WA 58/2007 BEFORE HON’BLE THE CHEIF JUSTICE MR J CHELAMESWAR HON’BLR MR JUSTICE HN SARMA (Sarma,J) Being aggrieved and dissatisfied with the judgment and order dated 19.1. 2007 passed by the learned Single Judge in WP( C) No.2711/2002, the appellant(re spondent No 5 in the writ petition) has filed this appeal. 2. We have heard Mr M. Singh, learned counsel for the appellant and Mr PK R oychoudhury, learned counsel for the respondent-writ petitioner. 3. The pleaded case of the writ petitioner in the aforesaid writ petition, inter alia, is that the elder brother of the writ petitioner took on rent a shop premise from the father of the appellant on 1.11.54 under Municipal Holding No. 223 of Ward No.XV of the Nagaon Municipal Board, which was used for running thei r business under the name and style M/s Radha Govinda Medical Hall . After the expiry of the elder brother of the writ petitioner, as per family arrangement, h e was looking after the affairs of the said business duly complying with the ob ligation of tenancy. But with a view to evict the writ petitioner from the afo resaid tenanted premises, the appellant instituted a proceeding under section 14 4, CrPC in the Court of the Additional District Magistrate, Nagaon, alleging , inter alia, that the writ petitioner is a trespasser to the tenanted premises an d tried to take possession of the said land as he was a tenant of the said premi ses for some time ; and that the appellant is in peaceful possession of the afor esaid tenanted premises and the writ petitioner is trying to obstruct him and d ispossesses from his parental property and, as such, there is apprehension of br each of peace and tranquility in the area. It is also alleged that the appellan t having been in possession of the said premises for long time, the writ petitio ner has no right to enter therein. On such allegations, the appellant prayed for passing an order directing the writ petitioner not to enter the premises descri bed in the scheduled of the application and to cause breach of peace and tranqui lity in the area. 4. On the basis of the aforesaid application, the learned Additiona l District Magistrate, Nagaon , vide order dated 27.3.2002 registered the applic ation as MR Case No 180/2002 under section 144,CrPC and passed an order directin g the writ petitioner not to enter the scheduled premises. It is the case of the writ petitioner that after obtaining the aforesaid ex parte order, the appella nt along with other family members in the mid night of 28.3.2002 broke the lock and opened the door of the shop premises and entered therein, caused damage to t he valuable medical apparatus, furniture and other valuable properties and also destroyed valuable documents like trade license, drug license, payment receipts, etc. Although the writ petitioner lodged an FIR with the Officer-in-Charge, N agaon Police Station(Sadar), the same was not accepted stating that the matter t o be a civil dispute. A revision petition was filed challenging the order of the learned Additional District Magistrate, Nagaon, in the Court of the learned Ses sions Judge, Nagaon, which was registered as CM No.40(N)/2002 and vide order dat ed 30.3.2002 the revision petition was entertained and the order dated 27.3.2002 passed by the learned Additional District Magistrate, Nagaon was suspended. Eve n after suspending the aforesaid order the tenanted premises was not restored to him, the writ petitioner withdrew the said revision petition. The writ petition er who is a member of the Nagaon Bar Association, brought the matter to the noti ce of the Bar Association and ultimate although the Officer-in-charge, Nagaon Po lice Station (Sadar) received the FIR of the writ petitioner on 1.4.2002 , no ac tion was initiated thereon for restoration of the possession of the tenanted pre mises to the petitioner. Challenging the entire action of the appellant who took possession of the tenanted premises without following the due procedure of law but by imitating a proceeding under section 144, CrPC, the petitioner approach ed this Court for necessary redressal by filling the aforesaid writ petition. 5. The appellant contested the writ petition contending that the wr it petition is not maintainable for suppression of materials facts, more particu larly, the filing of TS No 30/2002 filed by the petitioner in the Court of the C ivil Judve(Jr Divn) No.1, Nagaon and in view of withdrawal of the revision petit ion challenging the order dated 27.3.2002 under section 144 ,CrPC, the writ peti tion is not maintainable. The plea raised by the appellant is mostly technical i n nature rather than the merit. 