HAJI HABIB ULLAH SHAH Vs. S H O

JUDGEMENT

(1.) This is a private dispute as regards possession of a building known as "New Pine View Hotel' at Pahalgam which is the subject matter of proceedings under Section 145 Cr.P.C. in the court of Chief Judicial Magistrate, Anantnag Respondent No.1 has initiated the proceedings because there was imminent danger of breach of peace in his opinion and respondent No.2 has passed a preliminary order and attachment order in the proceedings under Section 145 Cr.P.C. The State is not at all interested in the matter. Therefore, for proper appreciation of this petition, it is necessary to place the parties in four groups; 1st group consisting of petitioners 2 to 7, second group consisting of petitioners 1, 8, 9 and 10 the third group consisting of respondents 4, 5, 6 and 7 and the fourth group consisting of respondents 1, 2 and 3. This petition is under Section 561-A Cr.P.C. for quashing the preliminary order as also the order of attachment passed by the Chief Judicial Magistrate Anantnag under S.145 Cr.P.C.

(2.) This petition was admitted by a learned single Judge of this court and attached property was ordered to be restored to the person from whom it was taken over. Thereafter an application was moved by second group for vacation of the order dated 15-4-1985 to which objections have been filed by the first group. Thereafter the learned single Judge has ordered to place this case before me on 2nd of May, 1985. Accordingly on 2-5-1985 when this case was placed before me for vacation of the interim order, I thought it proper to dispose of the main petition under S.561A Cr.P.C.

(3.) Among the petitioners there is inter se clash. They constitute two groups. Petitioners 8, 9 and 10 are said to be minors who are shown through their next friend Mst. Fatima who is their grand mother and petitioner No.2 herein. From the perusal of power of attorney dated 15-4-1985 it is revealed that Mst. Fatima has not put her signatures or thumb impressions on the said power of attorney. Only seven persons appear to have put their signatures and thumb impressions, whereas eight persons were required to authorise Mr. Beg on behalf of the petitioners if it is taken to be correct that petitioner No.2 was acting for the minors also. However, absence of her thumb impression or signature reveals that she is not acting on behalf of the minors. On behalf of the minors and petitioner No.1 who are second group, one Mst. Tahira, their mother, widow of late Mohd Maqbool has filed the application for vacation of the order. Petitioner No.1's support is claimed by both the groups. At one stage a learned single Judge of this court had directed presence of petitioner No.1 before the court, however some medical certificate was produced by the first group of the petitioners and on the basis of the said certificate they justified his absence from the court. Therefore petitioner No.1 is to be treated to be with petitioners 8, 9 and 10 and it is to be held that petitioner No.2 has not filed this petition on their behalf. It appears that there is a clash of interest between petitioners 2 to 7 i.e. first group with petitioners 8, 9 and 10 i.e. the second group. Consequently petitioner No.2 cannot be permitted to represent the minors when she herself is not represented in these proceedings by a duly signed power of attorney. She has not filed any affidavit indicating that she has no clash with the minors. Therefore the application of the minors through their real mother is to be considered as valid and to have been filed on behalf of proper person.