IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4791 of 2009 GUPTESHWAR MISHRA SON OF SHRI SHIWDEEP MISHRA, RESIDENT OF SHEO COMPLEX, BIKRAMGANJ ARA SASARAM ROAD, P.S. BIKRAMGANJ, DISTRICT ROHTAS …PETITIONER Versus 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2.SHEODANI SINGH SONOF NAME NOT KNOWN, SUB DIVISIONAL OFFICER, BIKRAMGANJ, DISTRICT ROHTAS 3.RAMJI KUMAR SINGH SON OF NAME NOT KNOWN, OFFICER-IN- CHARGE,BIKRAMGANJ, DISTRICT ROHTAS 4.SHEO KUMAR MOCHI SON OF MOTI MOCHI, RESIDENT OF AT AND P.O. BHADSARA, P.S. KAKO, DISTRICT JEHANABAD 5.INDIAN OIL CORPORATION THROUGH THE GENERAL MANAGER, JAI PRAKASH BHAWN, DAK BUNGLOW, PATNA 6.THE AREA MANAGER, INDIAN OIL CORPORATION, SAHI BHAWAN, EXHIBITION ROAD, PATNA ----------- For the Petitioner : Mr. Kamal Nayan Choubey, Sr. Advocate Mr.Ambuj Nayan Choubey, Advocate For the State : Mr. Subhash Prasad Singh, GA No.8 For the respondent no.4 : Mr.Y.V. Giri, Sr. Advocate For the respondents 5& 6 : Mr. Vinay Krihna Tripathi, Advocate ________ O r d e r 7 8 -9-2009 In the instant writ petition the petitioner seeks the following reliefs: (a) for quashing the memo no.312 dated 31.3.2009, as well as memo no.315 dated 1.4.2009 passed by respondent no.2, whereby he directed the Officer-Incharge to make an inventory of the godown and for handing over the same to respondent no.4; (b) for commanding the respondents to restore back the status quo ante, prevailing before 21.3.2009; (c) for further holding that the respondent second set namely S.D.O., Bikramganj and Officer-in- Charge, Bikramganj have no authority to lock the premises in question 2 which resulted in unlawful ouster and immense loss and thus prays for award of suitable compensation. The issue arising for consideration of this court is whether the respondent no. 3, who is an officer-in-charge of local Police Station could have locked the godown premises without following the due procedure of law. In case, if answer is in negative whether order granting status quo ante could be passed in favour of the petitioner or as to what relief the petitioner would be entitled. The petitioner has limited his prayer against the State action of locking and unlocking of the business premises which ousted him from running his business. The petitioner claims to be doing business of gas agency since 2002, in the premises. He also sought for enquiry as respondent no.4 in his affidavit has denied his signatures on agreement (Annexure-1) and created a forged document being Annexure-R 4/3 alleged to be dated 20.1.2002 which is writ large on all its pages. The petitioner states that actions of respondent nos.2 and 3 amount to arbitrary invasion on his right guaranteed under Articles 14, 19(1)(g) and 300A of the Constitution, and consequently are liable to compensate him for his ouster. It has been asserted that he has been ousted to bestow undue favour to respondent no.4. The facts of the case are herein noticed in short. The respondent no.4 was granted LPG distributorship of Indian Oil Corporation (hereinafter referred to as ‘IOC’) for its installation at Bikramganj in the year 1995. The distributorship started under the name and style of M/s Raj Enterprises on 31.3.1997. Respondent no.4 was not able to run 3 the business and incurred liability over Rs.10 lacs. On 23.1.2002, the I.O.C. issued notice to him to clear the outstanding dues of Rs.10,40,850/- or face termination of distributorship. The aforesaid notice is appended as Annexure-5 in petitioner’s reply to the counter affidavit filed on behalf of respondent no.2. Respondent no.4 as such implored the petitioner to agree to form a partnership for saving imminent threat to the distributorship. The petitioner reluctantly entered into a partnership agreement executed on 23.8.2004, as contained in Annexure-1. The petitioner prior to that had personally met the officials of the I.O.C. and at the behest of respondent no.4 deposited Rs.2,50,000/- and Rs.38,950/- through Bank Draft dated 28.2.2002. Subsequently he deposited Rs.45,000/-, Rs.26,747/-, Rs.15,700, Rs. 72,000/-, Rs.45,000/- and Rs.20,000/- on different dates. Altogether the petitioner deposited more than Rs.10 lacs for saving the distributorship from being cancelled. The agreement provided that petitioner would be a ‘financing and working partner’ and respondent no.4 who was financially handicapped, a sleeping partner. It was very clearly stated the aforesaid partnership agreement in no way tend to create distributorship either fully or in favour of the petitioner. He submits that for running business, if a person approaches another person for help, there is nothing wrong in helping him financially or in running of the business. Off late, the attitude of respondent no.4 had changed. The business had come back on track. The respondent no.4 now wanted to usurp the heavy investments made by the petitioner in reviving the 4 business. The respondent no.3 in collusion with respondent no.4 put a lock on godown premises on 21.3.2009, ousting the petitioner from the premises and from running