RAMZANALI SHAHABUDDIN SHAIKH Vs. NASIMKHAN MUNSHIKHAN

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution. A very few facts need to be noted for the disposal of this application. The present petitioner is the opponent in a proceeding under section 145 of the Criminal Procedure Code pending before the Executive Magistrate and Sub-Divisional Officer, Bombay. That proceeding is numbered as No. 1 of 1975. It is alleged in the petition by the present respondent No. 1 as applicant that he was forcibly disposed of the premises, viz. Simla Star Bakery situated at Plot Nos. 85, 86 and 89, Squatters Colony Malavani Colony, Malad (West). On December 23, 1974 the present respondent No. 1 applied to the police by way of a complaint, but no action seems to have been taken by them. He therefore, moved the Magistrate on January 3, 1975, by filing the present Criminal Proceedings No. 1 of 1975 under the provisions of section 145 of the Criminal Procedure Code.

(2.) Respondent No. 1 also applied in that petition for the attachment of the premises. The application was rejected, but the Executive Magistrate passed a preliminary order under section 145 and issued show cause notice to the present petitioner. Parties appeared in due course and after taking some time filed their written statements. On February 24, 1975, respondent No. 1 again applied for attachment of the premises on the ground that the rolling shutter of the disputed premises was removed by the present petitioner. The only order passed by the then Presiding Magistrate was that the rolling shutter, if found, be attached, but the attachment of the premises themselves was refused. It appears that the shutter was found with a third person and was attached. In due course that third person made an application for releasing the shutter and it was released in his favour. It is stated before us that the learned Executive Magistrate, who was presiding over the Court, was transferred and one Mr. Karnik, now presiding over the Court, was posted in his place. In the afternoon of 30th July, 1975, present respondent No. 1 again made an application before the new Magistrate for the attachment of the disputed premises. He did not mention in that application that two previous prayers for the attachment in January and February had already been rejected by the earlier Magistrate. The new Magistrate, Mr. Karnik, passed an ex parte order of attachment, and the same was carried out on 31st July, 1975. The premises were sealed after the attachment was levied by the police.

(3.) The petitioner immediately moved the Executive Magistrate Mr. Karnik by his application dated 1st August 1975, to vacate that order. Both the parties were heard. The attachment was vacated by the Magistrate by his order dated 7th August, 1975. He gave a direction to unseal the premises. However, added a rider that this be done in the presence of both the parties. Though the petitioner moved the police to unseal the premises, respondent No. 1 did not make himself available and the order could not be executed.