JUDGMENT
B.G. Kolse-Patil, J.
1. This is an application challenging the order dated April 3, 1984
of the Metropolitan Magistrate, Borivli passed under section 146 of the
Criminal Procedure Code in respect of Flat No. 20 in Siddhi Vinayak Co-
operative Housing Society at Malad. Respondent No. 2 claimed that he
was in possession of the said flat from January 5, 1984 till March 25,
1984 when he was dispossessed by the petitioner and respondent Nos. 3
and 4. The petitioner is the divorced wife of respondent No. 5.
Respondents Nos. 3 and 4 are the parents of respondent No. 5. The flat
in dispute is owned by respondent No. 5. According to respondent No. 2,
he was put in the possession of the flat on 5-1-1984 by respondent No.
5 in pursuance of an agreement dated 15-10-1983. However, the
petitioner, respondent No. 3 and respondent No. 4 dispossessed him on
25-3-1984. He, therefore, preferred applications under sections 145(1)
and 146(1) of the Criminal Procedure Code before the Metropolitan
Magistrate, Borivli on March 26, 1984 making the petitioner and
respondents Nos. 3 and 4 as parties to the proceedings. March 30, 1984
was the date fixed for their appearance. Incidentally March 30, 1984
was also the date fixed by the City Civil Court in the matrimonial
petition for divorce between the petitioner and respondent No. 5 and
the matter was kept for hearing at 2.45 p.m. on that day. Therefore, on
that date, the petitioner and respondent No. 4 went to Metropolitan
Magistrate’s Court at Borivli at 11 a.m. and engaged Advocates Shri
Gavali and Shri Singh and instructed them to seek an adjournment for
filing their say. Both the applications under sections 145(1) and
146(1) were given the same number and on enquiry, Advocate Gavali
informed the petitioner that the matter was adjourned to April 4, 1984.
However, it appears that the application under section 146(1) was
actually treated as a separate application by the Magistrate and
adjourned to April 3, 1984 without their knowing it and on that day the
order of sealing the flat was passed by him. On April 4, 1984 this
petitioner, respondents Nos. 3 and 4 appeared before the Magistrate and
learnt that the ex parte order was passed and, therefore applied for
unsealing the premises. Against the order rejecting the said
application, the petitioner has approached this Court.
2. Mr. Gumaste, learned Counsel for the petitioner submitted
that the impugned order is bad in law and is also unjustified. He
attacked the agreement dated 25-10-1983 executed by respondent No. 5 in
favour of respondent No. 2 under which respondent No. 2 claimed to be
in possession of the flat since 5-1-1984. Mr. Gumaste submitted that
the agreement shows an unconscionable bargain in favour of respondent
No. 2. The agreement shows that it was made on 25-10-1983 and a cheque
of Rs. 35,000/- dated 5-1-1984 was given on that day. The Bank Account
of respondent No. 2 shows that he did not have sufficient funds to
cover the cheque on 5-1-1984. A letter sent by the bank to the learned
Magistrate along with Bank Account of respondent No. 2, clearly
mentions that Cheques No. 187969 dated 5-1-1984 issued by respondent
No. 2, which was sought to be encashed on 19-3-1984, was not cleared on
account of difference between the words and the figure of the amount of
the cheque. The Bank Account also shows that on 19-3-1984 the
respondent No. 2 deposited Rs. 35,000/- and another Cheque Bearing No.
187970, obviously next in series, was encashed. Both the cheques were
of Rs. 35,000/- each and dated 5-1-1984. It, therefore, follows that
the Cheque No. 187970 must have been issued after the first Cheque
rebounded i.e. after 19-3-1984. Even though the cheque No. 187970 was
issued after 19-3-1984, very surprisingly we find that the said Cheque
No. i.e. 187970 has been mentioned in the endorsement, purported to
have been made on 5-1-1984, below agreement at Exh. J. Therefore,
according to Mr. Gumaste the endorsement made on the agreement is not
only ante-dated but false, and consequently, the story of respondent
No. 2 having been put in possession of the flat on 5-1-1984 is false.
