High Court

Judgment

1. Heard Sri Chandra Shekhar Sinha, the learned counsel for the applicants, Sri Shikhar Srivastava, the learned A.G.A. and Sri Abhishek Srivastava, Advocate who has filed two seperate vakalatnamas on behalf of the opposite party no.2 and 3, which are taken on record. Supplementary affidavit filed by the applicants is also taken on record.

2. By means of the present application filed under Section 482 Cr.P.C,

the applicants have challenged the validity of an order dated

18.02.2025 passed by the Deputy Commissioner of Police/Executive Magistrate (Central) Police Commissionerate Lucknow in Case No. 01 of 2024 under Section 145 Cr.P.C, P.S. Hussain Ganj, Lucknow, whereby the property, which is a portion measuring 1500 in House No. 51/31, Summa Devi Mandir, Babu Banarsi Das Ward, Mohalla Udayganj, Lucknow, has been ordered to be attached till decision of the competent court. The applicants had filed a Criminal Revision No. 113 of 2025 against the aforesaid order and the revision has been dismissed by means of a judgment and order dated 13.06.2025 passed by the Special Judge Gangsters Act / Additional District and Session Judge, Court No.5, Lucknow and the applicants have challenged validity of the revisional order also.

3. The applicants claim that on 07.08.2023, one Amit Tripathi had executed a rent agreement in favour of the applicant no. 1 in respect of 1500 square feet portion of the aforesaid property at a monthly rent of Rs. 4500. Subsequently, another rent agreement dated 05.05.2025 was executed by Sri. Amit Trivedi acting as a Trustee of Shri Bhagwan Radha Krishna Trust in favour of the applicant no. 1, letting out the property in question for a period of five years at a monthly rent of Rs.4,500/-. This agreement inter alia states that the building belongs to Sri Bhagwan Radha Krishna Trust and the executant of the agreement Amit Trivedi is a trustee of Sri Bhagwan Radha Krishna Trust. The Building was in a dilapidated condition and under the previous agreement, the tenant has removed the remains of the dilapidated building, cleaned the area and it turned out that the area available was in fact 2100 square feet. The total area of the property is more than 8000 square feet. As the tenant has invested money in making the dilapidated building usable, it was agreed that he will enjoy the property for a period of five years at a monthly rent of Rs. 4,500/- and thereafter, the rent will be enhanced by 10%.

4. Another trustee of Sri Bhagwan Radha Krishna Trust, namely, Shri Anurag Narayan Trivedi, has executed a Leave and License Agreement dated 27.01.2024 in favour of M/s Sumaira Enterprises through its partners Abdulla Siddiqui and Shah Noor Ahamad (opposite parties No.2 and 3 ) granting a license to use the premises in question for a period of 11 months only. The period of license stands expired.

5. The applicant No.1 has filed Regular Suit No. 704 of 2024 in the Court of Civil Judge (Junior Division), South Lucknow against Sri Abdulla Siddiqui, Sri Shah Noor Ahamad (opposite party No.2 and 3), Sri Anurag Narayan Trivedi (Licensor of the opposite parties no. 2 and 3) and Shri Amit Trivedi (Lessor of the applicant no. 1) seeking a declaration that the applicant no. 1 is the tenant of the premises in question and he has also sought an injunction restraining the defendants from interfering in his peaceful possession over the premises in question.

6. Sri Bhagwan Radha Krishna Trust or any of its trustees have not filed any suit for ejectment of the applicants from the property in his tenancy or for any other relief. The opposite parties no. 2 and 3 also have not approached the Civil Court seeking any relief whatsoever.

7. While assailing validity of the impugned orders, the learned counsel for the applicants has submitted that when the applicants are in possession of the property in dispute as its tenant and no proceedings have been instituted in the competent Civil Court for ejectment of the plaintiff, the executive authority does not have any jurisdiction to interfere in his peaceful possession by ordering attachment of the property so as to bypass the usual mode of remedy available by seeking ejectment by filing a suit before the competent court of law. He has submitted that attachment of the property in the applicants’ tenancy amounts to a gross abuse of the process of law.

8. The learned counsel for the applicants has relied upon a decision of Hon’ble Supreme Court in the case of Ashok Kumar Vs. Stat of Uttarakhand and Others: 2013 (3) SCC 366, wherein the Hon’ble Supreme Court has held that: - “12. …Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145, Cr.P.C. It can only be read in the context of Section 145, Cr.P.C. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.”

9. The learned counsel for the applicants has filed a supplementary affidavit stating that although the attachment order was passed on

18.02.2025, the applicants had filed a revision against the attachment order and the revisional court had passed an interim order dated

27.02.2025, staying the operation of the impugned order and the attachment order has not been given effect to till date and the shop in question continues to be in possession of the applicants.

