Dr. Mrs. Rita Kakar And Ors. vs S.D.M. Karol Bagh And Ors.
2003 Latest Caselaw 1006 Del

JUDGMENT

J.D. Kapoor, J.

1. There is a shop-cum-residence bearing No. 58, Old Rajinder Nagar. Its owner Dr. P. Lal was a single woman. On 23.10.1999 she was found dead inside the said premises. Her brother petitioner No. 2 Kuldip Raj Kashyap was informed at Chennai about her death.

On learning about the death of her sister he rushed to Delhi and was handed over the dead body for cremation and last rites.

2. Petitioner No. 1, the neice of the deceased and petitioner No. 2, her brother wanted to take possession of the premises. Instead of handing over the keys, SHO sealed the same and take into possession the keys of the premises and sent the Kalandara to the SDM that two or three more persons have staked their claim over the suit property. However, SHO did not mention who were those persons nor did he try to know their details or their names or their relationship with Dr. P. Lal. It was after due verification and satisfaction that the dead body of deceased Dr. P. Lal was handed over to her brother Kuldip Raj Kashyap for cremation. Learned S.D.M without making inquiry sealed the property under Section 145 Cr.P.C as if there were rival claimants crating a situation where there was likelihood of breach of peace.

3. Section 145 Cr.P.C empowers the Magistrate to seal the property if he receive a report of the police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or property which includes building.

The Magistrate has to satisfy himself stating the grounds for seizing and sealing the property before giving an order in writing. He is also obliged to require the parties concerned in such dispute to attend his court in person or by pleader .

4. It is pertinent to mention that it was incumbent upon the SHO to make inquiries from those persons who are putting their claims and record their statements and their relationship with the deceased but without mentioning the dispute concerning the property in question which may cause breach of peace, SHO sent the Kalandara. Even the S.D.M has not found as to what was the dispute that was likely to cause breach of peace. It is not understandable as to how the learned S.D.M shall decide the disputes there are no opposite contending parties to whom he will issue notice. Will he keep the property sealed till it turns into a ghost house or decays or ruins.

5. In view of the fact that dead body of Dr. P. Lal was handed over to the brother of deceased i.e. petitioner No. 2 who had come from Chennai, the propriety demands that after recording his statement that there was no other legal heirs of the deceased nor was the property in question is a subject matter of any litigation and that there was no other party who could stake their property over the suit property SHO should have handed over the keys to the petitioners. S.H.O or for that purpose S.D.M was not deciding the title of the property in question. They were only concerned with the situation whether there were rival claimants and on which premise who may cause breach of peace. The only requirement of Section 145 Cr.P.C is that dispute should result in breach of peace. Nothing more nothing less. Impugned order is unsustainable in the eyes of law.

6. In the result, petition is allowed. Impugned order is set aside. The keys seized by the SHO shall be handed over to petitioner No. 2 after recording his statement before learned S.D.M that he is the immediate and only legal heirs and rightful claimant and that there are no claimants of the property in question except him. Possession will not confer title on him and shall be subject to the other legal heirs/claimants who may stake their claim which may be determined in accordance with due process of law.

7. Petitioner No. 2 Kuldip Raj Kashyap shall appear before the learned S.D.M on 26th September, 2003 for the aforesaid purpose.