1 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.781 of 2008 MANOJ MISHRA son of late Sri Gopal Mishra, resident of Village Sithawaliya, P.O. Fakuli, P.S. Mufasil, District Saran, presently residing at G.M.Bangla( M.S.Sran Engineering Company Ltd.) Village, Post and P.S. Madhaura, District Chapra … … Petitioner Versus 1. THE STATE OF BIHAR through its Chief Secretary, Government of Bihar, Patna 2. The Director General of Police, Government of Bihar, Patna 3. The Deputy Inspector General of Police, Saran Division, Chapra 4. The District Magistrate, Chapra, District Chapra 5. The Superintendent of Police, District Chapra 6. The Deputy Superintendent of Police, District Chapra 7. The Officer-in-charge, Madhaura Police Station, Madhaura, District Chapra 8. Raj Kumar Agrawal, son of late Sri Shanker Lal Agrawal, resident of 123/306,Fazalganj, Kanpur( U.P.) … … Respondents For the petitioner: M/s Sanjeev Jaiswal Ranjeet Kumar For the respondents: M/s Subodh Kr. Jha Amrendra Kumar Ramchandra Jha’Raaman’ Krishna Kumar ----------- O r d e r The instant Criminal Writ application has been filed by the petitioner seeking relief of issuance of writ in the nature of mandamus directing respondent no.7,i.e., the Officer-in-charge of Marhowrah Police Station, Chapra, not to disturb the petitioner Manoj Mishra from the peaceful 2 possession of the premises which has been described not in sufficient details, but that what has been stated in paragraph 4 of the writ application. The petitioner seeks a direction from this Court further to the local police authority not to harass and threaten the petitioner with dire consequences in case the premises was not vacated by the petitioner, besides, further seeking a direction to the respondents State and its authorities to protect the life and liberty of the petitioner. The writ of mandamus directing the respondent police Officers to restore the possession of the properties forcibly taken by seizure of some properties of the petitioner without following the due process of law from the possession of the petitioner is also sought to be issued. 2. The petitioner’s case was that M/S Saran Engineering Company Ltd. had land, building with other constructions along with its plant and machinery, and other movable and immovable assets which were sold by the Official Liquidator in a winding up proceeding which was undertaken by the High 3 Court of Allahabad. M/S Shree Mitra Mandal Sangathan, Marhowrah, Chapra participated in the sale and offered the price of Rs. 67,00,000/- to purchase the property of M/S Saran Engineering Co. Ltd and on the offer being accepted the sale was ordered by the High Court of Allahabad by its order dated 7.1.2004 which sale was confirmed by another order passed by the Allahabad High Court on 8.2.2006. Accordingly, the Allahabad High Court ordered delivery of physical possession in respect of the above property to the purchaser. 3. The petitioner claiming himself to be one of the members of M/s Shree Mitra Mandal Sangathan, Marhowrah stated that Shri R.K.Agrawal, respondent no.8, issued a letter of authority dated 10.9.2006 and appointed the petitioner as representative on behalf of said Mitra Mandal Sangathan to deal with land and building after taking possession of the vacant quarter, etc. This appears evident from the true copy of the letter of authority which has been made Annexure-1 to the present petition. The premises was got vacated by the Government 4 of Bihar by issuing a letter in that behalf which was made Annexure-2 to the present petition and, accordingly, the Bungalow of the General Manager of M/S Saran Engineering Company was also got vacated with the help of the local police and the same was handed over, as per the petitioner, to him on 13.1.2007 and since then the petitioner was in peaceful possession of the said Bungalow which was located on 92 kathas of land. The petitioner further stated that he after coming in possession of the Bungalow of the General Manager of the erstwhile Company started taking steps for getting the entire encroachment cleared off which was being opposed by the ex-tenants of M/s Saran Engineering Company Ltd. 4. The further case of the petitioner was that respondent no.8 Shri R.K.Agrawal entered into an oral agreement as per which respondent no.8 agreed to sell the entire property to the petitioner for a consideration amount of Rs. 1,83,00000/- In expectation of execution of the sale deed in pursuance to the above agreement, the petitioner had spent about Rs. 85,00,000/- 5 and had also paid Rs. 8,00,000/- in the account of the son of Shri R.K.Agrawal, named Sanjay Agrawal. As per the oral agreement, the petitioner was further required to pay an additional amount of Rs. 2,10,000/- to the workers of erstwhile Company