Gopi Krishna Tewari vs State of U.P. and Others

H.N. Kapoor, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing the order dated 28-12-1976 which was a preliminary order u/s 145 Code of Criminal Procedure and further order dated 30-12- 1976 passed u/s 146 Code of Criminal Procedure by the 5th Addl. City Magistrate, Kanpur, ordering that the property in suit be attached u/s 146 Code of Criminal Procedure as a case of emergency. The property in dispute consists of a hall and a room in premises no. 562-A Rail Bazar, Kanpur. According to the Petitioner it was owned by a Hindu joint family of which Suraj Prasad Agrawal, Rajesh Prasad Agrawal and Ram Prasad Agrawal father of Rajesh Prasad Agarwal were members. There was a printing press known as ''Industrial Art Printery'' in this premises which was run by the partnership consisting of Suraj Prasad Agrawal and Ram Prasad Agrawal. That business according to the Petitioner was wound up in May, 1976 and one of the partners Ram Prasad Agrawal made an agreement with the Petitioner dated 18-9-1976 giving the hall and the room to the Petitioner as a (sic)cencee at the rate of Rs. 125/- per month, It is also alleged that huge premium was charged. It was further alleged that the Petitioner came in possession of the property in dispute on 18-9-1976 and paid Rs. 750/- as security against receipt. He then paid rents of September, October, November 1976 and the rent till 18th December, 1976. All these receipts were executed by Ram Prasad Agrawal. The Petitioner established a factory section in the name of Kalpana Colour Company on 24-9-1976 after performing the Mahurat in the said accommodation. The firm is engaged in re-packing process of the colour and their disposal to the whole-sellers. The factory section which was established in the premises was previously in the premises having the head office at 47/65 Swadeshi Bazar, Kanpur. The factory section was shifted in order to expand the business. Huge amounts were spent by the Petitioner. It was then alleged that the landlords of the premises hatched a conspiracy and in collusion with each other got proceedings started u/s 145 Code of Criminal Procedure and the object was to appropriate the huge amounts which were invested by the Petitioner. The premises were attached under the orders of the Magistrate and locks were sealed. The result was that the business of the Petitioner was stopped and he was suffering immensely and was almost in the street and was starving. It was also alleged that the huge stock, furniture, fittings and machinery, of the Petitioner were lying inside the accommodation in question. Proceedings u/s 145 Code of Criminal Procedure which were alleged to be collusive were brought between Suraj Prasad Agrawal and Rajesh Prasad Agrawal son of Ram Prasad Agrawal. The Petitioner also applied to be a party in those proceedings and he was impleaded. The property was attached and given in the supardagi of one Abdullah Rafiq, who was said to be the manager of the cinema owned by the joint Hindu family of which Suraj Prasad Agrawal and Ram Prasad Agrawal were the members. The Petitioner claimed that there could be no question of proceedings u/s 145 Code of Criminal Procedure among the members of the joint family. It was, therefore, prayed that the preliminary order passed u/s 145 Code of Criminal Procedure and the subsequent order u/s 146 Code of Criminal Procedure be quashed. It was further prayed that the possession of the premises be restored to the Petitioner and the station officer be directed to hand over possession to the Petitioner after removing locks and seals.

This Court while admitting the petition passed the following order on 12-1-1977.

Admit. Issue notice returnable at an early date, It shall be open to the applicant to apply to the Magistrate concerned to give the building in the supardagi of the applicant on such terms as the Magistrate deems proper pending disposal of this petition.

The Petitioner then applied to the Magistrate, who passed the order on 13-1-1977 to the effect that Abdullah Rafiq would be removed and instead the property would be given in the supardagi of the Petitioner on the condition that he would vacate the premises whenever ordered and that he would execute a personal bond for Rs. 3,000/- which could be forfeited, it was further ordered that he would deposit rent of the premises in the Court. The police then under the direction of the Magistrate gave the premises in the supardagi of the Petitioner after removing the seals of the locks.

