confer any power on .the Executive Magistrate to adjudicate of decide disputes of civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decree of civil courts of competent jurisdiction then in the exercise of his power under Section 144 he must have due regard to such, established rights and subject of course, to the paramount consideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantages to one party to the dispute over the other but in a fair manner ordinarily defence of legal rights if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrongdoer rather than the wronged.
9. In the case of Acharya Jagdishwaranand Avdhuta v. Commissioner of Police Calcutta and Anr. reported in : 1983CriLJ1872 , while dealing with the scope of Section 144(1), Cr.PC the Apex Court has field, inter-alia, that the scheme of the section does not contemplated respective orders and in case the situation so warrants, steps have to be taken under other provisions of law such as Section 107 or Section 145 of the Code, when the individual disputes are raised and to meet a situation as in the instant case, there are provisions to be found in the Police Act for doing the needful. According to their Lordships if the respective orders are make, it would clearly amount to abuse all the powers conferred by Section 144 of the Code.
10. From the aforesaid backdrops of legal position, the contention of the parties have to be looked into. I have already noticed above that Harbans Kaur, vendor of petitioner No. 1 was the defendant in the said partition suit in which Jagdish Singh, husband of respondent No. 4, Manjeet Kaur, was the plaintiff. The said suit was dismissed not on ground as asserted by respondent No. 4 that Mohan Singh, father-in-law of respondent No. 4 was the owner of the said property. On the other hand, it appears from the judgment that the learned Subordinate Judge No. 1 Jamshedpur found that there was no unity to title and possession of both the parties in these premises. He also found that the suit was bad for non-joinder of necessary parties and the plaintiffs had no cause of action for right to sue. Under this circumstances, it does not lie in the months of respondent No. 4 to assert that she had any title over the premises in question. On the other hand, the stand of Harbans Kaur in the suit was that the said property i.e. Schedule B property, was her Stridhan which was already sold to Sarjeet Kaur (petition No. 1), wife of Nirmal Singh and possession was also given.
11. As the said has been dismissed, this part of the assertion of the vendor of the petitioner. Harbans Kaur remains unrebutted. Annexure-1 is the sale-deed dated 1.6.1991 which indicates that Holding No. 33, B/B Kalmani Basti (at present Manifit Basti) P.S. Telco, Jamshedpur consisting of three rooms mud built khorposh house was sold to petitioner No. 1. While, according to the petitioner, she came in possession of the said premises on 9.6.1991. Respondent No. 4 asserted that on 19.11.1991 she was forcibly disposed by some persons. The name of the petitioner does not find place in her report as contained in Annexure-2. The learned S.D.M. while issuing notice to the parties, restrained them from going upon the subject-matter of the dispute by his order, dated 20.11.1991. According to the petitioner, the forcibly evicted her form the aforesaid rooms on 12.12.1991 after putting lack on the rooms. From this fact it is clear that on 20.11.1991 the petitioners were in possession of the said premises. The fact of forcible eviction of the petitioners by the police on 12.12.1991 has not been denied by the respondent No. 4. This matter was brought to the notice of the learned Sessions Judge by the petitioner in Cr. Revision No. 169/91 which was pending before him from (sic) before but unfortunately the learned Sessions Judge did not give any importance to such grievance of the petitioner. In my view, petitioners would have been well advised to move this Court against the high handedness of the police inasmuch as when the proceedings under Section 144, Cr.PC was pending before the learned Magistrate, the police had no business to dispossess the petitioners from the aforesaid premises.
