Hon'ble Anil Kumar, J.
(Per Uma Nath Singh,J.) Heard Shri M.A.Siddiqui, learned counsel for petitioner, learned Chief Standing Counsel for opposite parties 1 to 3, Shri Balram Yadav, learned counsel appearing for opposite party no.4 and perused the pleadings of writ petition.
Learned counsel for petitioner submitted that towards the implementation of order passed by Deputy Director of Consolidation in a proceeding under Section 48 of U.P. Consolidation of Holdings Act (For short 'The Consolidation Act'), the Sub Divisional Magistrate concerned has passed the impugned order which is not sustainable as it is not supported by any authority of law, in particular, under Sections 145,146,147 and 148 of the Code of Criminal Procedure.
On the other hand, learned counsel for private opposite party no.4 contended that the Sub Divisional Magistrate being the Executive Magistrate is also an executing authority, therefore, he has ample powers to ensure the compliance of any order passed in civil litigation by exercising the powers under Cr.P.C. Moreover since, the Sub Divisional Magistrate has also the powers to maintain law and order, on having received a complaint towards the enforcement of order passed in a civil litigation, he can see as to whether there is a law and order problem, and may even also verify the status of possession of property. Thus the order like the one impugned herein, has been correctly passed.
In support of his submission, learned counsel for private respondents referred to a judgment of learned Single Judge of this Court reported in 1995 (13) LCD 519 (Harpal vs. State of U.P. & Others). Learned counsel also referred to a judgment of Calcutta High Court reported in 2001(Suppl.) R.D. 68 (Nanturam Naskar & Others vs. Ajit Kumar Mondal). In Harpal's case (supra), learned Single Judge deciding the matter has held that in the parallel proceedings, civil as well as criminal, if the Civil Court has not passed any order on the question of possession, in such a case, it will be open for the Executive Magistrate to proceed under Section 145(1) Cr.P.C. and pass order of attachment under Section 146(1) Cr.P.C., although this order will be subject to the order passed by the Civil Court at later stage deciding the question of possession. Similarly in the case of Nanturam Naskar (supra), it has been held that it is within the competence of Executive Magistrate to exercise powers under Sections 144 and 145 Cr.P.C. and to appoint a Receiver for taking into custody, and to dispose the standing crop. Further, in exercising such powers, the prime consideration before the Magistrate would be to assess as to whether there is a likelihood of breach of peace, and further a direction of maintenance of status quo passed by Civil Court would not be a bar to orders passed by the Executive Magistrate.
On due consideration of rival submissions, we are of the view that the Sub Divisional Magistrate could not have passed the impugned order as it is not evident from the records that there was the institution of any proceeding by way of complaint under Sections 144, 145 or 146 Cr.P.C. which was pending with him. Moreover, it also does not appear that there was any law and order problem which could have necessitated passing of such an order as impugned and moreover, such orders should always be based on the report submitted by the Police Officer, which is conspicuous by absence in this case.
Moreover, in the judgment rendered by Hon'ble the Apex Court, reported in All CJ 2002, 1110 (State of West Bengal vs. Vishnunarayan & Associates (P) Ltd.), it has been held that the State or its Officers cannot interfere with the rights of citizens except where their actions are authorized by any specific provision of law.
In the instant case, there was no sanction whatsoever behind the passing of impugned order by the Sub Divisional Magistrate. Thus, the act is not authorized by the provisions of law. Hence, the impugned order dated 10/11.08.2011 is hereby set aside and the writ petition is allowed and disposed of accordingly.
Order Date:16.09.2011 Irfan/-