In the counter affidavit it is stated that the possession of the shop in dispute was given to the Petitioner without notice to Suraj Prasad Agarwal, who was a party to the proceedings u/s 145 Code of Criminal Procedure and without giving notice to the earlier supardar. It has also been alleged in the counter affidavit and subsequent affidavits filed on behalf of the opposite-parties that after getting possession as supardar, the Petitioner is trying to destroy the evidence of criminal acts committed by Rajesh " Prasad Agrawal son of Ram Prasad Agrawal and at the same time pushing inside the accommodation machinery, furniture and other things in order to prove his possession from before although he was never in possession from before, It may be observed here that this definite allegation that there was nothing belonging to the Petitioner in the shop from before has been made in the affidavit filed subsequently on 2-2- 1977 along with the application for changing the order made by the Addl. City Magistrate placing the Petitioner in possession of the property as supardar. Prior to it in the counter affidavit which was filed on 21-1-1977, in para 58 the assertions contained in paras 17, 18 and 19 of the original affidavit filed along with the petition were accepted to be correct except for the insinuations. Para 18 of the original affidavit filed along with the petition is as follows :

That the police of police station Cantt. actually attached the accommodation in dispute on 31st December, 1976 by putting up the seals on the locks of the door which was put by the Petitioner of the accommodation in question and also putting one more lock on the door from their side and also sealing it and gave it in supardagi of Sri Rafiq manager Delight cinema Rail Bazar, Kanpur.

The allegations in para 19 were to the effect that Rafiq was a man of Respondents Nos. 2 and 3 as Delight cinema house is also the joint property of Respondents Nos. 2 and 3 along with the co-owners it would mean that in para 58 of the counter affidavit only this insinuation was denied that Rafiq was a man of the Respondents. But it was not denied that two locks on the accommodation were of the Petitioner and the third lock of the other party was put at the time while giving it in the supardagi of Rafiq after sealing all the locks, it is also significant that the police officer had found a sign-board to the effect ''Kalpana Colour Company'' on the shop when it was attached for the first time on 31st of December, 1976. it is true that this fact was not noted in the original attachment memo but the police officer submitted the supplementary report on 2-1-1977 to the effect that at the main gate the board ''Kalpana Colour Company'' was fixed. This supplementary report is Annexure 11 to the main petition. The police officer had clearly stated that both the parties had been informed. In the counter affidavit it has been alleged that the board ''Kalpana Colour Company'' was put up during night and then Rajesh Prasad Agarwal had informed the Sub-Inspector Cantonment Police Station that it may be mentioned in his report that the board ''Kalpana Colour Company'' for which U.P.S.T. and C.S.T. had been given, was there, it may be that the supplementary report was submitted by the police officer when his attention was drawn to this effect specially by Rajesh Prasad Agrawal but the fact remains that he had informed both the parties. There is nothing to show that any such objection was raised by either of the parties before the Magistrate that this report was wrong and this board was not there on 31st of December, 1976. It is unfortunate that the police officer while giving custody of the shop to the Petitioner under the order of the Magistrate dated 13-1-1977 did not make a mention that two of the locks which were put on the shop were opened by the Petitioner and that he did not care to get an inventory made of all the articles which were inside the shop, it is always done whenever the properly is attached and is given in the supardagi of a person u/s 146 Code of Criminal Procedure. It was also necessary that he should have taken care to inform both the parties when the supardagi was given to the new supardar. He should have also informed the earlier supardar. In the supplementary rejoinder affidavit it is stated that the earlier supardar had been informed but he did not care to turn up. The Magistrate too should have given notice to all the parties and the supardar before changing the supardar. In case proper inventory had been prepared, there would have been no room for such allegations that the evidence relating to criminal acts of Rajesh Prasad Agrawal had been removed and that new machinery, furniture and goods had teen brought in by the Petitioner to create evidence of his possession from before.

