# LCD 519 (Harpal v. State of U.P. &

- **Citation:** (2011) 3 ILRA 1091
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-16
- **Case number:** Writ Petition No.8763 (MB) of 2011
- **Bench:** Uma Nath Singh, Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lcd-519-harpal-v-state-of-u-p-42044
- **Pages:** 2

## Text

3 All] Jag Prasad V. Deputy District Magistrate and others
1091
transmitted forthwith to the learned trial
court for immediate compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2011

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE ANIL KUMAR, J.

Writ Petition No.8763 (MB) of 2011

Jag Prasad

 ...Petitioner
Versus
Deputy District Magistrate and others

 ... Opp. Parties

Constitution of India, Article 226-order
passed by Sub Divisional Magistrate-for
enforcement of order passed by D.D.C.-
held without jurisdiction-a state or its
officer can not be allowed to effect the
right of citizen-unless such act supported
by statutory provision.

Held: Para 5

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.
Case law discussed:
All CJ 2002, 1110 (State of West Bengal vs.
Vishnunarayan & Associates (P) Ltd.); 1995
(13) LCD 519; 2001 (Suppl.) R.D. 68

(Delivered by Hon'ble Uma Nath Singh,J.)

1. 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.

2. 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.

3. 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.

4. 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. &
1092 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

5. 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.

6. 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.

7. 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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.09.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE DR. SATISH CHANDRA,J.

Misc. Bench No. - 9623 of 2011

M/S Gulshan Rai Jain Ii, Through Its
Partners and ors.
...Petitioners
Versus
Debts
Recovery
Appellate
Tribunal
Allahabad and ors.
...Respondents

Counsel for the Petitioner:
Sri Prashant Kumar

Counsel for the Respondents:
Sri Prashant Srivastava

Security Interest Act, 2002-Section-18appeal pending before the Appellate
authority since long-Tribunal without
deciding the case on merit kept the
matter
pending
by
passing
interim
orders-one
after
another-Appellate
Tribunal also failed to consider this
aspect-Court
expressed
its
great
concern-to
achieve
the
ambit
of