Suraj Kala And Ors. vs Dy. Commissioner Of Police, New ...
1995 Latest Caselaw 632 Del

JUDGMENT

D.P. Wadhwa, J.

(1) In this petition under Article 226 of the Constitution, petitioners seek a writ of certiorari or any other appropriate writ, order or direction quashing the order dated 12 July 1995 passed by the Deputy Commissioner of Police, New Delhi District (DCP) under Section 33 of the Delhi Police Act, 1978 (for short 'the Act').

(2) Before passing the impugned order the Dcp came to the conclusion that there was a danger to human life, safety and grave disturbance of public tranquillity on a dispute/tension over shop bearing No. 65-B, Khan Market, New Delhi, which dispute was stated to be between the petitioners numbering three and respondents 2 and 3. Respondents 2 and 3 are respectively the son and daughter- in-law of the first petitioner, second petitioner is her son and third son-in-law (husband of her daughter). Dcp, therefore, took possession of the shop premises and directed that the order shall come into force with immediate effect and shall remain in force till 11 September, 1995 or till such time the title to the aforesaid shop was decided by the competent authority, whichever was earlier. Section 33 of the Act is as under:- "33.Issue of order for prevention of riot, etc.-(1) In order to prevent or suppress any riot or grave disturbance of peace, the Commissioner of Police may temporarily close or take possession of any building or other place and may exclude all or any persons there from, or may allow access thereto to such persons only and on such terms as he shall deem expedient and all persons concerned shall be bound to conduct themselves in accordance with such orders as the Commissioner of Police may make and notify in exercise of his powers under this Section. (2) If the lawful occupant of such building or place suffers any loss or injury by reason of the action taken under sub-Section (1), he shall be entitled, on an application made therefore to the Competent Authority within one month from the date of such action, to receive reasonable compensation for such loss or injury, unless such action was in the opinion of such Competent Authority rendered either by the use to which such building or place was put, or intended to be put, or by the misconduct of persons having access thereto. (3) In the event of any dispute in relation to the amount of compensation payable under Sub-section (2) or the person to whom such amount shall be payable, the matter shall be referred by the Competent Authority to the District Collector whose decision thereon shall be final."

(3) In M/s. Shatabadi Finlease and Securities Ltd. v. The Government of the National Capital Territory of Delhi and Others, Civil Writ Petition No. 2699/95, decided on 7 August 1995, we have held that Section 33 of the Act could be invoked only in grave situations and was not ordinarily meant for situations arising out of local apprehended breaches of peace as in the present case. This Section gives drastic power to the D.C.P. not meant to exercise routinely but sparingly in order to prevent or suppress any riot or grave disturbance of peace.

(4) Earlier, we may note, that proceedings were initiated under Section 145 of the Code of Criminal Procedure and by order dated 5 July 1995 the learned Sub Divisional Magistrate, New Delhi, dropped the proceedings holding the same to be not maintainable. He was of the view that "the parties are related to each other and it appears to be a family feud taking into account the property in question and the remedy open to them to approach the Civil Court." We are told that against this order a revision petition has been filed in the Court of Sessions by respondents 2 and 3. The learned S.D.M., before passing the order, did examine the police report which had been called for, the pleading of the parties, and had heard the arguments. Present order has been made on 12 July, 1995. We do not find anything on the record for the learned Dcp to come to the conclusion that it was necessary to take possession of the shop premises in order to prevent any grave disturbance of . It is also not clear to us as to how the period of two months was fixed in the impugned order. In the case of M/s. Shatabadi Finlease and Securities Ltd, the same words had been used in the impugned order that "there is a danger to human life, safety and grave diturba rice of public tranquillity." The basis for passing the impugned order dated 12 July, 1995 is a representation by some of the shopkeepers of the Khan Market, a report by the police to the Sub Divisional Magistrate; and a D.D. Entry dated 21 April 1995 in the concerned Police Station that at 2.45 p.m. a report had been received on telephone that a quarrel ('jhagra') was going on in front of shop premises in question. In the answer to show cause notice the Dcp has mentioned that both the parties were advised by the S.H.O. to settle the dispute and as it did not materialise the S.H.O. submitted a report on 10 July, 1995 stating that situation had reached when any mishap could happen and, therefore, speedy measures to prevent danger to human life, safety and grave disturbance of public trans quillity be taken. No such report of the S.H.O. has been brought on record. Reference in the answer to show cause notice has also been made to D.D. Entry No. 16-A dated 23 December, 1994 of the Police Station that petitioners 2 and 3 were arrested under Sections 93/97 of the Act and after receipt of the M.L.C. result of respondents 2 and 3 a case was registered against petitioners 2 and 3 under Section 325/323 Indian Penal Code dated 23 February 1995. It is also mentioned that complaints of both the parties were received in the Police Station Tughlak Road and a 'Kalandra' under Sections 107/150 Code of Criminal Procedure was also processed against both the parties which was pending in the Court of the Special Executive Magistrate, New Delhi. Lastly, it was submitted that shopkeepers in the market also tried to intervene to resolve the disputes but with out result. All these would no doubt show that there is a dispute between the parties who are related to each other, but we are unable to uphold the impugned order made under Section 33 of the Act as circumstances do not exist warranting invoking of the provisions of Section 33 of the Act particularly when proceedings under Section 145 Cr.P.C. had been dropped by the learned Sub Divisional Magistrate and a revision against that order is pending in the Court of Sessions. Following our order in the M/s. Shatabadi Finlease and Securities Ltd. we, therefore, set aside the impugned order. Since the petitioners were in possession of the shop premises bearing No. 65-B, Khan Market, New Delhi, at the time the impugned order was made, its possession shall be restored to them. The petition is allowed.