Sri S.N. Misra, learned Counsel for the opposite party has argued that his client, that is, Suraj Prasad Agrawal has been greatly prejudiced on account of these irregularities and as such the order appointing the Petitioner as supardar should be set aside. He has also argued that since the Petitioner is one of the parties of the proceedings u/s 145 Code of Criminal Procedure it was not proper that he should have been appointed as supardar. In this connection he has lastly argued that the Magistrate had become functus officio after passing the order u/s 146 Code of Criminal Procedure and had no power even to appoint another supardar. In my opinion, when the matter goes to the civil Court and the civil Court appoints a receiver the Magistrate would be bound to order the supardar appointed by him to hand over possession to that receiver. Till then he can certainly exercise supervision and control over the supardar appointed by him. It would imply that he also had the power to change the supardar. The provision for supervision and control will become meaningless if he cannot change that supardar or forfeit the bond executed by any such supardar. As regards the propriety of appointing a party as supardar, no authority has been placed before me in which there is an absolute bar to the appointment of a party as supardar. No doubt, it has been held in several cases cited by Sri S.N. Misra that in civil cases a party should not ordinarily be appointed as receiver without the consent of the other party and should not be appointed if his honesty is doubted (vide Bhagwan Das Vs. Sheonandan Prasad Sahu, , Radha Kanta Pal Vs. Benode Behari Pal and Others, , Jan Mohd. v. Gulam Rasool Khan AIR 1926 Sindh 37 and Sripati Dutta and Others Vs. Bibhuti Bhusan Dutta and Others, . I may observe that they were cases where property of partnership had to be managed. In some cases partnership was wound up and then winding up proceedings were continuing. In the present case, all that was necessary was to keep the shop in dispute in the supardagi of a person so that the parties may not come to blows and there may not be any apprehension of breach of the peace an account of that property. After the property has been attached and a supardar is appointed, the possession and control becomes of the Court. If the property was kept locked, it would have yielded no income whatsoever. Now the property would be yielding an income of Rs. 125/- per month which would be deposited in Court for the benefit of the rightful claimant. In case there is any decision by the civil Court or any receiver is appointed by the civil Court, the Magistrate of course shall direct the supardar to hand over possession to the receiver appointed by the civil Court or to the party held to be entitled in possession by the civil Court. In case, the supardar does not abide by the directions, he would be liable under law. fn case, it is found that he is damaging the property or misusing it, it would always be open to the Magistrate concerned to change the supardar. The only authority which Sri Misra was able to cite on the point of appointment of supardar u/s 145 Code of Criminal Procedure is the case of The State Vs. Sadhu Singh Pahu Singh and Others, . In that case the order was clearly illegal. The Magistrate had not even appointed any person as supardar and had only ordered the party in possession to hand over possession to the other party which was not in actual possession. That case is, therefore, distinguishable. Sri R. B. Mehrotra learned Counsel for the Petitioner placed reliance on the case of Shambhu Nath v. Mohd. Bhat 1961 CriLJ 580. It was held by Fazal Ali, J. (now of the Bon, Supreme Court) that it was possible for the Magistrate to appoint on; of the parties as a receiver for cultivating the land and managing it provided proper care was taken that the crop is deposited in Court or disposed of according to law.

Sri Misra has argued that it is unfair to his client that the other party should be allowed to be benefited while his client would be deprived of the use of the property. He has also argued that civil proceedings would take years and his client would be deprived of the use specially when the Petitioner cannot be a bona fide tenant, as he claims himself to be licencee when there is no such provision for a licencee under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In this case, it is not necessary for me to decide as to what are the civil rights of the Petitioner. In case the Petitioner could have proved that he was in possession on the date of the preliminary order and two months prior to it, even proceedings u/s 145 Code of Criminal Procedure could have been decided in his favour. But the difficulty has arisen that after attachment u/s 146 Code of Criminal Procedure no power is left with the Magistrate to proceed with the case u/s 145 Code of Criminal Procedure (vide my decision in the case of Chandi Prasad and Others Vs. Om Prakash Kanodia and Others, . The property had already been attached by the Magistrate u/s 146 Code of Criminal Procedure and in every case Suraj Prasad Agrawal would have been deprived of its use until the matter was decided by a competent Court or proceedings u/s 145 Code of Criminal Procedure were dropped by the Magistrate after be was satisfied that the apprehension of breach of the peace no longer existed. Mere keeping the premisses under lock would not, therefore, have made much difference. learned Counsel for the Petitioner has pointed out that in the application dated 24-12-1976 (Annexure 5) for taking proceedings u/s 145 Code of Criminal Procedure Suraj Prasad Agrawal had himself stated that Rajesh Prasad Agrawal along with his companions had stealthily taken away some machines of the press about three months back and had removed the remaining material of the press four or five days back stealthily during the absence of Suraj Prasad Agrawal. He has argued that on the basis of this allegation, it can be said that the premises were vacant when possession was given to the Petitioner. Sri Misra has, however slated that even this could not mean that the vacant possession of the premises was given to the Petitioner in September, 1976. I do not want to decide this controversy in this case. All that can be said is that the main dispute when proceedings u/s 145 Code of Criminal Procedure were initiated was between Suraj Prasad Agrawal and Rajesh Prasad Agrawal. The Petitioner claimed only under one of the partners, that is, Ram Prasad Agarwal. In view of the circumstances narrated above, the interests of Suraj Prasad Agrawal are not likely to suffer if the Petitioner is allowed to remain as supardar under the control of the Magistrate till the matter is decided by the Civil Court or another receiver is appointed by the civil Court. It will, of course, be open to the Magistrate to change the supardar if he finds him unsatisfactory and considers it necessary to change him. Even if the present supardar has got to be changed, the Petitioner will be allowed to remove the machinery and the goods inside the shop which belong to him as there is no dispute with regard to the same. It is made clear that the present supardar will not be able to claim any superior right or the civil right by virtue of his being appointed as supardar.