and that was also paid besides paying Rs. 1,10,000/- to the guards who were deployed in protection and security of the property of the erstwhile M/S Saran Engineering Company. The petitioner claims also to have paid Rs. 5,00,000/- as registration charges at the time of purchase of the premises during winding up proceedings at the orders of Allahabad High Court and another sum of Rs. 96,000/- from his own pocket to the District Administration for vacating the land in question. The petitioner stated that everything was very normal for him till the petitioner was managing things for getting the premises vacated. After the encroachments and illegal occupancies had been cleared, the private respondent grew dishonest in his intention and some dispute cropped up between the parties. As a result 6 of distrust and dispute between the parties, the private respondent threatened the petitioner with dire consequences and the petitioner filed an informatory petition bearing Misc. No. 1818 of 2008 before the Chief Judicial Magistrate, Chapra on 6.8.2008. The private respondent also instituted a Complaint Case bearing No. 2199 of 2008 before the Chief Judicial Magistrate, Chapra, against the petitioner alleging commission of the offences under Sections 406 and 379 of the Indian Penal Code. The copy of complaint petition is Annexure-4 to the present writ application, as per which the address of the petitioner was the same as if he were residing in the same Bungalow at Marhowrah in the district of Saran. 5. The petitioner stated further that the local police at the behest of the private respondent forcibly entered into the premises of the petitioner on 13.8.2008 and took away some valuable articles, such as, Maruti Car, one Motorcycle, cash, ornaments, valuable documents, etc., and instituted a false case against his business partner and 7 his own brother bearing Marhowrah P.S.Case No.158 of 2008 dated 13.8.2008. The petitioner alleged that he was apprehending danger to his life if he was living in the Bungalow as he had received threats in that behalf and, as such, the petitioner had left the place on account of those threats to his life being endangered along with his property and liberty and thereafter filed the present writ application. The petitioner had also instituted a criminal case as appears from paragraph 17 of the present petition but there does not appear further details, except the number of the case. A reference was made to an order passed by me on 17.4.2008 in Cr. Misc. No. 4113 of 2008 by which I had directed initiation of departmental proceedings against the Investigating Officer of Chapra Town P.S.Case No. 18 of 2007. 6. On notices being issued to the respondents, both officials and private, they appeared and have filed their respective counter affidavits. Respondent no.5, i.e., The Superintendent of Police, Chapra has filed his counter affidavit 8 through S.D.P.O, Sonepur. In various paragraphs of this counter affidavit it has been stated that the Bungalow was in possession of one Raj Kumar Agrawal, i.e., respondent no.8, who represented to the police by filing a petition stating that he had appointed the present petitioner Manoj Mishra as caretaker of the property but he subsequently learnt that the caretaker was committing theft of the property located over the premises and, accordingly, he filed a complaint petition which was sent to the police station under Section 156(3) of the Cr.P.C. giving rise to Marhowrah P.S.Case No.156 of 2008 dated 13.8.2008 under Sections 406 and 379 of the Indian Penal Code. It was further reported to the police by respondent no.8 Shri R.K.Agrawal that on 13.8.2008 when he reached the G.M. Bungalow, he found some persons armed with riffle, pistols and cartridges standing there. One of whom ordered him to go away from there otherwise he would be killed. Shri R.K.Agrawal, respondent no.8, returned to Marhowrah Police Station and requested the Officer-in-charge by a written application 9 to take appropriate action, upon which station diary entry no. 431 of 2008 was recorded at 10.30 hours and the deponent S.D.P.O. along with the Officer-in-charge of Marhowrah Police Station went to the disputed premises for verification and for taking necessary action and saw some persons sitting there with riffles and cartridges who, seeing the police party, attempted to runaway from there. But, five persons named in paragraph 4 of the counter affidavit at its page 5 were arrested along with the weapons of the description as given at page 6 of the counter affidavit filed by respondent no.5 and, accordingly, Marhowrah P.S.Case No. 158 of 2008 was registered and the seizure memo was prepared after seizing the illegal arms. The police also justified the action of seizing Maruti Car bearing