the business also. The respondent no.4 with aid of anti social elements and respondent nos.2 and 3, forcibly broke the lock of godown and removed various valuable documents. Further more the respondent no.2, the S.D.O., Bikramganj, on 31.3.2009 directed the respondent no.3 to unlock the premises and to hand it over to respondent no.4. On 1.4.2009, the S.D.O. Bikramganj further directed the respondent no.3 to prepare an inventory with the help of Block Supply Officer and to hand it over to respondent no.4. The S.D.O. Bikramganj and the Officer-Incharge, Bikramganj P.S. in their letter no.78/3110 dated 27.3.2009 and 21.3.2009 have stated that since last many years the petitioner is running the business for respondent no.4 at the latter’s request. The respondent no.4 had handed over the premises to the petitioner for managing it. The aforesaid letters of the respondents are contained in Annexures-A & B of the counter affidavit filed on behalf of respondent no.2 itself. The letters evidently manifest that the petitioner was managing and running the agency. The petitioner submits that locking of the premises culminated in his ouster from the business premises causing heavy loss. He submits that he is entitled to compensation. He further submits that this court in the case of Devendra Rai Vs State of Bihar, reported in 2009(2) P.L.J.R. 903; Katihar Medical College,Katihar Vs Kundan Kishore, reported in 2009(2) P.L.J.R. 942 and in the case of M/s Maa Durga Enterprises Vs State of Bihar, 5 reported in 2009(2) P.L.J.R. 1000 has inflicted exemplary heavy compensation on the delinquent officers. He submits that in the case of Ajai Kumar Vs State of Bihar & Ors, reported in 2005(4) P.L.J.R. 142 which incidentally is case from Bikramganj itself, this court imposed heavy compensation for ousting a tenant without following procedure of law. He states that even if fundamental right is not violated, compensation can be awarded and in support of his contention, he relied upon a decision in the case of Shiv Sagar Tiwari Vs Union of India & Ors, reported in A.I.R.1997 SC 1483 and in the case of Common Casue, A Regd. Society Vs Union of India & Ors, reported in A.I.R. 1997 SC 1886 and in the case of Common Casue, A Regd. Society Vs Union of India & Ors, reported in A.I.R.1999 SC 2979. Thus he pleads that in the instant case compensation be also awarded. The petitioner states that it is not necessary that a partnership necessarily be registered one. Sub- Section (4) of section 69 of the Partnership Act, 1932 itself provides exception to registration. He submits that recently the Hon’ble Apex Court in the case of Subramaniam Vs. Rajesh Raghuvandra Rao, reported in A.I.R. 2009 SC 1858 held that restriction placed by sub-section 2A of section 69 introduced by the Maharashtra Amendment Act are arbitrary. He further submits that bar under section 69(2) of the Partnership Act has no application where suit is filed for enforcement of a statturoy right or common law right. In support of his contention, he relied upon a decision in the case of M/s Yessay Foodoils & Ors Vs P.A. Moosa, reported in 2009 Karnataka 103. He states that lawfulness and 6 unlawfulness of an agreement can be culled out from a statute. In support of his submission, he relied upon a decision in the case of Kerala State Electricity Board & anr Vs Kurien E.Kalathil & Ors,, reported in A.I.R. 2000 SC 2573; Mangilal Vs Gheesukhan & Ors, reported in A.I.R. 1980 Rajasthan 14; and Mt. Manbharibal Vs Bajrang Rice Mill Warasheoni & anr, reported in AI.R. 1956 Nagpur 225. He further submits that the agreement does not violate the term of dealership entered between IOCL and respondent no.4. The petitioner states that respondent no.4 has lied before this court by stating that he had not signed on the agreement. Not only this, he has even filed a forged and fabricated document annexing it as Annexure-R-4/3 in his counter affidavit. He has tried to bring on record an ante dated letter alleged to have been issued by him on 20.1.2002, authorizing one Anil Kumar Mishra, the petitioner’s brother to look after the affairs of M/s Raj Enterprises. He has tried to bring the aforesaid fabricated letter to counter his consent and signature on agreement by taking a plea that Anil Kumar Mishra may have stolen some papers also having blank signatures on it which have subsequently been converted into Partnership agreement (Annexure-1). He thus states that counter affidavit of respondent no.4 is based on falsehood and lie. The courts have heavily come down on parties whenever they have not come out with clean hands. In support of his contention, he relied upon a decision in the case of A.V.Papaya Sastry & Ors Vs Govt. of A.P. & Ors, reported in 2007(2) P.L.J.R.201 SC. He thus submits that conduct of Respondent no.4 requires an enquiry under section 340 Cr.P.C. 7 This court by order dated 8.5.2009 had issued notice to respondent nos. 2 and 3 to point any statutory provisions which authorized them to lock the premises and to hand over the same to one of the