As regards the argument of Sri Misra that his client has been prejudiced by the irregularities committed at the time of giving supardagi to the Petitioner, I do not think that the same can be rectified simply by changing the Petitioner at this stage. If fact, it would have been in the interest of the Petitioner himself that the property was given in his possession in the presence of all the parties and an inventory had been prepared. All that can be done now is that the Magistrate should get a full inventory prepared even at this late stage even though it might not represent the actual position which was on the date when supardagi was given to him on 15-1-1977.

t may now deal with the argument of learned Counsel for the Petitioner that the proceedings u/s 145 Code of Criminal Procedure were misconceived as parties to the proceedings were co-owners of the property. In the counter affidavit, it is stated that the property in dispute was rented out to the partnership consisting of Suraj Prasad Agrawal and Ram Prasad Agrawal in 1976 although both of them were also members of the partitioned family of which Kamta Prasad was the Karta. It is stated that the rent was also paid to Kamta Prasad, it has, no doubt, been held in the cases of Khemchand v. Balwant 1967 AWR 113 , Sankar Behera and Another Vs. State of Orissa, and Kanhaiya v. Hari Mohan 1974 ALJ 56 , that there can be no proceedings u/s 145 Code of Criminal Procedure among co-owners. But in some other cases it had been held that when one of the co-owners is in actual possession of some specified property, it is possible to initiate proceedings u/s 145 Code of Criminal Procedure against the other co-owner who wants to disturb his possession vide Ram Shanker Tewari and Another Vs. The State and Others, and Mohd. Shafiq v. Mohd. Yaqub 1970 ALJ 525. In the present case, the allegations were against Rajesh Prasad Agrawal who was the son of Ram Prasad Agrawal, one of the partners to the effect that he was interfering with the possession of Suraj Prasad Agrawal of the shop in which the partnership business was being carried out. Rajesh Prasad Agrawal was not even a partner and as such could not be in actual possession of the shop. The Petitioner himself applied to be impleaded. He was not even a co-owner. It was, therefore, possible to initiate proceedings u/s 145 Code of Criminal Procedure against him even though he was claiming under one of the partners. I, therefore, see no reason to quash the preliminary order dated 28-12-1976 initiating proceedings u/s 145 Code of Criminal Procedure. Similarly, the subsequent order dated 30-12-1976 passed u/s 146 Code of Criminal Procedure too cannot be considered to be illegal.

In the result the petition is dismissed subject to the observations made above. The stay order is vacated.

Sri S.N. Misra, learned Counsel for the opposite party prayed that leave Le granted to appeal to the Supreme Court, with regard to the order appointing Gopi Krishna Tewari as supardar. In my opinion, no such point arises which may merit decision by the Supreme Court. Prayer for leave is, therefore, rejected.

A copy of this judgment shall be supplied to learned Counsel for the parties within five days on payment of usual charges.