no. UP 70 AM-5201 and Hero Honda Motorcycle bearing registration no. UP-2713. The case was found true on investigation against five F.I.R. named accused and 5-6 unknown. Directions were issued to the Investigating Officer of Marhowrah P.S.Case No.158 of 2008 to investigate the conduct of the present 10 petitioner also and, accordingly, respondent no.5 justified the police action, like, arrest of the accused persons, conduct of the petitioner, conducting raid in the disputed premises, finding the illegal arms and vehicles and seizing them. The documents in support of the above contention have been annexed as Annexure-C which is the F.I.R. of the case as also the seizure memo in respect of recoveries of different articles. The copy of the complaint petition bearing No. 2499 of 2008 filed by respondent no.8 Shri R. K. Agrawal has also been placed on record with the counter affidavit of respondent no. 5. 7. It appears that after respondent no. 5 had filed his counter affidavit, an interlocutory application was filed by the petitioner alleging that he had been dispossessed from the premises after seizing his properties illegally by the police. Those allegations have also been replied to in the same manner and on the same ground which are the main submissions of respondent no.5, the Superintendent of Police, Saran at Chapra in his counter affidavit. 11 8. Respondent no.8 has filed a counter affidavit separately and he appears not denying the fact that the property of M/s Saran Engineering Company was purchased by him in a winding up proceeding of the Company undertaken before the High Court of Allahabad after observing proper procedure in the above behalf and, accordingly, the sale deed was executed on 8.6.2007 conveying the property of lot no.1 which was comprised of the land and building of the above named Company in favour of the petitioner. Thereafter, the purchaser respondent no.8 obtained a direction from the Allahabad High Court to the Director General of Police, Bihar and the Chief Secretary to the State of Bihar for providing proper help to the auction purchaser including Gunjan Trading Company to remove plant and machinery as also the iron shed which was under lot no.2. Accordingly, possession of the premises was handed over to respondent no. 8 by an order contained in Annexure-C to the counter affidavit filed by respondent no.8. A direction was issued to the Chief Secretary and the Director General of Police, Bihar 12 for freeing the premises of any illegal occupation and, accordingly, the District Magistrate, Saran was communicated by the Principal Secretary, Department of Home, Govt. of Bihar by a proper official communication contained in Annexure-D and, accordingly, an order was issued for ouster of the unauthorized occupants from the premises which communication is dated 11.11.2006. 9. Respondent no. 8 did not deny that the petitioner was nominated by him as his agent to take possession of the property purchased by him and, accordingly, the property was handed over to the present petitioner in his capacity as authorized agent of respondent no.8 who had deposited Rs. 96,000/- in the treasury on 27.11.2007 for providing sufficient police force at the time of handing over possession of the land and building but no action had been taken. Respondent no.8 has annexed treasury challan dated 27.11.2007 as Annexure-G to the counter affidavit filed by him. A Miscellaneous case was also registered on the application of respondent no.8 and his 13 authorized agent, vide Misc. Case No.1 of 2006-07 in which unauthorized persons were noticed and the matter was pending and the eviction was still awaited. It was stated by respondent no.8 that while he was still fighting for taking lawful possession of the property this petitioner in league with the local hoodlums started removing the plants and machineries and started selling the land also unauthorizedly without having any locus standi and being confronted with the above situation respondent no.8 inserted a public notice on 6.9.2008 in daily Hindi newspaper “Dainik Jagran” regarding removal of the present petitioner as his authorized agent and cautioned any person of the general public against purchasing any part of the property of M/s Saran Engineering Company. The photo copy of the public notice inserted in the newspaper by respondent no.8 has been annexed as Annexure-I to the counter affidavit. The activity of the petitioner, as per the contention of respondent no.8, continued as regards his acts of theft and removal of the property for which respondent no.8 filed a complaint 14 case bearing No. 2199 of 2008 which resulted in threats being given by the present petitioner allegedly to respondent no.8 which included the threats to his life and, lastly, the petitioner took resort to filing the present writ petition. Respondent no. 8 claimed the property as his exclusive property and stated that the petitioner was taking advantage of respondent no.8 having appointed him as a caretaker and was falsely making submissions before this Court that there was any oral agreement between the petitioner and respondent no.8 regarding the sale of the entire property to the petitioner. Thus, there was a complete denial of the allegations and submission of facts made in paragraph 4 of the present writ petition. 