6. The learned single Judge after hearing the partiers allowed the writ petition vide impugned judgment and order dated 19.1.2007 by quashing the o rder dated 27.3.2002 passed by the learned Additional District Magistrate, Nagao n, holding that the appellant could not have entered the tenanted premises by br eaking the lock and opening the door during the subsistence of tenancy agreement with the writ petitioner. The learned single Judge has also directed the Direct or General of Police, Assam, the Deputy Commissioner, Nagaon district and the Of ficer-in-Charge, Nagaon Police Station (Sadar) to ensure immediate restoration o f possession of the tenanted premises to the petitioner. Such direction was also extended to the present appellant(respondent No 5 in the writ petition. 7. Assailing the said judgment and order of the learned single Judg e Mr Singh, learned counsel for the appellant, submits that the petitioner not h aving disclosed about his approaching the civil Court for redressal and thereby suppressing material facts, he is not entitled to any equitable relief under the writ jurisdiction. Submission of the learned counsel is more on technical pleas rather than on merit of the case. 8. Par contra, Mr Roychoudhury, learned counsel for the respondent- writ petitioner contends that the entire action of the appellant including insti tution of a proceeding under section 144,CrPC, is camouflaged one and instead of approaching the appropriate forum to evict the writ petitioner who is a lawful tenant of the tenanted premises illegally adopted short circuit procedure by mis using the provisions of section 144, CrPC and thereby obtained ex parte ad inter im order from the learned Additional District Magistrate, Nagaon and forcibly to ok over possession of the tenanted premises on the night of 28.3.2002 and such a n action cannot be permitted under the law and in the backdrop of such fact, the learned single Judge is justified in passing the impugned judgment and order. 9. We have considered the rival contentions of the learned counsel for the parties. The records placed before us clearly demonstrate the fact tha t the writ petitioner is a tenant over the disputed premises and has acquired at least some civil right to stay in the said premises under the relevant tenancy law. A tenant can be evicted under the procedure prescribed under the tenancy la w, more particularly, under the provisions of the Assam Urban Areas Rent Control Act,1972. Section 144, CrPC, deals with the power of the Magistrate to issue order in urgent cases of nuisance or apprehended danger. The key note of the power un der section 144 CrPC, is to free the society from the menace of serious disturba nce of great character. The section is directed against those who attempt to pr event the exercise of legal rights by others or imperil the public safety and he alth. The section provides for making a prohibitory or mandatory order and such an order must be in the aid of lawful exercise of established legal rights agai nst unauthorized interference, which may lead to breach of peace. 10. Turning to the application filed by the appellant invoking the provision s of section 144, CrPC, we found that the necessary ingredients and/or averments required for taking cognizance of offence for initiating action under section 144, CrPC, are absolutely lacking. A close perusal of the averments made in th e petition filed under section 144, CrPC, establishes the relationship of landlo rd and a tenant between the parties. The order dated 27.3.2002 on the basis of which the appellant forcibly took over possession of the tenanted premises on the night of 28.3.2002 also does not satisfy the requirement of law. It does not disclose on what basis the learned Magistrate was satisfied for drawing up a pr oceeding. That apart, the allegations made in the petition demonstrate violation of private or individual right, if at all, and not of any public peace and tran quility for which immediate prevention of speedy remedy was desirable. Although under sub-section(1) of section 144,CrPC, the learned Magistrate is bound to st ate the material facts in the order, the same is absolutely found to be lacking in the order. 11. In our considered opinion, the very basis of initiation of the proc eeding under section 144, CrPC, on the basis of which forcible possession of the tenanted premises was taken is lacking. A proceeding under section 144, CrPC, c annot be permitted to draw up in a short circuit process replacing a civil actio n. The learned single Judge has elaborately discussed the relevant facts by citi ng various case laws of the Apex Court as well as of this Court. Accordingly, we do not find any reason to interfere with the same. Consequently, this writ appe al fails and stands dismissed directing the partiers to bear their own costs.