The main legal point established in the judgment is the need for the exercise of power under Section 144, Cr. P.C. with self-imposed restraint and the illegality of dispossession from the shop premises pursuant to the impugned order.

B.K. Sharma, J.

1. This writ petition is directed against the proceeding initiated by the Addl. District Magistrate, Nagaon under Section 144, Cr. P.C. and the order passed therein. Further prayer made is for return of the shop premises in question from which the petitioner was allegedly dispossessed pursuant to the order in the said proceeding.

2. Shortly stated, the facts leading to the filing of the instant writ petition are that the petitioner's elder brother Dr. (Late) Ajit Kr. Das was the tenant of a shop premises under the landlord, the father of the respondent No. 5. Since 1954 (1-11-54) the shop premises is under Municipal holding No. 223 of Ward No. XV of Nagaon Municipal Board and was made use of for the purpose of business of medicine under the name and style of M/s. Radha Govinda Pharmacy which was later on renamed as M/s. Radha Govinda Medical Hall. Said Dr. Das expired on 15-1-86 and by virtue of family settlement, the petitioner had been looking after the management/affairs of the said Pharmacy and he had been using the same as tenant by making necessary payment of rent, tax etc.

3. The respondent No. 5 who inherited the property from his father including the shop premises filed an application under Section 144, Cr. P.C. before the Addl. District Magistrate, Nagaon on 27-3-2002 against the petitioner with the prayer for an order directing the petitioner not to enter into the shop premises. Be it stated here that the shop premises as described in the schedule to the application is in the land measuring 15 1/2 lechas in P. P. No. 1417, Dag No. 2686/2687 of Nagaon Town. As noticed above, the shop premises is with holding No. 223 in Ward No. 15 of Nagaon Municipal Board.

4. As per the averments made in the said application, the respondent No. 5, i.e. the first party to the aforesaid proceeding under Section 144, Cr. P.C. which was registered as M.R. Case No. 180/2002, is the absolute owner of the land described in the schedule to the application. It was stated in the application that he had inherited the property from his deceased father by right of inheritance and succession. Further statement made in the application is that the second party, i.e., the present petitioner is a trespasser and has no connection with the said land described in the schedule and that he has tried to take possession of the land as he was a tenant. Further statement made in the application is that the second party was trying to obstruct and dispossess the first party, i.e. the respondent No. 5 from his parental land and as such there is apprehension of public peace and tranquility in the area.

5. On the basis of the said application with prayer indicated above, the Additional District Magistrate, Nagaon (Sr. Division), Mr. P.C. Deka passed the impugned order dated 27-3-2002, recording his purported satisfaction that the second party, the petitioner, tried to enter into the land of the first party, the respondent No. 5, forcibly and thereby caused serious apprehension of breach of peace. On the basis of such satisfaction, he drew up a proceeding under Section 144, Cr. P.C. with the direction to the second party/petitioner not to enter into the land mentioned in the schedule. The direction was also issued to the jurisdictional police officer to take action accordingly.

6. According to the petitioner, after the aforesaid ex parte prohibitory order passed by the ADM, the respondent No. 5 along with other family members committed house trespass at midnight between 27-3-02 and 28-3-02 by breaking open the locked doors of the aforesaid shop premises, caused damage to valuable medical apparatus, furnitures and other valuable properties and also destroyed valuable documents like trade licence, drug licence, payment receipts etc. On getting the information of such wrongful entry of the respondent No. 5 to the shop premises of the petitioner, He lodged an FIR with Nagaon P.S. However, the same was refused to be accepted on the ground that the respond