IN THE HIGH COURT OF JUDICATURE AT PATNA
SANDEEP KUMAR, J.
(7.4.2023)
Cr. WJC No.2578 of 2018
Mrs Sushma Sinha & Anr. : Petitioners
Vs.
State of Bihar & Ors. : Respondents
Constitution of India – Article 226 read with Section 102 Cr.P.C. – Petitioners claimining compensation for illegally sealing their flats – petitioners leased their flats to M/s PACL Limited, a company registered under the Companies Act – pursuant to a FIR registered under direction of SEBI under Sections 420, 467, 468, 406, 471, 120 B of the IPC and Section 66 of the IT Act against PACL Ltd and its local employees, the company was closed and the premises as well as the office of the Company was sealed – the premises were desealed Subsequently – petitioners are not accused in the said case – in terms of Section 102 Cr. PC. and also in view of judicial pronouncements, the police have no power to seal the immovable property and the word 'Seize' used under Section 102 of the Cr.P.C. would mean only actual taking possession of the immovable property – however for the contemptuous act of the respondents, the petitioners are entitled for compensation from the date of order of the learned Magistrate directing the respondent to hand over the possession of the flats to the petitioners till the actual handing over – Calculated on the basis of rests, state directed to pay the amount of compensation to the tune of Rs. 10,74,320/- within four weeks failing which the Chief Secretary is to be held responsible – application allowed. (Paras 12 and 17 to 22)
AIR 2019 SC, 4554, 2016 (3) PLJR 464, (1999) 6 SCC 667, AIR 1983 SC 1086 – Referred.
.
SANDEEP KUMAR, J.:–Heard learned counsel for the petitioners and learned counsel for the State.
2. This application has been filed by the petitioners for a direction to the respondents to de-seal the premises and hand over the property including its physical and legal possession to the petitioners in compliance of the order dated 19.09.2017 passed in Gandhi Maidan Police Station Case No.408 of 2014. The petitioners have also prayed for reimbursement of the financial loss suffered due to the delay and laches on the part of the respondent authorities as well as for taking appropriate action against the respondents officers for the delay in compliance of the order dated 19.09.2017 passed in Gandhi Maidan P. S. Case No.408 of 2014.
3. The petitioner no.1 is the owner of a property in the nature of office space bearing flat no.307, 3rd Floor, “Shashi Complex” at Exhibition Road, Patna. Similarly, petitioner no.2 is the owner of a property in the nature of office space bearing flat nos. 308 and 309, 3rd Floor, “Shashi Complex” at Exhibition Road, Patna. They had leased their aforesaid office space to M/s PACL Limited, a company registered under the Indian Companies Act, 1956, having its registered office at Jaipur for running the commercial activities commencing from 01.07.2008 which was further renewed through deeds of tenancy dated 19.06.2014 respectively for a period of 3 years commencing from 1st January 2014 and terminating on 31st December 2016.
4. Pursuant to some activities of the PACL, the tenant, under the directions of the Securities and Exchange Board of India (for short ‘SEBI’), an F.I.R. No. 408 of 2014 was registered under Sections 420, 467, 468, 406, 471, 120B of the I.P.C. and Section 66 of the Information Technology Act against the PACL Ltd. and its local employees and the company was closed under the directions of SEBI. Thereafter, the office of the company was seized and the premises were also sealed by the Gandhi Maidan Police. Since the petitioners are not accused in the aforesaid Gandhi Maidan P.S. Case No.408 of 2014 and their premises were sealed on 18.11.2014, being left with no other option, they moved an application on 23.06.2015 before the learned A.C.J.M.-VI, Patna, on which a police report was sought and, after hearing the parties, vide order dated 19.09.2017, the learned Magistrate directed respondent No.4 to prepare an inventory of all the items kept in the sealed premises and hand over the possession of the premises to the petitioners. Since the order of the learned Magistrate has not been complied, the petitioners have filed this case.
5. From perusal of the record, it appears that on 01.10.2019, this case was heard by a co-ordinate Bench of this Court and on the request of learned Advocate General, the case was adjourned. Again, the case was taken up for hearing on 22.10.2019 and on that date, it was submitted by learned Advocate General that since there is a judicial order, which has never been challenged and has attained finality, the authorities are preparing inventory of the premises in question which shall be handed over to the petitioners within a week. Again, on 23.10.2019, the case was taken up for hearing and on that date, a supplementary counter affidavit on behalf of respondent no.2 had been filed, wherein it has been averred that within 4-5 days it is expected that the premises of the petitioners would be fully vacated and will be handed over to the petitioners. Thereafter, the matter was listed for hearing on 06.11.2019. On that date, it was pointed out by learned counsel for the petitioners that despite an undertaking given on affidavit by respondent no.2, the premises of the petitioners have not been vacated and possession of the same has not been handed over to them. Thereafter, the matter was taken up on 22.11.2019, on that date, it was informed that the premises of the petitioners has now been de-sealed and possession of the same has now been handed over to the petitioners on 06.11.2
The main legal point established in the judgment is the requirement for registered documents to establish possession under Section 53A of the Transfer of Property Act, and the failure to file a suit ....
The court established the importance of proper rent assessment for private property occupied by the police and emphasized the distinction between 'eminent domain' and 'police power' of the State.
The court ruled that the petition was satisfied as the flat in question had been permanently de-sealed by the MCD.
Deprivation of property without due process violates constitutional rights. Sealing without prior notice and opportunity to be heard is a violation of natural justice.
A Magistrate must ascertain a clear dispute and actual possession before initiating proceedings under S.145, as mere civil claims do not warrant intervention against established possession.
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