Dharmendra Kumar vs State Of U.P. Thru. Collector ...
2018 Latest Caselaw 2991 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 9
 
Case :- MISC. BENCH No. - 21323 of 2018
 
Petitioner :- Dharmendra Kumar
 
Respondent :- State Of U.P. Thru. Collector Dist. Hardoi & Anr.
 
Counsel for Petitioner :- Sunil Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Dinesh Kumar Singh,J.

(Oral)

1. This petition seeks issuance of a writ in the nature of certiorari quashing order dated 28.02.2018 passed by District Magistrate, Hardoi under Section 25 of the Police Act, 1861.

2. Gist of the issue raised by the petitioner is contained in order dated 26.7.2018. The order reads as under :

"1. The petition seeks issuance of a writ in the nature of certiorari quashing order dated 28.02.2018 passed by learned District Magistrate, Hardoi under Section 25 of the Police Act, Police Station Shahabad, District Hardoi.

2. We have heard learned counsel for the petitioner and Ms. Nand Prabha Shukla, learned counsel for the State.

3. Application of the petitioner dated 05.10.2017 for releasing the vehicle has been rejected. It has been pleaded that petitioner is owner of vehicle bearing temporary registration No.U.D.S. 016989. The petitioner came to Shahabad riding that vehicle on 15.07.2017 and parked the vehicle on the roadside. When the petitioner came back, the vehicle was not at the place of parking. The petitioner searched for the motor vehicle. The petitioner was informed that vehicle had been taken away by police of Police Station Shahabad, District Hardoi. The petitioner made all attempts to get the vehicle released, the attempts failed. The petitioner filed an application for release of the vehicle dated 05.10.2017 which has been dismissed vide impugned order.

4. It has been declared that the petitioner is a sole owner of the motor vehicle which was purchased by him on 27.03.2017. The relevant documents have been appended with the petition.

5. We have gone though the contents of the impugned order. It appears that District Magistrate, Hardoi has taken into account the fact that the vehicle at issue had not been used in any criminal activity.

It has been however recorded that the petitioner does not enjoy a good reputation. The petitioner is involved in Case Crime No.325 of 2017, under Section 272 Indian Penal Code and Section 60(2) of Excise Act.

6. It appears that the District Magistrate, Hardoi has concluded that the petitioner does not enjoy a good reputation and therefore, the vehicle has been taken in custody. The said conclusion has been drawn by the said magistrate because the petitioner happens to be involved in Case Crime No.325 of 2017 (Supra). In such circumstances, the order has been passed rejecting the application of the petitioner.

7. We hereby direct District Magistrate, Hardoi to file his affidavit: (a) as to on the basis of what material it has been concluded that the petitioner does not enjoy a good reputation.

(b) The District Magistrate is required to file his affidavit as to under what circumstances, without decision in a criminal case, the petitioner has been attributed bad reputation.

(c) The District Magistrate is directed to file his affidavit as to in exercise of what powers the vehicle has been taken in custody, although the petitioner is the registered owner of the vehicle.

(d) We would also like to know as to in how many other cases, similar orders have been passed by the District Magistrate. Vehicles are taking in custody merely because a person happens to be accused in a crime in which the vehicle is not case property and was not used for committing the crime.

(e) The District Magistrate is directed to also indicate as to under which provision of which legislation, the term "bad reputation" has been defined?

8. We make it clear that in case we find that the order has been passed without jurisdiction or without any good reason, we propose to compensate the petitioner by virtue of imposing exemplary costs on the respondents.

9. List on 08.08.2018, as fresh.

10. No further time would be given and costs would be imposed, in case affidavit is not filed.

11. In the meantime, we direct District Magistrate, Hardoi to ensure that vehicle of the petitioner is kept in his personal custody so that it is not used and is not damaged."

3. The impugned order appears to have been passed under the provisions of Section 25 of the Police Act, 1861 (for short, the Police Act). The provision reads as under :

?25. Police- officers to take charge of unclaimed property and be subject to Magistrate' s orders as to disposal.--

It shall be the duty of every police officer to take charge of all unclaimed property, and to furnish an inventory thereof, to the Magistrate of the district.

The police officers shall be guided as to the disposal of such property by such orders, as they shall receive from the Magistrate of the district.?

4. The facts and circumstances emanating from the petition and the accompanying documents are that the petitioner came to Shahabad riding a motorcycle owned by him bearing temporary registration No.U.D.S. 016989 and parked the vehicle on the roadside. When the petitioner came back, the vehicle was not found at the place of parking. After search, the petitioner was informed that the vehicle had been taken away by the police of police station Shahabad, district Hardoi. The petitioner made all attempts to get the vehicle released, the attempt however failed. Accordingly, the petitioner filed an application dated 5.10.2017 for release of the vehicle which has been dismissed vide the impugned order.

From the conduct of the petitioner, as above noted, it becomes evident that when the petitioner approached police station Shahabad, district Hardoi, the vehicle was 'claimed' by the petitioner. The vehicle thereafter cannot be termed as 'unclaimed' as envisaged under the provisions of Section 25 of the Police Act.

5. Perusal of the impugned order indicates that the District Magistrate took in account the factor that the reputation of the petitioner is not good. The petitioner is involved in Case Crime No.325 of 2017 under Section 272 I.P.C. and Section 60(2) of Excise Act. It has also been mentioned in the order that the petitioner Dharmendra Kumar is the owner of the vehicle, who had purchased it, which was found in the area of Kotwali Shahabad in an unclaimed /abandoned condition.