Attacking the letter produced by respondent No. 2, dated 28-3-1984
purported to have been written by respondent No. 5, to the Secretary of
the Co-operative Society requesting him to transfer the flat and share
certificates in the name of respondent No. 2 Mr. Gumaste submitted that
under the agreement, the flat was to be transferred within a period of
10 years for a total price of Rs. 1,40,000/-. According to respondent
No. 2, he had paid Rs. 35,000/- in cash at the time of the agreement
and Rs. 35,000/- by a cheque, making together Rs. 70,000/-. Therefore,
the question of transferring the flat on 28-3-1984 was out of question
and hence the letter written by respondent No. 5 to the Secretary of
the Co-operative Society cannot be relied upon. Mr. Gumaste further
submitted that the area of the flat is 560 sq. ft. situate at Malad
which would not cost less than Rs. 3 lakhs, on the date of the
agreement. He also attacked the mode of the deferred payment which is
Rs. 70,000/- at the time of taking the possession and Rs. 70,000/- 10
years thereafter. He, therefore, submitted that this agreement has been
executed with the ulterior motive to defeat the rights of the
petitioner in the matrimonial petition. In pursuance of the agreement,
respondent No. 2 was to pay Rs. 250/- per month to respondent No. 5,
out of which respondent No. 5 was under an obligation to pay Rs. 140/-
to the Society towards the maintenance charges. To sum up, according to
Mr. Gumaste, respondent No. 2 was never put in possession of the
disputed flat. He also invited my attention to the fact that no
affidavit of the neighbours or of the independent persons to prove the
alleged possession or dispossession of respondent No. 2 have been filed
in the proceedings. Neither the agreement nor any document was produced
in the proceedings till the 19th April, 1984 when the petitioner
preferred an application in the proceedings calling upon respondent No.
2 to produce the documents. Both the applications were posted for
hearing on the 4th April, 1984, according to the affidavits of
Advocates Gavali and Singh. Even then the learned Magistrate passed the
order on the 3rd April, 1984 directing the sealing of the flat which
order was executed late in the evening under a panchanama on the same
day. According to him not a single article belonging to respondent No.
2 was found either in the disputed flat or outside the premises.
3. Mr. Deodhar, the learned Counsel for respondent No. 2 on
the other hand submitted that the petitioner has no locus standi to
pursue the present application as admittedly the petitioner is divorcee
since 15-9-1984. He further submitted that the petitioner had
categorically given her address as Flat No. 9, 2nd floor. Transval
Terrace Corner of Grant Road, Bombay – 8 in the caption of the Marriage
Petition, in the verification of the pleadings and in the body of the
plaint Exh. 7 and 8. He, therefore, submitted that she has made a
deliberate false statement on oath. He vehemently supported the
agreement dated 25-10-1983 executed by respondent No. 5 in favour of
respondent No. 2. He says that as no household article were mentioned
in the panchanama, it falsifies the case of the petitioner and
respondent Nos. 3 and 4 that they were staying in the disputed flat on
25-3-1984.
4. A very short question which arises for my consideration is
whether the Magistrate was justified in passing the order directing the
sealing of the flat and as to who out of the rival claimants was in
possession of the same.
5. As both the parties claimed to be in possession of the disputed
flat on March 26, 1984, the date of the filing of the proceedings, a
Commissioner was appointed with the consent of both the parties to take
and inventory of the articles in the disputed flat. My intention in
appointing the Commissioner was to verify the existence of the articles
of daily use if any lying in the disputed flat. The Commissioner
submitted his report on October 31, 1985 and the same is on record.
6. The articles found in the flat unerringly belong to the
members of the petitioner’s family. Even respondent No. 2 could not
dispute the said fact. These articles include those of daily
consumption such as wheat, rice, vegetables etc. However, after getting
the report of the Commissioner, he made certain allegations by filing
an affidavit to the effect that the petitioner and respondents Nos. 3
to 5 in collusion with the police might have planted the articles in
question after 3-4-1984 or might have placed these articles there
between 25-3-1984 and 3-4-1984. On the contrary the affidavits of four
neighbours supported the case of the petitioner that she herself and
her family members were residing in the disputed flat all along. Apart
from the same, there is an important piece of evidence namely affidavit
of Shri Thakur who served the summons on respondent No. 5 at the
disputed flat on 31-3-1984. This shows that respondent No. 2 was never
put in possession of the flat. It is also very clear from the finding
of the household articles of daily use, some articles bearing
identification marks of the petitioner and respondents Nos. 3 to 5,
that they were in possession of the disputed flat even before 25-3-1984
and after that date till 3-4-1984. The panchanama reveals that
respondent No. 4 was present in the flat when respondent No. 2 went to
execute the order dated 3rd April, 1984 of the learned Magistrate.
