1 437.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 437 OF 2011 Purandar Pathak ...Petitioner Versus The State of Maharashtra & Ors. ...Respondents ...... Mr.Mayur Khandeparkar with Mr.Sushil Chaturvedi i/b T.N.Tripathi & Co. for Petitioner. Mr.Ravindra A.Lokhande for Respondent No.7. Mr.P.B.S.Batti, Chairman of Azad Nagar-3, Anupam CHS Ltd. is present. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- FEBRUARY 22, 2011. P.C. 1. Heard Counsel for the petitioner and the learned A.P.P. for respondents 1 and 2. Mr.P.B.S.Batti, Chairman appears for respondent Society. 2. By this Petition under Article 226 of the Constitution of India, the petitioner is essentially challenging the action of the local police of dispossessing the petitioner and his family members from the premises being Flat No.1139, D-53, Azad Nagar-3, Anupam Cooperative Housing 2 437.11 Society at Azad Nagar, MIG Colony, Veera Desai Road, Andheri (West), Mumbai-400 058. The fact that the petitioner and his family members were seen inside the flat in question is spelt out from the panchnama drawn by the local police dated 5th January, 2011. Indeed, the panchnama indicates that the petitioner and his relatives were seen inside the flat in which painting work was going on. The local police asked all of them to go out of the flat and proceeded to seal the flat on the specious reasoning that dispute regarding property has been raised between the private parties and it was open to them to exercise such power under Section 145 of the Criminal Procedure Code. This is the moot controversy that needs to be addressed in the present Petition. 3. We are not required to examine the issue regarding whether the petitioner and his relatives were in legal occupation of the said premises. That is a matter which will have to be resolved in appropriate proceeding between the private parties. For the time being, we would go by the facts narrated in panchnama dated 5th January, 2011 which itself indicates that the petitioner and his relatives were seen inside the flat and the painting work was in progress under their instructions. That presupposes that at the relevant time, the petitioner and his relatives were seen in possession of the 3 437.11 said flat. Section 145 of the Code does not authorise the Police Officer to first dispossess someone and seal the premises. Assuming that he intended to do so, he should have asked the concerned parties to approach the Court of competent jurisdiction for such directions, as may be advised. 4. In the circumstances, we have no hesitation in denouncing the action of the local police as reinforced from the panchnama dated 5th January, 2011 as unauthorised and without having any backing of law. In the circumstances, to do substantial justice in the matter, we direct the police officer(s) to restore status-quo ante by opening the seal put on the premises and allow the petitioner and his relatives to enter the premises in question. However, this would not deprive the private respondents in any manner from proceeding against the petitioner and his relatives before the Court of competent jurisdiction in relation to the flat in question and seek appropriate orders as may be advised. 5. We once again make it clear that this decision is not an expression of opinion either way as to whether the petitioner and his relatives are in legal or juridical possession of the premises in question, as that is a matter which will have to be addressed in appropriate proceedings. 4 437.11 6. The Police Officer API Mr.Shivaji Patil, Amboli Police Station, who is present in Court assures to remove the seal put on the premises tomorrow at 11.00 a.m. The petitioner may remain present at that time, if so advised. 7. Insofar as reliefs (b) and (c) are concerned, the petitioner is not pressing these reliefs at this stage and seeks liberty to pursue such other remedy as may be available in law at appropriate stage before the competent Court of jurisdiction. Ordered accordingly. 8. Petition disposed of on the above terms. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)