Gauhati High Court
Mrs. Mira Begum vs Md. Lal Hussain on 28 February, 2023
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GAHC010033192021
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: Crl.Rev.P. 63/2021
Mrs. Mira Begum
W/O Md. Lal Hussain,
R/O Vill and P.O.-Dadara, P.S.-Hajo,
Dist-Kamrup, Assam, Pin-781104
................................petitioner
VERSUS
Md. Lal Hussain
S/O Md. Nuruddin Ali,
R/O Vill and P.O.-Dadara, P.S.-Hajo,
Dist-Kamrup, Assam, Pin-781104
...............................respondent
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:: BEFORE ::
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the Petitioner : Mr. B.K. Bhagawati
For the Respondent : Mr. D. Baishya
Date of Hearing : 15.11.2022
Date of delivery of
Judgment and Order : 28.02.2023
JUDGMENT (CAV)
1. Heard Mr. B.K. Bhagawai, learned counsel for the petitioner as well as Mr. D. Baishya,
learned counsel for the State respondent.
2. The petitioner has filed an application under Section 397/401 read with Section 482 of
the Code of Criminal Procedure Code, 1973, (Cr.P.C) with prayer to set aside and quash the
order dated 22.12.2020 in case no. 117m/2020 passed by the Executive Magistrate, Kamrup
(R) at Amingaon.
3. The impugned order is reproduced herein below verbatim:-
" Both parties are present and have filed hazira.
Heard both the parties and 2nd party/opp. Party have executed a Bond U/S 107, Cr.P.C.
It appears that 1st party/petitioner has been running a Gas Agency in the name and
style of M/S. L.N.P. Bharat Gas Gramin Vitarak (hereinafter called Bharat Gas Agency) at
Dadara, Kamrup District as per Deed of Partnership dated 29 th August, 2014 but due to some
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personal animosity and vendetta, the 2 nd party/opp. Party have debarred the 1 st
party/petitioner from entering into his Bharat Gas Agency and that cause of action arose on
12.09.2020 and again on 13.10.2020 with complete disregard to the terms & conditions
enshrined in the said Deed of Partnership. Further, it has been alleged that the 2 nd party/opp.
Party has been operating a separate Bank account for the business which contrary to the
aforesaid agreement between the parties. Furthermore, it appears that the said Bharat Gas
Agency has been sealed by the authority on the basis of public complaint.
Under such facts & circumstances, this Court is of the opinion that 1 st party/petitioner should
be allowed to retain his legitimate 50% share in the Bharat Gas Agency and all the terms &
conditions enshrined in the Deed of Partnership dated 29 th August, 2014 should be strictly
followed by both the parties while 2 nd party/opp. Party should strictly maintain peace &
tranquillity and cooperate in the smooth running of the Agency in the interest of public good.
Moreover, Tafazul Hussain is not fit for running the business as he was not a party to the
Partnership Deed dated 29th August, 2014."
4. The aforesaid order was issued against the petitioner by the Executive Magistrate in
connection with case no. 117 m/2020, under Section 107 Cr.P.C on the basis of a non FIR case
initiated by the respondent against his wife. The petitioner is the respondent's wife. A brief
description of the case is that on 16.10.2020, the respondent through a written application
informed the Deputy Commissioner that his first wife i.e. the petitioner and her son tried to
assault him and forcefully entered into the Gas Agency on 23.10.2020. Both the respondent
and the petitioner are partners of M/S LNP Bharat Gas Gramin Vitarak at Dadara, Kamrup,
Assam and the partnership agreement was executed on 30.08.2014 before the Sub-Registrar
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at Amingaon. This Gas agency was closed by the officials of the Deputy Commissioner on
20.09.2012, on the basis of a public complaint. During investigation, it was ascertained that
the Additional Deputy Commissioner, Amingaon granted a licence being licence No.
ATA(L&C)/Kam/2015/Retail/6 in the name of the respondent. On 19.10.2019, the Gas agency
licence was renewed and extended up to 30.09.2021. The Gas agency is situated over a plot
of land measuring 3 Kathas 13 Lechas pertaining to Dag no. 733 and Patta no. 238 -Pub-
Bongshar, at Village- Paschim Dadara and the land is registered in the name of the petitioner.
The respondent was running the business from its inception. It is also averred that the
respondent during the life time of his first wife married another lady named 'X'. The
respondent has also informed that recently he got married to another lady named 'Y', who is
his third wife and he is running the business with her. He wanted to enter into the agency
with his second and third wife, which resulted in the dispute. On the basis of this non FIR
case, a proceeding was drawn up under Section 107 Cr.P.C. by the Executive Magistrate
apprehending breach of public peace and tranquillity and both the parties were directed to
execute a bond not worth less than of Rs. 1,000/- for a period of less than one year for
maintaining peace of tranquillity.
5. It is submitted on behalf of the petitioner that this case has become infructuous as an
order under Section 107 Cr.P.C. extends only for a year. The order was erroneously passed
because the second party was not heard and was not given an opportunity to file written
objection. The dispute is predominately private in nature and no question of breach of public
peace and tranquillity arises. The petitioner is the licensee and it was the respondent who
tried to disturb the peace by bringing his second and third wife along with him. The second
and third wives of the respondent are third parties, and they are not parties to the
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proceedings. It was falsely claimed by the respondent before the Executive Magistrate that he
has been running the agency from inception. The Trade Licence of the petitioner is appended
as Annexure-6. The Annexure-5 is the jamabandi copy, which clearly depicts at no. 12 that
the petitioner is recorded pattadar of a plot of land measuring 3 kathas 13 lechas pertaining
to the Dag no. 733 of patta no. 238 of Paschim Dadara village. The Gas agency is situated on
this plot of land. The Annexure-5 also depicts that the petitioner is the licensee of the Bharat
Gas Agency.
6. I have considered the submissions at the Bar.
7. It is submitted that at present, there has been no instances of breach of public peace
and tranquillity. The order under Section 107 Cr.P.C. was valid for only a year. It is averred
that an Executive Magistrate cannot pass order determining the share of a licensee in such a
proceeding. After considering the submissions at the Bar, the observation of the Magistrate
that "the respondent should be allowed to retain his 50% legitimate share" is set aside.
JUDGE
Comparing Assistant
