IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.M.O. No. 99 of 2009 Date of Decision: 24th August, 2010 __________________________________________________________ Sh. Sachin Kumar. ….Petitioner. Versus State of H.P. & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. Rahul Mahajan, Advocate. For respondents: Mr. Ramesh Thakur, Assistant Advocate General. _________________________________________________________ Dev Darshan Sud, J (oral). Heard learned counsel for the petitioner and Sh. Ramesh Thakur, Assistant Advocate General for the respondents. 2. The petitioner challenges the order passed by the Sub Divisional Magistrate, Nalagarh, District Solan under Section 146 of the Code of Criminal Procedure, holding that there is every likelihood of breach of peace by Sachin Kumar, who is in possession of this property and, therefore, attachment was ordered in terms of Section 146 (1) of the Code of Criminal Procedure. The operative part of the order reads: 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 “In view of these circumstances there is every likelihood that there may be a serious breach of peace between the parties in their effort to take over possession from each other. And also physical manhandling of staff/people of the parties cannot be ruled out. Thus the facts of the case are giving rise to an emergency situation at the spot. Therefore, the attached of the aforesaid property is hereby ordered u/s 146 (a) Cr.P.C. till further order. The attachment be done by sealing the aforesaid property comprising of land and building/structure etc. standing thereon”. The order is obviously very terse, non-speaking and it shows a total lack of application of mind. Learned counsel appearing for the petitioner urges that the property was purchased by the petitioner herein pursuant to the auction proceedings conducted by IFCI under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Learned counsel submits that pursuant to these proceedings, sale certificate Annexure P-3 was issued to the petitioner acknowledging the receipt of a sum of Rs. 4.51 Crores and the fact that the entire assets which is the scheduled property was handed over to the petitioner herein. The possession certificate has been filed as Annexure P-4, which reads as under:- “THIS IS TO CERTIFY THAT THE POSSESSION OF FIXED ASSETS OF VHEL INDUSTRIES LTD. SITUATED AT VILLAGE HARRAIPUR, TEHSIL NALAGARH, DISTRICT SOLAN, HIMACHAL PRADESH COMPRISING OF LAND ADMEASURING 53 BIGHAS 12 BISWAS HAS BEEN HANDED OVER TO THE PURCHASER M/S MICRO TURNERS HAVING ITS CORPORATE OFFICE AT SCO 345, SECTOR 9, 3 PANCHKULA 134109, HARYANA ON THIS 21ST DAY OF JANUARY, 2009. POSSESSION HANDED OVER Sd/- FOR AUTHORISED OFFICER NAME: Sanjeev Jindal DESIGNATION: Manager ADDRESS: IFCI LTD., IFCI BHAWA, PLOT NO. 1-C, SECTOR 27-A, MADHYA MARG, CHANDIGARH- 160019. POSSESSION RECEIVED Sd/- FOR MICRO TURNERS NAME: Sachin Kumar DESIGNATION: Managing Partner ADDRESS: Sec/8/HNo 111/Chand Sd/- Sd/- WITNESS NO. 1 WITNESS NO. 2 NARENDER KUMAR KARAN CHANDER IFCI LTD. H.I.G-82, SEC-5 1-C, 27-A, PARWANOO MADHYA MARG CHANDIGARH-19 Genesis of the entire dispute seems to have been that the Excise and Taxation Officer, Nalagarh has claimed recovery of some amount due from the previous owner of the assets namely Vikas Hybrids and Electronics Limited. A complaint under Section 145 of the Code of Criminal Procedure Annexure P-12 was lodged, in which it was urged that the Excise and Taxation Department has to recover some amount from the Company and therefore, for that purpose sale of the assets for such recovery is necessary and in the circumstances, there will be law and order problem. It may be noticed that this recovery was not to be effected from the petitioner, who have been put in lawful possession of the assets, pursuant to the provisions of the Act, noticed herein above, but from the other Company, who was its previous owner. 3. Reply was filed by the petitioner in detail, Annexure P-13, giving each and every fact. This reply has been given short shrift and the order 4 has been passed by the Magistrate without considering the principles of law applicable or the fact situation. 4. Learned counsel appearing for the petitioner submits that CWP No. 2601 of 2009 was filed by the petitioner in this Court with respect to the same property. In those proceedings, C.M.P. No. 6017 of 2009 was filed by the petitioner herein for interim directions. This order reads: “On the additionally impleaded respondent No. 7 furnishing bank guarantee of Rs. 2.5 Crores for the time being, the amount deposited by them will be released to them. It is made clear that in case the order goes against the said respondent, the respondent shall also be liable to pay back the amount to the State with interest @ 8% (if the sale is confirmed). I view of the order dated 8.9.2009, we do not thing it necessary to continue with the contempt proceedings. Therefore, those proceedings are dropped. Petitioner prays that in view of the huge investment made by them, they may be allowed to operate the unit since mere operation of the unit will not in any way prejudice the interest of anybody else. Having heard the counsel on both sides and also the learned Advocate General, we fell that it is only in the interest of all concerned that the petitioner is permitted to operate the unit. Ordered accordingly. However, it is made clear that the petitioner shall not create any encumbrance in respect of any of the property without the leave of the Court. Needless to say that in respect of the business carried by the petitioner the liability in respect of the taxes due under law will also be paid. In view of the interim order, as above, permitting the petitioner to continue the operation of the unit, H.P. State Electricity Board will process the 5 application for power connection and do the needful for the connection, making it subject to the outcome of the writ petition. It is also made clear that the operation of the order, as above, is without prejudice to the contentions taken by the parties before DRT Delhi. Copy dasti.” The order passed by Sub Divisional Magistrate is illegal and does not even comply with the statutory provisions. It is a non speaking order and shows total lack of application of mind and passed only for the reason(s) that the State is the complainant before the Magistrate. The Magistrate should and ought to have realized while exercising the powers under Sections 145 and 146 of the Act, calls for serious contemplation and adjudication of facts as urged and order should not be passed as a matter of routine. In these circumstances, the order dated 10.8.2009 (Annexure P-17) is quashed and set aside. Petition is disposed of. All miscellaneous applications also stand disposed of. August 24, 2010 (Dev Darshan Sud), (KRS) Judge