The order itself recognizes the ownership of the petitioner. In such circumstances, we find no reason for the District Magistrate to have invoked Section 25 of the Police Act (supra). Evidently, to the notice and knowledge of the District Magistrate, the motor vehicle was not 'unclaimed'. The petitioner as registered owner of the vehicle had already made application, along with relevant documents, to claim the vehicle.

6. Short counter affidavit has been filed by Mr. Pulkit Khare, posted as District Magistrate, Hardoi in deference and in response to order of the Court extracted above, dated 26.7.2018.

It has been stated that all the vehicles seized/ detained in similar manner have been released in favour of the claimant(s). The officer has tendered apology.

Although, specific queries were made in Para 7 of order dated 26.7.2018, extracted above, however, Mr. Pulkit Khare, District Magistrate has not explained as to on the basis of what material it has been concluded that the petitioner does not enjoy good reputation; as to under what circumstances without decision in the criminal case, the petitioner has been attributed to have 'bad reputation'; as to in exercise of what powers, the vehicle has been taken in possession, although the petitioner, admittedly, is the registered owner of the vehicle; as to under what provision of which legislation, the term 'bad reputation' has been defined; under what law, the vehicle was taken in possession merely because a person happens to be an accused in a crime, in which the vehicle is not 'case property'.

In the absence of the answers, we conclude that the District Magistrate has nothing to say in these regards.

7. Be that as it may, bare perusal of the impugned order indicates that it has been passed under Section 25 of the Police Act, 1861. Under the circumstances, we are dealing with legality of the order, and jurisdiction of the officer in passing the order in that context.

8. In the affidavit of the District Magistrate, it has not been disputed that the vehicle was owned and claimed by the petitioner. From that point in time which apparently was on the same day that the vehicle was taken in possession, the vehicle ceased to be 'unclaimed property', and could not have been dealt with under the provisions of Section 25 of the Police Act, 1861

The vehicle itself appears to be new in so much as temporary number had been allotted to the vehicle.

9. We have taken notice of the fact that although Crime No.325 of 2017(supra) has been mentioned in the impugned order, however, it is the admitted case of the respondents that the vehicle at issue is not 'case property' in the said crime. The motor vehicle/motorcycle at issue had not been seized in criminal proceedings. Under the circumstances, any reference to Crime No.325 of 2017 (supra) is rendered de hors for the purposes of seizure of the vehicle as 'unclaimed property'.

10. We fail to understand as to under what circumstances it has been concluded by District Magistrate, Hardoi that the petitioner does not carry a 'good reputation'. The affidavit filed by the officer does not refer to any provision of law under which 'bad reputation' has been defined and property of a person carrying such 'bad reputation' can be seized by the authorities. The District Magistrate has not reflected in his affidavit as to under what source of power, he assumed jurisdiction to say that the petitioner has a 'bad reputation' and therefore, he can be deprived of his ownership and possessory right over his moveable property, the motorcycle at issue.

Surely, bad reputation is not a term defined under Section 25 of the Police Act, 1861 so as to give power, jurisdiction and legal authority to the District Magistrate to reject the application of the owner of the property (motorcycle), to claim the property.

11. Considering the totality of the facts and circumstances of the case, we are of the considered opinion that even to the knowledge and notice of the District Magistrate, Section 25 of the Police Act, 1861 could not have been invoked. The said provision could be invoked only in case of ?unclaimed property?. Once the petitioner had approached the authorities with his claim over the property; or filed an application with relevant documents establishing his ownership, with a prayer for release of the vehicle, the vehicle ceased to be 'unclaimed' and ought to have been released forthwith in favour of the petitioner.

12. This Court finds that the impugned order has been passed de hors the law of the land, de hors the right of the petitioner, in a wholly arbitrary, fanciful, injudicious, irresponsible and irrational manner.

13. We are of the considered opinion that an authority howsoever senior in hierarchy in public service, before passing any order affecting civil rights of a citizen, is required to consider as to under what law and jurisdiction the order is to be passed. Such order must record reasons in context of the provision under which the orders are being passed.

Any order passed by a public servant in authority without having force of law seriously affects rights of citizens. Such rights are vested in every citizen by the Constitution of India. If orders such as the one passed by District Magistrate, Hardoi are allowed to subsist, it shall result in a despotic, dictatorial and tyrannical conditions in the society. Every citizen would have to live in fear of his property being seized, without any rhyme or reason, at the whims of the public authority. We would cease to be an independent and democratic State.

14. In view of the above noted facts and circumstances, the petition is allowed. The impugned order dated 28.2.2018, passed by District Magistrate, Hardoi, is hereby quashed.

15. The Court is required to be sensitive to the predicament of such citizens who have been left at the mercy of such public servant(s) who pass orders without jurisdiction, in irresponsible and fanciful manner.

Being a court of equity, we take judicial notice of the fact that petitioner was deprived of the use of the vehicle for more than one year. The petitioner has been divested of his possessory rights and right to ownership for considerable period of time. The value of motorcycle in such circumstances would have been depreciated, without the petitioner using it. And the petitioner has been deprived of the use of the vehicle, which would have put the petitioner to great inconvenience.

16. We hereby impose costs in the sum of Rs.20,000/- to be paid by Mr. Pulkit Khare, District Magistrate, Hardoi to the petitioner within 45 days from today.

The cost amount be paid by way of a bank draft favouring the petitioner. Proof of payment of costs by way of photo copy of the bank draft and receipt executed by the petitioner be forwarded to this Court, within the period stipulated above.

17. Let a copy of this order be forwarded to Chief Secretary, U.P. Lucknow; and District Magistrate, Hardoi for compliance, by State counsel and Senior Registrar of the Court.

Order Date :- 1.10.2018

kkb/