parties. Pursuant to the notice, respondent nos.2 and 3 have filed their affidavit. Respondent no.4 has also filed his affidavit. Respondent nos. 2 and 3 have stated that agreement between the petitioner and respondent no.4 is unregistered and does not have endorsement of the I.O.C. It is their stand that in order to check law and order situation as well as nuisance created by the petitioner the premises was locked and unlocked under section 133 Cr.P.C. They submit that the petitioner has no authority to run the Gas agency as the dealership was granted in favour of respondent no.4. Respondent no.2 stated in paragraph 6 that the Officer Incharge wrote to him that both the petitioner and respondent no.4 created a tense situation, and as such in order to settle the dispute, he locked the premises. Respondent no.3 stated that in order to resolve the dispute, he called both the parties for amicable settlement, which failed. The premises were ordered to be unlocked in favour of respondent no.4 as he held licence and dealership. Respondent no.3 filed his counter affidavit stating therein that in the morning of 21.3.2009 tension prevailed at the Gas Agency, since both the parties had put their lock on the godown. In order to prevent untoward incident and to control the law and order, he put lock over the godown premises. He stated that premises of gas agency are full of hazards as it stores highly inflammable and volatile materials. The respondent no.4 denied his signature on various pages of 8 the agreement (Annexure-1) in paragraph 13 of his counter affidavit. However he states that some signed stamps and papers were kept in a file by him in the office of firm which might have been taken by petitioner’s brother and the same has been fraudulently converted into Annexure-1 dated 28.6.2002. He submits that as the Partnership deed is not registered, no suit can be filed to enforce a right arising from such agreement in view of section 69(1) and (2) of the Partnership Act. He submits that in any view of the matter, the agreement provides for an arbitration clause. In this view of the matter the petitioner could not have invoked the writ jurisdiction. In support of his contention, learned counsel for the respondent relied upon decisions reported in the case of M/s Birsa Lime Stone Company Ltd. & Ors Vs Orissa State Electricity Board & anr., reported in (1976) 2 S.C.C. 167; ABL International Ltd. & anr Vs Export Credit Guarantee Corporation of India Ltd. & others, reported in (2004) 3 SCC 553 and Pimpri Chinchwad Municipal Corporation & Ors Vs M/s Gayatri Construction Company & anr, reported in 2009(1) BBCJ 183(SC). He submits that the facts are disputed, as such the writ would not be maintainable in view of decision in the case of Ramesh Chandra Agrawal Vs Patna Regional Development Authority & Ors, reported in 2002(3) P.L.J.R. 801. The official respondents except for taking plea of law and order have not pointed out any statutory provisions under which premises can be locked in the manner that has been done in the instant case. In case tension grew around Gas Agency, the respondents could have resorted 9 to various provisions under the Cr.P.C. including sections 107, 144, 145, 146, 133 etc. Premises cannot be locked without initiating a proceeding when both sides are claiming interest in it. The law does not authorize a Police Officer to put a lock without there being a valid order by competent authority and that too after initiation of a proper proceeding. In the case of Ajay Kumar Vs State of Bihar, reported in 2005(4) P.L.J.R. 142, this court held that a person cannot be removed with aid of police force without following due procedure of law. This court in the case of Manju Devi Vs State of Bihar, reported in 1999 (2) P.L.J.R. 641 has also expressed the same view and in both the cases the ousted person was directed to be put in possession. It is now to be seen whether petitioner was running the business or having any interest in the agency. In letter dated 21.3.2009 addressed to the S.D.O. Bikramganj, the Officer-in-charge has stated that since last many years respondent no.4 had handed over the Gas Agency to the petitioner for running the same. He further stated that the previous evening Shiv Kumar Mochi, respondent no.4 removed the lock of the petitioner replacing it with his own. Furthermore the S.D.O. Bikramganj, in his letter no.78/R dated 27.3.2009 has clearly stated that the petitioner has been running the Gas Agency since last many years. The letters have been annexed as Annexure-R-2/A and R-2/B of the affidavit filed by respondent no.2 itself. Thus, the own letters of official respondents clearly manifest that the petitioner was running the Gas Agency since last many years and had substantial interest in it. The 10 Indian Oil Corporation had not earlier approached the administration for removing the petitioners from the premises. The respondents as such were not justified in locking the premises to the ouster of the petitioner, without initiating a proceeding or taking resort