Admittedly the said panchanama was in respect of the sealing of the
flat and hence all the house hold articles lying inside the flat might
not have been mentioned in the said panchanama. I am not inclined to
accept the arguments of Mr. Deodhar regarding the collusion between the
petitioner, respondents Nos. 3 to 5 and the police for planting the
articles in the disputed premises. The daily diary of the petitioner
found in the flat and written upto 3rd April, 1984 and several other
household articles found there are suggestive of the fact that the
disputed flat was occupied by the petitioner and respondents Nos. 3 and
4, though the marriage-petition was pending between the petitioner and
respondent No. 5 in the City Civil Court. Mr. Deodhar, contended that
the petitioner had given a different address in the marriage petition
and therefore, he wanted me to draw an inference that she was not in
possession of the flat. The said contention cannot be accepted for the
simple reason that the several articles bearing the name of the
petitioner were found by the Commissioner as has been stated in the
report.
7. As against the abovesaid position, respondent No. 2 had
never made out the case, any time, that he had his household articles
in the disputed flat. A stray allegation that the petitioner and
respondents Nos. 3 and 4 had thrown his belongings out of the flat
being unsupported by any independent person, cannot be believed.
Respondent No. 2 did not care to bring the police and to drew a
panchanama of his articles if any. Hence I am not inclined to accept
his allegation that he was dispossessed by the petitioner and
respondents Nos. 3 and 4. If it is the case of respondent No. 2 that he
was in the possession of the flat from 5-1-1984 upto 25-3-1984, he
could have proved his possession by documentary evidence as well as by
filing affidavits of his neighbours. I am also in agreement with Mr.
Gumaste that the endorsement on the agreement dated 25-10-1983 itself,
ante-dated and the Cheque No. 187970 issued by respondent No. 2 must
have been issued by him on or after 19-3-1984 when the first cheque
Bearing No. 187969 was dishonoured. Therefore, the endorsement below
the agreement is ante-dated and consequently it does not prove the
delivery of possession of the flat to respondent No. 2 on 5-1-1984.
8. Thus I am of the view that the petitioner and her family members
all along possessed the disputed flat and respondent No. 2 tried to
have recourse to the criminal proceeding by taking undue advantage of
the so called agreement between himself and respondent No. 5.
9. Moreover the order of the learned Magistrate fails to
mention that he was satisfied that the case was that of an emergency
requiring him to issue direction to seal the flat. In my opinion, the
order under section 146(1) of the Criminal Procedure Code cannot be
passed in a mechanical manner without applying the mind as to whether
there exist an emergency or not. It must be clearly borne out from the
order of the Magistrate, even if he passes a composite order that he
was satisfied that the conditions for issuing the preliminary order
under section 145(1) and for issuing the order under section 146(1)
existed. An order of attachment under section 146(1) being in the
nature of an act of confiscation, the Magistrate cannot make use of
that section except on a full inquiry and in exceptional cases.
10. I, therefore, allow this application and quash the order
dated 3rd April, 1984 sealing the disputed flat and also the entire
proceedings under section 145 pending before the learned Magistrate.
The Police Inspector of Malad Police Station is hereby directed to
hand-over the possession of the disputed premises to the petitioner and
respondents Nos. 3 to 5. The petitioner and respondents Nos. 3 to 5 are
restrained from transferring, alienating or creating any charge on the
flat till the rights of respondent No. 2 under the agreement dated 25-
10-1983 are decided by the Civil Court of a competent jurisdiction, it
respondent No. 2 files a Civil Suit within the period of limitation. I
am also making it clear that observations made in this judgment in
respect of the agreement in question are made only for the purpose of
this proceeding and will not affect the merits of the Civil Suit if
any, is filed.
11. Mr. Deodhar submitted that the operation of this order be
stayed for six weeks. I do not find any merit in this request. I am of
the opinion that the petitioner and respondents Nos. 3 and 4 were in
possession of the flat on the date of the sealing. Justice demands that
they should be restored to their original position. Respondent No. 2 is
also not restrained from getting his rights, if any, proved in the
Civil Suit. Hence, the application for stay is rejected.
12. The petitioner will deposit Rs. 250/- as additional
expenses of the Commissioner.
13. The Commissioner is allowed to withdraw the entire amount
deposited by the parties towards the expenses of the Commissioner.