GOPI KRISHNA TEWARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a petition under Section 482 CrPC for quashing the order dated 28-12-1976 which was a preliminary order under Section 145 CrPC and further order dated 30-12-1976 passed under Section 146 CrPC by the 5th Addl. City Magistrate, Kanpur, ordering that the property in suit be attached under Section 142 CrPC as a case of emergency. The property in dispute consists of a hall and a room in premises no. 562-A Rail Bazar, Kanpur. According to the petitioner it was owned by a Hindu joint family of which Suraj Prasad Agrawal, Rajesh Prasad Agrawal and Ram Prasad Agrawal father of Ra jesh Prasad Agrawal were members. There was a printing press known as 'Industrial Art Printery' in this premises which was run by the partnership con sisting of Suraj Prasad Agrawal and Ram Prasad Agrawal. That business according to the petitioner was wound up in May, 1976 and one of the partners Ram Prasad Agrawal made an agreement with the petitioner dated 18-9-1976 giving the hall and the room to the pe titioner as a licencee at the rate of Rs. 125/-per month. It is also alleged that huge premium was charged. It was fur ther alleged that the petitioner came in possession of the property in dispute on 18- 9-1976 and paid RS. 750;. As security against receipt. He then paid rents of September, October, November 1976 and the rent till 18th December, 1976. All these receipts were executed by Ram prasad Agrawal. The petitioner established a factory section in the name of Kalpana Colour Company on 24-9- 1976 after performing the Mahurat in the said accommodation. The firm is engaged in re-packing process of the colour and their disposal to the whole-sellers. The factory section which was established in the premises was pre viously in the premises having the head office at 47/65 Swadeshi Bazar, Kanpur. The factory section was shifted in order to expand the business. Huge amounts were spent by the petitioner. It was then alleged that the landlords of the premises hatched a conspiracy and in collusion with each other got proceed ings started under Section 145 CrPC and the object was to appropriate the huge amounts which were invested by the pe titioner. The premises were attached under the orders of the Magistrate and locks were sealed. The result was that the business of the petitioner was stop ped and he was suffering immensely and was almost in the street and was starv ing. It was also alleged that the huge stock, furniture, fittings and machinery, of the petitioner were lying inside the accommodation in question. Proceedings under Section 145 CrPC which were al leged to be collusive were brought bet ween Suraj Prasad Agrawal and Rajesh Prasad Agrawal son of Ram Prasad Ag rawal. The petitioner also applied to be a party in those proceedings and he was impleaded. The property was at tached and given in the supardagi of one Abdullah Rafiq, who was said to be the manager of the cinema owned by the joint Hindu family of which Suraj Pra sad Agrawal and Ram Prasad Agrawal were the members. The petitioner claimed that there could be no question of proceedings under Section 145 CrPC among the members of joint family. It was, therefore, prayed that the preliminary order passed under Section 145 CrPC and the subsequent order under Section 146 CrPC be quashed. It was farther prayed that the possession of the premises be restored to the petitioner and the station officer be directed to hand over possession to the petitioner after removing locks and seals.

(2.) THIS Court while admitting the petition passed the following order on 17-1-1977. "Admit. Issue notice returnable at an early date. It shall be open to the applicant to apply to the Magistrate con cerned to give the building in the sup ardagi of the applicant on such terms as the Magistrate deems proper pending disposal of this petition.".

(3.) SRI S. N. Misra, learned counsel for the opposite party has argued that his client, that is, Suraj Prasad Agrawal has been greatly prejudiced on account of these irregularities and as such the order appointing the petitioner as su pardar should be set aside. He has also argued that since the petitioner is one of the parties of the proceedings under Section 145 CrPC it was not proper that he should have been appointed as supardar. In this connection he has lastly argued that the Magistrate had become futictus officio after passing the order under Section 146 CrPC and had no power even to appoint another supardar. In my opinion, when the matter goes to the civil court and the civil court appoints a receiver the Magistrate would be bound to order the supardar appoint ed by him to hand over possession to that receiver. Till then he can certainly exercise supervision and control over the supardar appointed by him. It would imply that he also had the power to change the supardar. The provision for supervision and control will become mea ningless if he cannot change that su pardar or forfeit the bond executed by any such supardar. As regards the pro priety of appointing a party as supardar no authority has been placed before me in which there is an absolute bar to the appointment of a party as supardar. No doubt, it has been held in several cases cited by SRI S.N. Misra that in civil cases a party should not ordinarily be appoint ed as receiver without the consent of the other party and should not be appoin ted if his honesty is doubted (vide Dukhu Mahtha v. Nandlal Tewari, (AIR 1925 Pat. 293.) Radha Kanta Prasad v. Binode Behari Prasad,( AIR 1934 Cal. 444.) Jan Mohd. v. Gulam Rasool Khan, (3. AIR 1926 Sindh 37.) and SRIpati Datta v. Bibhuti Bhushan.( AIR 1926 Cal. 593.) may observe that they were cases where property of partnership had to be managed. In some cases partnership was wound up and then winding up proceedings were continuing. In the present case, all that was necessary was to keep the shop in dispute in the supardagi of a person so that the par ties may not come to blows and there may not be any apprehension of breach of the peace an account of that property. After the property has been attached and a supardar is appoined, the posses sion and control becomes of the court. If the property was kept locked, it would have yielded no income whatsoever. Now the property would be yielding an income of Rs. 125-per month which would be deposited in court for the benefit of the rightful claimant. In case there is any decision by the civil court or any receiver is appointed by the civil court, the Ma gistrate of course shall direct the sup ardar to hand over possession to the receiver appointed by the civil court or to the party held to be entitled in pos session by the civil court. In case, the supardar does not abide by the direc tions, he would be liable under law. In case, it is found that he is damaging the property or misusing it, it would always be open to the Magistrate concerned to change the supardar. The only authority which SRI Misra was able to cite on the point of appointment of supardar under Section 145 CrPC is the case of Ram Charan v. Bakhiawar Singh. (1957 CrLJ 641 (M. P.).) In that case the order was clearly illegal. The Magistrate had not even appointed any person as sup ardar and had only ordered the party in possession to hand over possession to the other party which was not in actual possession. That case is, therefore, distinguishable. SRI R.B. Mehrotra lear ned counsel for the petitioner placed reliance on the case of Shambhu Nath v. Mohd. Bhat. (1961 (2) CrLJ 580.) It was held by Fazal AH, J. (now of the Hon. Supreme Court) that it was possible for the Magistrate to appoint one of the parties as a receiver for cultivating the land and managing it provided proper care was taken that the crop is deposited in court or disposed of according to law.