MEHAR SINGH Vs. CHAIRMAN MUNICIPALITY OF BALLY

JUDGEMENT

(1.) This Rule was originally issued against the opposite parties -- The Chairman, Municipality of Bally, the Municipal Commissioners of the Municipality of Bally, the bailiff of the said Municipality and Bhagabati Prasad Ganeriwalla, to show cause why the warrant Nos. 73 and 74 complained of in the petition should not be with drawn, recalled and cancelled and the boring- machine referred to in the petition returned to the petitioner forthwith; why a Writ in the nature of Mandamus should not issue on the opposite- party Nos. 1 to 3 directing them to release and return the boring machine to the petitioner or why such other or further orders should not be made as to the Court may seem fit and proper. Since the issue of the Rule, the Municipality of Bally has been superseded and instead of the original opposite parties Nos. 1 & 2, has been substituted the Administrator appointed to administer the affairs of the Municipality. The facts of this case are shortly as follows:

(2.) According to the petitioner, opposite party No. 4 Bhagabati Prasad Ganeriwalla is the owner of premises No. 16, Belur Road, Lilooah, which is within the jurisdiction of the said Municipality, and he is a tenant in respect of a portion of the ground floor. It is stated by the administrator that the recorded owner of the said premises is Rameswar Lal Ganeriwalla, who, I understand, is the father of the Opposite party No. 4. However, I shall proceed on the footing that Rameswar Lal Ganeriwalla is the owner of the premises. It appears that the petitioner is a tenant in respect of a portion of the ground-floor and carries on business there as a dealer in timber. The entire premises consist of a number of buildings and the whole area extends to about 15 bighas. At the relevant time, the petitioner had within the premises a boring-machine. According to him, it was embedded in the earth. According to the bailiff's report, it was fixed to the earth with big nails. Municipal rates in respect of such holding remained in arrears to the extent of about Rs. 5,000/- for the 3rd and 4th quarters of 1950-51 and the 1st, 2nd and 3rd quarters of 1951-52. Two demand notices in respect thereof were served on Rameswar Ganeriwalla. on the 28th December 1951. These are respectively for the sums of Rs. 2970/- and Rs. 1980/-. No payment was made. A distress warrant was issued on the 10th October 1952. It is alleged that on the 14th October 1952 the bailiff went to execute the distress warrant at 16, Belur Road, but could not execute the warrant on account of having been vehemently obstructed. The original report of the bailiff dated 14th October 1952 has been produced before me and runs as follows : <FRM>JUDGEMENT_131_AIR(CAL)_1954Html1.htm</FRM>

(3.) Neither from this report, nor from the affidavit of the Administrator, does it appear, that on that date there was any attempt to seize this boring-machine or that the obstruction on that date had anything to do with the petitioner. However, after this, police help was requisitioned and on the 12th January 1953 the bailiff again went there accompanied by a police party to execute the warrant. It is on that date that it appears that the bailiff for the first time attempted to seize this boring-machine, and it is, said that some Punjabees alleging themselves as tenants prevented the bailiff from seizing the machine. This presumably refers to the petitioner. On that date nothing further was done. On 13th January 1953 a police party with the bailiff and accompanied by the Additional District Magistrate went for the purpose of executing the warrant, and on this date they succeeded in seizing this machine which was then removed to the Municipal office. The petitioner then applied to this Court and a Rule was issued; An 'ad interim' injunction was issued staying further proceedings, and the machine has not yet been sold.