APOLLO MACHINERY MART Vs. STATE OF ASSAM

JUDGEMENT

(1.) This writ appeal is directed against the judgment and order dated 4- 9-1995 passed by a learned Single Judge of this Court in Civil Rule No. 1453/90, thereby dismissing the petition mainly on the ground that it involved disputed questions of fact and there had been inordinate delay in filing of the petition.

(2.) Few basic facts leading to the presentation of the petition and the filing of this appeal may now be noted. The writ petitioner-appellant is an Engineer (Mechanical) and he is engaged in manufacturing of steel fabrication, steel towers, steel bridge, steel furnitures, steel leath, milling works, steel rolling shutter, window frames, collapsible gates and other agricultural appliances. The respondent Mr. Ashok Kumar filed a petition against the appellant before the Executive Magistrate, u/s 133 Cr. P.C. By order dated 11-9-1995, the Magistrate passed the following exparte order: And whereas I am satisfied that there are sufficient grounds for proceeding under Section 133 Cr. P.C. Now, therefore I, Shri G.C. Chakravarty, Executive Magistrate, Gauhati it exercise of the power conferred under Section 133 Cr. P.C. I direct the second party to remove the said obnoxious material immediately or to show cause as to why this should not be removed. Inform 0/C Paltanbazar P.S. for necessary action.

(3.) Being armed with the aforesaid order and in the garb of removing obnoxious material lying in the premises, the police broke open the lock, reportedly handed over possession of the house, shed or structure to party No.1 on 16-9-1995. Being informed, he visited his factory in the morning only to find out ensemble it was being demolished. He objected to its demolition but he was chased by Ashok Kumar Rai and his relations and associates. He lodged a complaint before the Judicial Magistrate but it also met with dismissal for want of evidence. It may be noted that the SubInspector of Police who overacted was put under suspension as can be seen from the report dated 26th April, 1986 submitted by the Additional Superintendent of Police (Head Quarter City), Guwahati to the Deputy Commissioner. Kamrup, Annexure-12. This report is reproduced below as incidentally it also helps in marshalling of facts: With reference to your Memo cited above, I am directed to inform you that the petition of Shri Lakshman Krishnan was enquired into by the Deputy Supdt, of Police, Panbazar Division. The case in brief is that one Ashok Rai of Ulubari instituted a case in the Court of Shri G.C. Chakraborty, Executive Magistrate, Gauhati claiming himself to be the owner of the plots of land at Ulubari measuring 1 Bigha and 1 Katha aprox covered by Annual Patta No. 54 and Dag No 221 (new) and K.P. 228, Dag Nos. 345 and 350 of village New Town Ulubari having Assam type houses. He also complained that one Ramdhari Koiri was a tenant in one of his Assam Type quarter measuring about 65 x. 19 who abandoned the said quarter 15 years ago. The said Rai alleged that some obnoxious materials and explosive i.e. methelated spirit, tarpentine oil and other solutions were kept inside the house coming out obnoxious smell and as such he prayed for an order u/s 133 Cr. P.C. for removal of the said materials. On 11-9-1985 the Magistrate passed an order ex-parte directing the petitioner to remove the said obnoxious materials immediately or to show cause as to why the same should not be removed. The next date was fixed on 139-1985. As the petitioner did not turn up on 13-9-1985 the Magistrate directed police to remove the obnoxious materials from Zimma. Accordingly the 0/C, Paltanbazar P.S. detailed S.I. Khagen Das to execute the order of the Magistrate who then broke open the lock of the factory handed over the possession of the house to Shri Ashok Rai and kept the machinery in Zimma of Shri Ajit Sen. Proprietor Riat Automobile after removing from the factory. On 17-9-1985 the petitioner Lakshman Krishnan filed a petition stating that police has executed the order u/s 133 Cr. P.C. wrongly. As this the Magistrate directed the 0/C. Paltanbazar P.S. to submit a report. He further ordered that the machineries of the 2nd party (petitioner) need not be disturbed. The Magistrate fixed 20-9- 1985 for hearing. The S.I. submitted a report to the Magistrate on 28-9-1985 to the effect that he had carried out and executed as per prayer of Shri Ashok Rai (1st party) to the Magistrate. The S.I. Khagen DasT was therefore asked to submit his explanation for executing the order of the Magistrate wrongly by handing over the possession of the house to Shri Ashok Rai and then removing machineries from it and keeping in Zimma of a 3rd party. The Supdt of Police, City Gauhati on perusal of the explanation was not satisfied. Hence he ordered suspension of S.I. Khagen Das. The S.I. is now under suspension. The original petition is returned herewith.