10. Per contra, Sri Abhishek Srivastava, learned counsel of the opposite party nos. 2 and 3 has drawn attention of this Court to the provision contained in Section 145(4) Cr.P.C, and he has submitted that the property is owned by a trust whereas the rent agreement in favour of the applicant no. 1 was executed by an individual and it has not been executed by the trust. Therefore, the rent agreement has been executed without any authority and possession of the applicants in furtherance of the rent agreement is totally illegal. He has further submitted that Executive Magistrate while exercising power under section 145 Cr.P.C has to see as to which party is in possession of the property. The opposite parties no. 2 and 3 are in possession of the property in furtherance of the leave and license agreement.

11. In response to a question put by the Court, the learned counsel for the opposite parties no.2 and 3 fairly conceded that a licensee has no right to possession and a license only grants the right to occupy the property without handing over its possession to the licensee. Therefore, it appears that the opposite parties no. 2 and 3 do not have any legal claim to possession of the property in dispute.

12. The learned counsel for the opposite parties no. 2 and 3 next submitted that the opposite parties no. 2 and 3 are in possession of the property in dispute under an oral agreement since prior to execution of the leave and license of the agreement. There appears to be no evidence of any such oral agreement under which the opposite parties no.2 and 3 have been granted possession of the property since before execution of the leave and license agreement. Assuming that any such oral agreement existed at some earlier point of time, it would give way to the written leave and license agreement and the written agreement would supersede any prior oral agreement, the terms whereof cannot be ascertained by the Court.

13. From the material available before the Court at this stage, it appears that the possession of the applicants over the property in dispute has not been challenged by the owner of the premises i.e. Sri Bhagwan Radha Krishna Trust which is admittedly the owner of the property and which has not instituted any proceedings to terminate the tenancy of the applicants and to reclaim his possession by a decree of ejectment.

14. In these circumstances, prima facie it appears that the Deputy Commissioner of Police/ Executive Magistrate had no occasion to interfere in the settled possession of the applicants in absence of any claim made by the owner Trust. The interference made by the Police Commissioner under section 145 Cr.P.C appears to be without jurisdiction and unwarranted.

15. The learned counsel for the opposite parties no. 2 and 3 prays for and is granted four weeks time for filing a counter affidavit. Rejoinder affidavit, if any, may be filed within a period of two weeks thereafter.

16. List this case in the week commencing 18.08. 2025.

17. Till the next date of listing, operation and implementation of impugned order dated 18.02.2025 passed by the DeputyCommissioner of Police / Executive Magistrate (Central) Commissionerate Lucknow in Case No. 01 of 2024 under Section 145 Cr.P.C, P.S. Hussain Ganj, Lucknow, shall remain stayed. (Subhash Vidyarthi J.) Order Date: 04.07.2025 Preeti.

the applicants have challenged the validity of an order dated

18.02.2025 passed by the Deputy Commissioner of Police/Executive Magistrate (Central) Police Commissionerate Lucknow in Case No. 01 of 2024 under Section 145 Cr.P.C, P.S. Hussain Ganj, Lucknow, whereby the property, which is a portion measuring 1500 in House No. 51/31, Summa Devi Mandir, Babu Banarsi Das Ward, Mohalla Udayganj, Lucknow, has been ordered to be attached till decision of the competent court. The applicants had filed a Criminal Revision No. 113 of 2025 against the aforesaid order and the revision has been dismissed by means of a judgment and order dated 13.06.2025 passed by the Special Judge Gangsters Act / Additional District and Session Judge, Court No.5, Lucknow and the applicants have challenged validity of the revisional order also.

3. The applicants claim that on 07.08.2023, one Amit Tripathi had executed a rent agreement in favour of the applicant no. 1 in respect of 1500 square feet portion of the aforesaid property at a monthly rent of Rs. 4500. Subsequently, another rent agreement dated 05.05.2025 was executed by Sri. Amit Trivedi acting as a Trustee of Shri Bhagwan Radha Krishna Trust in favour of the applicant no. 1, letting out the property in question for a period of five years at a monthly rent of Rs.4,500/-. This agreement inter alia states that the building belongs to Sri Bhagwan Radha Krishna Trust and the executant of the agreement Amit Trivedi is a trustee of Sri Bhagwan Radha Krishna Trust. The Building was in a dilapidated condition and under the previous agreement, the tenant has removed the remains of the dilapidated building, cleaned the area and it turned out that the area available was in fact 2100 square feet. The total area of the property is more than 8000 square feet. As the tenant has invested money in making the dilapidated building usable, it was agreed that he will enjoy the property for a period of five years at a monthly rent of Rs. 4,500/- and thereafter, the rent will be enhanced by 10%.

4. Another trustee of Sri Bhagwan Radha Krishna Trust, namely, Shri Anurag Narayan Trivedi, has executed a Leave and License Agreement dated 27.01.2024 in favour of M/s Sumaira Enterprises through its partners Abdulla Siddiqui and Shah Noor Ahamad (opposite parties No.2 and 3 ) granting a license to use the premises in question for a period of 11 months only. The period of license stands expired.