to procedure under the law. Further more, it appears that the premises has been unlocked and handed over to respondent no.4 even without noticing the petitioner. The action of the respondent no.3 in locking the premises is without any sanction of law. The respondent no.2 after initiating a proceeding could have passed an appropriate order regarding locking or unlocking of the premises. There is nothing on record to show that any proceeding was initiated before locking or unlocking much less under section 133 Cr.P.C. The actions of respondents 3 in locking the premises is absolutely without sanction of law and this court in strong terms deprecate the same. The respondent no.2 also ought not to have handed over the premises to respondent no.4 without a proper proceeding as the official respondent themselves admitted that it is the petitioner who was running the gas agency business since long. However, as the respondents pleaded that the premises were locked in order to prevent eruption of a volatile situation in Gas Agency, I do not want go into the issue of compensation and its quantum in this writ petition. It will be open to the petitioner, if so advised, to agitate his claim in a court of competent civil jurisdiction. Further more, it would be equally open to the petitioner to avail remedy available under the law for seeking any loss/damage or compensation against respondent no.4 as the official 11 respondents in their letter dated 21.3.2009, contained in Annexure-R- 2/A and 2/B, have stated that respondent no.4 since many years had handed over his agency to the petitioner for running it. The next issue is whether status quo ante could be granted as existing prior to 21.3.2009 in favour of the petitioner. It appears from the counter affidavit of the I.O.C.L. that the godown in question belonged to it and pursuant to the allotment of distributorship to respondent no. 4; the premises has been handed over to him to carry out the work of agency. In view of the aforesaid facts, I do not find it appropriate to pass an order granting status quo ante. Now the issue remains whether the respondent no.4 has brought fabricated materials on record like Annexure R-4/3 or whether he has deliberately tried to deny his signature on the agreement contained in Annexure-1. In paragraph 13 of the counter affidavit the respondent no.4 has denied to have made any agreement with the petitioner. He states that he had left some signed papers in the file which might have been taken out by Anil Kumar Mishra and handed to the petitioner who may have converted the same into partnership agreement (Annexure-1). On the other hand, the case of the petitioner is that as the respondent no.4 had signed the agreement on 28.6.2002, the respondent no.4 has fraudulently fabricated the forged document to show employment of the petitioner’s brother in the firm on a date prior to the 12 agreement namely on 20.1.2002 to bring in a false story of theft of signed papers by petitioner’s brother for being converted into agreement, Annexure-1. From the partnership deed and Power of Attorney it would appear that there are at least ten pages which bears the signature of respondent no.4. Further more the respondent no.4 has never filed any case of theft of blank signed papers and other documents by the petitioner’s brother. On the last page of the Partnership deed the signature of respondent no.4 is at two places on the document. According to respondent no.4 some of the signed papers could have been removed by the brother of the petitioner. The petitioner on the other hand states that respondent no.4 has fabricated and forged Annexure R-4/3 and brought it into existence before this court to show that the petitioner’s brother was working in the agency from before in order to create defence. The petitioner has also brought subsequent materials on record to show that respondent no.4 in fact had signed the agreement willingly as he never objected to any subsequent transactions made by him in course of running of the gas agency. This court would not permit either of the parties to play hide and seek with the court. In this view of the matter, I direct the Registrar, Civil Court, Rohtas at Sasaram to conduct an enquiry under section 340 Cr.P.C. whether the letter dated 20.1.2002 issued by respondent no.4 contained in Annexure-R-4/3 is a forged and fabricated document. Similarly, he will enquire whether the alleged signed papers of respondent no.4 has been converted into an agreement and Power of 13 KHAN Attorney, contained in Annexures-1 and 2 of the writ petition or whether the respondent no.4 on his own had entered into an agreement with the petitioner and signed the documents. The Registrar would afford opportunity of hearing to both sides and proceed further in accordance with law pursuant to the enquiry. The office is directed to transmit a copy of the brief to the Registrar, Civil Court, Rohtas at Sasaram. With the aforesaid observations and directions, this writ petition stands disposed of. (Samarendra Pratap Singh,J)