Ananta Mukherjee v. The State of West Bengal & Ors.

tribunal. It is the contention of Mr. Mukherjee, learned advocate for the petitioner, that the post of the presiding officer in the tribunal is vacant and, as such, the application could not be heard. It is further submitted that in another proceeding under Section 144(2) of the Cr.P.C. being M.P. Case No. 1790 of 2022, learned Executive Magistrate Barrackpore has passed an order preventing the parties therein from causing any illegal activity, and directing the respondent No. 5 not to grab the property and not to create any untoward incident at the property. The concerned police station was also directed to give legal protection to the petitioner. It is prayed that the police authorities must be directed to prevent further demolition work. The learned Executive Magistrate has fixed the next date on August 30, 2022. The bank authorities have also submitted that the possession was taken as per law and possession was handed over to the respondent no.

5 also as per law. 4 Mr. Ghosh, learned advocate for the State, submits that the police authorities do not have any role to play and the learned Executive Magistrate could not have passed the order in the proceedings under Section 144(2) of the Cr.P.C. Under circumstances, the police authorities shall comply with the order of the learned Magistrate by giving protection to the petitioner and shall prevent any untoward incident and illegal activities on the suit property. This court cannot pass any restraint order on the respondent no. 5 who has been given physical possession by the bank. A mandatory direction on the police authorities to stop the activities of the respondent no. 5 which is going on in the premises would be an indirect injunction in favour of the petitioner by this court, when the appropriate authority under the SARFAESI Act is in seisin of the matter. It also appears that the tribunal has already passed a protective order to the effect that any sale that may take place during the pendency of the SA, shall be subject to the final decision of the SA. Thus the petitioner is sufficiently protected.

Neither the police authorities nor this court are in a position to determine the allegation of the illegality in the procedure adopted by the bank or the respondent no. 5 in taking possession of the property 5 and using the same as the exclusive property of the respondent no. 5. The possession of the respondent no. 5 cannot be interfered with. There is no injunction on the respondent no. 5 in carrying on his business from the premises. The police will ensure protection of the petitioner as per the order of the learned Executive Magistrate. Steps shall be taken before the learned Executive Magistrate on the next date. This order shall not be construed as a declaration of the correctness of the allegations made by the petitioner. Parties are at liberty to take appropriate measures before the appropriate courts of law and/or forum. The writ petition is accordingly disposed of. There shall be no order as to costs. Parties are to act on the server copy of this order. (Shampa Sarkar, J.)