10. During the course of hearing, learned counsel appearing for the petitioner was contending that the delivery of possession through the present petitioner was admitted in the counter affidavit filed by respondent no. 8 and the above fact was also admitted in the petition of complaint filed by respondent no. 8 Shri R.K.Agrawal, 15 as may appear from the contents of Annexure- 4 which is the copy of the complaint petition bearing no. 2199 of 2008. This, as such, is admitted that the petitioner Manoj Mishra was in possession of the property and it was completely illegal on the part of the police to have seized the properties of the petitioner and to have made attempt to dispossess him therefrom. It was contended that the contents of information on the basis of which Marhowrah P.S.Case No.158 of 2008 dated 13.8.2008 was instituted also indicated that the petitioner was in peaceful possession of the property and, as such, in the light of law laid down in 1999(2) P.L.J.R. 641 Smt. Manju Devi Vs. State of Bihar illegal dispossession of the petitioner has to be restored and the relief sought for in this writ petition has to be granted. 11. Learned counsel for the respondent no.8 as also on behalf of the State of Bihar have resisted the prayer on the ground, firstly, that there is nothing on the record to uphold the claim of the petitioner that he was also one of the 16 constituents of M/s Shree Mitra Mandal Sangathan and was indeed holding some interest in the property acquired by the above Sangathan. Besides, in spite of having claimed that the property was acquired by the petitioner as one of the constituents of the above named Sangathan, no evidence was brought on record to substantiate the above claim of the petitioner. 12. Whatever has been stated by respondent no.8 or whatever appears from different annexures was merely to raise an inference that the petitioner was authorized to receive and take possession of the purchased premises on behalf of respondent no.8 and he after having received the possession at the orders of Allahabad High Court could be treated holding possession for and on behalf of respondent no.8 which may not be creating any legal right in him. The assertion of respondent no.8 was that the petitioner in connivance with some ante-social criminal started plundering the property of the premises and for that criminal law was set in motion which resulted in police action which could never be said to be unjustified 17 under the special facts and circumstances of the present case. 13. In Smt. Manju Devi( Supra) the fact was that the tenant was lawfully inducted in the demised premises by the landlords, who were respondent nos. 6 and 7 before this Court, who had been dispossessed with the aid and assistance of some police officers. Those facts were properly brought on record. The defence of the landlords was that the tenant Smt. Manju Devi had finally abandoned the premises in order to escape the payment of rental dues and the police on account of being apprised of the situation allowed the landlords to resume the possession of the premises. Thus, it was admitted that without taking recourse to the process of law of evicting the tenant who could have defaulted in payment of rent, the police allowed the landlords illegally to enter into the possession of the demised premises and, as such, this Court was directing restoration of the possession of the tenant as in the court’s view even a defaulter tenant could not be evicted from any premises in complete defiance of the system of justice. Similar 18 is the view taken by the Supreme Court in Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. & ors. reported in A.I.R. 1996 S.C. 2102. In that case agreement to sale the property was entered into with the conscious knowledge that there was a tenant very much in possession of the premises. The vendee had obtained a decree of possession without bringing in any suit for eviction of the tenant nor impleaded the tenant as a party in the suit for recovery of possession. The tenant had filed a petition under Order 21 Rules 98 and 99 of the Code of Civil Procedure so as to protecting his right to remain in business by himself being impleaded as a party. While the petition under