5. The applicant No.1 has filed Regular Suit No. 704 of 2024 in the Court of Civil Judge (Junior Division), South Lucknow against Sri Abdulla Siddiqui, Sri Shah Noor Ahamad (opposite party No.2 and 3), Sri Anurag Narayan Trivedi (Licensor of the opposite parties no. 2 and 3) and Shri Amit Trivedi (Lessor of the applicant no. 1) seeking a declaration that the applicant no. 1 is the tenant of the premises in question and he has also sought an injunction restraining the defendants from interfering in his peaceful possession over the premises in question.

6. Sri Bhagwan Radha Krishna Trust or any of its trustees have not filed any suit for ejectment of the applicants from the property in his tenancy or for any other relief. The opposite parties no. 2 and 3 also have not approached the Civil Court seeking any relief whatsoever.

7. While assailing validity of the impugned orders, the learned counsel for the applicants has submitted that when the applicants are in possession of the property in dispute as its tenant and no proceedings have been instituted in the competent Civil Court for ejectment of the plaintiff, the executive authority does not have any jurisdiction to interfere in his peaceful possession by ordering attachment of the property so as to bypass the usual mode of remedy available by seeking ejectment by filing a suit before the competent court of law. He has submitted that attachment of the property in the applicants’ tenancy amounts to a gross abuse of the process of law.

8. The learned counsel for the applicants has relied upon a decision of Hon’ble Supreme Court in the case of Ashok Kumar Vs. Stat of Uttarakhand and Others: 2013 (3) SCC 366, wherein the Hon’ble Supreme Court has held that: - “12. …Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145, Cr.P.C. It can only be read in the context of Section 145, Cr.P.C. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.”

9. The learned counsel for the applicants has filed a supplementary affidavit stating that although the attachment order was passed on

18.02.2025, the applicants had filed a revision against the attachment order and the revisional court had passed an interim order dated

27.02.2025, staying the operation of the impugned order and the attachment order has not been given effect to till date and the shop in question continues to be in possession of the applicants.

10. Per contra, Sri Abhishek Srivastava, learned counsel of the opposite party nos. 2 and 3 has drawn attention of this Court to the provision contained in Section 145(4) Cr.P.C, and he has submitted that the property is owned by a trust whereas the rent agreement in favour of the applicant no. 1 was executed by an individual and it has not been executed by the trust. Therefore, the rent agreement has been executed without any authority and possession of the applicants in furtherance of the rent agreement is totally illegal. He has further submitted that Executive Magistrate while exercising power under section 145 Cr.P.C has to see as to which party is in possession of the property. The opposite parties no. 2 and 3 are in possession of the property in furtherance of the leave and license agreement.

11. In response to a question put by the Court, the learned counsel for the opposite parties no.2 and 3 fairly conceded that a licensee has no right to possession and a license only grants the right to occupy the property without handing over its possession to the licensee. Therefore, it appears that the opposite parties no. 2 and 3 do not have any legal claim to possession of the property in dispute.

12. The learned counsel for the opposite parties no. 2 and 3 next submitted that the opposite parties no. 2 and 3 are in possession of the property in dispute under an oral agreement since prior to execution of the leave and license of the agreement. There appears to be no evidence of any such oral agreement under which the opposite parties no.2 and 3 have been granted possession of the property since before execution of the leave and license agreement. Assuming that any such oral agreement existed at some earlier point of time, it would give way to the written leave and license agreement and the written agreement would supersede any prior oral agreement, the terms whereof cannot be ascertained by the Court.

13. From the material available before the Court at this stage, it appears that the possession of the applicants over the property in dispute has not been challenged by the owner of the premises i.e. Sri Bhagwan Radha Krishna Trust which is admittedly the owner of the property and which has not instituted any proceedings to terminate the tenancy of the applicants and to reclaim his possession by a decree of ejectment.

14. In these circumstances, prima facie it appears that the Deputy Commissioner of Police/ Executive Magistrate had no occasion to interfere in the settled possession of the applicants in absence of any claim made by the owner Trust. The interference made by the Police Commissioner under section 145 Cr.P.C appears to be without jurisdiction and unwarranted.

15. The learned counsel for the opposite parties no. 2 and 3 prays for and is granted four weeks time for filing a counter affidavit. Rejoinder affidavit, if any, may be filed within a period of two weeks thereafter.

16. List this case in the week commencing 18.08. 2025.

17. Till the next date of listing, operation and implementation of impugned order dated 18.02.2025 passed by the DeputyCommissioner of Police / Executive Magistrate (Central) Commissionerate Lucknow in Case No. 01 of 2024 under Section 145 Cr.P.C, P.S. Hussain Ganj, Lucknow, shall remain stayed. (Subhash Vidyarthi J.) Order Date: 04.07.2025 Preeti.