BALKRISHNA TUKARAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS criminal writ petition is directed against the common judgment and order passed in Criminal Revision Application No. 120 of 1989 and Criminal Revision Application No. 204 of 1989. This order of the learned Additional Sessions Judge, Pune, dated 3/4 July, 1991 disposes of the two Criminal Revision Applications that were filed before him in respect of a dispute concerning a small tailoring shop situate at CTS 269, Ganesh peth, Pune. Briefly stated, the premises originally stood in the name of Tukarm Shankar Kalbare, and it is also relevant to mention that the licence in respect of the disputed premises stood in his name. Tukaram died on 6-5-1985, after which on 13-6-1985 the licence was transferred to the name of his widow Sundrabai. It is more or less common ground that the widow Sundrabai is advanced in years and her age as shown in the proceeding is 85 years. It is unnecessary for me to recount the genesis of the dispute that has ultimately culminated in this proceeding except to mention that one of the sons of Tukaram, who is present respondent No. 2, filed Regular Civil Suit No. 1779 of 1987 before the Pune Court for a declaration and injunction on 29-8-1987. It appears that in the month of September of that year, an ex parte ad-interim injunction, which was limited to the creation of third party interest, came to be granted. It also appears that the sisters filed affidavits in support of the plaintiffs in that proceeding. In November 1987, during the pendency of that suit, a dispute in respect of possession of the present premises arose and pursuant to the report from the Police regarding impending threats in relation to breach of peace the Sub-Divisional Magistrate commenced proceedings under section 145 of the Code of Criminal Procedure. On 9-2-1989, the Magistrate issued a warrant of attachment pursuant to which the possession of the shop premises was taken over by the Police and the same continued to be sealed until an interim order came to be passed by this Court in the month of August 1991.

(2.) IN the meanwhile, the proceeding continued before the learned Magistrate who, by his order dated 1-2-1989, came to the conclusion that on the basis of the material placed before him it was extremely difficult to decide as to which of the two sons was supposed to be in possession prior to the commencement of the section 145 proceeding. The attachment was, therefore, continued and the only modification made by the learned Magistrate was that the possession of the adjoining room was handed over to the mother Sundrabai.

(3.) IT is relevant to point out that in the meanwhile, Regular Civil Suit No. 1779 of 1987 was withdrawn. The second respondent to this proceeding has, on 21-3-1988, filed a composite suit, being Special Civil Suit. No. 267 of 1988, claiming partition which suit is pending before the Pune Court. Since both the disputing parties were aggrieved by the order of the learned Magistrate the two Criminal Revision Applications that are referred to above were filed before the Court of Session at Pune, and the learned Additional Session Judge, Pune disposed of these Criminal Revision Applications through a common judgment which is the one with which we are at the moment concerned. At the stage when this matter was taken up for admission, Mr. Pathak, learned Counsel representing the petitioners, had seriously disputed the validity of the proceeding instituted under section 145 of the Code of Criminal Procedure, apart from his challenge to the correctness of the order on merits. Mr. Bhogal, learned Counsel representing the second respondent and the other respondents, contended with equal vehemence that the proceedings under section 145 of the Code of Criminal Procedure were justified in the facts of the present case and, consequently, it was his contention that no interference is called for. On an overall view of the record, it did not appear to me to be either correct or just that the shop premises should continue to remain sealed and, consequently, purely as a stop gap arrangement, I had directed that Sundrarbai should be allowed to retain the possession until further orders. I had made it very specific to both learned Counsel who had appeared before me at that time that appropriate orders in this proceeding, which is a dispute in relation to rights concerning immoveable property, can only be passed by the competent Civil Court. Furthermore, since the civil proceedings were, infact, pending, the parties had been given sufficient time to approach the Civil Court and to obtain interim orders from that Court. At the hearing to-day, I find that this has not been done. Mr. Pathak, states that his clients are awaiting the outcome of this proceeding after which, if necessary, they will approach the Civil Court; whereas Mr. Bhogal contends that since he is in possession, he did not consider it necessary to move the Civil Court. Suffice it to say that this is a wholly unsatisfactory state of affairs.