Order 21 Rules 98 and 99 was pending, the tenant was dispossessed by the transferee owner without following the due process of law. The Supreme Court held that dispossession of the tenant by the transferee owner without following the due process of law was the act of high handedness and the court could not blink at their unlawful act to dispossess the appellant before the Supreme Court from 19 demised premises and, as such, was allowing to maintain the status quo. It was observed by the Supreme Court that “if the Court gives acceptance to such high-handedness action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary.” 14. Thus, what appears from the above decisions rendered by this Court and the Supreme Court is that in both the cases it was admitted that there was a wrong and illegal dispossession of the tenants of both the cases and no due process of law had been observed or followed. In fact, in the case before the Supreme Court the tenant was litigating under Order 21 Rules 98 and 99 C.P.C. whereas the plea of the respondents in Smt. Manju Devi(supra) was that the tenant had herself abandoned the premises. 15. In the present case, this Court has nothing except the bald statement of the petitioner that he was one of the 20 constituents of M/S Shree Mitra Mandal Sangathan, Marhowrah and was, as such, one of the interest holders in the properties purchased during the winding up proceedings of M/S Saran Engineering Company under the orders of Allahabad High Curt. The deed of conveyance has not been placed by the petitioner on the record of this petition and the same appears annexed to the counter affidavit filed by respondent no. 8 Shri R.K.Agrawal on 25.11.2009 as Annexure-A. It was a certificate of sale and it was between the official Liquidator appointed by the Central Government, Ministry of Corporate Affairs under Section 448 of the Companies Act,1956 and the deed was executed in the winding up operations vide order dated 28.7.1995 passed by the Allahabad High Court by which the Company was winded up and its assets in the form of movable and immovable properties were conveyed to M/S Shree Mitra Mandal Sangathan, Marhowrah which was the sister concern of M/s Gunjan Trading Company with its head office at 123/360 Afzalganj, Kanpur( U.P.) at the highest bid of Rs. 67,00,000/- for lot no. 21 1 as per the order of the Company Judge, Allahabad High Court. The document does bear the signature of the present petitioner as one of the witnesses of the above conveyance of the property. But, nowhere is it indicated that the petitioner was holding any interest as one of the constituents of the above noted Mitra Mandal Sangathan. In fact, the above Sangathan appears represented by Shri R.K.Agrawal, respondent no. 8. As such, the mere assertion of the petitioner that he was holding some interest as one of constituents of the above Sangathan is very difficult to be upheld. 16. It is admitted that the petitioner was authorized to receive the possession as the authorized agent of respondent no.8 and this appears stated in various documents, like, the order issued on 11.11.2006, Annexure-F to the counter affidavit filed by respondent no.8 which also appears annexed as an annexure to the present writ petition as Annexure-3 that the petitioner was authorized to receive possession of the above premises on behalf of the purchaser M/S Shree Mitra Mandal Sangathan. It is not 22 denied that the petitioner after having received the possession had come in possession of the property and was residing therein. This fact has been clearly admitted by respondent no.8 also. But, the possession of the petitioner has been claimed as an authorized agent of respondent no.8 with further allegation of petitioner indulging in impropriety and criminal acts leading to the institution of a couple of criminal cases against the petitioner. The police also appears taking action on account of illegal activities of the petitioner as appears from admitted facts. The possession of the petitioner was on behalf of the principal and, as such, the possession was the constructive possession of the principal, namely, respondent no. 8 and his concern M/s Shree Mitra Mandal Sangathan, Marhowrah. There were valid reasons for police to intervene and initiate action as appears, prima facie, indicated on account of the documents which are seizure memo and copy of the F.I.R. which have been annexed by respondent no. 5 to the counter affidavit as Annexure-A. The claim of the petitioner 23 that the acts of the police were illegal, for, he was one of the constituents of the above Sangathan and further claim of the petitioner that his possession was settled possession could be questions of facts which are completely denied by the respondents, both private and