12. Another, unfortunate part of the case is, that when on 16.12.1991 the petitioner No. 1 prayed before the learned Magistrate that as she has been dispossessed-illegally by the police on 12.12.1991, the police should be directed to restore possession to her, the learned Magistrate did not pass any order as because criminal revision was pending before the Sessions Judge. The order dated 27.1.1992 shows that both the parties filed petitions stating that statutory period under Section 144, Cr.PC having been expired, the police should be directed to restore possession to them by opening the lock. No order was passed on that day and by order dated 1.2.1992 while holding that statutory period of sixty days had expired-, the learned Magistrate directed the local police to open the lock of the premises and to put the first party i.e. the respondents, in possession. This order, as noticed above, was quashed by this Court on 28.4.1992. Even after quashing of the said order, when the petitioners filed a petition before the Magistrate for an order restoring possession to her, the same prayer was rejected solely on the ground that statutory period had expired and, as such the court had no jurisdiction to pass any order on that petition. It is not only unfortunate but highly illegal on the part of the learned Magistrate because if that would have been his legal conception, then there was no justification for him to pass order dated 1.2.1992 when admittedly the said period had lapsed, directing the police to restore possession to the respondents. Moreover, as a court of law, the Magistrate as well as the Sessions Judge ought to have considered the grievance of the petitioners that she was illegally dispossessed when proceeding was pending and no order to that effect was passed by any competent court of law. As even when Section 144, Cr.PC proceeding was pending and notice to that effect was issued on 20.11.1991, the police had no business, muchless authority in law, to dispossess the petitioners 12.12.1991.1.fail to appreciate the reasoning given by the District and Sessions Judge as well as the Magistrate. Respondent No. 4 herself admitted that pursuant to order dated 1.2.1992 the police opened the lock of premises and gave possession to her though she has stated in para 10 of the counter-affidavit that the police sealed the house by dispossessing the petitioners from disputed premises by the order of the learned Magistrate but there is nothing on record to show that except the order dated 1.2.1992, there was any order passed by the Magistrate directing the police to dispossess the petitioners and to put lock on the premises. Obviously this order could not have been passed before 12.12.1991 the date of forcible dispossession of the petitioners by the police as only by order dated 20.11.1991 the Magistrate, while issuing notice restrained both the parties from going over the subject-matter-of dispute. Cause was directed to be shown on 10.12.1991 and on the said date the matter was adjourned as because the records of Criminal Revision No. 169/91 which was pending before the Sessions Judge, was not received. Thus, I find that the police in glove with the respondents, dispossessed the petitioners without any authority in law.
13. All these facts and circumstances clearly show that the police of Telco police station was in connivance with the respondents and evicted the petitioners illegally from the premises in question. I fail to appreciate as to how even the Magistrate remained a silent spectator against the atrocity by the Telco Police. In my opinion, when this Court quashed the order dated 1.2.1992 holding it as illegal and when a prayer was made to the Magistrate , in order to do justice, the learned Magistrate ought to have directed the police to restore the possession to the petitioners. This having not been done in my view, the impugned order dated 29, 6.1962 as contained in Annexure-10 is illegal and must be set aside.
14. The connection of Mr. Mazumdar that in exercise its power under Article 226 of the Constitution the High Court cannot direct the police the restore possession to the petitioner, in my considered opinion, is frivolous and not sustainable in law. It is now well settled that even exercising its power under Section 482, Cr.PC the High Court can order restitution of possession while setting aside the wholly arbitrary order of the Magistrate disposing a party in possession under the garb of an order under Section 144, Cr.PC The High Court exercising its power under Article 226 of the Constitution is also a court of equity and having plenary jurisdiction can order of restitution of possession if it is satisfied that a person has been illegally dispossessed from his lawful possession. The Full Bench decision of this Court in the case of Rajiv v. State of Bihar and Ors. reported in 1985 Cr. LJ143 (Pat) has held as follows:
Answer to the question posed at the outset is rendered in the affirmative and it is held that in exercise of its inherent power under the Code the High Court can order restitution of possession to the petitioner while setting aside a wholly arbitrary order of the Magistrate disposing him in the garb of an order under Section 144 of the said court.
15. Same view has been reiterated by this Court while exercising its powers under Section 482, Cr.PC in the case of Muzaffarpur Electricity Supply Co. Ltd. v. State of Bihar and Ors. reported in 1973 Cr. LJ 143 and in the case of A.H. Wheeler Co. Pvt. Ltd. v. State of Bihar and Ors. reported in 1989 East Cr P.C. 4 holding, inter-alia, that even if an order under Section 144, Cr.PC has spent its force but if it is not in accordance with law, then it is liable to be quashed and order of restitution of possession can be made to the aggrieved party.
16. In the result, this writ application is allowed. The order, dated 29.6.1992 as contained in Annexure-10 is hereby quashed and the Sub-divisional Magistrate, Jamshedpur is hereby directed to see that the petitioners are put in possession of the three rooms of holding No. 33, road No. 3, Manafit Basti, P.S. Talco town Jamshedpur in the district of Singhbum East forthwith. The Magistrate will direct the Telco police to take all steps so that peaceful possession can be given to the petitioners by dispossessing the respondent No. 4 or anybody whosoever is in possession of the said premises through her. This order must be carried out within 15 days from the date of receipt/production of a copy of this order. It is made clear that if the respondents themselves or anybody on their behalf make any residence to such restitution of possession, the Magistrate as well as the police will take appropriate step against them in accordance with law.