BANWARILAL KEJRIWAL Vs. SAJJAN KUMAR JALAN

JUDGEMENT

(1.) Both these appeals are directed against the judgment and order of the learned Single Judge dated 2.11.95, passed on a writ petition registered and numbered as Civil Rule No. 938/95, presented by the respondent No. 1 in Writ Appeal No. 526/95 and the respondent No. 8 in Writ Appeal No. 104/96, viz., Shri Sajjan Kumar Jalan, hereinafter referred to as the tenant. The learned Single Judge, by the aforesaid judgment and order, allowed the writ petition and directed for restoration of possession of the petitioner/tenant and for return of the articles those were seized from the petitioner.

(2.) The aforesaid writ application (Civil Rule No. 938/95) was directed against some of the actions of the Executive authority on the strength of an order of the Chief Judicial Magistrate, Sibsagar, hereinafter referred to as the CJM, in the following circumstances. The tenant was occupying a room measuring 10 ft x 45 ft approximately, in the ground floor of a RCC building situated at L.K.B. Road, Amolapatty, Sibsagar, belonging to Shri Banwarilal Kejriwal, the appellant in Writ Appeal No. 526/95 and the 9th respondent in Writ Appeal No. 104/96, hereinafter referred to as the landlord. The said room-in-question is covered by Dag No. 1893 of P.P. Patta No. 1189 of Nugarmohal Mouza, Sibsagar, and was let out to the tenant at a monthly rent of Rs.321/- permonth. According to the tenant, the landlord instituted a Title Suit in the Court of the Asstt District Judge, Sibsagar for eviction of the tenant on the grounds mentioned in the plaint; which was registered and numbered as Title Suit No. 68/94 on the 7th of December, 1994. On 13th of December, 1994, the landlord made an application before the CJM, who was also arranged as respondent No. 8 in the writ petition, stating inter-alia that the tenant had been occupying the said premises under him (the landlord) as a monthly tenant and that the said tenant was not paying any rent though the said room was occupied by the tenant and which emitted foul smell. In the said application, it was further mentioned by the landlord that the tenant became insolvent and was unable to pay his dues to the creditors. It was also asserted that the landlord, on enquiry, came to know that the tenant had been living in Arunachal Pradesh and accordingly prayed before the CJM for a direction on the Officer-in-Charge, Sibsagar Police Station, to open the lock of the premises, take stock of the materials on making inventory and thereafter to handover possession of the room to the landlord. The CJM passed an order directing the Officer- in-Charge, Sibsagar Police Station to register a case, investigate into the matter and to submit a report at an early date. The Sub-Inspector of Police, Shri NC Bora, Officer-in-Charge of the Sibsagar Police Station submitted a report on 14.12.94 wherein he mentioned that the petitioner was occupying the premises-in- question as a tenant under the landlord. The tenant occupied the said premises on an arrangement to pay Rs. 1000/- per month about three years back. That the tenant left for ArunachaJ Pradesh "for his own purpose". In the report, the Officer-in-Charge indicated that he visited the place of occurrence and on his visiting the place of occurrence, the found that "some unknown articles were kept inside the room which is suspected to be illegal article. The room is situated around some other businessman establishment. Some bad smell is coming out from the room which causes pollution and it may hamper the other public. The Sub-Inspector of Police, O/C Bora, by his report informed the CJM that though he was directed to register a case, it was difficult for him to put the proper Section of law without verifying the articles kept inside the room. On receipt of the report, the CJM directed the Police to "investigate the matter" The Officer-in-Charge was authorised to break-open the lock by the CJM. On the basis of the said order, the lock of the room-in- question was broke-open, articles seized as per seizure list and the seized articles were handed over in the zimma of the landlord which was the subject-matter of the writ petition. The learned Single Judge after hearing the learned counsel for the parties and on perusal of the affidavits as well as the other materials on record, held that the action of the CJM was illegal and without jurisdiction and consequently set aside and quashed the order passed by the CJM. The learned Single Judge also held the action of the Police Officer as illegal and without jurisdiction and accordingly, directed the respondents Nos. 2 and 3 viz., the Director General of Police, Assam and the Supdt. of Police, Sibsagar, respectively, to restore possession of the tenant and to return all the articles seized from the tenanted house. In addition, the learned Single Judge ordered the Sub-Inspector of Police/Officer-in-Charge, Sibsagar Police Station (respondent No. 7); CJM, Sibsagar (respondent N. 8) and the landlord (respondent No. 9) to pay a cost of Rs 1000/ - each to the petitioner/tenant. The Court, however, left it open for the petitioner/tenant to claim for any damage in appropriate forum, if so advised. The landlord as well as the CJM being aggrieved by the aforesaid order of the learned Single Judge, presented two separate appeals questioning the legality and the validity of the order of the learned Single Judge.

(3.) Mr D.C. Mahanta, learned senior counsel assisted by Mr K. Baruah, appearing on behalf of the appellant/landlord in Writ Appeal No. 526/95, assailed the judgment and order of the learned Single Judge on the ground of it being arbitrary, illegal and discriminatory. Mr Mahanta, the learned senior counsel, submitted that the CJM rightly ordered the Police to open the room-in- question on the fact situation of the case. That the tenant was not paying the rent since June, 1992 and closed the shop from December, 1993 and kept the room under lock and key which emitted foul smell for which there was also a public complaint. The CJM on receipt of the report, only ordered for removal of the public nuisance and that the learned Single Judge failed to consider that aspect of the matter which cause grave failure of justice. Mr Mahanta, the learned senior counsel also questioned the legitimacy of the order of the learned Single Judge in awarding the compensation which, according to the learned counsel, was within the domain of the Civil Court. Mr Mahanta, the learned senior counsel appearing for the landlord/appellant, in support of his contentions referred to the decisions in Himmat Singh- Vs-Bhagwana Ram, reported in 1988 Cri. L.J. 614, and Govind Singh- Vs-Shanti Swarup reported in (1979) 2 SCC 267.